AMENDMENT NO.
3
to that certain
NOTE PURCHASE AGREEMENT
dated as of April 30, 1998
This
AMENDMENT NO. 3 (this "Amendment" ), dated as
of June 27, 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 Administrative Agent on behalf of the
Lenders (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 as follows:
(a)
The following new definitions are hereby added to such Section 1.1
in their appropriate places in the alphabetical order:
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"Consolidated
EBITDAR" shall mean, with respect to any fiscal period of the
Company and its Subsidiaries, an amount equal to the sum of (a)
Consolidated EBITDA for such fiscal period plus (b)
consolidated rental expense for such fiscal period as determined in
accordance with GAAP.
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"Synthetic
Lease" shall mean any lease of goods or other property, whether
real or personal, which is treated as an operating lease under GAAP
and as a loan or financing for U.S. income tax purposes.
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"Third
Amendment Effective Date" shall mean June 27, 2002.
(b)
The definition of "Earnings Before Interest and Taxes" is hereby
deleted in its entirety.
(c)
The following existing definitions are hereby amended and restated
in their entirety as follows:
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"Bank
Credit Agreement" shall mean the Fifth Restated Revolving Credit
and Term Loan Agreement, dated as of June 27 2002, among the
Company, Fleet National Bank (f/k/a BankBoston, N.A.), as
administrative agent, and the other lenders from time to time party
thereto and as it may be further amended, modified, supplemented or
restated from time to time with such consent, if any, of the
Noteholders as is required under the Subordination and
Intercreditor Agreement.
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"Consolidated
EBITDA" shall mean, with respect to any fiscal period, an amount
equal to the sum of (a) Consolidated Net Income (or Deficit) of the
Company and its Subsidiaries for such fiscal period, plus
(b) in each case to the extent deducted in the calculation of such
Person's Consolidated Net Income and without duplication, (i}
depreciation and amortization for such period, plus (ii)
income tax expense for such period, plus (iii) Consolidated
Total Interest Expense paid or accrued during such period,
plus (iv) other noncash charges for such period, plus
(v) 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 GAAP.
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"Consolidated
Net Income (or Deficit)" shall mean, the consolidated net income
(or deficit) of the Company and its Subsidiaries, after deduction
of all expenses, taxes, and other proper charges, determined in
accordance with GAAP, after eliminating therefrom all extraordinary
items of income or loss.
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"Consolidated
Operating Cash Flow" shall mean, with respect to any fiscal period
of the Company and its Subsidiaries, an amount equal to (i)
Consolidated EBITDAR for such fiscal period minus (ii) cash
interest expense for such fiscal period minus (iii) cash
income tax expense for such period, in each case, as determined in
accordance with GAAP.
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"Consolidated
Senior Debt" shall mean, at any time of determination, with respect
to the Company and its Subsidiaries, the sum, without duplication,
of (a) the aggregate amount of Indebtedness (excluding Subordinated
Debt) of the Company and its Subsidiaries, on a consolidated basis,
relating to (i) the borrowing of money or the obtaining of credit,
including the issuance of notes or bonds, (ii) the deferred
purchase price of assets (other than trade payables incurred in the
ordinary course of business), (iii) Capitalized Leases, (iv) Rental
Obligations, and (v) the maximum drawing amount of all letters of
credit outstanding plus (b) Indebtedness of the type
referred to in clause (a) of another Person guaranteed by the
Company or any of its Subsidiaries.
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"Consolidated
Total Debt Service" shall mean, with respect to the Company and its
Subsidiaries as of any Computation Date, for the period specified
in the applicable covenant ending on such Computation Date (the
"Test Period"), the sum, without duplication, of (a) any and all
scheduled repayments of principal made during the fiscal period to
which such Computation Date relates in respect of Debt that becomes
due and payable or that are to become due and payable during such
fiscal period pursuant to any agreement or instrument to which the
Company or any of its Subsidiaries is a party relating to (i) the
borrowing of money or the obtaining of credit, including the
issuance of notes or bonds, (ii) the deferred purchase price of
assets (other than trade payables incurred in the ordinary course
of business), (iii) in respect of any Synthetic Leases or
Capitalized Leases, (iv) in respect of any reimbursement
obligations in respect of letters of credit due and payable during
such period, and (v) Debt of the type referred to above of another
Person guaranteed by the Company or any of its Subsidiaries
plus (b) one tenth (1/10) of the average daily outstanding
amount of the Revolving Credit Loans during such fiscal period
plus (c) payments made during such period in respect of
operating leases. Demand obligations shall be deemed to be due and
payable during any fiscal period during which such obligations are
outstanding.
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"Consolidated
Total Interest Expense" shall mean for any period, the aggeregate
amount of interest required to be paid or accrued by the Company
and its Subsidiaries during such period on all Debt of the Company
and its Subsidiaries outstanding during all or any part of such
period, whether such interest was or is required to be reflected as
an item of expense or capitalized, including payments consisting of
interest in respect of any Capitalized Lease or any Synthetic
Lease, and including commitment fees, agency fees, facility fees,
balance deficiency fees and similar fees or expenses in connection
with the borrowing of money.
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"Debt"
shall mean, as to any Person and whether recourse is secured by or
is otherwise available against all or only a portion of the assets
of such Person and whether or not contingent, but without
duplication:
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(a) every obligation of such Person for money
borrowed,
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(b) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of
property, assets or businesses,
(c)
every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person,
(d)
every obligation of such Person issued or assumed as the deferred
purchase price of property of services (including securities
repurchase agreements but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business
which are not overdue or which are being contested in good
faith),
(e)
every obligation of such Person under any Capitalized Lease,
(f)
every obligation of such Person under any Synthetic Lease,
(g) all
sales by such Person of (i) accounts or general intangibles for
money due or to become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of money or
(iii) other receivables (collectively " receivables "),
whether pursuant to a purchase facility or otherwise, other than in
connection with the disposition of the business operations of such
Person relating thereto or a disposition of defaulted receivables
for collection and not as a financing arrangement, and together
with any obligation of such Person to pay any discount, interest,
fees, indemnities, penalties, recourse, expenses or other amounts
in connection therewith,
(h)
every obligation of such Person (an " equity related
purchase obligation ") to purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock issued by
such Person or any rights measured by the value of such Capital
Stock,
(i)
every obligation of such Person under any forward contract, futures
contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates,
currency exchange rates, commodities or other indices (a "
derivative contract "),
(j)
every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general
partner) to the ex
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