REVOLVING CREDIT AGREEMENT
dated as of December
29, 2004
among
INTERPOOL
LIMITED ,
and
INTERPOOL, INC. ,
as the Borrowers
INTERPOOL, INC.,
as the Parent Guarantor
DVB BANK N.V. ,
as the Agent
and
THE LENDERS NAMED HEREIN
DVB Bank N.V.,
Arranger
TABLE OF
CONTENTS
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SECTION 1.
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DEFINITIONS; RULES OF INTERPRETATION
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1
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1.2
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Rules of Interpretation
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18
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SECTION 2.
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THE CREDIT LOANS
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20
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2.3
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Principal Payments on the Notes
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20
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2.4
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Interest on the Credit Loans
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21
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2.5
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Available Commitments
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22
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2.8
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Illegality or Impossibility
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23
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2.9
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Additional Costs and Expenses; Reserve Charge;
Capital Requirements
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24
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2.10
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The Agent's or Lender's Certificates
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25
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2.11
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Pro Rata Treatment
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26
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2.12
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Receipt and Disbursement of Funds
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26
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2.13
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Form and Terms of Payment
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26
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2.15
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Replacement of an Affected Lender
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27
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2.17
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Payments Free and Clear of Taxes
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28
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2.19
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Extension of Commitment Termination Date
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29
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SECTION 3.
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REPRESENTATIONS AND WARRANTIES
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30
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3.1
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Corporate Existence and Good Standing,
Etc.
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30
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3.2
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Corporate Power; Consents; Absence of Conflict
with Other Agreements, Etc.
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30
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3.3
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Title to Properties
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31
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3.4
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Financial Statements
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31
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3.5
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No Material Changes, Etc.
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31
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3.7
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No Materially Adverse Contracts, Etc.
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31
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3.8
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Compliance with Other Instruments, Laws,
Etc.
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32
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3.10
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Compliance with ERISA
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32
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3.12
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Patents, Copyrights, Permits, Trademarks,
Licenses and Leases
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32
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3.15
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Holding Company and Investment Company
Acts
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33
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3.17
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Title to Lease and Equipment; Monitoring
System
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33
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3.18
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Borrowing for Own Benefit
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33
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SECTION 4.
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CONDITIONS TO CLOSING
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33
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4.2
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Each Borrowing Date
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35
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SECTION 5.
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REVOLVING COLLATERAL
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35
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5.1
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Addition of Collateral
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35
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5.2
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Removal of Collateral
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36
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5.3
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Collateral Account
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37
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SECTION 6.
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AFFIRMATIVE COVENANTS
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37
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6.2
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Location of Office
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37
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6.3
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Records and Accounts; Collateral Tracking
System
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37
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6.4
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Financial Statements, Certificates and
Information
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37
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6.5
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Business and Corporate Existence
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39
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6.7
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[Intentionally Omitted]
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39
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6.9
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Inspection of Properties and Books; Containers
Monitoring System
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40
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6.10
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Licenses and Permits
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41
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6.11
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Notice of Material Claims and Litigation
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41
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6.12
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Further Assurances
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41
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6.15
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Notice of Default
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42
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SECTION 7.
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NEGATIVE COVENANTS
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42
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7.2
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Maximum Funded Debt to Tangible Net Worth
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42
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7.3
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Minimum Tangible Net Worth
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42
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7.4
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Fixed Charge Coverage Ratio
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43
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7.5
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Additional Financial Covenants
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43
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7.7
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Merger, Consolidation or Sale of Assets,
Etc.
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43
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7.9
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Public Utility Holding Company
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44
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7.10
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Transactions with Affiliates
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44
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7.11
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Dispositions of Collateral
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44
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SECTION 8.
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EVENTS OF DEFAULT
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44
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SECTION 10.
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NOTICE AND WAIVERS OF DEFAULT
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50
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10.1
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Notice of Default
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50
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10.2
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Waivers of Default
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50
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14.2
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Delegation of Duties
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51
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14.3
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Exculpatory Provisions
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51
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14.4
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Reliance by Agent
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52
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14.5
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Notice of Default
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52
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14.6
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Non-Reliance on Agent and Other Lenders
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52
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14.9
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The Agent in Its Individual Capacity
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54
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14.11
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Exercise of Remedies Under Security
Documents
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54
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14.12
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Standard of Care
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55
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14.13
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Dealing with the Lenders
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55
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14.14
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Duties Not to be Increased
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55
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SECTION 15.
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EXPENSES AND INDEMNITIES
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55
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SECTION 16.
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SURVIVAL OF COVENANTS, ETC.
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56
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SECTION 17.
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PARTIES IN INTEREST; SUCCESSORS AND
ASSIGNS
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56
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SECTION 18.
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NOTICES, ETC.
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58
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SECTION 19.
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MISCELLANEOUS
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59
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SECTION 20.
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ENTIRE AGREEMENT, ETC.
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60
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SECTION 21.
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CONSENTS, AMENDMENTS, WAIVERS, ETC.
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60
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SECTION 22.
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WAIVER OF JURY TRIAL
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60
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SECTION 23.
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SUBMISSION TO JURISDICTION; WAIVERS
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60
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SECTION 24.
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ACKNOWLEDGMENTS
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61
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ANNEXES, EXHIBITS
AND SCHEDULES
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Annex PG
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F-1
Exhibit F-2
Exhibit G
Exhibit H
Exhibit I
Schedule 1
Schedule 2
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Pricing Grid
Form of Note
Form of Notice of Borrowing
Form of Notice of Assignment
Form of Compliance Certificate
Form of Assignment and Acceptance
Form of Security Agreement (INC.)
Form of Security Agreement (LTD.)
Form of Parent Guaranty
Form of Collateral Certificate
Form of Borrowing Base Certificate
Funding Commitments; Payment Details
Pro Rata Share
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[Credit Agreement]
REVOLVING CREDIT
AGREEMENT
THIS REVOLVING CREDIT AGREEMENT , dated as of December 29
2004, is among INTERPOOL LIMITED , a company organized under
the laws of Barbados ( Interpool Limited ), INTERPOOL,
INC. , a corporation organized under the laws of the State of
Delaware ( Interpool, Inc. , as a borrower hereunder,
together with Interpool Limited and their respective successors and
permitted assigns, collectively the Borrowers , and each,
individually, together with their respective successors and
assigns, a Borrower ), Interpool, Inc., as parent guarantor
(in such capacity, together with its successors and permitted
assigns, the Parent Guarantor ), the banks and other
financial institutions whose signatures appear at the end of this
Agreement or that join this Agreement as a Lender party from time
to time (each individually, a Lender and collectively, the
Lenders ) and DVB BANK N.V. , as administrative agent
for the Lenders (in such capacity, the Agent ).
WHEREAS the Lenders wish to establish a senior secured
revolving credit facility which provides for revolving credit loans
to the Borrowers in an aggregate principal amount up to
$150,000,000.
NOW THEREFORE IT IS HEREBY DECLARED AND AGREED AS
FOLLOWS:
Section 1 . Definitions;
Rules of Interpretation .
1.1 Definitions . The
following terms shall have the meanings respectively assigned to
them below in this Section 1 or in the provisions of this
Agreement referred to below:
Affiliate . With respect to any specified Person, any
other Person (i) which directly or indirectly controls, or whose
directors or officers directly or indirectly control, or is
controlled by, or is under common control with, such specified
Person, (ii) which beneficially owns or holds, or whose directors
or officers beneficially own or hold, 5% or more of any class of
the voting stock (or, in the case of an entity that is not a
corporation, 5% of the equity interest) of such specified Person,
or (iii) 5% or more of the voting stock (or, in the case of an
entity that is not a corporation, 5% of the equity interest) of
which is owned or held by such specified Person. The term "control"
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract, or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agent . DVB Bank N.V., acting in the capacity of
administrative agent for itself and the other Lenders under this
Agreement, and any other banking institution succeeding to and for
the time being acting in such capacity.
Agent's Jurisdiction . Initially, Rotterdam, The
Netherlands or, with notice to the other parties, such other
jurisdiction as the Agent shall manage this transaction.
Aggregate Net Book Value . As of any date of
determination and for any Borrower, an amount equal to the sum of
the then Net Book Values of all Eligible Equipment then pledged on
a first priority and perfected basis by such Borrower to the Agent
pursuant to the terms of the Security Agreement to which such
Borrower is a party and the other Loan Documents.
Aggregate Note Principal Balance . As of any date of
determination, an amount, for any Loan Series, equal to the sum of
the then unpaid principal balances of all Notes for such Loan
Series.
Agreement . This Credit Agreement, together with all
Exhibits and Schedules hereto, as originally executed, or if
amended or supplemented from time to time, as so amended or
supplemented.
