EXHIBIT 10.1
CREDIT AGREEMENT
Dated as of November 3, 2004
among
TRANSAMERICA LEASING INC.,
as a Borrower,
TRANS OCEAN LTD.,
as a Borrower,
TRANS OCEAN CONTAINER CORPORATION,
as a Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
as Lenders,
and
FORTIS BANK (NEDERLAND) N.V.,
as Administrative Agent
TABLE OF CONTENTS
Page
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1. DEFINITIONS AND RULES OF
INTERPRETATION...............................1
1.1.
Definitions..................................................1
1.2. Rules of
Interpretation.....................................39
2. THE CLOSING DATE ADVANCE AND NEW CONTAINER
ADVANCES..................40
2.1. Closing Date
Advance........................................40
2.2. Post-Closing
Loan...........................................40
2.3. Requests for
Loan...........................................40
2.4. The Revolving Credit
Notes..................................41
2.5. Termination or Reduction of
Commitments.....................41
2.6. Repayment of Principal of
Loans.............................42
2.7. Funding by Lenders; Presumption by Administrative
Agent.....42
2.8. Failure to Satisfy Conditions
Precedent.....................42
2.9. Obligations of Lenders
Several..............................43
2.10. Joint and Several
Obligation................................43
2.11. Revolving Credit
Facility...................................45
3. COLLECTION AND DISBURSEMENTS OF
FUNDS................................45
3.1. Trust
Account...............................................45
3.2. Concentration
Account.......................................46
3.3. Lockbox
Accounts............................................47
3.4.
Investments.................................................48
3.5. General Provisions Regarding Lockbox Account,
Concentration
Account, Accounts Payable Account, Payroll
Account and IO
Disbursement
Account........................................48
3.6. IO Disbursement
Account.....................................49
4. Provisions Applicable to All
Loans...................................49
4.1. Interest on
Loans...........................................49
4.1.1. Interest
Rates.....................................49
4.1.2.
Amounts............................................50
4.2. Mandatory Repayments of the
Loans...........................50
4.2.1. Repayments in Connection with the Asset
Base.......50
4.2.2. Application of
Payments............................50
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4.3. Optional Prepayment of
Loans................................50
4.4. Payments by Borrower; Presumptions by
Administrative Agent..51
4.5. Sharing of Payments by
Lenders..............................51
4.6. Funding
Source..............................................52
5. CERTAIN GENERAL
PROVISIONS...........................................52
5.1.
Fees........................................................52
5.1.1. Commitment
Fee.....................................52
5.1.2. Other
Fees.........................................52
5.2. Funds for
Payments..........................................52
5.2.1. Payments to Administrative
Agent...................53
5.2.2. No Offset,
etc.....................................53
5.2.3. Non-U.S.
Lenders...................................54
5.3.
Computations................................................56
5.4. Inability to Determine LIBOR
Rate...........................56
5.5.
Illegality..................................................57
5.6. Additional Costs,
etc.......................................57
5.7. Capital
Adequacy............................................58
5.8.
Certificate.................................................59
5.9.
Indemnity...................................................59
5.10. Interest After
Default......................................59
6. COLLATERAL
SECURITY..................................................60
6.1. Security of
Borrowers.......................................60
7. Representations and
Warranties.......................................60
7.1. Company
Status..............................................60
7.2. Company Power and
Authority.................................60
7.3. No
Violation................................................61
7.4.
Litigation..................................................61
7.5. Use of Proceeds; Margin
Regulations.........................61
7.6. Governmental
Approvals......................................62
7.7. Investment Company
Act......................................62
7.8. Public Utility Holding Company
Act..........................62
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7.9. True and Complete
Disclosure................................62
7.10. Financial Condition; Financial
Statements...................63
7.11. Security
Interests..........................................64
7.12. Compliance with
ERISA.......................................64
7.13.
Subsidiaries................................................64
7.14. Compliance with Statutes; Agreements,
etc...................65
7.15. Environmental
Matters.......................................65
7.16. Labor
Relations.............................................66
7.17. Tax Returns and
Payments....................................66
7.18. Scheduled Existing
Indebtedness.............................66
7.19.
Insurance...................................................66
7.20. Foreign Assets Control Regulations,
etc.....................66
7.21. Lockbox Accounts and Payment
Instructions...................67
7.22. Credit and Collection
Policy................................67
7.23. Form of Lease
Agreement.....................................67
7.24. UBS Lease
Agreement.........................................67
7.25. Depreciation
Policy.........................................67
8. Affirmative
Covenants................................................67
8.1. Information
Covenants.......................................67
8.2. Books, Records and
Inspections..............................70
8.3. Permitted
Securitization....................................71
8.4. Payment of
Taxes............................................71
8.5. Existence;
Franchises.......................................71
8.6. Compliance with Statutes;
etc...............................71
8.7. End of Fiscal Years; Fiscal
Quarters........................72
8.8. Further
Assurances..........................................72
8.9. Use of
Proceeds.............................................72
8.10. Performance of
Obligations..................................72
8.11. Maintenance of
Containers...................................72
8.12.
Insurance...................................................73
8.13. Interest Rate Hedging
Agreements............................74
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8.14. UNIDROIT
Convention.........................................74
8.15. Identification of Gross Lease Revenues and Direct
Operating
Expense; Transfer of Gross
Lease
Revenues..............................................74
8.16. Compliance with Credit and Collection
Policy................74
8.17. Payment Instruction to
Lessees..............................74
8.18. Transfer to Special Purpose
Vehicles........................74
8.19. Static Storage
Containers...................................75
9. Negative
Covenants...................................................75
9.1. Changes in Business;
etc....................................75
9.2. Consolidation; Merger; Sale or Purchase of
Assets; etc......75
9.3.
Liens.......................................................77
9.4.
Indebtedness................................................79
9.5. Advances; Investments;
Loans................................81
9.6.
Dividends...................................................83
9.7. Transactions with
Affiliates................................83
9.8. Limitation on Certain Restrictions on
Subsidiaries..........83
9.9. Change in Credit and Collection
Policy......................84
9.10. Change in Payment Instructions to
Lessees...................85
9.11. Cost Allocation
Methodologies...............................85
9.12. Amendments to Depreciation
Policy...........................85
9.13. Limitation on the Creation of
Subsidiaries..................85
10. FINANCIAL
COVENANTS..................................................85
10.1. Consolidated EBIT to Consolidated Cash Interest
Expense
Ratio.......................................................85
11. CLOSING
CONDITIONS...................................................86
11.1. Execution of Agreement;
Notes...............................86
11.2. Officer's
Certificate.......................................86
11.3. Opinions of
Counsel.........................................86
11.4. Company Documents;
Proceedings..............................86
11.5.
Approvals...................................................87
11.6. Consummation of the
Transaction.............................87
11.7. Intercreditor Agreement with Holder of Seller
Loan..........87
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11.8. Security
Agreement..........................................88
11.9. Tax Allocation
Agreements...................................88
11.10. Solvency Certificate; Insurance Certificates;
etc...........89
11.11. Financial Statements; Pro Forma Financial
Statements........89
11.12. Payment of
Fees.............................................89
11.13.
Budgets.....................................................89
11.14. Seller
Loan.................................................89
11.15. Pledge
Agreement............................................89
11.16. Participation
Agreement.....................................90
11.17. Intercompany Subordination
Agreement........................90
11.18. Lockbox
Accounts............................................90
12. CONDITIONS PRECEDENT TO ALL
LOANS....................................90
12.1. Closing
Date................................................90
12.2. No Default; Representations and
Warranties..................90
12.3. Loan
Request................................................91
13. EVENTS OF DEFAULT; ACCELERATION;
ETC.................................91
13.1. Events of Default and
Acceleration..........................91
13.2. Termination of
Commitments..................................94
13.3.
Remedies....................................................94
13.4. Distribution of Collateral
Proceeds.........................94
14. ADMINISTRATIVE
AGENT.................................................95
14.1. Appointment and
Authority...................................95
14.2. Rights as a
Lender..........................................95
14.3. Exculpatory
Provisions......................................96
14.4. Reliance by Administrative
Agent............................97
14.5. Delegation of
Duties........................................97
14.6. Resignation of Administrative
Agent.........................97
14.7. Non-Reliance on Administrative Agent and Other
Lenders......98
14.8. Administrative Agent May File Proofs of
Claim...............99
14.9. Collateral
Matters..........................................99
15. SUCCESSORS AND
ASSIGNS..............................................100
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15.1. General
Conditions.........................................100
15.2. Assignments by
Lenders.....................................100
15.3.
Register...................................................102
15.4.
Participations.............................................102
15.5. Limitations upon Participant
Rights........................103
15.6. Certain
Pledges............................................103
15.7. Electronic Execution of
Assignments........................103
16. PROVISIONS OF GENERAL
APPLICATIONS..................................104
16.1.
Setoff.....................................................104
16.2.
Expenses...................................................104
16.3.
Indemnification............................................105
16.4. Treatment of Certain Confidential
Information..............106
16.4.1.
Confidentiality...................................106
16.4.2. Prior
Notification................................107
16.4.3.
Other.............................................107
16.5. Survival of Covenants,
etc.................................107
16.6.
Notices....................................................108
16.7. Governing
Law..............................................109
16.8.
Headings...................................................109
16.9.
Counterparts...............................................109
16.10. Entire Agreement,
etc......................................109
16.11. Waiver of Jury
Trial.......................................110
16.12. Consents, Amendments, Waivers,
Etc.........................110
16.13. Replacement of
Lenders.....................................112
16.14.
Severability...............................................113
16.15. USA Patriot
Act............................................113
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Exhibits
--------
Exhibit A Form of Asset Base Report
Exhibit B Form of Assignment and Assumption
Exhibit C Form of Equipment Report
Exhibit D Form of Manager Report
Exhibit E Form of Loan Request
Exhibit F Form of Revolving Credit Note
Exhibit G Credit and Collection Policy
Exhibit H Form of Lease Agreement
Exhibit I UBS Lease Agreement
Exhibit J Depreciation Policy
Exhibit K Interest Rate Hedge Policy
Exhibit L Form of Opinion of Borrowers' Counsel
Exhibit M Form of Officer's Certificate of
Borrower
Exhibit N Form of Security Agreement
Exhibit O Form of Solvency Certificate
Exhibit P Form of Pledge Agreement
Exhibit Q Intercompany Subordination Agreement
Exhibit R Form of Intercompany Note
Exhibit S Summary of Agreed Upon Procedures
Schedules
---------
Schedule 1 Funding Commitments of Lenders
Schedule 2 Concentration Limits
Schedule 3 Rights with Respect to Leases that are
Not
Assignable Without the Consent of the
Related Lessee
or Any Other Person
Schedule 4 Management Fees
Schedule 5 UBS Lease Termination Payments
Schedule 7.5 Use of Proceeds of Closing Date Advance
Schedule 7.13 Subsidiaries of Borrowers
Schedule 7.18 Existing Indebtedness of Borrowers and
Subsidiaries
Schedule 7.19 Insurance Maintained by Borrowers and
Subsidiaries
Schedule 7.21 List of Names and Addresses of All
Lockboxes and
Lockbox Accounts
Schedule 9.3 Liens Existing on the Closing Date
Schedule 9.5 Investments Existing on the Closing
Date
Schedule 9.7 Agreements of Borrowers and
Subsidiaries with any
Affiliate of the Borrowers or the
Subsidiaries
Schedule 9.8 Encumbrances or Restrictions on
Borrowers and
Subsidiaries
CREDIT AGREEMENT
This CREDIT AGREEMENT is made as of November 3, 2004, by
and among
TRANSAMERICA LEASING INC., a corporation organized and existing
under the laws
of the State of Delaware (together with its successors and
permitted assigns,
"TLI"), TRANS OCEAN LTD., a corporation organized and existing
under the laws of
the State of Delaware (together with its successors and permitted
assigns,
"TOL"), TRANS OCEAN CONTAINER CORPORATION, a corporation organized
under the
laws of the State of Delaware (together with its successors and
permitted
assigns, "TOCC", each of TLI, TOL and TOCC, a "Borrower" and
collectively, the
"Borrowers"), each lender from time to time party hereto
(collectively, the
"Lenders" and individually, a "Lender"), and FORTIS BANK
(NEDERLAND) N.V.
WHEREAS, subject to and upon the terms and conditions set
forth herein,
the Lenders are willing to make available to the Borrowers the
credit facility
provided for herein;
NOW, THEREFORE, in consideration of the foregoing, the
mutual covenants
and agreements set forth herein below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the
parties hereto agree as provided herein:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings
set forth in
this Section 1 or elsewhere in the provisions of this Loan
Agreement
referred to below:
Acceleration Event. The acceleration of the
Revolving Credit
Notes and the other Obligations in accordance with the provisions
of Section
13.1 hereof.
Accounts Payable Account. Bank account number
____ maintained
by TLI at Citibank N.A. and any replacement for such account
established in
accordance with the provisions of this Loan Agreement.
Acquisition. The acquisition by Container
Holdings of all of
the Capital Stock of Transamerica Leasing Inc. and Trans Ocean Ltd.
Acquisition Date. With respect to a Container,
the date on
which a Borrower initially acquired such container.
Administrative Agent. Fortis acting as agent for
the Lenders
and each other Person appointed as the successor Administrative
Agent in
accordance with Section 14.6.
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Administrative Agent's Office. The Administrative
Agent's
office located at 3000 AS Rotterdam, The Netherlands, or at such
other location
as the Administrative Agent may designate from time to time.
Administrative Agent's Special Counsel. Thacher
Proffitt &
Wood LLP or such other counsel as may be approved by the
Administrative Agent.
Administrative Questionnaire. An Administrative
Questionnaire
in a form supplied by the Administrative Agent.
Affiliate. With respect to any Person, another
Person that
directly, or indirectly through one or more intermediaries,
Controls or is
Controlled by or is under common Control with the Person specified.
Agent Fee. The fee payable to the Administrative
Agent on each
Payment Date as set forth in the Fee Letter.
Aggregate Commitments. An amount equal to the sum
of the
Commitments of all the Lenders.
Aggregate Net Book Value. As of any date of
determination, an
amount equal to the sum of the Net Book Values (such Net Book
Values to be
measured as of the last day of the prior month) of all Eligible
Containers.
Aggregate Note Principal Balance. As of any date
of
determination, an amount equal to the sum of the then unpaid
principal balance
of all Revolving Credit Notes.
