EXHIBIT 10.6
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of November 3, 2004
(as amended,
modified or supplemented from time to time in accordance with the
terms hereof,
this "Agreement"), is by and among TransAmerica Leasing Inc., a
Delaware
corporation (together with its successors and assigns, "TLI"),
Trans Ocean
Limited, a Delaware corporation (together with its successors and
assigns,
"TOL"), Trans Ocean Container Corp., a Delaware corporation
(together with its
successors and assigns, "TOCC"; each of TLI, TOL and TOCC, a
"Senior Borrower"
and collectively, the "Senior Borrowers"), TAL International Inc.,
a Delaware
corporation (together with its successors and assigns, "TAL" or the
"Subordinated Borrower"), Fortis Bank (Nederland) N.V., an
administrative agent
(together with its successors and assigns as administrative agent,
"Fortis") for
the lenders under the Senior Credit Agreement (as hereafter
defined) and
Transamerica Accounts Holding Corporation, a Delaware corporation
as agent
(together with its successors and assigns in such capacity, the
"Administrative
Agent") for the lenders under the Subordinated Credit Agreement (as
hereinafter
defined).
RECITALS
WHEREAS, the Senior Borrowers, Fortis and various lenders
are party to
a Credit Agreement, dated as of November 3, 2004 (as amended,
modified or
supplemented from time to time in accordance with its terms, the
"Senior Credit
Agreement") pursuant to which the Senior Borrowers may from time to
time borrow
amounts from the lenders named therein;
WHEREAS, TAL, the Administrative Agent and various lenders
are party to
a Senior Subordinated Credit Agreement, dated as of November 3,
2004 (as
amended, modified or supplemented from time to time in accordance
with its
terms, the "Subordinated Credit Agreement") pursuant to which TAL
will borrow
Two Hundred Seventy-Five Million Dollars ($275,000,000) from the
lenders named
therein;
WHEREAS, it is a condition precedent to Fortis and the
Senior Lenders
entering into the Senior Credit Agreement and to make any loans or
otherwise
extend credit to the Senior Borrowers under the Senior Credit
Agreement that the
Administrative Agent, on behalf of the Subordinated Lenders, enter
into this
Agreement; and
NOW THEREFORE, in consideration of the foregoing, the
mutual agreements
herein contained, and other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, and as an inducement
to Fortis and
the Senior Lenders to enter into the Senior Credit Agreement and to
extend
credit to the Senior Borrowers, and in consideration of the
granting, thereof,
the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms defined in
the recitals
hereof shall have the meanings herein as are ascribed thereto in
the recitals.
As used herein, the following terms shall have the following
meanings:
1
Bankruptcy Code. Title 11, United States Code as in effect
from time to
time (and any successor
thereto).
Capital Stock. Any and all shares, interests,
participations or other
equivalents (however designated) of capital stock of a corporation,
any and all
equivalent ownership interests in a Person (other than a
corporation) and any
and all warrants, rights or options to purchase any of the
foregoing.
Event of Default. This term shall have the meaning set
forth in the
Senior Credit Agreement, as in effect on the date hereof.
High Yield Bonds. Any issuance by TAL after the date
hereof of notes or
other debt securities (other than the Exchange Notes (as defined in
the
Subordinated Credit Agreement)) in a private placement or public
offering
(including a Rule 144A offering or similar transaction) the
proceeds of which
are used by TAL to refinance, in whole or in part, the Subordinated
Debt
outstanding on the date hereof.
Legal Final Payment Date. The Payment Date (as defined in
the Senior
Credit Agreement) occurring in January 2012.
Payment Blockage Notice. This term is defined in Section
3(c) hereof.
Payment Blockage Period. This term is defined in Section
3(c) hereof.
Remedy Blockage Notice. This term is defined in Section
3(c) hereof.
Remedy Blockage Period. This term is defined in Section
3(c) hereof.
Senior Credit Agreement. This term shall have the meaning
set forth in
the Recitals.