Allocated Loan Amount . With respect to an item of
Equipment as of any date of determination owned by a Borrower, an
amount equal to the product of (i) a fraction, expressed as a
percentage, the numerator of which is equal to the Net Book Value
of such item of Equipment and the denominator of which is the
Aggregate Net Book Value of the Equipment issued in connection with
the related Loan Series, and (ii) the then Aggregate Note
Principal Balance of such Loan Series.
Applicable Margin . For any Interest Period and in
respect of the Credit Loans of any Borrower, the amount determined
in accordance with the Pricing Grid on Annex PG.
Applicable Rate . For any Interest Period and Credit
Loan, the Eurodollar Rate for such Interest Period and Credit Loan
plus the Applicable Margin for such Interest Period.
Arranger . DVB Bank N.V., and its successors and
permitted assigns.
Assignment and Assumption . As defined in Section
17(b).
Authorized Officer . Any person holding the title of
Chairman, Chief Executive Officer, Chief Operating Officer,
President, Chief Financial Officer, Controller or Treasurer (or
other officer performing the functions thereof).
Available Commitment . $150,000,000, as the same may
be reduced in accordance with Section 2.5 hereof.
Base Rate . The Applicable Margin plus the higher of
(i) the Prime Rate and (ii) the Federal Funds Effective Rate.
Borrower . Interpool Limited and/or Interpool, Inc.,
as applicable, in each case, together with the respective
successors and permitted assigns.
Borrowing . The borrowing on any Borrowing Date of a
Credit Loan by a Borrower.
Borrowing Base . For any Borrower, the sum of (i) 75%
of such Borrower's Aggregate Net Book Value plus (ii) the amount
standing to the credit of the Collateral Account established by the
Agent under such Borrower's Security Agreement; provided that, in
case of Interpool Limited and at the option of Interpool, Inc.,
there shall be added to Interpool Limited's Borrowing Base (and
removed from the Borrowing Base of Interpool, Inc.) any unutilized
excess Borrowing Base capacity of Interpool, Inc.; provided further
that, in no event may any portion of the Borrowing Base of
Interpool Limited be utilized by Interpool, Inc. In determining the
Borrowing Base for any Borrower, there shall be excluded from such
Borrower's Borrowing Base Containers (that otherwise were to be
included as Eligible Equipment) to the extent:
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(i)
necessary to bring the average age of the Eligible Equipment owned
by such Borrower to five years or less (the particular Containers
to be excluded as a consequence of this clause (i) to be selected
by such Borrower to the extent choices may be made); and
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(ii)
required so that the principal amount of Credit Loans then
outstanding made in respect of Special Containers does not exceed
10% of the aggregate Commitments.
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Borrowing Base Certificate . A certificate,
substantially in the form of Exhibit I, executed by each Borrower
on a quarterly basis, or as otherwise required by Section 4.1, 5.1
or 5.2 hereof.
Borrowing Date . The date on which any Credit Loan is
made hereunder.
Business Day . Any day other than (i) a
Saturday, Sunday, legal holiday or other day on which banks in New
York, New York are required or permitted by law to close, or
(ii) in respect of any Interest Period, any borrowing
hereunder, or any payment or prepayment of interest of and/or
principal of any Credit Loan, or any notice in respect of the
foregoing, a day in which dealings in Dollars are not effected in
London, England, and a day that is a legal holiday in the Agent's
Jurisdiction.
Capitalized Lease Obligations . All obligations of
the Parent Guarantor and its Subsidiaries under Capitalized Leases,
as reflected on the consolidated balance sheet of the Parent
Guarantor and its consolidated subsidiaries from time to time
delivered pursuant to Section 6.4(a) or (b) hereof.
Capitalized Leases . Any lease agreement pursuant to
which the Parent Guarantor or any of its Subsidiaries is the lessee
and the lessee's obligations under which are required to be
reflected as liabilities on the consolidated balance sheet of the
Parent Guarantor and its consolidated subsidiaries from time to
time delivered pursuant to Section 6.4(a) or (b) hereof.
Casualty Item . An item of Eligible Equipment that
has become the subject of an Event of Loss.
Closing Date . The Business Day on which the parties
hereto shall have executed and delivered this Agreement.
Code . The United States Internal Revenue Code of
1986 and the rules and regulations promulgated hereunder, in each
case, as amended from time to time.
Collateral . In respect of either Borrower, this term
shall have the meaning set forth in the Security Agreement to which
such Borrower is a party.
Collateral Account . The "Collateral Account"
established under each Security Agreement.
Collateral Certificate . A certificate substantially
in the form of Exhibit H, executed by the relevant Borrower.
Commitment . As defined in Section 2.1(f).
Commitment Termination Date . The day falling 364
days after the Closing Date (or, if such day is not a Business Day,
the preceding Business Day), as the same may be extended in
accordance with Section 2.19.
Competitor . Any Person engaged, or having an
Affiliate engaged, as an active trade or business, in the container
leasing industry; provided, however, that in no event shall any
insurance company, bank, bank holding company, savings institution
or trust company, fraternal benefit society, pension, retirement or
profit sharing trust or fund, or any collateralized bond obligation
fund or similar fund (or any trustee of any such fund) or any
holder of any obligations of any such fund (solely as a result of
being such a holder) be deemed to be a Competitor.
Compliance Certificate . As defined in Section
6.4(d).
Consolidated . As applied to any term used in this
Agreement, the relevant figures for the Parent Guarantor and its
Subsidiaries on a consolidated basis determined in accordance with
generally accepted accounting principles.
Container . A Standard Container or a Special
Container.
Controlled Group . All trades or businesses (whether
or not incorporated) under common control that, together with the
Borrowers, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.
Corporation . Any or all of the following, as the
context may require, corporations, limited partnerships, limited
liability companies, limited liability partnerships, joint stock
associations and business trusts.
Credit Loan(s) . As defined in Section 2.1.
Current Maturities . As of any date of determination,
the sum of all current maturities of long-term Indebtedness and,
without duplication of the foregoing, Capitalized Lease
Obligations, appearing on the consolidated balance sheet of the
Parent Guarantor and its Subsidiaries from time to time delivered
pursuant to Section 6.4(a) or (b) hereof.
Default(s) . As defined in Section 8.
Default Rate . In respect of any principal of any
Credit Loan or any other amount under this Agreement that is not
paid when due (whether at stated maturity, by acceleration, by
optional or mandatory prepayment or otherwise), a rate per annum
during the period from and including the due date to but excluding
the date on which such amount is paid in full equal to 2% plus the
interest rate for such Credit Loan as provided in
Section 2.4(a) and, thereafter, the rate provided for above in
this definition).
Defaulted Lease . Any Lease (i) in which the
Agent, for the benefit of the Lenders, has a security interest and
(ii) for which (A) a rental or other payment owing
thereunder is more than (x) in the case of a Term Lease, 120 days
and (y) in the case of a Finance Lease, 90 days delinquent
(measured from its contractual due date), or (B) the related
Lessee is in default under any other provision of such Lease not
dealt with in clause (A) and any applicable grace and/or cure
period set forth in such Lease has expired and, in the case of this
clause (B), the lessor has given notice to such Lessee that such
Lease is in default.
Delinquent Lease . As at any date of determination,
any Lease that has rental payments thereunder delinquent as of such
date by more than (x) in the case of a Finance Lease, 60 days and
(y) in the case of a Term Lease, 90 days.
Derivatives Obligations . All obligations of any
Person in respect of any rate swap transaction, basis swap, forward
rate transaction, commodity swap, commodity option, equity swap or
equity index swap, equity option or equity index option, bond
option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect
to any of the foregoing transactions) or any combination of the
foregoing transactions.
Discounted Value . As defined in Section 2.3(c)
hereof.
Distributions . For any period of measurement with
respect to any Corporation, any of the following: (a) the
declaration or payment of any dividend or distribution on or in
respect of shares of any class of capital stock or other ownership
interests of such Corporation, except dividends payable solely in
shares of such Corporation's common stock or other ownership
interests having rights similar to common stock; and (b) any other
loan, dividend or distribution for any purpose from such
Corporation (however characterized), including inter-company loans
and guarantees, to or for the benefit of any or all of its
shareholders, whether paid on or in respect of shares of any class
of the capital stock or other ownership interests of such
Corporation or otherwise.
Dollars and $ . Dollars or such coin or
currency of the United States of America as at the time of payment
shall be legal funds for the payment of public and private debts in
the United States of America.
DVB . DVB Bank N.V.