Applicable Margin. With respect to each Loan for
each Interest
Period, one of the following amounts:
(A) with respect to each Base Rate Loan, one and
one-half
percent (1.50%) per annum; or
(B) with respect to each LIBOR Rate Loan, two and
three
quarters percent (2.75%).
Notwithstanding the foregoing, the following modifications to the
amounts set
forth in clauses (A) and (B) shall be applicable:
(1) all of the amounts set forth in clauses (A)
and (B) above
shall increase by one half of one percent
(0.50%) if the
Borrowers have not completed a Refinancing
Event by April
30, 2006; and
(2) notwithstanding the terms of clauses (A) and
(B) above, if
the Administrative Agent is unable, despite
its
commercially reasonable efforts, to complete
a "successful
syndication" of
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Commitments and the Loans at such levels,
then (x) the
amount referred to in clause (A) shall
increase to the
rate at which the Administrative Agent can
complete a
"successful syndication" of the Commitments
and the Loans
using its commercially reasonable efforts
(which rate
shall, in no event, exceed two and one
quarter percent
(2.25%) per annum) and (y) the amount
referred to in
clause (B) shall increase to the rate at
which the
Administrative Agent can complete a
"successful
syndication" of the Commitments and the Loans
using its
commercially reasonable efforts (which rate
shall, in no
event, exceed three and one half percent
(3.50%) per
annum). For the purposes of this paragraph,
"successful
syndication" means that the Administrative
Agent shall
reduce its participation in the Commitments
and the Loans
to a final hold of not more than
$250,000,000.00.
Asset Base. As of any date of determination, an
amount equal
to the sum of:
(1) the product of (i) the Existing Container
Advance Rate
then in effect and (ii) the sum of (x) the then Net Book
Values
(calculated as of the last day of the immediately
preceding month) of
all Eligible Containers that were either owned by any
Borrower or
subject to a Finance Lease for which any Borrower is the
lessor, in
each case, on the Closing Date, (y) to the extent not
included in
clause (x), the then Net Book Values of all containers
then subject to
the terms of the UBS Lease Agreement and (z) any
receivables resulting
from the sale or other disposition of one or more Eligible
Containers
that were either owned by any Borrower or subject to a
Finance Lease
for which any Borrower is the lessor, in each case, on the
Closing
Date, so long as such receivables were not outstanding for
more than 90
days (measured from the issue date of such receivables);
plus
(2) the product of (i) the Post-Closing Advance
Rate then in
effect and (ii) the sum of (x) the excess of (A) the sum
of the then
Net Book Values (calculated as of the last day of the
immediately
preceding month) of all Eligible Containers acquired by
any Borrower
after the Closing Date and which are owned by any Borrower
on such date
of determination or which are subject to a Finance Lease
for which any
Borrower is the lessor on such date of determination, over
(B) the sum
of the Net Book Values of any such container included in
clause (A) for
which the manufacturer or other seller thereof has not
received payment
in full of the related purchase price, and (y) all
receivables
resulting from the sale or other disposition of one or
more Eligible
Containers that were acquired by a Borrower after the
Closing Date so
long as such receivables are not outstanding for more than
90 days
(measured from the issue date of such receivables); minus
(3) the sum of all then unpaid UBS Lease
Termination Payments.
-4-
Asset Base Deficiency. As of any Payment Date,
the amount (if
any) by which (i) the Aggregate Note Principal Balance (calculated
without
giving effect to any principal payments to be paid on such Payment
Date),
exceeds (ii) the Asset Base.
Asset Base Report. An Asset Base Report signed by
a
responsible officer of the Borrowers and in substantially the form
of Exhibit A
hereto.
Asset Value Adjustment Date. The date on which
the Net Book
Values of all Containers owned by the Borrowers on the Closing Date
are adjusted
upward as a result of the consummation of the Acquisition;
provided, however,
that the Asset Value Adjustment Date shall not occur unless the
Administrative
Agent shall have approved (such approval to not be unreasonably
withheld or
delayed) both (i) the amount of any such upward adjustments in the
Net Book
Values of such Containers, and (ii) any revision in the
Depreciation Policy to
be implemented in connection with such adjustments.
Assignment and Assumption. An assignment and
assumption
entered into by a Lender and an Eligible Assignee (with the consent
of any party
whose consent is required by Section 15.2), and accepted by the
Administrative
Agent, in substantially the form of Exhibit B or any other form
approved by the
Administrative Agent.
Authorized Officer. With respect to (i)
delivering Notices of
Borrowing and similar notices, any person or persons that has or
have been
authorized by the Board of Directors of a Borrower to deliver such
notices
pursuant to this Loan Agreement and that has or have appropriate
signature cards
on file with the Administrative Agent, (ii) delivering financial
information and
officer's certificates pursuant to this Loan Agreement, any Senior
Designated
Officer of any Borrower and (iii) any other matter in connection
with this Loan
Agreement or any other Loan Document, any officer (or a person or
persons so
designated by any two officers) of the Borrowers.
Availability Termination Date. The earlier to
occur of (i) the
date of which the Commitments are terminated pursuant to Sections
2.5 or 13.2
hereof and (ii) the two year anniversary of the Closing Date.
Base Rate. The higher of (a) the variable annual
rate of
interest so designated from time to time by Citibank N.A. as its
"prime rate",
such rate being a reference rate and not necessarily representing
the lowest or
best rate being charged to any customer, and (b) one-half of one
percent (0.50%)
above the Federal Funds Effective Rate. For the purposes of this
definition,
"Federal Funds Effective Rate" shall mean for any day, the rate per
annum equal
to the weighted average of the rates on overnight federal funds
transactions
with members of the Federal Reserve System arranged by federal
funds brokers, as
published for such day (or, if such day is not a Business Day, for
the next
preceding Business Day) by the Federal Reserve Bank of New York,
or, if such
rate is not so published for any day that is a Business Day, the
average of the
quotations for such day on such transactions received by the
Administrative
Agent from three funds brokers of recognized standing selected by
the
Administrative Agent. Changes in the
-5-
Base Rate resulting from any changes in Citibank N.A.'s "prime
rate" shall take
place immediately without notice or demand of any kind.
Base Rate Loans. All or any portion of any Loan
bearing
interest calculated by reference to the Base Rate.
Borrower. Each of TLI, TOL and TOCC.
Breakage Cost. With respect to any Lender with
respect to any
Breakage Prepayment, an amount equal to the difference (as
reasonably determined
by such Lender and set forth in a certificate of such Lender
delivered to the
Borrowers) of (a) such Lender's cost of obtaining funds for the
LIBOR Rate Loan
that is the subject of such Breakage Prepayment for the period from
the date of
such Breakage Prepayment to the last day of the Interest Period in
effect (or
that would have been in effect) for such LIBOR Rate Loan, minus (b)
the amount
of interest likely to be realized by such Lender in redeploying the
funds
released or not utilized by reason of such Breakage Conversion or
such Breakage
Prepayment for such period.
Breakage Prepayment. This term shall have the
meaning set
forth in Section 4.3 hereof.
Business Day. One of the following: (i) for all
purposes other
than as covered by clause (ii) below, any day excluding Saturday,
Sunday and any
day which shall be in New York, New York, London, England or
Rotterdam, The
Netherlands a legal holiday or a day on which banking institutions
are
authorized by law or other governmental actions to close and (ii)
with respect
to all notices and determinations in connection with, and payments
of principal
and interest on or with respect to, Eurodollar Loans, any day which
is a
Business Day described in clause (i) above and which is also a day
for trading
by and between banks in U.S. dollar deposits in the interbank
Eurodollar market.
Capitalized Leases. Leases under which a Borrower
is the
lessee or obligor, the discounted remaining rental payment
Obligations under
which are required to be capitalized on the balance sheet of the
lessee or
obligor in accordance with GAAP.
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.
Cash Equivalents. All of the following: (i)
securities issued
or directly fully guaranteed or insured by the governments of the
United States,
Canada and members of the European Union or any agency or
instrumentality
thereof (provided that the full faith and credit of the respective
such
government is pledged in support thereof) having maturities of not
more than one
year from the date of acquisition, (ii) securities issued by any
state of the
United States or any political subdivision of any such state or any
public
instrumentality thereof maturing within one year from the date of
acquisition
-6-
thereof and, at the time of acquisition, having one of the two
highest ratings
obtainable from either S&P or Moody's, (iii) certificates of
deposit and
Eurodollar time deposits with maturities of one year or less from
the date of
acquisition, bankers' acceptances with maturities not exceeding one
year and
overnight bank deposits, in each case with any domestic commercial
bank or
commercial bank of a foreign country recognized by the United
States, (x) in the
case of a domestic commercial bank, having capital and surplus in
excess of
$500,000,000 and outstanding debt which is rated "A" (or similar
equivalent
thereof) or higher by at least one nationally recognized
statistical rating
organization (as defined under Rule 436 under the Securities Act)
and (y) in the
case of a foreign commercial bank, having capital and surplus in
excess of
$250,000,000 (or the foreign currency equivalent thereof), (iv)
repurchase
obligations with a term of not more than thirty days for underlying
securities
of the types described in clauses (i) and (iii) above entered into
with any
financial institution meeting the qualifications specified in
clause (iii)
above, (v) commercial paper having a rating of at least A-2 from
S&P or at least
P-2 from Moody's, (vi) securities with maturities of six (6) months
or less from
the date of acquisition backed by standby letters of credit issued
by any Lender
or any commercial bank satisfying the requirements of clause
(iii)(x) of this
definition, (vii) Indebtedness or preferred stock issued by Persons
with a
rating of A or higher from S&P or A2 or higher from Moody's
with maturities of
24 months or less from the date of acquisition and (viii)
investments in money
market funds which invest substantially all their assets in
securities of the
types described in clauses (i) through (vii) above.
Casualty Loss. With respect to any Container as
of any date of
determination, any of the following events or conditions:
(i) total loss or destruction thereof;
(ii) theft or disappearance thereof without
recovery
within sixty (60) days after such theft
or
disappearance becomes known to any
Borrower or any of
its Affiliates;
(iii) damage rendering such Container unfit
for normal use
and, in the judgment of any Borrower,
beyond repair
at reasonable cost; or
(iv) any condemnation, seizure, forced sale
or other
taking of title to or use of such
Container.
Casualty Proceeds. Any payment by, or on behalf
of, a Lessee
from any source in connection with a Casualty Loss with respect to
a Container.
CEU. Cost equivalent units.
Change of Control. With respect to any of
Container Holdings,
TOCC, TLI or TOL and without the prior consent of the Required
Lenders, the
occurrence of any of the following events or conditions: (i) any
"person" (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of
1934), other than one or more Permitted Holders, is or becomes the
"beneficial
owner" (as defined in Rules 13d-3 and
-7-
13d-5 under the Securities Exchange Act of 1934), directly or
indirectly, of
more than 50% of the total voting power of the voting common equity
interests of
such Person, or (ii) prior to the first Public Equity Offering, any
"person" (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of
1934), other than one or more Permitted Holders, shall have
acquired, by
contract or otherwise, the power to exercise, directly or
indirectly, a
controlling influence over the composition of the board of
directors or other
similar management body of such Person, or (iii) prior to the first
Public
Equity Offering, the Permitted Holders cease for any reason to be
the beneficial
owner, directly or indirectly, in the aggregate of at least a
majority of the
total voting power of the voting Capital Stock of Container
Holdings, whether by
virtue of the issuance, sale or other disposition of Capital Stock
of Container
Holdings, a merger, consolidation or sale of assets involving
Container
Holdings, one of its Subsidiaries, any voting trust or other
agreement, or (iv)
subsequent to the first Public Equity Offering, the Permitted
Holders
beneficially own, directly or indirectly, in the aggregate a lesser
percentage
of the total voting power of the voting Capital Stock of Container
Holdings,
TLI, TOL or TOCC than such other "person" (as such term is used in
Section 13(d)
and 14(d) of the Securities Exchange Act of 1934) or "group" (as
such term is
used in Section 13(d) and 14(d) of the Securities Exchange Act of
1934).
Closing Date. November 3, 2004.
Closing Date Advance. The Loan in the maximum
aggregate
principal amount equal to the lesser of (A) the Asset Base on the
Closing Date,
and (B) Eight Hundred Twenty Million Dollars ($820,000,000), to be
made by the
Lenders to the Borrowers on the Closing Date pursuant to the
provisions of
Section 2.1 hereof.
Closing Date Advance Rate. One of the following
amounts:
(1) on the Closing Date and all times thereafter
until the
Asset Value Adjustment Date, seventy-six and one half
percent (76.5%);
and
(2) at all times on or after the Asset Value
Adjustment Date,
the amount determined on the Asset Value Adjustment Date
in accordance
with the following formula:
76.5% x A/B
Where A = the sum of the Net Book Values of all
Eligible
Containers owned by any Borrower on the
Closing Date
calculated immediately prior to any
approved increase
in such Net Book Values on the Asset
Value Adjustment
Date; and
B = the sum of the Net Book Values of all
Eligible
Containers owned by any Borrower on the
Closing Date
calculated immediately after giving
effect to any
approved increase in such Net Book
Values on the
Asset Value Adjustment Date.
-8-
Code. The United States Internal Revenue Code of
1986, as
amended from time to time (and any successor statute thereto), and
the
regulations promulgated and rulings issued thereunder. Section
references to the
Code are to the Code as in effect on the Closing Date, and any
subsequent
provisions of the code, amendments thereto or substituted
therefrom.
Collateral. All of the property, rights and
interests of the
Borrowers that are or are intended to be subject to the Liens
created by the
Security Documents.
Collection Period. Initially, the period
commencing on the
Closing Date to and including December 31, 2004, and thereafter
each calendar
quarter.
Commitment. With respect to each Lender, the
amounts set forth
on Schedule 1 hereto as the amounts of such Lender's commitment to
make Loans to
the Borrowers pursuant to this Loan Agreement, as the same may be
reduced from
time to time; or if such commitments are terminated pursuant to the
provisions
hereof, zero.
Commitment Fee. This term shall have the meaning
set forth in
Section 5.1.1.
Commitment Percentage. With respect to any
Lender, the
percentage (carried out to the ninth decimal place) of the
Aggregate Commitments
represented by such Lender's Commitment at such time. If the
commitment of each
Lender to make Loans has been terminated pursuant to this Loan
Agreement or if
the Aggregate Commitments have expired, then the Commitment
Percentage of each
Lender shall be determined based on the outstanding Loans owing to
such Lender
at such time. The initial Commitment Percentage of each Lender is
set forth
opposite the name of such Lender on Schedule 1 pursuant to which
such Lender
becomes a party hereto, as applicable.