Senior Debt. All indebtedness of the Senior Borrowers,
their
Subsidiaries or any other Person arising under or in respect of the
Senior Debt
Documents owing to Fortis and/or the Senior Lenders and/or their
respective
assignees who may become holders or participants in any such
indebtedness,
whether by amendment of the Senior Debt Documents or otherwise, and
any
indebtedness arising out of any extension, refinancing or refunding
of such
indebtedness, including without limitation, principal,
reimbursement
obligations, interest (including, without limitation post-petition
interest
whether or not a court of competent jurisdiction would allow
payment thereof to
Fortis or the Senior Lenders under the Bankruptcy Code), fees,
costs and
expenses, owing to Fortis and the Senior Lenders or any such holder
or
participant of or in any loan made under the Senior Debt Documents
in each case
whether direct or indirect, absolute or contingent, due or to
become due, now
existing or hereafter arising and all obligations of the Borrowers
and their
Subsidiaries to any of the Senior Lenders and/or Fortis with
respect to any
Interest Rate Hedge Agreements; provided, however, that the term
"Senior Debt"
shall not include any increases in the foregoing obligations owed
under the
Senior Debt Documents to the extent of:
(a) increases in the aggregate principal amount
of the Senior
Debt in excess of an amount equal
2
to the greater of (i) Eight Hundred Seventy Five Million
Dollars
($875,000,000) and (ii) Eighty-Five percent (85%) of the
book value of
the consolidated total tangible assets of TAL and its
Subsidiaries
(including, without limitation, the Senior Borrowers);
(b) increases in the weighted average annual
interest margin
over Libor (determined based on the average unpaid
principal balance of
the Senior Debt during the preceding twelve month period
or such
shorter period as the Senior Debt has been outstanding)
that accrues
with respect to all classes of Indebtedness of the Senior
Borrowers to
the Senior Lenders in excess of 3.0%; and
(c) increases in the commitment fees, agent fees
and other
regularly occurring fees, charges or expenses provided for
under the
Senior Debt Documents as in effect on the date hereof;
provided,
however, that nothing contained in this clause (c) shall
limit the
amount of fees or expenses paid, or payable, to Fortis and
the Senior
Lenders in connection with the granting of any waiver,
consent or
modification to the Senior Debt Documents or in connection
with the
granting of any forbearance as a result of an event of
default by the
Senior Borrowers under the Senior Debt Documents.
Senior Debt Collateral. The collateral described in the
Senior Debt
Documents.
Senior Debt Documents. All of the documents set forth on
Exhibit A
hereto.
Senior Lender. A financial institution that is named as a
"Lender"
under the Senior Credit Agreement.
Subordinated Debt. All indebtedness of TAL, its
Subsidiaries or any
other Person arising under or in respect of the Subordinated Debt
Documents
owing to the Administrative Agent and/or the Subordinated Lenders
and/or their
respective assignees who may become holders or participants in any
such
indebtedness, whether by amendment of the Subordinated Debt
Documents or
otherwise, and any indebtedness arising out of any extension,
refinancing
(including the Exchange Notes (as defined in the Subordinated Debt
Documents) or
refunding of such indebtedness, including without limitation,
principal,
reimbursement obligations, interest (including, without limitation
post-petition
interest whether or not a court of competent jurisdiction would
allow payment
thereof to the Administrative Agent and/or the Subordinated Lenders
under the
Bankruptcy Code), fees, costs and expenses owing to the
Administrative Agent and
the Subordinated Lenders or any such holder or participant of or in
any loan
made under the Subordinated Debt Documents in each case whether
direct or
indirect, absolute or contingent, due or to become due, now
existing or
hereafter arising.
Subordinated Debt Documents. All of the documents set
forth on
Exhibit B hereto.
Subordinated Lenders. The persons named as lenders under
the
Subordinated Credit Agreement and the holders of the Exchange Notes
(as defined
in the Subordinated Credit Agreement) issued in exchange for the
Interim Loan
(as defined in the Subordinated Credit Agreement).
SECTION 2. SUBORDINATION. Anything herein to the
contrary
notwithstanding, TAL, for itself, its Subsidiaries and their
respective
successors, and the Administrative Agent, on
3
behalf of the Subordinated Lenders, agrees that the payment of all
Subordinated
Debt is subordinated, to the extent and in the manner provided
herein, to the
prior satisfaction of the Senior Debt (including all obligations
under the
Senior Credit Agreement, whether outstanding on the Closing Date or
thereafter
incurred). This Section 2 shall constitute a continuing offer to
all Persons who
become holders of, or continue to hold, the Senior Debt, and such
provisions are
made for the benefit of the holders of Senior Debt and Fortis may
enforce such
provisions.