Earnings Available for Fixed Charges . For any
rolling four quarter period, the sum of Fixed Charges for such
period plus Net Income for such period before income taxes plus
interest expenses for such period relating to (A) the Parent
Guarantor's 9-7/8% Junior Subordinated Deferrable Interest
Debentures due 2027 and the related 9-7/8% Capital Securities of
Interpool Capital on the consolidated balance sheet of the Parent
Guarantor and its Consolidated Subsidiaries, and (B) the 9.25%
Convertible Redeemable Junior Subordinated Debentures due 2022 on
the consolidated balance sheet of the Parent Guarantor and its
Consolidated Subsidiaries and (C) any future subordinated debt of
Parent Guarantor and its Consolidated Subsidiaries.
Eligible Equipment . Any Container which, as of any
date of determination complies with all of the following
criteria:
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(i) the relevant Borrower holds legal
and beneficial title thereto;
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(ii) to the relevant Borrower's
knowledge, it is in good working condition and good working
order;
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(iii) it is not then the subject of an
Event of Loss (or an event which, with notice and/or lapse of time,
would constitute an Event of Loss);
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(iv) it is subject to no Liens except
the Lien of the related Security Agreement, any related Eligible
Lease and other Permitted Liens;
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(v) the Agent, for the benefit of the
Lenders, has a first priority, perfected security interest
therein;
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(vi) it complies with applicable
industry standards including, without limitation, to the extent
they may apply, The Customs Convention on Containers, The
International Convention for Safe Containers and the International
Organization for Standardization, including, without limitation, as
to plating, maintenance, examination, re-examination and marking
with re-examination dates, such examination, or re-examination,
being performed, to the extent it may apply, in accordance with the
rules and regulations for the Safety Approval of Cargo Containers
of the United States Department of Transportation;
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(vii) the Agent shall have received
the documentation required to determine Original Cost (as provided
in the definition thereof);
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(viii) in the case of Containers owned
by Interpool, Inc., such Containers are primarily utilized in the
United States, and in the case of Containers owned by Interpool
Limited, such Containers are international marine containers;
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(ix) it is not traded, located,
operated or used, directly or indirectly, in a Prohibited
Jurisdiction or by a Prohibited Person, and no Lessee or any
sublessee thereof is a Prohibited Person or organized in a
Prohibited Jurisdiction;
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(x) it is in the possession of the
Borrower that owns it, except (w) for such time as it is in the
possession of a Lessee pursuant to the terms of a Lease, (x) for
such time as it is in transit to the relevant Borrower, (y) for
temporary delivery thereof to depot owners and other Persons for
repairs and maintenance made in the ordinary course of business or
(z) as otherwise permitted under any Lease;
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(xi) it has not been altered or
otherwise (without the prior written consent of the Agent, which
consent shall not be unreasonably withheld), other than such
alterations or modifications required by Section 6.7(a) or required
(or permitted to be effected) in accordance with the terms of any
applicable Lease;
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(xii) the relevant Borrower has made,
or cause to be made, all needful and proper repairs, replacements,
additions and improvements thereto as are necessary for the conduct
of its business, and in order to maintain it in accordance with
manufacturer's specifications and recommendations and in as good an
operating condition as when originally delivered, reasonable wear
and tear and causes beyond the relevant Borrower's control
excepted;
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(xiii) it is used in accordance with
good operating practices and complies with all loading limitations,
handling procedures and operating instructions prescribed by the
manufacturer, which include, to the extent applicable, any
regulations and recommendations of the International Organization
of Standardization as well as any applicable local regulations, and
it is not used in a manner which may damage or shorten its life,
including, without limitation, excessive impact and unbalanced
loading;
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(xiv) it is not knowingly used for
storage of transportation of contraband or of goods which may
damage it, including, without limitation, unprotected corrosive
substances, poorly secured materials, or bulk commodities which may
corrode, oxidize, severely dent, puncture, contaminate, stain or
damage it; and
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(xv) it is identified by appropriate
lettering and numbering.
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Eligible Lease . Any Lease that as of any date of
determination meets all of the following characteristics:
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(i) Term Lease or Finance
Lease . Such Lease provides for fixed (not floating) rental
payments and is either a Term Lease or a Finance Lease.
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(ii) No Defaulted Lease . Such
Lease is not a Defaulted Lease;
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(iii) Valid Contracts . Such
Lease is a legal, valid and binding full recourse payment
obligation of the related Lessee enforceable in accordance with its
terms (except as may be limited by applicable insolvency,
bankruptcy, moratorium, reorganization, or other similar laws
affecting enforceability of creditors' rights generally and the
availability of equitable remedies) and is in full force and effect
and has not been satisfied, subordinated or rescinded;
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(iv) Absolute Obligations .
The related Lessee's obligations under such Lease are "hell or high
water" obligations that are, among other characteristics,
non-cancelable, unconditional and not subject to any right of
set-off, rescission, counterclaim, off-set, reduction or recoupment
during the non-cancelable term of such Lease;
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(v) Taxes; Maintenance;
Insurance . Such Lease contains provisions requiring the
related Lessee to pay all sales, use, excise, rental, property or
similar taxes imposed on or with respect to the Equipment and to
assume all risk of loss or malfunction of the related Equipment and
such Lease requires the related Lessee, at its own expense, to
maintain the Equipment in good and workable order and to obtain and
maintain liability insurance and physical damage insurance on the
Equipment subject thereto;
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(vi) No Violation . The pledge
of the relevant Borrower's right, title and interest in and to such
Lease and the related Equipment will not violate the terms or
provisions of such Lease;
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(vii) Insolvency . The related
Lessee is not subject to bankruptcy or other insolvency
proceedings;
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(viii) U.S. Dollars . All
payments owing under such Lease are required to be made in
Dollars;
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(ix) Acceleration . Such Lease
provides for the acceleration of all rental payments thereunder
upon default by the Lessee;
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(x) Event of Loss . Such Lease
requires that in the event of an event of loss (as defined in such
Lease) in respect of any Container the related Lessee must take one
of the following actions: (a) restore or repair the affected
Equipment to good repair, condition and working order; (b) replace
the Equipment with like equipment of the same or later model in
good repair, condition and working order, or (c) make a lump sum
payment relating to such Container; and
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(xi) Partial Pledges . No
portion of such Lease or the Containers subject to such Lease has
been pledged to a third party except pursuant to a Stamping
Lease.
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Equipment . As at any date of determination, all of
the Containers identified on Schedule 1 to each Security Agreement
Supplement.
Equity Interests . With respect to any Person, any
and all shares, partnership, membership, trust and other interests,
participations or other equivalents (however designated) of equity
ownership interests of such Person.
ERISA . The United States Employee Retirement Income
Security Act of 1974, and the rules and regulations thereunder,
collectively, as the same may be amended from time to time.
Eurodollar Rate . With respect to any Interest
Period, an interest rate per annum determined pursuant to the
following formula:
Eurodollar Rate =
LIBOR
1-Eurodollar Reserve Percentage
The
Eurodollar Rate shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.
Eurodollar Rate Basis . Any Credit Loan for which the
rate of interest applicable thereto is being determined by
reference to the Eurodollar Rate.
Eurodollar Reserve Percentage . For any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D, as such regulation may be amended from
time to time or any successor regulation, as the maximum reserve
requirement (including any basic, supplemental, emergency, special,
or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Credit Loans on Eurodollar
Rate Basis is determined), whether or not any Lender has any
Eurocurrency liabilities subject to such reserve requirement at
that time. Credit Loans on a Eurodollar Rate Basis shall be deemed
to constitute Eurocurrency liabilities and as such shall be deemed
subject to reserve requirements without benefits of credits for
proration, exceptions or offsets that may be available from time to
time to any Lender.
Event of Default . As defined in Section 8.
Event of Loss . With respect to any item of
Equipment, any of the following events or conditions:
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(i) total loss or destruction
thereof;
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(ii) theft or disappearance thereof
without recovery within sixty (60) days after such theft or
disappearance becomes known to a Borrower;
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(iii) damage rendering such Equipment
unfit for normal use and, in the judgment of the relevant Borrower,
beyond repair at reasonable cost;
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(iv) any condemnation, seizure, forced
sale or other taking of title to or use of any such Equipment;
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(v) if such Equipment is then subject
to the terms of a Lease, such item of Equipment shall have been
deemed under the terms of such Lease to have suffered an Event of
Loss (or an equivalent term); or
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(vi) such item of Equipment is located
in a Prohibited Jurisdiction.
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Federal Funds Effective Rate . An interest rate per
annum equal to the sum of (i) one half of one percent (.5%)
and (ii) the rate set forth for such date opposite the caption
"Federal Funds (Effective)" in the weekly statistical release
designated as "H.15 (519)", or any successor publication published
by the United States Board of Governors of the Federal Reserve
System or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers
of recognized standing selected by it.
Fee Letter . The letter dated December 29, 2004
between the Parent Guarantor and DVB.