Company. Any corporation, limited liability
company,
partnership or other business entity (or the adjectival form
thereof, where
appropriate).
Concentration Account. Bank account number
40523885 maintained
by TLI at Citibank N.A. and any replacement for such account
established in
accordance with the terms of this Loan Agreement.
Concentration Limits. As of any date of
determination, all of
the following:
(1) The sum of the Net Book Values of all
Specialized
Containers (other than refrigerated
Containers) shall
not exceed an amount equal to 15% of the
then
Aggregate Net Book Value;
(2) The sum of the Net Book Values of all 20
foot, 40
foot and 40 foot high cube refrigerated
Containers
shall not exceed an amount equal to 40%
of the then
Aggregate Net Book Value;
-9-
(3) The sum of the Net Book Values of all
Containers then
on lease to any three Lessees shall not
exceed
forty-five percent (45%) of the then
Aggregate Net
Book Value; provided, however, that if
two or more
Lessees shall engage in any transaction
(whether
through merger, consolidation, stock
sale, asset sale
or otherwise) pursuant to which a Lessee
shall become
the owner of, or interest holder in, any
other
Lessee's leasehold interests in one or
more
Containers and the effect of such
transaction is to
cause a breach of the foregoing
threshold, then the
foregoing threshold shall on the
effective date of
such transaction be increased to an
amount equal to
the quotient, expressed as a percentage,
(x) the
numerator of which shall equal the sum
of (A) the sum
of the Net Book Values of all Containers
on lease to
such transacting Lessees immediately
prior to such
transaction, and (B) the sum of the Net
Book Values
of all Containers then on lease to the
two other
Lessees having the most Containers then
on lease with
the Borrowers (measured by Net Book
Value) and (y)
the denominator of which shall equal the
then
Aggregate Net Book Value); and provided
further that,
if the foregoing limitation has been
increased above
forty-five percent (45%) by operation of
the above
proviso, then none of the Borrowers
shall thereafter
originate any additional Leases of
Containers to any
of such three Lessees until such time as
the sum of
the Net Book Values of all Containers
then on lease
to such three Lessees does not exceed an
amount equal
to forty-five percent (45%) of the then
Aggregate Net
Book Value.
(4) The sum of the Net Book Values of all
Containers then
on Lease to any single Lessee shall not
exceed an
amount equal to (A) with respect to any
of the
Lessees set forth in Schedule 2 hereto,
the
percentage of the Aggregate Net Book
Value set
opposite the name of such Lessee on such
schedule,
and (B) with respect to any Lessee not
covered by
clause (A), five percent (5%) of the
then Aggregate
Net Book Value; provided, however, that
if two or
more Lessees shall engage in any
transaction (whether
through merger, consolidation, stock
sale, asset sale
or otherwise) pursuant to which a Lessee
shall become
the owner of, or interest holder in, any
other
Lessee's leasehold interests in one or
more
Container, the foregoing threshold set
forth in
clauses (A) and (B) shall on the
effective date of
such transaction be increased with
respect to such
acquiring or, in the case of a merger,
surviving
Lessee to equal the greater of (i) the
sum of the
applicable percentage limitations for
the transacting
Lessees as set forth in clauses (A) and
(B) above,
and (ii) a quotient, expressed as a
percentage, (x)
the numerator of which shall equal the
sum of the Net
Book Values of all Containers on Lease
to such
transacting Lessees immediately prior to
such
-10-
transaction and (y) the denominator of
which shall
equal the then Aggregate Net Book
Value);
(5) The sum of the Net Book Values of all
Containers for
which the initial Lease of such
Container after its
Acquisition Date is a Finance Lease
shall not exceed
20% of the then Aggregate Net Book
Value; and
(6) The sum of the Net Book Values of all
Containers
acquired during the Revolving Credit
Period that have
not been put on its initial lease since
the
applicable Acquisition Date (i.e.
speculative leases)
shall not exceed 5% of the then
Aggregate Net Book
Value.
Any Container that does not comply with all of the foregoing will
not be
considered to be an Eligible Container.
Consolidated or consolidated. With reference to
any term
defined herein, shall mean that term as applied to the accounts of
the Borrowers
and their Subsidiaries, consolidated in accordance with GAAP.
Consolidated Cash Interest Expense. With respect
to any Person
for any period, the difference of (i) the aggregate Consolidated
Interest
Expense of such Person for such period, minus (ii) to the extent
included in
such aggregate Consolidated Interest Expense, and to the extent
incurred by
Container Holdings or any of its Consolidated Subsidiaries, (a)
amortization or
write off of debt or equity issuance costs, (b) interest expense to
the extent
not paid in cash attributable to dividends in respect of all
Preferred Equity of
Container Holdings and its Consolidated Subsidiaries that is not
Disqualified
Stock pursuant to Statement of Financial Accounting Standards No.
150,
"Accounting for Certain Financial Instruments with Characteristics
of Both
Liabilities and Equity", and (c) any non-cash interest expense
related to (i)
any interest expense that has not been paid in cash, (ii) accrued
interest on
Disqualified Stock to the extent not paid, and (iii) any
incremental non-cash
interest expense incurred by Container Holdings or its Subsidiaries
as the
result of an accounting change in accordance with GAAP that occurs
after the
Closing Date, plus (iii) cash interest payments made in such period
(exclusive
of any such cash payment funded with the proceeds of an equity
offering or
capital contribution) related to Consolidated Interest Expense that
was accrued
in a prior period.
Consolidated EBIT. For any period, means the sum
of
Consolidated Net Income, plus the following, without duplication,
to the extent
deducted in calculating such Consolidated Net Income:
(1) all income tax expense of Container
Holdings and its
Consolidated Subsidiaries, all taxes
incurred by
Container Holdings and its Consolidated
Subsidiaries
in respect of the repatriation of income
from
jurisdictions outside the United States
and all
amounts paid by Container Holdings and
its
Consolidated Subsidiaries pursuant to
the terms of
any tax sharing or similar agreement;
-11-
(2) the Consolidated Interest Expense of
Container
Holdings and its Consolidated
Subsidiaries;
(3) depreciation and amortization charges of
Container
Holdings and its Consolidated
Subsidiaries relating
to any increased depreciation or
amortization charges
resulting from purchase accounting
adjustments or
inventory write-ups with respect to
acquisitions or
the amortization or write-off of
deferred debt or
equity issuance costs;
(4) all other non-cash charges of Container
Holdings and
its Consolidated Subsidiaries (other
than
depreciation expense) (minus, with
respect to any
such non-cash charge occurring on or
after January 1,
2005 that was previously added in a
prior period to
calculate Consolidated EBIT and that
represents an
accrual of or reserve for cash
expenditures in any
future period, any cash payments made
during such
period);
(5) any non-capitalized costs incurred in
connection with
financings, the Acquisition,
acquisitions of
Containers occurring after the Closing
Date or
dispositions (including financing and
refinancing
fees and any premium or penalty paid in
connection
with redeeming or retiring Indebtedness
prior to the
stated maturity thereof pursuant to the
agreements
governing such Indebtedness);
(6) UBS equipment rental expense to the
extent that
assets related to such expense have been
repurchased
by the Borrowers and their Consolidated
Subsidiaries;
(7) all non-cash expenses attributable to
Incentive
Arrangements; and
(8) to the extent that any portion of the
Management Fee
payable during such period was accrued
and not paid
during such period, the aggregate amount
of expenses
attributable to all payments or accruals
of
Management Fee during such period;
in each case, for such period and as determined on a consolidated
basis in
accordance with GAAP.
Consolidated EBIT to Consolidated Cash Interest
Expense Ratio.
As of any date of determination, means the ratio of (a) the
aggregate amount of
Consolidated EBIT for Container Holdings and its Consolidated
Subsidiaries for
the period of the most recent four consecutive fiscal quarters
ending on or
prior to the date of such determination to (b) Consolidated Cash
Interest
Expense for Container Holdings and its Consolidated Subsidiaries
for such four
fiscal quarters.
-12-
Consolidated Interest Expense. With respect to
any Person for
any period, the aggregate of the interest expense of such Person
and its
Consolidated Subsidiaries for such period, on a Consolidated basis,
as
determined in accordance with GAAP, and including, without
duplication, (a) all
amortization or accretion of original issue discount; (b) the
interest component
of payments on Capitalized Leases paid, accrued and/or scheduled to
be paid or
accrued by such Person and its Consolidated Subsidiaries during
such period; and
(c) net cash costs under all Interest Rate Hedging Agreements
(including
amortization of fees).
Consolidated Net Income. For any period, the
aggregate net
income (or loss) of Container Holdings and its Consolidated
Subsidiaries for
such period on a consolidated basis, determined in accordance with
GAAP;
provided, however, that there shall be not be included in such
Consolidated Net
Income:
(1) any gain (or loss) realized upon the
sale or other
disposition of assets (other than
Containers and
Related Assets) of Container Holdings,
any Borrower,
any Consolidated Subsidiary or any other
Person
(including pursuant to any
sale-and-leaseback
arrangement) which is not sold or
otherwise disposed
of in the ordinary course of business
and any gain
(or loss) realized upon the sale or
other disposition
of any Capital Stock of any Person;
(2) extraordinary gains or losses, as
determined in
accordance with GAAP;
(3) income or loss attributable to
discontinued
operations (including, without
limitation, operations
disposed of during such period whether
or not such
operations were classified as
discontinued);
(4) the cumulative effect of a change in
accounting
principles, as determined in accordance
with GAAP;
(5) any adjustments, restructuring costs,
non-recurring
expenses, non-recurring fees,
non-operating expenses,
charges or other expenses (including
bonus and
retention payments and non-cash
compensation charges)
(a) made or incurred in connection with
the
Acquisition or the financing thereof or
(b) incurred
in connection with acquisitions of
Containers
consummated after the Closing Date; and
(6) Systems/Organizational Establishment
Expenses;
in each case, for such period.
Container. Any marine and maritime container
(including dry
cargo containers, refrigerated containers (including the associated
generator
sets) and
-13-
Specialized Containers) to which any Borrower either (i) has good
title and that
is held for lease or sale or (ii) is lessor under any Finance
Lease.
Container Holdings. TAL International Group,
Inc., a
corporation organized under the laws of the State of Delaware and
its successors
and permitted assigns.
Container Representations and Warranties. All of
the
following:
(1) Specifications. The container conforms
to the
Borrowers' standard specifications for
that category
of container and to any applicable
industry
standards;
(2) Rights to Leases. Except as set forth on
Schedule 3
hereto, the rights with respect to each
Lease
included in the Related Assets for such
Container are
assignable without the consent of the
related Lessee
or any other Person other than consents
that will
have been obtained on or before the
related transfer
date;
(3) Lessee Acceptance. With respect to each
container
that is subject to a Lease on the
Closing Date or
Funding Date, as the case may be, the
related Lessee
has, to the best of TLI's knowledge,
received and
taken possession of such container;
(4) Lease Files. Each Lease is stored in
TLI's offices
located in Purchase, New York and is
subject to its
customary security and safekeeping
procedures;
(5) Master Lease Arrangements. In the case
of each Lease
which consists of a master lease and one
or more
addenda or schedules thereto, such
addenda or
schedules each constitute a separate
contractual
lease obligation of the related Lessee;
(6) Chattel Paper. With respect to each
Lease, aside from
any originally executed counterpart of
each Lease in
the possession of the Lessee, all other
originally
executed counterpart(s) of such Lease
are in the
possession of the Borrowers;
(7) Lessees. No Lessee is an affiliate of
the Borrowers;
(8) Registration. Each container's
registration mark
(four letter prefix) has been registered
in the name
of one of the Borrowers in the official
register of
the Bureau International des Containers
(Paris);
(9) Non-cancelable and Assignable. Each
Finance Lease
provides that (i) the Lessee's
obligations thereunder
are non-cancelable,
-14-
unconditional and not subject to any
right of
set-off, rescission, counterclaim,
offset, reduction
or recoupment, (ii) such finance lease
is fully
assignable and (iii) the Lessee is
responsible for
all taxes, maintenance and insurance and
assumes all
risk of Casualty Loss;
(10) Compliance with Law. The Lease complied
in all
material respects at the time they were
originated
with all legal requirements of the
jurisdiction in
which they were originated; and
(11) Return of Container. Each Lease provides
for the
return of the related containers upon
its expiration
or earlier termination (unless the
Lessee complies
with the terms of any purchase option
contained
therein).
Contingent Obligation. As to any Person, means
any obligation
of such Person as a result of such Person being a general partner
of any other
Person, unless the underlying obligation is expressly made
non-recourse as to
such general partner, and any obligation of such Person
guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other
obligations ("primary
obligations") of any other Person (the "primary obligor") in any
manner, whether
directly or indirectly, including, without limitation, any
obligation of such
Person, whether or not contingent, (i) to purchase any such primary
obligation
or any property constituting direct or indirect security therefor,
(ii) to
advance or supply funds (x) for the purchase or payment of any such
primary
obligation or (y) to maintain working capital or equity capital of
the primary
obligor or otherwise to maintain the net worth or solvency of the
primary
obligor, (iii) to purchase property, securities or services
primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of
the primary obligor to make payment of such primary obligation or
(iv) otherwise
to assure or hold harmless the holder of such primary obligation
against loss in
respect thereof; provided, however, that the term Contingent
Obligation shall
not include endorsements of instruments for deposit or collection
in the
ordinary course of business. The amount of any Contingent
Obligation shall be
deemed to be an amount equal to the lesser of (x) the stated or
determinable
amount of the primary obligation in respect of which such
Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably
anticipated
liability in respect thereof (assuming such Person is required to
perform
thereunder) as determined by such Person in good faith and (y) the
stated amount
of such Contingent Obligation.
Control. The possession, directly or indirectly,
of the power
to direct or cause the direction of the management or policies of a
Person,
whether through the ability to exercise voting power, by contract
or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
Credit and Collection Policy. This term shall
have the meaning
set forth in Section 7.22.
-15-
Default. Any event, act or condition, which with
the giving of
notice or lapse of time or both would constitute an Event of
Default.
Defaulting Lender. Any Lender that (a) has failed
to fund any
portion of the Loans required to be funded by it hereunder within
one Business
Day of the date required to be funded by it hereunder, (b) has
otherwise failed
to pay over to the Administrative Agent or any other Lender any
other amount
required to be paid by it hereunder within one Business Day of the
date when
due, unless the subject of a good faith dispute, or (c) has been
deemed
insolvent or become the subject of a bankruptcy or insolvency
proceeding.