SECTION 3. RESTRICTIONS ON PAYMENTS OF SUBORDINATED
DEBT; PAYMENT
AND REMEDY BLOCKAGE PERIODS. (a) Until the Senior Debt shall have
been repaid in
full in cash, and except as otherwise provided in this Section 3,
TAL shall not
during the continuation of a Payment Blockage Period, directly or
indirectly,
make any payment of, and none of the Administrative Agent or the
Subordinated
Lenders shall accept payment of principal of, or interest on, or
any other
amount on account of, any portion of the Subordinated Debt, or
repurchase,
redeem or otherwise acquire any of the Subordinated Debt, nor
cancel, rescind,
set off or otherwise discharge any part of the Subordinated Debt.
In addition,
none of the Administrative Agent, TAL or any Subordinated Lender
shall, during
the continuation of any Remedy Blockage Period, demand, sue for, or
take any
other action to enforce or collect upon any such payment or to
enforce its
rights with respect to the Subordinated Debt.
(b) Subject to the following restrictions set forth
in this
Section 3(b), the Administrative Agent and the Subordinated Lenders
may, upon
the occurrence and during the continuance of an event of default
under the
Subordinated Credit Agreement, pursue its rights and remedies as a
holder of
Subordinated Debt to enforce payment thereof subject to the
following
restrictions:
(1) no Remedy Blockage Period is then in
effect;
(2) the Administrative Agent shall provide
Fortis with a
notice of such event of default not less than ten
(10) days
prior to taking any such action;
(3) none of the Administrative Agent or any
Subordinated
Lender shall file, and will not join with others
in filing, a
bankruptcy petition against any of the Senior
Borrowers until
at least one year and one day (or the longest
preference
period under the Bankruptcy Code or state
insolvency laws then
in effect) after all of the Senior Debt has been
repaid in
full;
(4) to the extent that the Administrative
Agent or any
Subordinated Lender obtains an interest in the
Capital Stock
of any Senior Borrower or any Subsidiary of any
Senior
Borrower, none of the Administrative Agent or any
Subordinated
Lender shall, without the prior written consent
of Fortis in
each instance, amend, or agree to the amendment
of, the
organizational documents of any of the Senior
Borrowers that
is material and adverse to the rights of the
Senior Lenders
under the Senior Debt Documents; and
(5) none of the Administrative Agent or any
Subordinated
Lender shall take any action, or join with others
to take any
action, (i) challenging the validity or
enforceability of any
lien or security interest granted by any of the
Senior
4
Borrowers in favor of Fortis and the Senior
Lenders pursuant
to the terms of the Senior Debt Documents, or
(ii) seeking
the "substantive consolidation" of any of the
Senior
Borrowers or any of their Subsidiaries with TAL
or any other
Person.
(c) For purposes of this paragraph 3, "Payment
Blockage Period"
means (A) for so long as an Event of Default under any of Section
13.1(a),
13.1(b) or 13.1(d) of the Senior Credit Agreement has occurred and
is
continuing, or (B) in the case of any other Event of Default under
the Senior
Credit Agreement not dealt with in clause (A) above, the period
commencing upon
the date on which Fortis sends a notice to the Administrative Agent
of the
occurrence of such Event of Default (such notice to reference this
Agreement and
state that it is a "Payment Blockage Notice") and ending on the
earlier of (x)
the date which is 180 days after the commencement of such period
and (y) the
first date after the commencement of such period on which all
Events of Default
under the Senior Credit Agreement have been cured or waived; and
"Remedy
Blockade Period" means any period commencing upon the date on which
Fortis sends
a notice to the Administrative Agent of the occurrence of an Event
of Default
under the Senior Credit Agreement (such notice to reference this
Agreement and
state that it is a "Remedy Blockage Notice") and ending on the date
which is the
earlier of (x) 30 days after the commencement of such period and
(y) the first
day after the commencement of such period on which all Events of
Default under
the Senior Credit Agreement have been cured or waived.
Notwithstanding the foregoing, no Payment Blockage Period
may be
commenced under clause (B) above as a result of an Event of Default
if the same
Event of Default was the basis of the commencement of a prior
Payment Blockage
Period unless such Event of Default shall have been cured or waived
for at least
60 days. No Remedy Blockage Period may be commenced as a result of
any Event of
Default under the Senior Credit Agreement if the same Event of
Default under the
Senior Credit Agreement had been the basis for the commencement of
a prior
Remedy Blockage Period unless such Event of Default under the
Senior Credit
Agreement shall have been cured or waived for at least 60 days.
Furthermore,
there may occur no more than one Remedy Blockage Period during the
term of this
Agreement, and no more than one Payment Blockage Period during any
360 day
period
|