Finance Lease . A Lease with a minimum maturity (from
lease commencement) of three years and a maximum maturity of eight
years that is classified as a finance lease on the consolidated
balance sheet of the Parent Guarantor and its consolidated
subsidiaries from time to time delivered pursuant to Section 6.4(a)
or (b) hereof.
Fixed Charges . For any rolling four quarter period,
the sum of interest expense of the Parent Guarantor and its
Consolidated Subsidiaries (excluding interest expense for such
period with respect to (A) the Parent Guarantor's 9-7/8% Junior
Subordinated Deferrable Interest Debentures due 2027 and the
related 9-7/8% Capital Securities of Interpool Capital on the
consolidated balance sheet of the Parent Guarantor and its
Consolidated Subsidiaries, and (B) the amount representing the
9.25% Convertible Redeemable Junior Subordinated Debentures due
2022 on the consolidated balance sheet of the Parent Guarantor and
its Consolidated Subsidiaries and (C) any future subordinated debt
of Parent Guarantor and its Consolidated Subsidiaries), plus
obligations of Parent Guarantor and its Consolidated Subsidiaries
as a lessee for lease rentals on long term leases for such
period.
Funded Debt . All indebtedness for borrowed money
with recourse to Parent Guarantor and its Consolidated
Subsidiaries, or any of them, including purchase money mortgages,
capitalized leases, conditional sales contracts and similar title
retention debt instruments, (excluding any current maturities
portion of such indebtedness that becomes due within 12 months from
the date of calculation thereof). The calculation of Funded Debt
shall include all Funded Debt of Parent Guarantor and its
Consolidated Subsidiaries which appears in financial statements,
plus any liabilities which would otherwise be classified as Funded
Debt of any other Person (if such Person was a Consolidated
Subsidiary), which has been guaranteed by Parent Guarantor and its
Consolidated Subsidiaries or any of them, either jointly or
severally. Funded Debt shall exclude (A) the amount representing
the Parent Guarantor's 9-7/8% Junior Subordinated Deferrable
Interest Debentures due 2027 and the related 9-7/8% Capital
Securities of Interpool Capital on the consolidated balance sheet
of the Parent Guarantor and its Consolidated Subsidiaries as of the
most recently ended fiscal quarter for which financial statements
are available, (B) the amount representing the 9.25% Convertible
Redeemable Junior Subordinated Debentures due 2022 on the
consolidated balance sheet of the Parent Guarantor and its
Consolidated Subsidiaries as of the most recently ended fiscal
quarter for which financial statements are available and (C) any
future subordinated debt of Parent Guarantor and its Consolidated
Subsidiaries.
Funding Losses . As defined in Section 2.16.
Generally Accepted Accounting Principles or
GAAP . Accounting principles which are
(i) consistent with the principles promulgated or adopted from
time to time by the Financial Accounting Standards Board and its
predecessors, (ii) generally accepted in the United States of
America, and (iii) such that a certified public accountant
would, insofar as the use of accounting principles is pertinent, be
in a position to deliver an unqualified opinion as to financial
statements in which such principles have been properly applied.
Governmental Authority . Any government or political
subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
Guarantees . By any Person means all obligations
(other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing, or in effect guaranteeing, any Indebtedness, dividend
or other obligation of any other Person (the primary obligor
) in any manner, whether directly or indirectly, including all
obligations incurred through an agreement, contingent or otherwise,
by such Person: (a) to purchase such Indebtedness or obligation or
any property or assets constituting security therefor, (b) to
advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation, or (ii) to maintain working capital or
any other balance sheet condition or otherwise to advance or to
make available funds for the purchase or payment of such
Indebtedness or obligation, (c) to lease property or to purchase
securities or other property or services primarily for the purpose
of assuring the owner of such Indebtedness or obligation of the
ability of the primary obligor to make payment of the Indebtedness
or obligation, or (d) otherwise to assure the owner of the
Indebtedness or obligation of the primary obligor against loss in
respect thereof. For the purposes of all computations made under
this Agreement, a Guaranty in respect of any Indebtedness for
borrowed money shall be deemed to be Indebtedness equal to the
principal amount of such Indebtedness for borrowed money which has
been guaranteed, and a Guaranty in respect of any other obligation
or liability or any dividend shall be deemed to be Indebtedness
equal to the maximum aggregate amount of such obligation, liability
or dividend.
Indebtedness . For any Person, all obligations,
contingent or otherwise, that in accordance with Generally Accepted
Accounting Principles should be classified on such Person's balance
sheet as liabilities, or to which reference should be made by
footnotes thereto, including in any event and whether so
classified, all: (a) obligations created, issued or incurred by
such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of property to another Person
subject to an agreement, contingent or otherwise, to repurchase
such property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of property or
services, other than trade accounts payable (other than for
borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable
are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) indebtedness
of others secured by a Lien on the property of such Person, whether
or not the respective indebtedness so secured has been assumed by
such Person; (d) obligations of such Person in respect of letters
of credit or similar instruments issued or accepted by banks and
other financial institutions for the account of such Person; (e)
Capitalized Lease Obligations of such Person; (f) the net amount of
any mark to market exposure under Derivatives Obligations of such
Person; (g) without duplication, obligations of such Person under
Guarantees of Indebtedness of others; and (h) all preferred stock
issued by such Person and required by the terms thereof to be
redeemed, or for which mandatory sinking fund payments are due, by
a fixed date (but only to the extent such fixed date occurs prior
to June 30, 2010).
Indemnified Party . As defined in Section
6.14(d).
Interest Period . With respect of any Credit Loan,
the period commencing on (i) initially, the Borrowing Date thereof
and (ii) thereafter, any Payment Date to (but excluding) the next
following Payment Date (or, if applicable, the Commitment
Termination Date or Maturity Date).
Investment . The purchase or acquisition of any share
of capital stock, partnership or limited liability company
interest, evidence of indebtedness or other equity security of any
other Person; any loan, advance or extension of credit to, or
contribution to the capital of, any other Person, other than
extensions of credit resulting from the sale of goods (where any
Borrower retains title to, or a security interest in, any Equipment
sold) or rendering of services in the ordinary course of such
Borrower's business; any real estate held for sale or investment;
any commodities futures contracts held other than in connection
with bona fide hedging transactions; any other investment in any
other Person; and the making of any commitment or acquisition of
any option to make any such Investment.
Law . Any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental
Authority.
Lease . All leases or contracts for use or hire of
the Equipment by a Lessee and the relevant Borrower (or one of its
Affiliates acting as agent for the relevant Borrower) as lessor, to
the extent such leases or contracts relate to such Equipment.
Lease Income . For any period of determination an
amount equal to the sum of (i) all rentals, insurance proceeds
and other monies which are payable to the relevant Borrower under,
or in respect of, a Lease of Equipment and which relate to such
Equipment, and (ii) all other rent, hire, requisition hire,
and other earnings, payments, damages and monies whatsoever payable
to the relevant Borrower, or to which the relevant Borrower is at
any time entitled by law or contract, in respect of any such
Equipment.
Lender(s) . Individually, each of the banks or
financial institutions signatory hereto or which may provide
additional commitments and become a party to this Agreement as a
Lender hereunder, as set forth in Schedule 1 , as it may be
amended from time to time, and each of their respective successors
and permitted assigns and collectively, all such banks or other
financial institutions and their respective successors and
permitted assigns.
Lessee . A person that is contractually obligated to
make rental and other payments under a Lease, including any
guarantor of such obligations.
LIBOR . For any Interest Period and Credit Loan, (a)
in respect of the initial Interest Period for any Borrowing or if
such Interest Period is for a period of other than three months (as
would be the case for the Interest Period ending on the Commitment
Termination Date (if the Term-Out Option has not been elected) or
the Maturity Date), Lender's cost of funds for such period and (b)
otherwise, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London LIBOR for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the
term "LIBOR" means, for any Credit Loan for any Interest Period
therefor, 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
three months which are offered by four major banks, as selected by
the Agent, in the London interbank market at approximately 11:00
a.m. London time, on the day that is two (2) Business Days
preceding the first day of such Interest Period. The principal
London office of each of such 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 (as selected by the Agent) for
a period of three months offered by major banks in New York City at
approximately 11:00 a.m. New York City time, on the day that is two
Business Days preceding the first day of such Interest Period. In
the event that the Agent is unable to obtain any such quotation as
provided above, it will be deemed that the Eurodollar Rate for such
Credit Loan cannot be determined, and the "Eurodollar Rate" shall
be the Base Rate for so long as such condition continues.
Lien . Any mortgage, pledge, security interest, lien
or other charge or encumbrance, including the lien or retained
security title of a conditional vendor, upon or with respect to any
property or assets.