Depreciation Policy. The depreciation policy
utilized by the
Borrowers with respect to the Containers, which policy as of the
Closing Date is
attached as Exhibit H hereto.
Designated Event of Default. The occurrence of an
Event of
Default of the types set forth in Sections 13.1(a), 13.1(b),
13.1(c), 13.1(e),
13.1(h), 13.1(i)(i)(x), 13.1(i)(ii)(x) or 13.1(j) hereof.
Determination Date. Initially, January 24, 2005
and thereafter
the fifteenth Business Day of each calendar quarter.
Direct Operating Expenses. All direct expenses
and costs,
calculated on an accrual basis in accordance with GAAP, incurred in
connection
with the ownership, use and/or operation of a container, including
but not
limited to: (i) agency costs and expenses; (ii) depot fees,
handling, and
storage costs and expenses; (iii) survey, maintenance and repair
expenses
(including the actual or estimated cost of repairs to be made
pursuant to a
damage protection plan); (iv) repositioning expense; (v) the cost
of inspecting,
marking and remarking such Container; (vi) third-party fees for
bankruptcy
recovery; (vii) legal fees incurred in connection with enforcing
rights under
the leases of such Container or repossessing such Container; (viii)
insurance
expense; (ix) federal, state, local and foreign taxes, levies,
duties, charges,
assessments, fees, penalties, deductions or withholdings assessed,
charged or
imposed upon or against such Container, including but limited to ad
valorem,
gross receipts and/or other property taxes imposed against such
Container or
against the revenues generated by such Container; (x) expenses,
liabilities,
claims and costs (including without limitation reasonable attorneys
fees)
incurred by a Borrower or any Subsidiary or made against a Borrower
or any
Subsidiary by any third party arising directly or indirectly
(whether wholly or
in part) out of the state, condition, operation, use, storage,
possession,
repair, maintenance or transportation of such Container; (xi)
expenses and costs
(including legal fees) of pursuing claims against manufacturers or
sellers of
such Container; and (xii) non-recoverable sales and value-added
taxes on such
expenses and costs; provided, however, that in no event shall
either of the
following be considered a Direct Operating Expense: (a) any
selling, general and
administrative expenses of Container Holdings, the Borrowers or any
of their
Subsidiaries, or (b) the Management Fees.
-16-
Disqualified Stock. With respect to any Person
means that
portion of any Capital Stock of such Person which, by its terms (or
by the terms
of any security into which it is convertible or for which it is
exchangeable at
the option of the holder thereof), or upon the happening of any
event (other
than an event that would constitute a Change of Control), matures
or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or
is redeemable at the sole option of the holder thereof (except in
each case,
upon the occurrence of a Change of Control) on or prior to the
first anniversary
of the final maturity date of the Loans for cash or is convertible
into or
exchangeable for debt securities of Container Holdings or its
Consolidated
Subsidiaries at any time prior to such anniversary.
Distributable Cash Flow. This term shall have the
meaning set
forth in Section 3.1(c).
Dividend. With respect to any Person, (i) the
declaration or
payment by such Person of a dividend or distribution (other than
dividends or
distributions payable in Capital Stock of such Person (other than
Disqualified
Stock)) on or in respect of shares of the Capital Stock of such
Person or (ii)
the purchase, redemption or other acquisition or retirement for
value of any
Capital Stock of such Person.
Dollars or $. Dollars in lawful currency of the
United States
of America.
Eligible Assignee. Any of the following: (i) a
Lender; (ii) an
Affiliate of a Lender; and (iii) any other Person (other than a
natural person)
approved by the Borrowers and the Administrative Agent (each such
approval not
to be unreasonably withheld or delayed); provided that
notwithstanding the
foregoing, "Eligible Assignee" shall not include any Borrower nor
any of their
respective Affiliates.
Eligible Container. Each Container which, when
considered with
all other Containers, shall comply with each of the following
requirements:
(1) Such Container substantially conforms to
the standard
specifications used by the Borrowers for
containers
purchased for its own account, for that
category of
container and to any commonly applied
standards
promulgated by the International
Organization for
Standardization;
(2) Such Container shall comply with all of
(i) the
Concentration Limits and (ii) the
Container
Representations and Warranties;
(3) Such Container shall not have suffered a
Casualty
Loss;
(4) Either (i) one of the Borrowers shall
have good and
marketable title to such Container and
the
Administrative Agent has a perfected
security
interest therein or (ii) such Container
is subject to
a Finance Lease for which any Borrower
is the lessor;
-17-
(5) Such Container shall be free and clear
of all Liens
except for Permitted Liens;
(6) Either (i) the lease rights with respect
to such
Container are assignable without consent
or for which
consents have been obtained, or (ii) the
Administrative Agent shall have been
granted a one
hundred percent (100%) participation
interest in the
lease rights with respect to such
Container;
provided, however, that the sum of the
Net Book
Values of all Containers that have been
classified as
an Eligible Container pursuant to clause
(ii) above
shall not exceed two and one half
percent (2.5%) of
the Asset Base;
(7) Each lease for such Container shall
substantially
contain the general trading terms the
Borrowers use
in the normal course of their business;
provided, however, that (i) in addition to any Container that
complies with all
of the foregoing, the containers owned by ICS Terminals (UK)
Limited shall also
be considered an Eligible Container for purposes of calculating the
Asset Base
so long as (x) ICS Terminals (UK) Limited remains a Wholly-Owned
Subsidiary of
any Borrower and such containers do not become subject to a Lien
(other than
Permitted Liens) in favor of any Person (other than the
Administrative Agent)
and (y) solely for the purposes of calculating the Asset Base, the
sum of the
Net Book Values of all such containers owned by ICS Terminals (UK)
London) shall
not at any one time exceed Five Million Dollars ($5,000,000), and
(ii) the net
book value of refrigeration equipment owned by the Borrowers to be
utilized with
one or more refrigerated Containers owned by the Borrowers shall
also be
considered an Eligible Container for purposes of calculating the
Asset Base
subject to a maximum limit at any one time of Seven Million Five
Hundred
Thousand Dollars ($7,500,000).
Eligible Investments. Book-entry securities,
negotiable
instruments or securities represented by instruments in bearer or
registered
form, in which the Administrative Agent has a perfected security
interest
pursuant to Section 3.4(c), which evidence:
(a) direct obligations of, and obligations fully
guaranteed as
to the full and timely payment by, the United States of America;
(b) demand deposits, time deposits or
certificates of deposit
of any depository institution or trust company incorporated under
the laws of
the United States of America or any State thereof and subject to
supervision and
examination by Federal or State banking or depository institution
authorities;
provided, however, that at the time of the investment or
contractual commitment
to invest therein, the commercial paper or other short-term
unsecured debt
obligations (other than such obligations the rating of
-18-
which is based on the credit of a Person other than such depository
institution
or trust company) thereof shall be rated "A-1+" by S&P and
"Prime-1" by Moody's;
(c) commercial paper that, at the time of the
investment or
contractual commitment to invest therein, is rated "A-1+" by
S&P and "Prime-1"
by Moody's;
(d) bankers' acceptances issued by any depository
institution
or trust company referred to in clause (b) above;
(e) repurchase obligations with respect to any
security
pursuant to a written agreement that is a direct obligation of, or
fully
guaranteed as to the full and timely payment by, the United States
of America or
any agency or instrumentality thereof the obligations of which are
backed by the
full faith and credit of the United States of America, in either
case entered
into with (i) a depository institution or trust company (acting as
principal)
described in clause (b) or (ii) a depository institution or trust
company the
deposits of which are insured by the Federal Deposit Insurance
Corporation and
whose commercial paper or other short-term unsecured debt
obligations are rated
"A-1+" by S&P and "Prime-1" by Moody's and long-term unsecured
debt obligations
are rated "AAA" by S&P and "Aaa" by Moody's;
(f) with the prior written consent of the
Administrative
Agent, money market mutual funds registered under the Investment
Company Act
having a rating, at the time of such investment, from each of the
Rating
Agencies in the highest investment category granted thereby; and
(g) any other investment as may be acceptable to
the
Administrative Agent, as evidenced by the Administrative Agent's
prior written
consent to that effect.
Environmental Law. Any applicable local, state,
federal, or
other laws in the United States of America, or any other laws
relating to the
environment or natural resources or the regulation of releases or
threatened
releases of Hazardous Substances into ambient air, water, or land,
or otherwise
relating to the manufacture, processing, generation, distribution,
use,
treatment, storage, disposal, cleanup, transport or handling of
Hazardous
Substances, and all rules, orders and regulations currently
promulgated
thereunder.
Environmental Claim. Any and all administrative,
regulatory or
judicial actions, suits, orders, claims or proceedings against any
Borrower or
any of its Subsidiaries under any Environmental Law or any permit
issued to any
Borrower or any of its Subsidiaries under any such Environmental
Law (for
purposes of this definition, "Claims"), including, without
limitation, (a) any
and all Claims by governmental or regulatory authorities for
enforcement,
cleanup, removal, response, remedial or other actions or damages
pursuant to any
applicable Environmental Law, and (b) any and all Claims by any
third party
seeking damages, contribution, indemnification, cost recovery,
compensation or
injunctive relief resulting from Hazardous Materials or arising
from alleged
injury or threat of injury to health, safety or the environment.
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Equipment Report. An Equipment Report signed by a
responsible
officer of the Borrowers and in substantially the form of Exhibit C
hereto.
ERISA. The Employee Retirement Income Security
Act of 1974, as
amended from time to time, and the regulations promulgated and
rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect
at the date
of this Loan Agreement and any subsequent provisions of ERISA,
amendatory
thereof, supplemental thereto or substituted therefor.
ERISA Affiliate. Each trade or business, whether
or not
incorporated, which together with any Borrower or a Subsidiary of
any Borrower
would be deemed to be a "single employer" within the meaning of
Section 414(b)
or (c) of the Code.
ERISA Event. Means (a) any "reportable event", as
defined in
Section 4043 of ERISA or the regulations issued thereunder, with
respect to a
Plan (other than an event for which the 30-day notice period is
waived); (b) the
existence with respect to any Plan of an "accumulated funding
deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA, whether
or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d)
of ERISA of an application for a waiver of the minimum funding
standard with
respect to any Plan; (d) the incurrence by any Borrower or any of
their
respective ERISA Affiliates of any liability under Title IV of
ERISA with
respect to the termination of any Plan or the withdrawal or partial
withdrawal
of any Borrower or any of their respective ERISA Affiliates from
any Plan or
Multiemployer Plan; (e) the receipt by any Borrower or any of their
respective
ERISA Affiliates from the PBGC or a plan administrator of any
notice relating to
the intention to terminate any Plan or Plans or to appoint a
trustee to
administer any Plan; (f) the adoption of any amendment to a Plan
that would
require the provision of security pursuant to Section 401(a)(29) of
the Code or
Section 307 of ERISA; (g) the receipt by any Borrower or any of
their respective
ERISA Affiliates of any notice, or the receipt by any Multiempoyer
Plan from any
Borrower or any of their respective ERISA Affiliates of any notice,
concerning
the imposition of Withdrawal Liability or a determination that a
Multiemployer
Plan is, or is expected to be, insolvent or in reorganization,
within the
meaning of Title IV of ERISA; or (h) the occurrence of a
"prohibited
transaction" with respect to which any Borrower or any of their
respective
Subsidiaries is a "disqualified person" (within the meaning of
Section 4975 of
the Code) or with respect to which any Borrower or any of their
respective
Subsidiaries could otherwise be liable.
Eurocurrency Reserve Rate. For any day with
respect to a LIBOR
Rate Loan, the maximum rate (expressed as a decimal) at which any
bank subject
thereto would be required to maintain reserves under Regulation D
of the Board
of Governors of the Federal Reserve System (or any successor or
similar
regulations relating to such reserve requirements) against
"Eurocurrency
Liabilities" (as that term is used in Regulation D), if such
liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted
automatically on
and as of the effective date of any change in the Eurocurrency
Reserve Rate.
-20-
Event of Default. The occurrence or existence of
any of the
events or conditions set forth in Section 13.1 hereof.
Existing Container Advance Rate. One of the
following amounts:
(1) on the Closing Date and the initial Payment Date, the Closing
Date Advance
Rate, or (2) for each Payment Date thereafter commencing April 20,
2005, an
amount equal to the difference between (i) the Closing Date Advance
Rate minus
(ii) the product of (x) the Existing Container Advance Decrease
Rate and (y) the
number of full calendar quarters that have elapsed since the
Closing Date.
Existing Container Advance Decrease Rate. One of
the following
amounts:
(1) on the Closing Date and all times thereafter
until the
Asset Value Adjustment Date, one percent (1%); and
(2) at all times on or after the Asset Value
Adjustment Date,
the amount determined on the Asset Value Adjustment Date
in accordance
with the following formula:
1% x A/B
Where A = the sum of the Net Book Values of all
Eligible
Containers owned by any Borrower on the
Closing Date
calculated immediately prior to any
approved increase
in such Net Book Values on the Asset
Value Adjustment
Date; and
B = the sum of the Net Book Values of all
Eligible
Containers owned by any Borrower on the
Closing Date
calculated immediately after giving
effect to any
approved increase in such Net Book
Values on the
Asset Value Adjustment Date.
Fair Market Value. With respect to any asset
(including a
Container), shall mean the price at which a willing buyer, not an
Affiliate of
the seller, and a willing seller who does not have to sell, would
agree to
purchase and sell such asset, as determined in good faith by the
board of
directors or other governing body or, pursuant to a specific
delegation of
authority by such board of directors or governing body, a
designated senior
executive officer of any Borrower or their Subsidiaries selling
such asset.
Federal Bankruptcy Code. Title 11, United States
Code as in
effect from time to time (and any successor thereto).
Fee Letter. That certain fee letter, dated as of
November 3,
2004, by and among the Borrowers and the Administrative Agent.
Fees. Collectively, the Commitment Fee and the
fees detailed
in the Fee Letter.
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Finance Lease. Any lease that is classified as a
"direct
financing lease" pursuant to GAAP.
Financial Affiliate. A Subsidiary of the bank
holding company
controlling any Lender, which Subsidiary is engaging in any of the
activities
permitted by Section 4(e) of the Bank Holding Company Act of 1956
(12 U.S.C.
Section 1843).
Fortis. Fortis Bank (Nederland) N.V., a naamloze
vennootschap
organized under the laws of the Kingdom of The Netherlands, and its
successors.
Funding Date. Each date on which a Loan is made
to the
Borrowers pursuant to the terms of the Loan Agreement.
GAAP or Generally Accepted Accounting Principles.
