AMENDMENT NO. 2
to that certain
NOTE PURCHASE AGREEMENT
dated as of April 30, 1998
This
AMENDMENT NO. 2 (this " Amendment "), dated as
of March __, 2002, is by and between CONTAINER APPLICATIONS
INTERNATIONAL, INC. , a Nevada corporation (the "
Company ") and INTERPOOL, INC , a Delaware
Corporation (" Lender "). Capitalized terms used
herein without definition shall have the respective meanings
provided therefor in the Note Purchase Agreement referred to
below.
WHEREAS, the Company and the Lender are parties to that
certain Note Purchase Agreement dated as of April 30, 1998 (as
amended, modified, supplemented or restated and in effect on the
date hereof, the " Note Purchase Agreement "),
pursuant to which the Lender, upon certain terms and conditions has
purchased a subordinated promissory note from the Company;
WHEREAS , the Company has requested that the Lender amend
certain of the terms and provisions of the Note Purchase Agreement
as set forth herein; and
WHEREAS , subject to the terms and provisions hereof the
Lender has agreed to amend the Note Purchase Agreement as
hereinafter provided.
NOW THEREFORE , the parties hereto hereby agree as
follows:
§ 1. Amendments to
Note Purchase Agreement . Subject to the consent of the
Agent on behalf of the Banks (as each such term is defined in the
Bank Credit Agreement), the Note Purchase Agreement is hereby
amended as follows:
§ 1.1 Definitions
. Section 1.1 of the Note Purchase Agreement is amended by
adding the following new definition to such Section 1.1 in its
appropriate place in the alphabetical order:
"
Consolidated EBITDA . For any period, an amount equal to the
sum of (a) Earnings Before Interest and Taxes of the Company and
its Subsidiaries for such fiscal period, plus (b) depreciation and
amortization for such period, plus (c) other non-cash
charges for such period, plus (d) principal payments
received by the Company or any of its Subsidiaries during such
period with respect to Direct Finance Leases, all as determined in
accordance with generally accepted accounting principles, after
eliminating therefrom all extraordinary nonrecurring items of
income and expense."
§ 1.2. Interest
Coverage . Section 6.1(d) of the Note Purchase Agreement is
hereby amended and restated in its entirety as follows:
"(d) Interest Coverage.
(a) The Company will not permit the ratio
of (i) Earnings Before Interest and Taxes to (ii) Consolidated
Total Interest Expense for any period of four consecutive fiscal
quarters ending during any period set forth in the table below as
measured on each Computation Date, to be less than the ratio set
forth opposite such period in such table:
|
|
January 1, 2000 through September 30, 2001
October 1, 2001 through December 30, 2001
July 1, 2002 through September 30, 2003
October 1, 2003 and thereafter
|
1.00:1.00
1.05:1.00
1.20:1.00
1.40:1.00
|
(b) The Company will not permit the ratio of
(i) Consolidated EBITIDA to (ii) Consolidated Total Interest
Expense for any period of four consecutive fiscal quarters ending
during any period set forth in the table below as measured on each
Computation Date, to be less than the ratio set forth opposite such
period in such table:
|
|
December 31, 2001 through June 30, 2002
|
2.00:1.00
|
§ 2. Representations and
Warranties . The Company hereby represents and warrants to
the Lender as follows:
(a) Representations and Warranties in
Note Purchase Agreement . The representations and warranties of
the Company contained in the Note Purchase Agreement were true and
correct in all material respects when made, and continue to be true
and correct in all material respects on the date hereof.
(b) Authority, Etc. The execution
and delivery by the Company of this Amendment and the other
documents delivered in connection herewith (collectively, the
"Amendment Documents") and the performance by the Company of all of
its agreements and obligations under the Amendment Documents (i)
are within the corporate authority of the Company, (ii) have been
duly authorized by all necessary corporate proceedings by the
Company, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation
to which the Company is subject or any judgment, order, writ,
injunction, license or permit applicable to the Company, (iv) do
not conflict with any provision of the corporate charter or by-laws
of, or any agreement or other instrument binding upon, the Company,
and (v) do not require the approval or consent of, or filing with,
any Person other than those already obtained.
(c) Enforceability of Obligations .
The Amendment Documents constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective term.
(d) No Default . Immediately prior
to and after giving effect to this Amendment, no Default or Event
of Default exists under the Note