Loan Documents . This Agreement, the Notes, the
Security Agreements, the Parent Guaranty, the Fee Letter and all
other instruments and agreements required to be executed and
delivered by any Borrower or the Parent Guarantor, in connection
with the transactions contemplated hereby and thereby.
Loan Series . The Credit Loans made to any particular
Borrower.
Majority Lenders . Lenders holding more than 50% of
the Credit Loans.
Materially Adverse Effect . Any change in the
financial condition of the Parent Guarantor and its Subsidiaries,
taken as a whole, or of the relevant Borrower considered
individually, which could reasonably be expected to have a
materially adverse effect upon the respective ability of the Parent
Guarantor or the relevant Borrower to perform any obligations under
this Agreement or under any other Loan Document to which it is a
party, or any act, omission, event or undertaking which could
reasonable be expected to have a materially adverse effect upon the
legality, validity, binding effect, enforceability or admissibility
into evidence of any Loan Document or the ability of the Agent to
enforce any rights or remedies under or in connection with any Loan
Document in any material respect whether resulting from any single
act, omission, event, or undertaking, together with other such
acts, omissions, events or undertakings.
Maturity Date . The last day of the Term-Out
Period.
Monitoring System . As defined in Section 6.3.
Net Book Value . As of any date of determination with
respect to an item of Eligible Equipment, an amount equal to (i)
for Eligible Equipment not subject to a Finance Lease, the excess
(if any) of (x) the Original Cost of such an item of Equipment
over (y) the accumulated depreciation of such Equipment
computed assuming such item has a life of 15 years at which time
its value will be 15% of such Original Cost and (ii) for Eligible
Equipment subject to a Finance Lease, the net present value of the
scheduled rental payments from and after such date of calculation
due under such Lease in respect of such Equipment and any purchase
price payable by the Lessee under such Lease upon the exercise of a
purchase option thereunder with respect to such Equipment, in each
case discounted at 9% per annum (on the basis of a year of 360 days
and actual number of days elapsed).
Net Income . For any fiscal period of the Parent
Guarantor, the consolidated net income of the Parent Guarantor and
its Consolidated Subsidiaries for such period determined in
accordance with Generally Accepted Accounting Principles.
Note . A promissory note issued by a Borrower in
accordance with Section 2.2 and any such note issued in exchange or
replacement thereof pursuant to Section 17(b).
Notice of Assignment . In respect of any Lease
subject to a Security Agreement, a notice of assignment, duly
completed in a manner satisfactory to the Agent, in substantially
the form attached hereto as Exhibit C , duly executed
and delivered by the relevant Borrower, as lessor under such
Lease.
Notice of Borrowing . A certificate, substantially in
the form of Exhibit B hereto, executed by the relevant
Borrower.
Obligations . Collectively, the Obligations (INC.)
and Obligations (LTD.).
Obligations (INC.) . All indebtedness, obligations
and liabilities of the Parent Guarantor (whether as a Borrower or
as guarantor) to the Agent, and/or the Lenders existing on the date
of this Agreement or arising thereafter, whether 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 under or in
connection with this Agreement or any other Loan Documents.
Obligations (LTD.) . All indebtedness, obligations
and liabilities of Interpool Limited to the Agent, and/or the
Lenders existing on the date of this Agreement or arising
thereafter, whether 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 under or in connection with this Agreement or any other
Loan Documents.
Officers' Certificate . A certificate signed on
behalf of a corporation by an Authorized Officer.
Original Cost . For any Container, an amount equal to
the vendor's or manufacturer's invoice price paid by the relevant
Borrower, ascertained as follows: (A) if such Container was first
placed in service on or after January 1, 2002, on the basis of
purchase documentation, invoices, bills of sale or other evidence
of payment submitted to the Agent and reasonably acceptable to it
or (B) if such Container was first placed in service prior to
January 1, 2002, on the basis of the books and records of such
Borrower, as certified to the Agent by such Borrower.
Parent Guarantor . Interpool, Inc., a corporation
organized under the laws of the State of Delaware, and its
successors and permitted assigns.
Parent Guaranty . The Guaranty of the Parent
Guarantor substantially in the form of Exhibit G , as
the same may be amended, supplemented, restated, replaced or
otherwise modified from time to time.
Participant(s) . As defined in Section 17(f).
Payment Date . The last Business Day of each March,
June, September and December.
PBGC . The Pension Benefit Guaranty Corporation
created by ERISA or any governmental authority succeeding to any or
all of the functions of the Pension Benefit Guaranty
Corporation.
Permitted Liens . With respect to any item of
Collateral, any or all of the following: (i) with respect to
an item of Equipment, Liens for taxes not yet delinquent or which
are being contested in good faith by appropriate proceedings and
for the payment of which adequate reserves are maintained;
(ii) with respect to an item of Equipment, carriers',
warehousemen's, mechanics, or other like Liens arising in the
ordinary course of business and relating to amounts not yet due or
which shall not have been overdue for a period of more than sixty
days or which are being contested in good faith by appropriate
proceedings and for the payment of which adequate reserves are
maintained; provided, however, in no event shall any such contest
result in the loss of the affected item of Equipment Collateral;
(iii) with respect to any item of Equipment, Leases entered
into in the ordinary course of business providing for the leasing
of such Equipment; (iv) with respect to any item of Equipment
then on lease to a Lessee, any purchase option in favor of such
lessee that is set forth in such Lease; (v) with respect to an item
of Equipment, Liens permitted by the applicable Lease to the extent
not covered by any of the preceding clauses; and (vi) Liens
created by the Security Agreements; provided that (A) any
proceedings of the type described in clauses (i) and (ii)
above could not reasonably be expected to subject the Agent or any
Lender to any civil or criminal penalty or liability or involve any
significant risk of material loss, sale or forfeiture of all, or
any material portion of, the Collateral and (B) any Lien of the
type described in clause (ii) shall no longer be a "Permitted" Lien
if the lienor shall have filed a lien of record in respect of the
related obligation any time after such amount shall be past
due.
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 . At any time, an employee pension or other
benefit plan that is subject to Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and is
either (a) maintained by any Borrower or any member of the
Controlled Group for employees of any Borrower or any member of the
Controlled Group, or (b) if such Plan is established, maintained
pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions
and to which any Borrower or any member of the Controlled Group is
then making or accruing an obligation to make contributions or has
within the preceding five Plan years made contributions.
Prepayment Tolerance . As defined in Section 2.7(b)
hereof.
Prime Rate . The prime or base rate of interest
announced from time to time by Citibank, N.A.
Pro Rata . For any Lender, its proportionate share
based on the percentage set opposite its name on Schedule 2
hereto.
Proceeds . The meaning assigned to such term under
the UCC.
Prohibited Jurisdiction . Any country or
jurisdiction, from time to time, (a) that is subject of a
prohibition order (or any similar order or directive), sanctions or
restrictions promulgated or administered by the Office of Foreign
Assets Control of the United States Treasury Department and
(b) in which, or for which, a Lender or any assignee thereof
is otherwise prohibited or restricted, under laws, regulations,
sanctions or restrictions applicable to it or its business, from
extending credit, transferring property or assets, engaging in or
facilitating trade or other economic activity, or otherwise doing
business.
Prohibited Person . Any Person appearing on the
Specially Designated Nationals List compiled and disseminated by
the Office of Foreign Assets Control of the United States Treasury
Department, as the same may be amended from time to time.
Register . As defined in Section 17(d).
Regulation D, U and X . Regulations D, U and X,
respectively, of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
Revolving Credit Period . The period from the Closing
Date to the Commitment Termination Date.
Security Agreement . The Security Agreement (INC.) or
the Security Agreement (LTD.).
Security Agreement (INC.) . The Security Agreement
(INC.), between Interpool, Inc. and the Agent substantially in the
form of Exhibit F-1 hereto.
Security Agreement (LTD.) . The Security Agreement
(LTD.), between Interpool Limited and the Agent substantially in
the form of Exhibit F-2 hereto.
Security Agreement Supplement . A Security Agreement
Supplement (INC.) or Security Agreement Supplement (LTD.).
Security Agreement Supplement (INC.) . A supplement
to the Security Agreement (INC.) in substantially the form of
Exhibit A to the Security Agreement (INC.).
Security Agreement Supplement (LTD.) . A supplement
to the Security Agreement (LTD.) in substantially the form of
Exhibit A to the Security Agreement (LTD.).
Security Documents . The Security Agreements, each
Security Agreement Supplement, the UCC Financing Statements, the
Statement of Charge filed with the Corporate Affairs Registry in
Barbados and the Parent Guaranty.
Special Container . Any shipping container owned by a
Borrower that is other than a Standard Container.