Accounting
principles which are consistent with the principles promulgated or
adopted from
time to time by the Financial Accounting Standards Board, its
committees and its
predecessors, including applicable statements and interpretations
issued by the
American Institute of Certified Public Accounting or its
committees.
Governmental Authority. Any foreign, federal,
state, regional,
local, municipal or other government, or any department,
commission, board,
bureau, agency, public authority or instrumentality thereof, or any
court or
arbitrator.
Greybox Account. Bank account number 4074-8291
maintained by
TLI at Citibank N.A. and any replacement for such account
established in
accordance with the provisions of this Loan Agreement.
Gross Lease Revenues. All of the following: (i)
all income
(without reduction for expenses or costs), calculated on a cash
basis in
accordance with GAAP, earned in connection with the ownership, use
and/or
operation of a Container, including, but not limited to, rental,
handling,
location, revenue, damage protection, interchange fees and other
rental-related
charges arising from leasing of such Container, and (ii) all
Casualty Proceeds,
indemnification proceeds and Sales Proceeds specifically relating
to such
container.
Hazardous Substances. Those substances or
materials that are
prohibited, limited or regulated by any Environmental Law.
Hedging Agreement. Any interest rate swap
agreement, interest
rate cap agreement, interest rate collar agreement, interest rate
futures
contract, interest rate option agreement, interest rate exchange
agreement,
forward currency exchange agreement, forward rate currency
agreement, forward
commodity contract, commodity swap, commodity option or other
similar agreement
or arrangement to which one or more of the Borrowers (or any of
their
Subsidiaries) at that time is a party, designed to protect the
Borrowers (or
such Subsidiary) against fluctuations in those interest rates,
exchange rates,
forward rates or commodity prices that normally arise in connection
with the
Borrowers' ordinary course of business or as otherwise required to
be entered
into by one
-22-
or more of the Borrowers (or any of their Subsidiaries) pursuant
to, and in
accordance with, the terms of any Loan Document.
High Yield Bonds. Any issuance by Container
Holdings after the
Closing Date of notes or other debt securities in a private
placement or public
offering (including a Rule 144A offering or similar transaction)
the proceeds of
which are used by Container Holdings to refinance, in whole or in
part, the
Seller Loan.
IO Disbursement Account. An account designated as
such and
established by the Borrowers pursuant to the terms of this Loan
Agreement.
IO Distributable Amount. For any Payment Date,
one or more of
the following amounts, as adjusted in accordance with Section
3.1(c) hereof:
(A) if the Seller Loan is then outstanding, the
amount of
interest accrued and unpaid interest, and liquidated
damages, on the
then unpaid principal balance of such Seller Loan less any
such amounts
related to the Seller Loan that are then on deposit in the
IO
Disbursement Account; provided, however, that in
calculating the amount
payable pursuant to this clause (A), the unpaid principal
balance of
the Seller Loan used in such calculation shall not exceed
Two Hundred
Seventy Five Million Dollars ($275,000,000) and the
interest rate per
annum used in such calculation shall not exceed the lesser
of (i)
eleven and one half percent (11.5%) per annum and (ii) the
sum of (x)
eight and three-fourths percent (8-3/4%), plus (y) the
product of (a)
one-quarter percent (1/4%) times (b) the number of full
three month
periods that shall have elapsed since the Closing Date
(calculated as
of the next scheduled interest payment date under the
Seller Loan); and
(B) if the High Yield Bonds are outstanding, the
amount of
interest accrued and unpaid interest, and liquidated
damages, on the
then unpaid principal balance of the High Yield Bonds;
provided,
however, that in calculating the amount payable pursuant
to this clause
(B), the unpaid principal balance of the High Yield Bonds
used in such
calculation shall not exceed Three Hundred Million Dollars
($300,000,000) and the interest rate per annum used in
such calculation
shall not exceed the greater of (i) ten percent (10%) per
annum and
(ii) such higher interest rate per annum as shall be
acceptable to the
Administrative Agent and the Required Lenders;
provided, however, that the IO Distributable Amount payable on any
two
consecutive Payment Dates shall in no event exceed, without the
prior consent of
the Administrative Agent, Fifteen Million Eight Hundred Twelve
Thousand, Five
Hundred Dollars ($15,812,500).
Incentive Arrangements. Any (a) earn-out
agreements, (b) stock
appreciation rights, (c) "phantom" stock plans, (d) employment
agreements, (e)
non-competition agreements and (f) incentive and bonus plans
entered into by any
Borrower
-23-
or any Consolidated Subsidiary for the benefit of, and in order to
retain,
executives, officers or employees of Persons or businesses in
connection with
the Acquisition.
Indebtedness. As to any Person, without
duplication, means (i)
all indebtedness (including principal, interest, fees and charges)
of such
Person for borrowed money, (ii) all obligations of such Person in
respect of
letters of credit, bankers' acceptances, and bank guaranties issued
for the
account of such Person, (iii) all indebtedness of the types
described in clause
(i), (ii), (iv), (v) or (vi) of this definition secured by any Lien
on any
property owned by such Person, whether or not such indebtedness has
been assumed
by such Person (provided that, if the Person has not assumed or
otherwise become
liable in respect of such indebtedness, such indebtedness shall be
deemed to be
in an amount equal to the lesser of (A) the outstanding amount of
such
Indebtedness and (B) the fair market value of the property to which
such Lien
relates as determined in good faith by such Person), (iv) the
aggregate amount
of all capitalized lease obligations of such Person, (v) all
Contingent
Obligations of such Person, (vi) as of any date of determination,
all
obligations under any interest rate hedging or under any similar
type of
agreement to the extent of the amount due if such agreement were to
be
terminated on such date of determination, and (vii) all obligations
of such
Person issued or assumed as the deferred purchase price of property
or services,
all conditional sale obligations and all obligations under any
title retention
agreement (but excluding trade accounts payable and other accrued
liabilities
arising in the ordinary course of business that are not overdue by
90 days or
more or are being contested in good faith by appropriate
proceedings promptly
instituted and diligently conducted).
Independent Accountant. Any "Big 4" or other
nationally
recognized accounting firm that is reasonably acceptable to the
Administrative
Agent and that is independent with respect to the Borrowers and
their
Subsidiaries within the meaning of the Securities Act of 1933, as
amended, and
the applicable published rules and regulations thereunder.
Intercompany Note. A promissory note evidencing
intercompany
loans made pursuant to Section 9.4(iv), substantially in the form
of Exhibit R
hereto.
Intercompany Subordination Agreement. This term
shall have the
meaning set forth in Section 11.17 hereof.
Interest Rate Hedging Agreement. A Hedging
Agreement that
protects a Borrower against fluctuations in interest rates.
Interest Period. With respect to all or any
relevant portion
of any Loan, (a) initially, the period commencing on the Funding
Date of such
Loan and ending on the close of business on the day preceding the
immediately
following Payment Date, and (b) thereafter, each period commencing
on a Payment
Date and ending (i) for any Base Rate Loan, the day immediately
preceding the
next succeeding Payment Date; and (ii) for any LIBOR Rate Loan, the
day
preceding the 1, 3 or 6 month anniversary of such Payment Date, as
selected by
the Borrowers and available to the Administrative Agent; provided
-24-
that all of the foregoing provisions relating to Interest Periods
are subject to
the following:
(A) if any Interest Period with respect to a
LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business
Day, that
Interest Period shall be extended to the next succeeding
LIBOR Business
Day unless the result of such extension would be to carry
such Interest
Period into another calendar month, in which event such
Interest Period
shall end on the immediately preceding LIBOR Business Day;
(B) if any Interest Period with respect to a Base
Rate Loan
would end on a day that is not a Business Day, that
Interest Period
shall end on the next succeeding Business Day;
(C) any Interest Period relating to any LIBOR
Rate Loan that
begins on the last LIBOR Business Day of a calendar month
(or on a day
for which there is no numerically corresponding day in the
calendar
month at the end of such Interest Period) shall end on the
last LIBOR
Business Day of a calendar month; and
(D) any Interest Period that would otherwise
extend beyond the
Legal Final Payment Date shall end on the Legal Final
Payment Date.
Investments. Any direct or indirect advance, loan
(other than
advances to customers in the ordinary course of business that are
recorded as
accounts receivable on the balance sheet of the lender) or other
extensions of
credit (including by way of guarantee or similar arrangement) or
capital
contribution to (by means of any transfer of cash or other property
to others or
any payment for property or services for the account or use of
others), or any
purchase or acquisition for value of Capital Stock, Indebtedness or
other
similar instruments issued by any Person. In determining the
aggregate amount of
Investments outstanding at any particular time: (a) the amount of
any Investment
represented by a guaranty shall be taken at not less than the
principal amount
of the obligations guaranteed and still outstanding; (b) there
shall be deducted
in respect of each such Investment any amount received as a return
of capital
(but only by repurchase, redemption, retirement, repayment,
liquidating dividend
or liquidating distribution); (c) there shall not be deducted in
respect of any
Investment any amounts received as earnings on such Investment,
whether as
dividends, interest or otherwise; and (d) there shall not be
deducted from the
aggregate amount of Investments any decrease in the value thereof.
Lease. All leases or contracts for use or hire of
a Container
by a Lessee and a Borrower, as lessor, but only to the extent such
lease or
contract relates to a Container.
Legal Final Payment Date. The Payment Date
occurring in
January 2012.
Lender Affiliate. With respect to any Lender, an
Affiliate of
such Lender.
-25-
Lenders. Fortis and the other lending
institutions listed on
Schedule 1 hereto and any other Person who becomes an assignee of
any rights and
obligations of a Lender pursuant to Section 15.
Lessee. Any obligor under a Lease.
LIBOR Business Day. Any day on which commercial
banks are open
for international business (including dealings in Dollar deposits)
in London or
such other eurodollar interbank market as may be selected by the
Administrative
Agent in its sole discretion acting in good faith.
LIBOR Rate. For any Interest Period with respect
to a LIBOR
Rate Loan, the rate of interest equal to (i) the rate determined by
the
Administrative Agent at which Dollar deposits for such Interest
Period are
offered based on information presented on Page 3750 of the Dow
Jones Market
Service (formerly known as the Telerate Service) as of 11:00 a.m.
London time on
the second LIBOR Business Day prior to the first day of such
Interest Period,
divided by (ii) a number equal to 1.00 minus the Eurocurrency
Reserve Rate. If
the rate described above does not appear on the Dow Jones Market
Service on any
applicable interest determination date, the LIBOR Rate shall be the
rate
(rounded upward, if necessary, to the nearest one
hundred-thousandth of a
percentage point), determined on the basis of the offered rates for
deposits in
Dollars for a period of time comparable to such LIBOR Rate Loan
which are
offered by four major banks in the London interbank market at
approximately
11:00 a.m. London time, on the second LIBOR Business Day prior to
the first day
of such Interest Period as selected by the Administrative Agent.
The principal
London office of each of the four major London banks will be
requested to
provide a quotation of its Dollar deposit offered rate. If at least
two such
quotations are provided, the rate for that date will be the
arithmetic mean of
the quotations. If fewer than two quotations are provided as
requested, the rate
for that date will be determined on the basis of the rates quoted
for loans in
Dollars to leading European banks for a period of time comparable
to such
Interest Period offered by major banks in New York City at
approximately 11:00
a.m. New York City time, on the second LIBOR Business Day prior to
the first day
of such Interest Period. In the event that the Administrative Agent
is unable to
obtain any such quotation as provided above, it will be considered
that the
LIBOR Rate pursuant to a LIBOR Rate Loan cannot be determined.
LIBOR Rate Loan. A Loan bearing interest
calculated by
reference to the LIBOR Rate.
Lien. Any mortgage, pledge, hypothecation,
assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or
other), charge,
preference, priority or other security agreement of any kind or
nature
whatsoever (including any agreement to give any of the foregoing,
any
conditional sale or other title retention agreement, any financing
or similar
statement or notice filed under the UCC or any similar recording or
notice
statute (other than any unauthorized notice filing for which there
is not
otherwise any underlying Lien or obligation), and any lease having
substantially
the same effect as the foregoing).
-26-
Loan Agreement. This Credit Agreement, including
the Schedules
and Exhibits hereto.
Loan Documents. This Loan Agreement, any Hedging
Agreement,
the Revolving Credit Notes, the Intercreditor Agreement, the
Intercompany
Subordination Agreement, the Participation Agreement and the
Security Documents.
Loan Request. This term shall have the meaning
set forth in
Section 2.3.
Loans. The Closing Date Advance and the
Post-Closing Advances.
Lockbox. A lockbox or post office box covered by
a Lockbox
Agreement.
Lockbox Accounts. Bank accounts into which Gross
Lease Revenue
are deposited, and any bank account that is hereafter created in
accordance
with, and to perform the functions contemplated for "Lockbox
Accounts" in
accordance with the terms of this Loan Agreement.
Lockbox Agreement. Any letter agreement, in form
and substance
satisfactory to the Administrative Agent among a Lockbox Bank, TLI
and the
Administrative Agent, as any such letter agreement may be amended,
supplemented
or modified from time to time in accordance with its terms.
Lockbox Bank. Any of the banks at which one or
more Lockbox
Accounts are maintained.
Managed Fleet. Collectively, all of the
containers managed by
the Borrowers, including the Containers.
Management Fee. Collectively, the management fee
and all other
amounts payable to Container Holdings, pursuant to the terms of
that certain
intercompany management consulting agreement, dated November 3,
2004 by and
among TLI, TOL and Container Holdings, as in effect on the date
hereof.
Manager Report. A Manager Report signed by a
responsible
officer of the Borrowers and in substantially the form of Exhibit D
hereto.
Margin Stock. The term shall have the meaning
provided in
Regulation U.
Material Adverse Effect. With respect to any
event or
occurrence of whatever nature (including any adverse determination
in any
litigation, arbitration or governmental investigation or
proceeding):
(a) a material adverse effect on the business,
financial
condition or operations of the Borrowers taken as a whole;
or
-27-
(b) a material adverse effect on the ability of
any Borrower
to perform any of its monetary Obligations under any of
the Loan
Documents to which it is a party.
Moody's. Moody's Investor Service, Inc., or any
successor
thereto.
Multiemployer Plan. Any multiemployer plan, as
defined in
Section 4001(a)(3) of ERISA with respect to which any Borrower or
any of their
respective ERISA Affiliates shall have any liability.