Specified Indebtedness . Any Indebtedness of the type
described in clauses (a), (b), (c), (d), (e) and (g) of the
definition thereof; provided that any Guarantee referred to such
clause (g) shall relate only to Indebtedness of the type described
in clauses (a), (b), (c), (d) and (e) of such definition.
Stamping Lease . As defined in each Security
Agreement.
Standard Container . Any new or used container owned
by a Borrower that is a twenty foot standard dry cargo marine
container, a forty foot standard dry cargo marine container, a
forty foot high cube marine container, a twenty foot standard
refrigerated marine container, a forty foot standard refrigerated
marine container or a forty foot high cube refrigerated marine
container.
Subsidiary . Any present or future Corporation a
majority of whose Voting Stock shall at the time be owned directly
or indirectly or can otherwise be controlled by the Parent
Guarantor and/or by one or more of the Subsidiaries of the Parent
Guarantor.
Tangible Net Worth . As of any date of determination
the amount equal to (A) the amount of stockholders equity of the
Parent Guarantor and its Consolidated Subsidiaries appearing in the
consolidated financial statements of the Parent Guarantor and its
Consolidated Subsidiaries as of the most recently ended fiscal
quarter for which financial statements are available and prepared
in accordance with GAAP, less (B) trademarks, goodwill, covenants
not to compete and all other assets classified as intangible assets
determined in accordance with GAAP, plus (C) the amount
representing the Parent Guarantor's 9-7/8% Junior Subordinated
Deferrable Interest Debentures due 2027 and the related 9-7/8%
Capital Securities of Interpool Capital on the consolidated balance
sheet of the Parent Guarantor and its Consolidated Subsidiaries as
of the most recently ended fiscal quarter for which financial
statements are available, plus (D) the amount representing the
9.25% Convertible Redeemable Junior Subordinated Debentures due
2022 on the consolidated balance sheet of the Parent Guarantor and
its Consolidated Subsidiaries as of the most recently ended fiscal
quarter for which financial statements are available plus, (E) any
future subordinated debt of Parent Guarantor and its Consolidated
Subsidiaries, plus (or minus) (F) any adjustments to the accounts
of the Parent Guarantor, both positive and negative, that results
from SFAS 133/138. In this regard, "SFAS 133/138" means, Statement
of Financial Accounting Standards No. 133 – "Accounting for
Derivative Instruments and Hedging Activities" and Statement of
Financial Accounting Standards No. 138 – "Accounting for
Certain Derivative Instruments and Certain Hedging Activities, an
amendment to FASB Statement No. 133" issued by the Financial
Accounting Standard Board, as such pronouncement may be amended
from time to time.
Taxes . Any and all present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or
other charges of whatever nature, including gross receipts, excise,
property, sales, transfer, license, payroll, social security and
franchise taxes now or hereafter imposed or levied by the United
States of America, or any state, local or foreign government or by
any department, agency or other political subdivision or taxing
authority thereof and all interest, penalties, additions to tax or
similar liabilities with respect thereto.
Term Lease . An operating Lease with a minimum
maturity (from lease commitment) of three years and a maximum
maturity of eight years and containing no Lessee fixed price
purchase option.
Term-Out Option . Is the right of the Borrowers to
term-out the Credit Loans as provided in Section 2.18
hereof.
Term-Out Period . The period from the Commitment
Termination Date to the date falling four years from such date.
Total Assets . As of any date of determination, the
consolidated assets of the Parent Guarantor and its Subsidiaries,
as reflected on a consolidated balance sheet prepared in accordance
with GAAP.
UCC or Uniform Commercial Code . The
Uniform Commercial Code as the same may be in effect in the State
of New York on the date hereof; provided ,
however , that in the event that by reason of mandatory
provisions of law, any or all of the attachment, perfection or
priority of Agent's security interest in any Collateral is governed
by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term UCC shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment,
perfection of priority and for purposes of definitions related to
such provisions.
UCC Financing Statements . UCC Financing Statements
naming the relevant Borrower as debtor and the Agent as secured
party and filed or to be filed in the office of the Secretary of
State of the State of New Jersey, the Recorder of Deeds for the
District of Columbia and other locations from time to time with
respect to the Collateral.
Voting Stock . With respect to any Corporation, its
capital stock of any class having ordinary voting power for the
election of the members of the board of directors or other
governing body of such Corporation (other than stock having such
power only by reason of the happening of a contingency).
1.2 Rules of Interpretation
.
(a) All
terms in this Agreement, the Exhibits and Schedules hereto shall
have the same defined meanings when used in any other Loan
Documents, unless the context shall require otherwise.
(b) Except
as otherwise expressly provided herein, all financial and
accounting terms not specifically defined or specified herein shall
have the meanings generally attributed to such terms under
Generally Accepted Accounting Principles, including applicable
statements and interpretations issued by the Financial Accounting
Standards Board and bulletins, opinions, interpretations and
statements issued by the American Institute of Certified Public
Accountants or its committees, and all financial and accounting
calculations referred to herein shall, to the extent applicable, be
made in accordance with Generally Accepted Accounting Principles,
and by reference to the most recently delivered financial
statements of the Parent Guarantor furnished in accordance with
Section 6.4 hereof.
(c) All
personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural, and the plural
shall include the singular.
(d) The
words "hereof', "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provisions of this Agreement.
(e) The
preamble hereto is part of this Agreement. Titles of Sections in
this Agreement are for convenience only, do not constitute part of
this Agreement and neither limit nor amplify the provisions of this
Agreement, and all references in this Agreement to Sections,
Subsections, paragraphs, clauses, subclauses, Schedules or Exhibits
shall refer to the corresponding Section, Subsection, paragraph,
clause, subclause, Schedule or Exhibit attached to this Agreement,
unless specific reference is made to the articles, sections or
other subdivisions or divisions of such Schedule or Exhibit to or
in another document or instrument.
(f) Each
definition of a document in this Agreement shall include such
document as amended, modified, supplemented, restated, renewed or
extended from time to time.
(g) Except
where specifically restricted, reference to a party in a Loan
Document includes that party and its successors and assigns
permitted hereunder or under such Loan Document.
(h) Unless
otherwise specifically stated, whenever a time is referred to in
this Agreement or in any other Loan Document, such time shall be
the local time in the city in which the Head Office of the Agent is
located.
(i) Any
list in this Agreement of one or more items preceded by the words
"include" or "including" shall not be deemed limited to the stated
items but shall be deemed without limitation.
(j) Whenever
this Agreement makes reference to a party's knowledge, such
knowledge shall refer to the actual knowledge of an Authorized
Officer of such party, without having made a special inquiry.
Section 2. The Credit
Loans .
2.1 The Credit Loans .
(a) Subject
to the terms and conditions hereof, during the Revolving Credit
Period each Borrower shall be entitled to borrow from the Lenders
loans on any Business Day during the Revolving Credit Period (each,
a Credit Loan ).
(b) The
maximum amount of Credit Loans that may be borrowed and outstanding
hereunder for any Borrower shall not exceed such Borrower's
Borrowing Base, and the aggregate amount of Credit Loans
outstanding at any time shall not exceed the Available Commitment.
In addition, the Aggregate Note Principal Balance of Interpool,
Inc.'s Credit Loans shall not exceed 10% of the aggregate
Commitments.
(c) Subject
to the terms and conditions hereof, on each Borrowing Date, each
Lender will fund its Pro Rata portion of the Credit Loan to be made
on such Borrowing Date.
(d) No
Credit Loan made on any Borrowing Date shall be in an amount less
than (i) $4,000,000 in the aggregate on such Borrowing Date and
(ii) for any Borrower, $2,000,000.
(e) The
obligation of each Lender to make Credit Loans as provided in this
Section 2.1 (for any Lender, its Commitment ) shall expire,
and shall be of no further effect, on the Commitment Termination
Date.
(f) Any
Borrowing by a Borrower of a Credit Loan shall require at least
three Business Day's prior written notice of such Borrowing to the
Agent (which shall promptly notify the Lenders thereof), which
notice shall be in the form of a Notice of Borrowing.
(g) Within
the foregoing limits, the Borrowers may borrow under this Section,
repay or to the extent permitted by Section 2.7, prepay Credit
Loans, and reborrow under this Section during the Revolving Credit
Period.
2.2 The Notes . The obligation
of the relevant Borrower to repay the Credit Loans and to pay
interest thereon and other sums which may become payable with
respect thereto shall be evidenced by promissory notes issued by
the relevant Borrower substantially in the form of Exhibit A
hereto, duly completed (as provided in Section 2.1(g)) and
executed by the relevant Borrower. Each such Note issued to any
Lender shall be in an amount equal to the Pro Rata portion of such
Lender of the Available Commitment.
2.3 Principal Payments on the
Notes . (a) Unless the Term-Out Option shall have been elected
and effected, on the Commitment Termination Date, each Borrower
agrees to pay to the Agent for account of the Lenders the entire
outstanding principal amount of the Credit Loans borrowed by it
outstanding on the Commitment Termination Date.
(b) If
the Term-Out Option shall have been elected and effected, during
the Term-Out Period, on each Payment Date during the Term-Out
Period, there shall be payable by each Borrower to the Agent for
account of the Lenders a principal amount calculated as
follows:
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(i) In respect of Credit Loans of such
Borrower the Allocated Loan Amount of which relates to Containers
subject to a Finance Lease, the Agent shall calculate an
amortization schedule in respect of the aggregate principal amount
of such Credit Loans of such Borrower relating to such Finance
Lease outstanding on the Commitment Termination Date that provides
for mortgage-style (level-pay) amortization of such aggregate
amount on each such Payment Date to a zero balloon on the Maturity
Date or, if such Finance Lease matures prior to the Maturity Date,
the maturity date of such Finance Lease (utilizing as the interest
factor for such calculation the Applicable Rate (calculated on a
bond basis) applicable during the first Interest Period occurring
during the Term-Out Period); and
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(ii) In respect of the balance of the
Credit Loans of such Borrower, the Agent shall calculate an
amortization schedule in respect of the aggregate principal amount
of such Credit Loans of such Borrower outstanding on the Commitment
Termination Date that provides for mortgage-style (level-pay)
amortization of such aggregate amount on each such Payment Date to
a zero balloon on the Maturity Date (utilizing as the interest
factor for such calculation the Applicable Rate (calculated on a
bond basis) applicable during the first Interest Period occurring
during the Term-Out Period).
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The Agent's calculations pursuant to this Section 2.3(b) shall
be conclusive absent manifest error. The Agent shall, promptly
following the calculations specified in this paragraph (b), provide
to the Borrowers, the Parent Guarantor and the Lenders with a copy
of the resulting amortization schedules.
(c) Each
Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Credit Loan made by such Lender to
such Borrower, including the amounts of principal and interest
payable and paid to such Lender by or for account of such Borrower
from time to time hereunder.
(d) The
Agent shall maintain accounts in which it shall record (i) the
amount of each Credit Loan made hereunder to each Borrower and the
Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder for account
of the Lenders and each Lender's share thereof.
(e) The
entries made in the accounts maintained pursuant to paragraph (c)
or (d) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Agent
to maintain such accounts or any error therein shall not in any
manner affect the obligation of any Borrower to repay the Credit
Loans borrowed by it in accordance with the terms of this
Agreement.
2.4 Interest on the Credit
Loans .
(a) Each
Borrower agrees to pay to the Agent for account of the Lenders on
each Payment Date interest on the outstanding principal amount of
each Credit Loan made to it at the Applicable Rate for the Interest
Period ending on such Payment Date (calculated on the basis of a
year of 360 days and actual number of days elapsed).
(b) In
no event shall the interest charged with respect to a Credit Loan
exceed the maximum amount permitted by applicable law. If at any
time the interest rate charged with respect to a Credit Loan
exceeds the maximum rate permitted by applicable law, the rate of
interest to accrue pursuant to such Credit Loan shall be limited to
the maximum rate permitted by applicable law, but any subsequent
reductions in Eurodollar Rate shall not reduce the interest to
accrue on such Credit Loan below the maximum amount permitted by
applicable law until the total amount of interest accrued on such
Credit Loan equals the amount of interest that would have accrued
if a varying rate per annum equal to the interest rate had at all
times been in effect. If the total amount of interest paid or
accrued on the Credit Loans under the foregoing provisions is less
than the total amount of interest that would have accrued if the
interest rate had at all times been in effect, each Borrower agrees
to pay to the affected Lender(s) an amount equal to the difference
between (a) the lesser of (i) the amount of interest that would
have accrued if the maximum rate permitted by applicable law had at
all times been in effect, or (ii) the amount of interest that would
have accrued if the interest rate had at all times been in effect,
and (b) the amount of interest accrued in accordance with the other
provisions of this Agreement.
(c) All
computations of interest hereunder shall be made on the basis of a
year of 360 days and actual number of days elapsed. Each overdue
amount payable to the Agent or the Lenders under this Agreement or
any Note, whether of principal, interest, Funding Losses, or
otherwise, as applicable, shall, to the extent permitted by
applicable law, bear interest from the due date thereof to the date
such amount is paid in full (whether before or after judgment) at
the Default Rate from time to time in effect, compounded daily and
payable by the applicable Borrower(s) upon demand by the Agent or
any Lender at any time and from time to time.
2.5 Available Commitments .
During the Revolving Credit Period, the Borrowers may, upon at
least three Business Days' notice to the Agent (who shall promptly
notify the Lenders upon receipt of such notice), (i) terminate
the Available Commitment at any time, if no Credit Loans are
outstanding at such time, (ii) reduce from time to time by an
aggregate amount of at least $10,000,000 the Available Commitment
in excess of the aggregate outstanding principal amount of the
Credit Loans or (iii) reduce from time to time the Available
Commitment by an amount such that the Available Commitment (after
taking into account such reduction) equals the aggregate
outstanding principal amount of the Credit Loans. The Available
Commitment shall be terminated automatically on the Commitment
Termination Date. The Available Commitment once terminated or
reduced may not be reinstated.
2.6 Fees . On each Payment
Date falling on or prior to the Commitment Termination Date and on
the Commitment Termination Date (or, if earlier, the date no
further Commitments are outstanding), Interpool Limited agrees to
pay to the Agent for account of the Lenders a commitment fee of 45
basis points per annum on the average daily balance of the
unutilized amount of the Commitments outstanding during the
Interest Period ending on such date, which fee shall be calculated
on the basis of a year of 360 days and actual number of days
elapsed.
(a) Interpool
Limited shall pay the fees specified in the Fee Letter as and when
due.
2.7 Prepayments .
(a)
Voluntary Prepayment . Upon not less than ten Business Days'
prior written notice to the Agent, any Borrower may at any time
prepay in whole, or during the Revolving Credit Period, in part (in
minimum increments of $2,000,000 and multiples thereof), the then
unpaid principal amount of the Credit Loans borrowed by it. The
Credit Loans shall not otherwise be subject to voluntary
prepayment.
(b)
Mandatory Prepayments . Each Borrower shall immediately
prepay the Credit Loans borrowed by it to the extent necessary (and
without any minimum Dollar requirement) to ensure that the
aggregate principal amount of the Credit Loans borrowed by it do
not exceed its Borrowing Base; provided that if (and to the extent)
its Credit Loans exceed its Borrowing Base as a result of Events of
Loss of Eligible Equipment, then if the amount of any such
prepayment due would be less than $500,000 (the Prepayment
Tolerance ), then such prepayment shall be deferred until such
later date as the aggregate amounts owing by such Borrower pursuant
to this Section 2.7(b) would exceed the Prepayment Tolerance.
(c)
General Provisions . The Agent shall promptly notify each
Lender of any notice of prepayment (and the contents thereof)
received by it. The amount of a partial prepayment made in
accordance with the provisions of this Section 2.7 shall be applied
to reduce the unpaid principal balance of the Credit Loans of the
related Loan Series on a pro rata basis, calculated based on the
then unpaid principal balance of all such Notes. In connection with
any prepayment made in accordance with the provisions of this
Section 2.7, each Borrower shall be required to pay,
contemporaneously with such prepayment, an amount equal to the sum
of (i) accrued interest on the principal balance being prepaid,
calculated through the date of such prepayment, and (ii) any
Funding Losses incurred as the result of such prepayment.
(d)
Term-Out Period . If any prepayment shall be made during the
Term-Out Period, such amounts shall not be subject to reborrowing
hereunder. Any prepayment of the Credit Loans of any Loan Series
made in accordance with the provisions of Section 2.7(b) during the
Term-Out Period shall reduce future scheduled principal payments
relating to such Loan Series and, if applicable, the tranche
thereof related to the related Finance Lease, pro rata. In respect
of each Loan Series affected by a partial prepayment of the related
Credit Loans in accordance with Section 2.7 during the Term-Out
Period, the Agent will, to the extent necessary, recalculate the
amortization schedule prepared by it in accordance with Section
2.3(b) hereof to reflect a prepayment of such Credit Loans.