Net Book Value. With respect to any Container as
of any date
of determination, the difference of (x) an amount equal to the sum
of (i) the
Original Equipment Cost of such Container, plus (ii) any increase
in the Net
Book Value of such Container to be made on the Asset Value
Adjustment Date,
minus (y) the accumulated depreciation on such Container calculated
in
accordance with the Depreciation Policy in effect from time to
time.
Non-Excluded Taxes. Any taxes other than:
(i) income taxes, branch profits taxes,
franchise taxes
or any other tax imposed on the net
income of the
Lender or the Administrative Agent under
the laws of
the jurisdiction (or any political
subdivision of
taxing authority thereof or therein) in
which such
Lender or the Administrative Agent is
organized or in
which the principal office or funding
office of such
Lender or the Administrative Agent is
located;
(ii) any deduction, withholding or other
imposition of
taxes that arises as a result of a
present or former
connection between such Lender or the
Administrative
Agent and the relevant jurisdiction
imposing such
tax, including carrying on business in,
having a
branch, agency or permanent
establishment in, or
being resident in such jurisdiction but
excluding any
such connection which arises solely as a
result of
such Lender or the Administrative Agent
having
executed, performed its obligations
under or received
payment under any of the Loan Documents
or otherwise
solely by virtue of the Loan Documents.
Non-U.S. Lender. This term shall have the meaning
set forth in
Section 5.2.3.
Non-Wholly-Owned Subsidiary. As to any Person,
each Subsidiary
of such Person which is not a Wholly-Owned Subsidiary of such
Person.
Notes. The Revolving Credit Notes.
-28-
Obligations. All indebtedness, obligations and
liabilities of
any of the Borrowers to any of the Lenders and the Administrative
Agent,
individually or collectively, existing on the date of this Loan
Agreement or
arising thereafter, direct or indirect, joint or several, absolute
or
contingent, matured or unmatured, liquidated or unliquidated,
secured or
unsecured, arising by contract, operation of law or otherwise,
arising or
incurred under this Loan Agreement or any of the other Loan
Documents or in
respect of any Loan or any of the Revolving Credit Notes.
Original Equipment Cost. With respect to any
Container, an
amount equal to the sum of (i) the greater of (A) the vendor's or
manufacturer's
invoice price of such Container and (B) with respect to those
Containers owned
by the Borrowers on the Closing Date that were previously acquired
by a Borrower
through an asset purchase or other acquisition, the purchase price
allocated to
a Container by such Borrower in the acquisition of such Container,
plus (ii)
reasonable and customary inspection, transport and initial
positioning costs
necessary to put such Container in service.
Outstanding. The aggregate outstanding principal
amount of the
Loans as of any date of determination.
Participant. This term shall have the meaning set
forth in
Section 15.4 hereof.
Participation Agreement. The participation
agreement, dated as
of November 3, 2004, among the Borrowers and the Administrative
Agent, as such
agreement may be amended, modified or supplemented from time to
time in
accordance with its terms.
Payment Date. The third Business Day following a
Determination
Date, commencing January 27, 2005.
Payroll Account. Bank account number ____
maintained by TLI at
Citibank N.A. and any replacement for such account established in
accordance
with the provisions of this Loan Agreement.
PBGC. The Pension Benefit Guaranty Corporation
established
pursuant to Section 4002 of ERISA, or any successor thereto.
Permitted Business. The marine container leasing
business and
any business that is the same as or similar, reasonably related,
complementary,
ancillary or incidental to the marine container leasing business,
including, but
not limited to, the leasing of chassis. The container logistics
business, the
container purchase and resale business, and the static storage
business, all as
currently engaged in by Borrowers or their Subsidiaries on the
Closing Date are
also deemed to be a Permitted Business.
Permitted Disbursements. Any of the following,
subject to the
conditions and limitations set forth below:
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(i) to pay Direct Operating Expenses then due and
owing including
with respect to all containers included in the
Managed Fleet;
(ii) to pay any Third Party Lease Payment Amount then
due and
owing;
(iii) to pay Tier One Permitted Dividends;
(iv) to pay, or to pay a management fee equal to,
selling, general
and administrative expenses incurred by the
Borrowers during
such Collection Period; provided, that the
aggregate amount of
permissible payments be made in any Collection
Period pursuant
to this clause (iv) shall not exceed an amount
equal to the
budgeted selling, general and administrative
expenses for such
Collection Period (which budgeted amount shall be
(x)
increased by the amount by which the selling,
general and
administrative expenses incurred by the Borrowers
during the
immediately prior Collection Period exceeded the
estimate of
the amount of the payment, or the management fee
paid, to the
Borrowers for such Collection Period, and (y)
decreased by the
amount by which the selling, general and
administrative
expenses incurred by the Borrowers during the
immediately
prior Collection Period was less than the
estimate of the
amount of the payment, or the management fee
paid, to the
Borrowers for prior Collection Period; provided,
that any
adjustment in the amount distributed for any
Collection Period
pursuant to this clause (iv) by reason of the
operation of
either subclause (x) or (y) above shall not
affect the
calculation of any adjustment pursuant to either
subclause (x)
or (y) above with respect to any future
Collection Period);
(v) to fund capital expenditures to acquire
additional Containers;
provided, however, that such capital expenditures
shall not be
a Permitted Disbursement (i) upon the expiration
or
termination of the Revolving Credit Period, (ii)
if a
Designated Event of Default is then continuing,
or (iii) if
after including the Eligible Containers to be
acquired with
such expenditure, the Aggregate Note Principal
Balance exceeds
the Asset Base;
(vi) to pay any post closing increase to the Purchase
Price (as
defined in the Stock Purchase Agreement) pursuant
to either
Section 2.05 or 2.06 of the Stock Purchase
Agreement; and
(vii) to pay any UBS Lease Termination Payments then
due and
payable.
Permitted Dividend. Any of (i) any Tier One
Permitted
Dividend, (ii) any Tier Two Permitted Dividend, (iii) any Tier
Three Permitted
Dividend or (iv) the dividend contemplated in Section 3.6(b)
hereof.
Permitted Holders. The Resolute Fund L.P., The
Jordan Company,
L.P., Klesch & Company Limited, Edgewater Private
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Equity Fund III, L.P., Edgewater Private Equity Fund IV, L.P.,
Fairholme
Partners, L.P., Fairholme Ventures II, LLC, Fairholme Holdings,
Ltd., JZ Equity
Partners plc and their respective Affiliates.
Permitted Liens. This term shall have the meaning
set forth in
Section 9.3 hereof.
Permitted Securitization. A transaction pursuant
to which (i)
one or more of the Borrowers and/or their respective Subsidiaries
sells, conveys
or otherwise transfers, or grants a security interest in,
containers, leases and
other related assets to a Special Purpose Vehicle or any other
Person (other
than the Borrowers or any of their respective Subsidiaries), (ii)
such Special
Purpose Vehicle or such other Person issues Indebtedness (or
interests therein)
that is secured by such containers, leases and other related
assets, (iii) none
of the Borrowers or any of their respective Subsidiaries has any
obligation to
maintain such entity's financial condition or cause such entity to
achieve
certain levels of operating results (other than those related to or
incidental
to the relevant Permitted Securitization), (iv) none of the holders
of the
Indebtedness shall have recourse to the Borrowers or any of their
Subsidiaries
for credit losses on leases or the inability of the containers, in
each case
subject to the Permitted Securitization, to generate sufficient
cash flow to
repay the Indebtedness issued by such entity and (v) in
consideration for the
sales or transfers referred to in clause (i) above, when aggregated
with the
proceeds of all substantially concurrent financings, the Borrowers
receive a
sufficient amount of cash proceeds to repay in full all of the
Obligations or
such lesser amount as shall be acceptable to the Administrative
Agent and the
Required Lenders.
Person. An individual, any partnership, a
corporation, a joint
venture, a trust, an unincorporated organization, or a government
or any agency
or political subdivision thereof.
Plan. Any employee pension plan (other than a
Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code
or Section 307 of ERISA, and in respect of which any Borrower or
any of their
respective ERISA Affiliates is an "employer" as defined in Section
3(5) of
ERISA.
Pledge Agreement. This term shall have the
meaning provided in
Section 11.15.
Pledge Agreement Collateral. This term shall mean
all of the
"Collateral" as defined in the Pledge Agreement.
Post-Closing Advance Rate. One of the following
amount: (1)
for the period commencing on the Closing Date and ending on the
last day of the
Revolving Credit Period, eighty percent (80%); or (2) for each
Payment Date
thereafter, an amount equal to the difference between (i) eighty
percent (80%),
minus (ii) the product of (x) one percent (1%), and (y) the number
of full
calendar quarters that have elapsed since the last day of the
Revolving Credit
Period; provided, however, that (i) if any Container to be acquired
with the
proceeds of a Post-Closing Advance is not acquired by a Borrower
either directly
from the manufacturer thereof or from a Lessee in connection with a
sale-
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leaseback transaction (so long as the average age of all containers
included in
such sale-leaseback does not exceed eighteen months), (ii) such
Container is not
being acquired by a Borrower in a transaction (or a series of
related
transactions) involving containers having a purchase price in
excess of Ten
Million Dollars ($10,000,000), and (iii) the sum of all Containers
then owned by
all of the Borrowers collectively that were not acquired by a
Borrower directly
from the manufacturer thereof does not exceed Twenty Five Million
Dollars
($25,000,000), then the Post-Closing Advance Rate applicable to
such Containers
shall be the Existing Container Advance Rate; and provided further,
that the
advance rate applicable to any Container in excess of the
limitations set forth
in clauses (ii) or (iii) that were not acquired by a Borrower
directly from the
manufacturer thereof or from a Lessee in connection with a
sale-leaseback
transaction (so long as the average age of all containers included
in such
sale-leaseback does not exceed eighteen months) and that does not
comply with
the provisions of either clause (ii) or (iii) in the above proviso
shall be
determined by the Administrative Agent.
Post-Closing Advances. Loans made or to be made
by the Lenders
to the Borrowers pursuant to Section 2.2 hereof.
Preferred Equity. With respect to the Capital
Stock of any
Person means Capital Stock of such Person (other than common stock
of such
Person) of any class or classes (however designated) that ranks
prior, as to the
payment of dividends or as to the distribution of assets upon any
voluntary or
involuntary liquidation, dissolution or winding up of such Person,
to Capital
Stock of any other class of such Person.
Public Equity Offering. An underwritten public
offering of
common stock of Container Holdings, any holding company of
Container Holdings,
TLI, TOL or TOCC pursuant to a registration statement filed with
the Securities
and Exchange Commission (other than on Form S-8).
Purchased Entities. Transamerica Leasing Inc.,
Trans Ocean
Ltd., Transamerica Leasing do Brasil Ltda., Trans Ocean Container
Corporation,
Spacewise Inc., Transamerica Leasing N.V., Transamerica Leasing
SRL, ICS
Terminals (UK) Limited, Trans Ocean Regional Corporate Holdings,
Transamerica
Leasing Pty. Ltd., Transamerica Leasing GmbH, Transamerica Leasing
(HK) Ltd.,
Greybox Logistics Services Inc., Intermodal Equipment Inc., Greybox
Services
Ltd. and Transamerica Leasing Limited.
Record. The grid attached to a Revolving Credit
Note, or the
continuation of such grid, or any other similar record, including
computer
records, maintained by the Administrative Agent with respect to any
Loan
referred to in such Note.
Refinance. In respect of any security or
Indebtedness, means
to refinance, extend, renew, refund, repay, prepay, redeem, defease
or retire,
or to issue a security or Indebtedness in exchange or replacement
for, such
security or Indebtedness in whole or in part. Refinanced and
Refinancing shall
have correlative meanings.
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Refinancing Event. Either of the following: (i)
placement into
the asset backed securities term market of notes sufficient to
repay in full all
of the Obligations (or such lesser amount as shall be acceptable to
the
Administrative Agent), or (ii) a repayment in full from an
alternate source of
funds all of the Obligations (or such lesser amount as shall be
acceptable to
the Administrative Agent).
Refinancing Indebtedness. Any Refinancing by a
Borrower or any
Subsidiary of Indebtedness incurred in accordance with clause (i),
(vi), (vii),
(viii) or (xi) of Section 9.4, in each case that does not:
(1) have an aggregate principal amount (or, if such
Indebtedness
is issued with original issue discount, an
aggregate offering
price) greater than the sum of (x) the aggregate
principal
amount of the Indebtedness being Refinanced (or,
if such
Indebtedness being Refinanced is issued with
original issue
discount, the aggregate accreted value) as of the
date of such
proposed Refinancing plus (y) the amount of fees,
expenses,
premium, defeasance costs and accrued but unpaid
interest
relating to the Refinancing of such Indebtedness
being
Refinanced; or
(2) create Indebtedness with: (a) a Weighted Average
Life to
Maturity that is less than the Weighted Average
Life to
Maturity of the Indebtedness being Refinanced; or
(b) a final
maturity earlier than the final maturity of the
Indebtedness
being Refinanced.
Register. This term shall have the meaning set
forth in
Section 15.3.
Regulation T. Regulation T of the Board of
Governors of the
Federal Reserve System as from to time in effect and any successor
to all or any
portion thereof.
Regulation U. Regulation U of the Board of
Governors of the
Federal Reserve System as from time to time in effect and any
successor to all
or a portion thereof.
Regulation X. Regulation X of the Board of
Governors of the
Federal Reserve System as from time to time in effect and any
successor to all
or any portion thereof.
Related Assets. With respect to any Container,
all of the
following: (i) all of a Borrower's right, title and interest in and
to, but none
of its obligations under, any agreement between such Borrower and
the
manufacturer of each such container pursuant to which such Borrower
acquired a
container from such manufacturer, and all amendments, additions and
supplements
hereafter made with respect thereto, (ii) all of a Borrower's
right, title and
interest in and to any Lease which such container is subject to
from time to
time, including all lease revenues accrued on or after the date
specified in the
Stock Purchase Agreement, (iii) all right, title and interest of
such Borrower
in and to all payments, proceeds and other amounts which have
accrued but have
not been paid and (iv) all payments, proceeds and income of the
foregoing or
related thereto.
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Related Parties. With respect to any Person, such
Person's
Affiliates and the partners, directors, officers, employees, agents
and advisors
of such Person and of such Person's Affiliates.
Required Lenders. As of any date of
determination, any single
Lender or multiple Lenders having more than 50% of the sum of the
portion of the
Aggregate Commitments unfunded at such date plus the aggregate
outstanding
principal amount of the Loans or, if the commitment of each Lender
to make Loans
has been terminated pursuant to Section 13.2, any single or
multiple Lenders
holding in the aggregate more than 50% of the outstanding principal
amount of
the Loans; provided that the Commitment of, and the portion of the
outstanding
principal amount of the Loans held or deemed held by, any
Defaulting Lender
shall be excluded for purposes of making a determination of
Required Lenders.