2.8 Illegality or
Impossibility . Notwithstanding any other provision of this
Agreement, if on any date: (a) the introduction of, change in,
or change in the interpretation by any central bank or other
Governmental Authority of, any Law or regulation applicable to any
Lender shall make it unlawful, or any central bank or other
governmental authority having jurisdiction thereof shall assert
that it is unlawful for any Lender to permit a Credit Loan to be
loaned on a Eurodollar Rate Basis in accordance with the provisions
hereof, or (b) if any Lender shall reasonably determine that:
(i) by reason of circumstances affecting the Eurodollar
interbank market, adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate which would otherwise be
applicable during any Interest Period, (ii) deposits of
Dollars in the relevant amount and for the relevant Interest Period
are not available to such Lender in the Eurodollar interbank
market, or (iii) the Eurodollar Rate does not or will not
accurately reflect the cost to such Lender of maintaining any
Credit Loan on a Eurodollar Rate Basis during any Interest Period,
then such affected Lender shall promptly give facsimile or other
written notice of such determination to the Agent, and the Agent
shall promptly give facsimile or other written notice of such
determination to each Borrower (which notice shall be conclusive
and binding upon the Borrower) and to the other Lenders. Upon such
notification by the Agent, the obligation of the affected Lender(s)
to lend or maintain any Credit Loan on the applicable Eurodollar
Rate Basis shall be suspended until the affected Lender determines
that such circumstances no longer exist and the Credit Loans held
by the affected Lenders shall thereupon bear interest at the Base
Rate. Upon such notification and suspension by the Agent, each
relevant Borrower may prepay immediately the affected Credit Loans
borrowed by it in full without penalty or premium; provided,
however that such Borrower shall pay all of the following:
(i) any Funding Losses, (ii) accrued interest on the
principal balance being prepaid, calculated through the date of
such prepayment and (iii) any additional amounts or fees
payable to each of the Lenders pursuant to the terms of this
Agreement.
2.9 Additional Costs and Expenses;
Reserve Charge; Capital Requirements .
(a) Notwithstanding
any other provision of this Agreement, if after the date hereof the
enactment of, change in or change in the interpretation of any Law
(which expression, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or official
charged with the administration or interpretation thereof, and
requests, directives, instructions and notices at any time or from
time to time hereafter made upon or otherwise issued to any Lender
by any central bank or other fiscal, monetary or other authority,
whether or not having the force of law) shall: (i) subject any
Lender to any tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this Agreement or with
respect to maintaining any Credit Loan on a Eurodollar Rate Basis
(except for Taxes on the overall net income of such Lender or any
franchise Taxes in lieu thereof); or (ii) materially change the
basis of taxation of payments to any Lender of the principal of,
interest or any other amounts payable by any Borrower while a
Credit Loan is on a Eurodollar Rate Basis; or (iii) impose or
increase or render applicable any special deposit or reserve or
similar requirements against assets held by, or deposits in or for
the respective accounts of, or loans (including the Credit Loans)
made by or commitments (including the Commitment) of any Lender; or
(iv) impose on any Lender any other conditions or requirements with
respect to this Agreement, and the result of any of the foregoing
is: (A) to increase the cost to such Lender of maintaining its
Commitment or a Credit Loan on a Eurodollar Rate Basis; or (B) to
reduce the amount of principal, interest or other amount payable to
such Lender hereunder; or (C) to require such Lender to make any
payment or to forego any interest or other sum payable hereunder,
the amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable
or deemed received by the Agent from any relevant Borrower (or, in
the case of the Commitment, all of the Borrowers) hereunder, then,
and in each such case, such Lender shall promptly after its
determination of such occurrence give notice thereof to the Agent,
and thereafter the Agent shall promptly give notice thereof to each
Borrower, and each such Borrower shall, upon demand made by the
Agent (following notice thereof from the affected Lender to the
Agent) at any time and from time to time as often as the occasion
therefor may arise, pay to the Agent such additional amounts as
will be sufficient, in the reasonable judgment of the affected
Lender, to compensate such Lender for such additional costs,
reduction, payment or foregone interest or other amount.
(b) If
any Lender shall have determined that: (i) the adoption of or
change after the date hereof in any Law, rule, regulation or
guideline regarding capital requirements for banks or bank holding
companies, or any change after the date hereof in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, (ii) the implementation
after the date hereof of any Law, rule, regulation or guideline
regarding capital requirements implementing the capital adequacy
framework agreement commonly known as Basle II, or (iii) compliance
by such Lender or its parent bank holding company with any
guideline, request or directive of such entity issued after the
date hereof regarding capital adequacy (whether or not having the
force of law) has or would have the effect of reducing the return
on such Lender's or such holding company's capital as a consequence
of the Commitment of such Lender or any Credit Loan made by such
Lender pursuant to the terms of this Agreement to a level below
that which such Lender could have achieved (taking into
consideration such Lender's policies with respect to capital
adequacy immediately before such adoption, change or compliance, or
implementation, and assuming that such Lender's capital was fully
utilized prior to such adoption, change or compliance) but for such
adoption, change or compliance, then (A) such Lender shall promptly
after its determination of such occurrence give notice thereof to
the Agent, and thereafter the Agent shall promptly give notice
thereof to each Borrower; and (B) such Borrower (or, in the case of
the Commitment, the Borrowers jointly and severally) shall promptly
pay to the Agent (and in any event within ten (10) Business Days
after demand) for the respective account(s) of the affected
Lender(s), as an additional fee such amount as each affected
Lender(s) shall have certified to the Agent to be the amount that
will compensate it for such reduction.
(c) In
lieu of paying any amount specified by the preceding paragraphs (a)
and (b), any Borrower shall have the option to prepay immediately
the Credit Loan borrowed by it in full (together with accrued
interest thereon) without penalty or premium except for (i) any
Funding Losses that may become due and payable as a consequence of
such prepayment, (ii) accrued interest on the principal balance
being prepaid, calculated through the date of such prepayment and
(iii) any additional amounts or fees payable to each of the Lenders
pursuant to the provisions of Section 2.9(b) or (c) that were not
eliminated by virtue of such prepayment.
2.10 The Agent's or Lender's
Certificates . A certificate signed by the Agent or any Lender
setting forth any additional amount required to be paid by any
Borrower to the Agent pursuant to the provisions of any of
Sections 2.8, 2.9 or 2.17 shall be delivered by the Agent to
such Borrower in connection with each demand made at any time upon
such Borrower under any of such sections. Each such certificate
shall set forth the nature of the occurrence giving rise to such
compensation, the additional amount or amounts to be paid to it
hereunder and the method by which such amounts were determined,
which may include any reasonable averaging and attribution methods.
Each such certificate shall, absent manifest error, be deemed true
and correct evidence of the additional amount required to be paid
by any Borrower to the Agent. A claim by the Agent for all or any
part of any additional amount required to be paid by any Borrower
pursuant to the provisions of any of Sections 2.8, 2.9 and
2.17 may be made before and/or after the end of the Interest Period
to which such claim relates or during which such claim has arisen
and before and/or after any repayment or prepayment of any amount
owed hereunder to which such claim relates.
2.11 Pro Rata Treatment .
Except as expressly set forth herein, principal and interest
payments and amounts received in payment of the Notes for any
reason and from any source shall be applied pro rata among
the Lenders in accordance with the proportion of outstanding Credit
Loans made by each Lender to all outstanding Credit Loans of such
Series. All other payments, including commitment fee, received by
the Agent from, or on behalf of, any Borrower hereunder shall,
unless specifically attributable to the Agent or a Lender or
otherwise provided herein, be applied on a pro rata basis
among the Lenders based upon the proportion of outstanding Credit
Loans of each Lender to the Aggregate Note Principal Balance (or,
prior to any Borrowing, on a Pro Rata basis).
2.12 Receipt and Disbursement of
Funds . (a) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender of the
contents thereof and of such Lender's share (if any) of such
Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower furnishing such notice.
(b) Not
later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Lender participating therein shall make available
its share of such Borrowing, in Federal or other funds immediately
available in New York City, to the Administrative Agent for account
of the applicable Borrower, at the Agent's account specified on
Schedule 1 (or to such other account as the Agent shall advise the
Lenders in writing). Unless the Agent determines that any
applicable condition specified in Section 4 has not been satisfied,
the Agent will make the funds so received from the Lenders
available to the Borrower by depositing the same, in immediately
available funds, in an account of the Borrower designated by such
Borrower.
(c) Unless
the Agent shall have received notice from a Lender prior to the
time of any Borrowing that such Lender will not make available to
the Agent such Lender's share of such Borrowing, the Agent may
assume that such Lender has made such share available to the Agent
on the date of such Borrowing in accordance with subsection (b) of
this Section and the Agent may, in reliance upon such assumption,
make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall
not have so made such share available to the Agent, such Lender and
such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of such Borrower, a rate per annum equal
to the higher of the Federal Funds effective Rate and the interest
rate applicable thereto pursuant to Section 2.4(a) and (ii) in the
case of such Lender, the Federal Funds Effective Rate. If such
Lender shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Credit Loan
included in such Borrowing for purposes of this Agreement.
2.13 Form and Terms of Payment
. All payments made by any Borrower hereunder in respect of any