Revolving Credit Note. This term shall have the
meaning set
forth in Section 2.4.
Revolving Credit Note Record. A Record with
respect to a
Revolving Credit Note.
Revolving Credit Period. The period commencing on
the Closing
Date and ending on the earlier to occur of (i) the date on which
the Commitments
are terminated pursuant to Sections 2.5 or 13.2 hereof, and (ii)
the two year
anniversary of the Closing Date.
Sales Proceeds. The net cash sale proceeds of a
Container or
other asset sold by a Borrower in accordance with the terms of this
Loan
Agreement less:
(i) reasonable out-of-pocket expenses and fees
relating to
such sale (including, without limitation, legal,
accounting and
investment banking and other fees and sales commissions);
provided,
however, that no such investment banking fee shall be
payable with
respect to sales of Containers by a Borrower or any of its
Subsidiaries
made in the ordinary course of such Person's business;
(ii) repayment of, or any other payments made in
respect of,
Indebtedness that is secured by the property or assets
that are the
subject of such sale which (a) is required to be repaid in
connection
with such sale or (b) is paid in order to obtain a
necessary consent to
such sale;
(iii) appropriate amounts to be provided by a
Borrower or any
of its Subsidiaries, as the case may be, as a reserve, in
accordance
with GAAP, against any liabilities associated with such
sale and
retained by such Borrower or such Subsidiary, as the case
may be, after
such sale, including, without limitation, pension and
other
post-employment benefit liabilities, liabilities related
to
environmental matters and liabilities under any
indemnification
obligations associated with such sale; and
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(iv) any portion of the purchase price from such
sale placed
in escrow, whether as a reserve for adjustment of the
purchase price,
for satisfaction of indemnities in respect of such sale or
otherwise in
connection with such sale; provided, that upon the
termination of such
escrow, Sales Proceeds will be increased by any portion of
funds in
such escrow that are released to a Borrower or any of its
Subsidiaries.
Security Agreement. This term shall have the
meaning set forth
in Section 11.8.
Security Documents. The Security Agreement, the
Pledge
Agreement, the Lockbox Agreements and other instruments and
documents,
including, without limitation, Uniform Commercial Code financing
statements (or
documents of similar import) and filings made with the United
States Patent and
Trademark Office and United States Copyright Office, required to be
executed or
delivered pursuant to any Security Document.
Seller Loan. The loan (including any Exchange
Notes issued
pursuant to the terms of such agreement) to Container Holdings
evidenced by the
senior subordinated credit agreement, dated as of November 3, 2004,
among
Container Holding, Transamerica Accounts Holding Corporation, as
agent, and the
lenders named therein, as such agreement may be amended, modified
or
supplemented from time to time in accordance with the provisions of
such
agreement and the Loan Documents.
Senior Designated Officer. With respect to a
Borrower, the
Chief Executive Officer, the President, the Chief Financial Officer
or any Vice
President of such Borrower.
Special Purpose Vehicle. A corporation,
partnership, trust,
limited liability company or other entity that is formed by one or
more of the
Borrowers or one of their Subsidiaries for the purpose of
purchasing or
financing assets of the Borrowers and/or its Subsidiaries pursuant
to any
Permitted Securitization and that is designated as a "Special
Purpose Vehicle"
in a written notice delivered to the Administrative Agent by the
Borrowers.
Specialized Containers. All refrigerated
containers, tank
containers, special purposes containers, open top containers, flat
rack
containers, bulk containers, high cube containers (other than 40'
high cube dry
containers), cellular palletwide containers and all other types of
containers
other than standard dry cargo containers.
S&P. Standard & Poor's Ratings Services,
a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
State. Any state of the United States of America.
Stock Purchase Agreement. That certain Stock
Purchase
Agreement, dated as of July 10, 2004, by and between TA Leasing
Holding Co, Inc.
and Klesch &
-35-
Company Limited, as such agreement may be amended, modified or
supplemented from
time to time in accordance with its terms.
Subsidiary. With respect to any Person shall mean
and include
(i) any corporation more than 50% of whose stock of any class or
classes having
by the terms thereof ordinary voting power to elect a majority of
the directors
of such corporation (irrespective of whether or not at the time
stock of any
class or classes of such corporation shall have or might have
voting power by
reason of the happening of any contingency) is at the time owned by
such Person
directly or indirectly through one or more Subsidiaries of such
Person and (ii)
any partnership, association, limited liability company, joint
venture or other
entity (other than a corporation) in which such Person directly or
indirectly
through one or more Subsidiaries of such Person, has more than a 50
Capital
Stock at the time.
Systems/Organizational Establishment Expenses.
The aggregate
of all expenditures (whether paid in cash or accrued as
liabilities) by
Container Holdings and the Consolidated Subsidiaries in financial,
information
technology and other similar systems of Container Holdings and its
Consolidated
Subsidiaries.
TEU. The abbreviation used for twenty foot
equivalent units.
Term Lease. A lease having an initial term of 36
months or
greater.
Third Party Lease Payment Amount. As of any date
of
determination, all amounts then owning to third party owners of
containers
included in the Managed Fleet (other than the Borrowers) in
accordance with the
terms of their respective management agreements.
Tier One Permitted Dividend. Any of:
(i) the payment of any dividend or other
distribution or
redemption within 60 days after the date of declaration of
such
dividend or call for redemption if such payment would have
been
permitted on the date of declaration or call for
redemption;
(ii) items described in clauses (i), (iv), (v),
(vi),
(viii), (ix) and (xiv) of Section 9.5 hereof;
(iii) payments, advances or dividends to any
direct or
indirect parent entity of a Borrower to be used by such
entity solely
to pay its franchise taxes, directors fees, registration
and reporting
fees, fees and expenses associated with state
qualifications and other
state, federal or regulatory compliance matters, fees and
expenses of
accountants and other fees, costs and expenses owing by it
in the
ordinary course of business; provided, that all such
payments, advances
or dividends are in an aggregate amount not to exceed $2.0
million in
any fiscal year, and shall actually be used by such entity
to pay such
amounts;
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(iv) payments, advances or dividends to any direct
or indirect
parent entity of a Borrower to be used by such entity
solely to pay
indemnification payments to one or more of its officers
and directors;
(v) dividends or distributions to any Borrower or
any
Subsidiary of any Borrower;
(vi) advances to any direct or indirect parent
entity of a
Borrower to be used by such entity solely to pay federal,
state and
local income taxes made no earlier than five days prior to
the date on
which such entity is required to make such payment in an
amount not to
exceed the aggregate tax liability of the Borrowers and
their
Subsidiaries for such calendar year determined as if the
Borrowers and
their Subsidiaries were a separate affiliated group (as
defined in
Section 1504 of the Internal Revenue Code of 1986, as
amended) filing a
consolidated return, or, to the extent applicable, a
separate group
filing combined or unitary returns, and then only to the
extent that
any such payments are actually paid by such entity to
governmental
entities and any payments made in connection with any
tax-sharing
agreement; and
(vii) cash payments in lieu of the issuance of
fractional
shares in connection with the exercise of warrants,
options or other
securities convertible into or exchangeable for Capital
Stock (other
than Disqualified Stock) of a Borrower; provided, that any
such cash
payment shall not (A) be for the purpose of evading the
limitations of
Section 9.6 (as determined in good faith by the Board of
Directors of
the applicable Borrower), and (B) exceed one hundred
thousand dollars
($100,000) in any fiscal year.
Tier Three Permitted Dividend. Any of:
(i) the acquisition of any shares of Capital
Stock (other than
Disqualified Stock) of any Borrower, solely in exchange
for other
shares of Capital Stock (other than Disqualified Stock) of
any
Borrower;
(ii) an Investment either (i) solely in exchange
for shares of
Capital Stock (other than Disqualified Stock) of any
Borrower or (ii)
through the application of the net proceeds of a sale for
cash (other
than to a Subsidiary of a Borrower) of shares of Capital
Stock (other
than Disqualified Stock) of any Borrower within 60 days
after such
sale;
(iii) repurchases of Capital Stock deemed to
occur upon
exercise of stock options, warrants or other similar
rights if such
Capital Stock represents a portion of the exercise price
of such
options, warrants or other similar rights;
(iv) the purchase, redemption or other
acquisition or
retirement for value of any Capital Stock of such Person
owned by a
Borrower or any Subsidiary of a Borrower;
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(v) Dividends made to effect a Permitted
Securitization;
provided, however, that no such distribution shall be made
to Container
Holdings pursuant to this clause (v); and
(vi) any Dividend made out of the net cash
proceeds or the
fair market value of other assets received by a Borrower
from any
Person (other than a Subsidiary of a Borrower) from the
substantially
concurrent sale of, or made by exchange for, Capital Stock
(other than
Disqualified Stock) of such Borrower or a substantially
concurrent
capital contribution received by a Borrower from its
stockholders.
Tier Two Permitted Dividend. Any of:
(i) the purchase, repurchase, retirement,
redemption or other
acquisition of shares of Capital Stock of a Borrower, any
Subsidiary of
a Borrower or any direct or indirect parent of a Borrower
from
employees, former employees, directors, former directors
or consultants
of a Borrower, any Subsidiary of a Borrower or any direct
or indirect
parent of a Borrower (or permitted transferees of such
employees,
former employees, directors or former directors), pursuant
to the terms
of the agreements (including employment agreements) or
plans (or
amendments thereto) approved by the Board of Directors of
a Borrower or
of any direct or indirect parent of a Borrower under which
such
individuals purchase or sell or are granted the option to
purchase or
sell, shares of such Capital Stock; provided, that the
aggregate amount
of such repurchases and other acquisitions in any calendar
year shall
not exceed the lesser of (i) the sum of (x) $5 million and
(y) the
aggregate amount of Tier Two Permitted Dividends permitted
(but not
made) pursuant to this clause (i) in prior calendar years
and (ii)
$10.0 million; provided further, that such amount in any
calendar year
may be increased by an amount not to exceed the net cash
proceeds of
key man life insurance policies received by a Borrower or
any direct or
indirect parent of a Borrower after the Closing Date;
(ii) the payment of the Management Fee or
payments, advances
or dividends to any direct or indirect parent entity of a
Borrower to
be used by such entity solely to pay the Management Fee.
TLI. Transamerica Leasing Inc., a corporation
organized under
the laws of the State of Delaware, and its successors and permitted
assigns.
After the closing of the Transactions, the name of Transamerica
Leasing Inc.
will be changed to TAL International Container Corporation.
TOCC. Trans Ocean Container Corporation, a
corporation
organized under the laws of the State of Delaware, and its
successors and
permitted assigns.
TOL. Trans Ocean Ltd., a corporation organized
under the laws
of the State of Delaware, and its successors and permitted assigns.
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Transaction. All of the following, collectively:
(i) the
consummation of the acquisitions set forth in the Stock Purchase
Agreement, and
(ii) the entering into of the Loan Documents and the incurrence of
the Closing
Date Advance.
Trust Account. A bank account established by the
Borrowers in
accordance with the provisions of Section 3.1 hereof.
Type. As to all or any portion of any Loan, its
nature as a
Base Rate Loan or a LIBOR Rate Loan.
UBS Lease Agreement. The Equipment Lease
Agreement
(Transamerica Loan Trust No. 1996-A) (L-2), dated December 30,
1996, between
State Street Bank and Trust Company of Connecticut, National
Association, in its
capacity as owner trustee, as lessor, and Trans Ocean Container
Corporation, as
lessee. A true, complete and correct copy of such lease as in
effect on the
Closing Date is attached as Exhibit I hereto.
UBS Lease Termination Payment. The early
termination option
payment(s) to be made by TOCC pursuant to the terms of the UBS
Lease Agreement,
which payouts as of the Closing Date are set forth on Schedule 5
hereto.
UCC. The Uniform Commercial Code as in effect
from time to
time in the applicable jurisdiction.
Unfunded Current Liability. With respect to a
Plan shall mean
the amount, if any, by which the value of the accumulated plan
benefits under
the Plan determined on a plan termination basis in accordance with
actuarial
assumptions at such time consistent with those prescribed by the
PBGC for
purposes of Section 4044 of ERISA, exceeds the fair market value of
all plan
assets allocable to such liabilities under Title IV of ERISA
(excluding any
accrued but unpaid contributions).
Voting Stock. Stock or similar interests, of any
class or
classes (however designated), the holders of which are at the time
entitled, as
such holders, to vote for the election of a majority of the
directors (or
persons performing similar functions) of the corporation,
association, trust or
other business entity involved, whether or not the right so to vote
exists by
reason of the happening of a contingency.
Weighted Average Life to Maturity. When applied
to any
Indebtedness at any date, means the number of years obtained by
dividing (1) the
then outstanding aggregate principal amount of such Indebtedness
into (2) the
sum of the total of the products obtained by multiplying:
(A) the amount of each then remaining
installment, sinking
fund, serial maturity or other required payment of
principal, including
payment at final maturity, in respect thereof, by
(B) the number of years (calculated to the
nearest
one-twelfth) which will elapse between such date and the
making of such
payment.
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Wholly-Owned Subsidiary. As to any Person, (i)
any corporation
100% of whose Capital Stock (other than director's qualifying
shares and/or
other nominal amounts of shares required by applicable law to be
held by Persons
other than such Person) is at the time owned by such Person and/or
one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
limited
liability company, association, joint venture or other entity in
which such
Person and/or one or more Wholly-Owned Subsidiaries of such Person
owns 100% of
the Capital Stock at such time (other than director's qualifying
shares and/or
other nominal amounts of interests required by applicable law to be
held by
Persons other than such Person).
Withdrawal Liability. Liability to a
Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer
Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement
shall include
such document or agreement as amended, modified or
supplemented from
time to time in accordance with its terms and the terms of
this Loan
Agreement.
(b) The singular includes the plural and the
plural includes
the singular.
(c) A reference to any law includes any amendment
or
modification to such law.
(d) A reference to any Person includes its
permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein
have the
meanings assigned to them by GAAP applied on a consistent
basis by the
accounting entity to which they refer.
(f) The words "include", "includes", and
"including" are not
limiting.
(g) All terms not specifically defined herein or
by GAAP,
which terms are defined in the Uniform Commercial Code as
in effect in
the State of New York, have the meanings assigned to them
therein, with
the terms "instrument" and "chattel paper" being that
defined under
Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "ss." or Section
refers to that
section of this Loan Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and
words of
like import shall refer to this Loan Agreement as a whole
and not to
any particular section or subdivision of this Loan
Agreement.
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(j) Unless otherwise expressly indicated, in the
computation
of periods of time from a specified date to a later
specified date, the
word "from" means "from and including," the words "to" and
"until" each
mean "to but excluding," and the word "through" means "to
and
including."
(k) This Loan Agreement and the other Loan
Documents may use
several different limitations, tests or measurements to
regulate the
same or similar matters. All such limitations, tests and
measurements
are, however, cumulative and are to be performed in
accordance with the
terms thereof.
(l) This Loan Agreement and the other Loan
Documents are the
result of negotiation among, and have been reviewed by
counsel to,
among others, the Administrative Agent, the Lenders and
the Borrowers
and are the product of discussions and negotiations among
all parties.
Accordingly, this Loan Agreement and the other Loan
Documents are not
intended to be construed against the Administrative Agent
or any of the
Lenders merely on account of the Administrative Agent's or
any Lender's
involvement in the preparation of such documents.
2. THE CLOSING DATE ADVANCE AND NEW CONTAINER
ADVANCES.
2.1. CLOSING DATE ADVANCE. Subject to the terms
and conditions
set forth in this Loan Agreement, each Lender severally
agrees to make
a Loan to the Borrowers collectively on the Closing Date
in an amount
equal to its Commitment Percentage of an amount equal to
the lesser of
(A) Eight Hundred Twenty Million Dollars ($820,000,000),
and (B) the
Asset Base on the Closing Date.
2.2. POST-CLOSING LOAN. Subject to the terms and
conditions
set forth herein, each Lender severally agrees to make
loans (each such
loan, a "Post-Closing Advance") to the Borrowers from time
to time, on
any Business Day during the Revolving Credit Period;
provided, however,
that after giving effect to all amounts requested, the
Aggregate Note
Principal Balance shall not exceed the lesser of (i)
Aggregate
Commitments and (ii) the Asset Base, calculated after
giving effect to
the Eligible Containers, if any, to be acquired with the
proceeds of
such Post-Closing Advance. Post-Closing Advances shall be
LIBOR Rate
Loans or under the circumstances set forth in Section 5.4
or Section
5.5 hereof, a Base Rate Loan.
2.3. REQUESTS FOR LOAN. The Borrowers shall give
to the
Administrative Agent written notice in the form of Exhibit
E hereto (or
telephonic notice confirmed in a writing in the form of
Exhibit E
hereto) of each Loan requested hereunder (a "Loan
Request") no later
than 3:00 p.m. (Amsterdam time) three (3) LIBOR Business
Days prior to
any proposed Funding Date. Each such Loan Request shall
specify (i) the
principal amount of the Loan requested, (ii) the proposed
Funding Date
of such Loan and (iii) the Interest Period for such
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Loan Advance. Each Loan Request shall be irrevocable and
binding on the
Borrowers and shall obligate the Borrowers to accept the
Closing Date
Advance or Post-Closing Advance, as the case may be,
requested from the
Lenders on the proposed Funding Date. Each Loan Request
shall be in a
minimum aggregate amount of $2,500,000. No Loan Request
shall be
permitted to request any Loan on or after the Availability
Termination
Date, on which date any unfunded portion of the
Commitments shall
terminate, automatically and without notice or action of
any kind.
2.4. THE REVOLVING CREDIT NOTES. The Loans shall
be evidenced
by separate promissory notes of the Borrowers in
substantially the form
of Exhibit F hereto (each a "Revolving Credit Note"),
dated as of the
Closing Date (or such other date on which a Lender may
become a party
hereto in accordance with Section 15 hereof) and completed
with
appropriate insertions. One Revolving Credit Note shall be
payable to
the order of each Lender in a principal amount equal to
such Lender's
Commitment to make Loans or, if less, the outstanding
amount of all
Closing Date Advances and Post-Closing Advances made by
such Lender,
plus interest accrued thereon, as set forth below. The
Borrowers
irrevocably authorizes each Lender to make or cause to be
made, at or
about the time of the Funding Date of any Loan or at the
time of
receipt of any payment of principal on such Lender's
Revolving Credit
Note, an appropriate notation on such Lender's Revolving
Credit Note
Record reflecting the making of such Loan or (as the case
may be) the
receipt of such payment. The outstanding amount of the
Loans set forth
on such Lender's Revolving Credit Note Record shall be
prima facie
evidence absent manifest error of the principal amount
thereof owing
and unpaid to such Lender, but the failure to record, or
any error in
so recording, any such amount on such Lender's Revolving
Credit Note
Record shall not limit or otherwise affect the obligations
of the
Borrowers hereunder or under any Revolving Credit Note to
make payments
of principal of or interest on any Revolving Credit Note
when due.
2.5. TERMINATION OR REDUCTION OF COMMITMENTS. The
Borrowers
may, upon notice to the Administrative Agent, terminate
the Aggregate
Commitments, or from time to time permanently reduce the
Aggregate
Commitments; provided that (i) any such notice shall be
received by the
Administrative Agent not later than 3:00 p.m. (Amsterdam
time) three
(3) Business Days prior to the date of termination or
reduction, (ii)
any such partial reduction shall be in an aggregate amount
of
$5,000,000 or any whole multiple of $1,000,000 in excess
thereof, and
(iii) the Borrowers shall not terminate or reduce the
Aggregate
Commitments prior to the Availability Termination Date if,
after giving
effect thereto and to any concurrent prepayments
hereunder, the
Aggregate Note Principal Balance would exceed the
Aggregate
Commitments. The Administrative Agent will promptly notify
the Lenders
of any such notice of termination or reduction of the
Aggregate
Commitments. Any reduction of the Aggregate Commitments
shall be
applied to the Commitment of each Lender according to its
Commitment
Percentage. All fees accrued until the effective date
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of any termination or reduction of the Aggregate
Commitments shall be
paid on the effective date of such termination or
reduction.
2.6. REPAYMENT OF PRINCIPAL OF LOANS. (a) Subject
to the
provisions of Section 13.1 hereof relating to the
acceleration of the
Revolving Credit Notes and the other Obligations
hereunder, the
Borrowers shall pay to each Lender on each Payment Date,
solely from
funds released from the Trust Account on such Payment Date
in
accordance with the priority of payments set forth in
Section 3.1(c)
hereof and solely to the extent payable thereunder
pursuant to Section
3.1(c), as a principal payment on its Revolving Credit
Note in an
amount equal to its pro rata share of (i) the Asset Base
Deficiency (if
any) for such Payment Date and (ii) any amount required to
be repaid in
accordance with the provisions of Section 4.2.1 hereof.
The unpaid
principal balance of, and all accrued interest and other
amounts owing
on, or with respect to, the Revolving Credit Notes shall
be payable in
full on the earlier to occur of (x) the Legal Final
Maturity Date and
(y) the date on which the Revolving Credit Notes and the
other
Obligations have been declared due and payable in
accordance with the
provisions of Section 13.1 hereof.
2.7. FUNDING BY LENDERS; PRESUMPTION BY
ADMINISTRATIVE AGENT.
Unless the Administrative Agent shall have received notice
from a
Lender prior to the proposed Funding Date that such Lender
will not
make available to the Administrative Agent such Lender's
share of such
requested Loan, the Administrative Agent may assume that
such Lender
has made such share available on such date in accordance
with Sections
2.1 or 2.2, as the case may be, and may, in reliance upon
such
assumption, make available to the Borrowers a
corresponding amount. In
such event, if a Lender has not in fact made its share of
the
applicable requested Loan available to the Administrative
Agent, then
the applicable Lender agrees to pay to the Administrative
Agent
forthwith on demand such corresponding amount in
immediately available
funds with interest thereon, for each day from and
including the date
such amount is made available to the Borrowers to, but
excluding, the
date of payment to the Administrative Agent, at, in the
case of a
payment to be made by such Lender, the greater of the
Federal Funds
Rate and a rate determined by the Administrative Agent in
accordance
with banking industry rules on interbank compensation. If
such Lender
pays its share of the applicable Loan to the
Administrative Agent, then
the amount so paid shall constitute such Lender's portion
of the
requested Loan.
2.8. FAILURE TO SATISFY CONDITIONS PRECEDENT. If
any Lender
makes available to the Administrative Agent funds for any
Loan to be
made by such Lender as provided in the provisions of this
Loan
Agreement, and such funds are not made available to the
Borrowers by
the Administrative Agent because the conditions to the
applicable Loan
set forth in Sections 11 and 12 are not satisfied or
waived in
accordance with the terms hereof, the Administrative Agent
shall return
such funds (in like funds as received from such Lender) to
such Lender,
without interest.
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2.9. OBLIGATIONS OF LENDERS SEVERAL. The
obligations of the
Lenders hereunder to make Loans and to make payments
pursuant to this
Loan Agreement are several and not joint. The failure of
any Lender to
make any Loan or to make any payment under this Loan
Agreement on any
date required hereunder shall not relieve any other Lender
of its
corresponding obligation to do so on such date, and no
Lender shall be
responsible for the failure of any other Lender to so make
its Loan or
to make its payment under this Loan Agreement.
2.10. JOINT AND SEVERAL OBLIGATION. Each of the
Borrowers
hereby agrees that it is jointly and severally liable for
all of the
Obligations, regardless of the actual allocation of the
proceeds of the
Loans among the Borrowers. Each of the Borrowers accepts
joint and
several liability for all Obligations hereunder in
consideration of the
financial accommodation to be provided by the Lenders to
each of the
Borrowers under this Loan Agreement, for the mutual
benefit, directly
and indirectly, of each Borrower and in consideration of
the
undertakings by each other Borrower to accept joint and
several
liability for the Obligations.
Each Borrower jointly and severally hereby
irrevocably and
unconditionally accepts, not merely as a surety but also
as a
co-debtor, joint and several liability with each Borrower
with respect
to the payment and performance of all of the Obligations,
it being the
intention of the parties hereto that all of the
Obligations shall be
the joint and several obligations of each of the Borrowers
without
preferences or distinction among them.
If and to the extent that any Borrower shall fail
to make any
payment with respect to any of the Obligations as and when
due or to
perform any of the Obligations in accordance with the
terms thereof,
then in each such event, the other Borrowers will make
such payment
with respect to, or perform, such Obligations.
The obligations of each Borrower under the
provisions of this
Section 2.10 constitute full recourse obligations of such
Borrower,
enforceable against it to the full extent of its
properties and assets,
irrespective of the validity, regularity or enforceability
of this Loan
Agreement or any other Loan Document against any other
Borrower or any
other circumstances whatsoever that under applicable law
might
constitute a defense to the joint and several Obligations
of such other
Borrower.
Except as otherwise expressly provided herein,
each Borrower
hereby waives notice of acceptance of its joint and
several liability,
notice of any and all Obligations incurred hereunder or
under any other
Loan Document, notice of the occurrence of any Default or
Event of
Default, or of any demand for any payment hereunder or any
other Loan
Document, notice of any action at any time taken or
omitted by the
Administrative Agent or any Lender under or in respect of
any of the
Obligations, any requirement of diligence and,
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generally, all demands, notices and other formalities of
every kind in
connection with the Obligations, this Loan Agreement or
any other Loan
Document. Each Borrower hereby assents to, and waives
notice of, any
extension or postponement of the time for the payment of
any of the
Obligations, the acceptance of any partial payment
thereon, any waiver,
consent or other action or acquiescence by the
Administrative Agent or
any Lender at any time or times in respect of any default
by any
Borrower in the performance or satisfaction of any term,
covenant,
condition or provision hereunder or under this Loan
Agreement or any
other Loan Document, any and all other indulgences
whatsoever by the
Administrative Agent or any Lender in respect of any of
the
Obligations, and the taking, addition, substitution or
release, in
whole or in part, at any time or times, of any security
for any of the
Obligations or the addition, substitution or release, in
whole or in
part, of any Borrower. Without limiting the generality of
the
foregoing, each Borrower assents to any other action or
delay in acting
or failure to act on the part of the Administrative Agent
or any
Lender, including, without limitation, any failure
strictly or
diligently to assert any right or to pursue any remedy or
to comply
fully with applicable laws or regulations thereunder which
might, but
for the provisions of this Section 2.10, afford grounds
for
terminating, discharging or relieving such Borrower, in
whole or in
part, from any of its obligations under this Section 2.10,
it being the
intention of each Borrower that, so long as any of the
Obligations
remain unsatisfied, the obligations of such Borrower shall
not be
discharged except by performance and then only to the
extent of such
performance. The Obligations of each Borrower shall not be
diminished
or rendered unenforceable by any winding up,
reorganization,
arrangement, liquidation, reconstruction or similar
proceeding with
respect to any other Borrower or the other Lender. The
joint and
several liability of each Borrower hereunder shall
continue in full
force and effect notwithstanding any absorption, merger,
amalgamation
or any other change whatsoever in the name, membership,
constitution or
place of formation of any other Borrower.
The provisions of this Section 2.10 are made for
the benefit
of the Administrative Agent and each Lender and their
successors and
assigns, and may be enforced by such party from time to
time against
any Borrower as often as occasion therefore may arise and
without
requirement on the part of the Administrative Agent or any
Lender first
to marshal any of its claims or to exercise any of its
rights against
any other Borrower or to exhaust any remedies available to
it against
any other Borrower or to resort to any other source or
means of
obtaining payment of any of the Obligations or to elect
any other
remedy. The provisions of this Section 2.10 shall remain
in effect
until all the Obligations shall have been paid in full or
otherwise
fully satisfied. If at any time, any payment, or any part
thereof, made
in respect of any of the Obligations, is rescinded or must
otherwise be
restored or returned by the
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Administrative Agent or any Lender upon the insolvency,
bankruptcy or
reorganization of any Borrower, or otherwise, the
provisions of this
Section 2.10 will forthwith be reinstated in effect, as
though such
payment had not been made.
2.11. REVOLVING CREDIT FACILITY. The credit
facility evidenced
by this Loan Agreement is a revolving credit facility.
Accordingly, the
Borrowers will, subject to compliance with the terms of
this Loan
Agreement, have the right during the Revolving Credit
Period to
reborrow any amounts repaid to the Lenders in accordance
with the terms
of this Loan Agreement.
3. COLLECTION AND DISBURSEMENTS OF FUNDS.
3.1. TRUST ACCOUNT.
(a) Within thirty (30) days after the Closing
Date, the
Borrowers will establish and maintain the Trust Account
with a bank or
trust company acceptable to the Administrative Agent,
which account
shall be under the "contro
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