Exhibit 10.40
THIRD AMENDMENT TO THIRD AMENDED AND
RESTATED SENIOR LOAN AND SECURITY AGREEMENT
This Third Amendment to Third Amended and Restated Senior Loan and Security
Agreement ("Third Amendment") entered into as of July 20, 2000, by and among
Interpool, Inc. ("Interpool"), Interpool Limited ("Limited"), Interpool Finance
Corp. ("Finance") and Trac Lease, Inc. ("TracLease"), each with an address at
000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (each a "Borrower" and
collectively "Borrowers"), First Union National Bank (successor by merger to
CoreStates Bank, N.A.) ("First Union"), a national banking corporation, in its
capacity as agent ("Agent") and as lender, PNC Bank, National Association, a
national banking corporation, in its capacity as syndication agent and as lender
("PNC" or "Syndication Agent"), and Fleet National Bank (successor by merger to
Bank Boston, N.A.), a national banking corporation, in its capacity as
documentation agent and as lender ("Fleet" or "Documentation Agent"), along with
each of the other lenders listed on the signature pages hereof and Schedule A
attached hereto and made a part hereof, in their capacity as lenders (singly,
each, including First Union, PNC and Fleet in their capacity as lenders, is a
"Lender" and collectively, they are referred to as "Lenders").
BACKGROUND
A. On or about December 19, 1997, Borrowers, Agent, and PNC; certain
Lenders and certain other banking institutions entered into the Third Amended
and Restated Senior Loan and Security Agreement (as has been and may be further
amended, supplemented or replaced from time to time, the "Loan Agreement")
pursuant to which such banking institutions agreed to make certain advances to
Borrowers under amended and restated terms and conditions. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Loan Agreement.
B. On November 12, 1998, Lenders and Borrowers entered into the First
Amendment to Third Amended and Restated Senior Loan and Security Agreement
("First Amendment") whereby, inter alia, certain banking institutions exited the
Credit Facility, other banking institutions became Lenders, the Maximum Credit
Limit was increased to $215,000,000 and the Current Term of the Credit Facility
was extended to May 31, 2000.
C. On May 26, 2000, the parties hereby entered into the Second Amendment to
the Third Amended and Restated Senior Loan and Security Agreement whereby the
Current Term of the Credit Facility was further extended from May 31, 2000 to
July 31, 2000 and certain other performance pricing changes were made.
D. Under the terms and conditions hereinafter set forth, the parties hereby
desire to further extend the Current Term of the Credit Facility to July 31,
2005, make PNC the Syndication Agent, make Fleet the Documentation Agent and
make certain other amendments to the Loan Agreement.
E. The Loans to and other Obligations of Trac Lease, Limited and Interpool
Finance shall continue to be guaranteed by Interpool; the Obligations of Limited
shall continue to be guaranteed by Interpool Finance and the Obligations of
Interpool Finance shall continue to be guaranteed by Limited.
F. Except where the context clearly requires otherwise, all references to
the Loan Agreement in the Loan Agreement, the Revolving Credit Notes
(collectively "Notes") or any other instrument, agreement or document executed
and/or delivered to Agent and/or Lenders in connection therewith shall be
references to the Loan Agreement, as amended hereby. Further, any instruments,
agreements and documents executed in connection with the Loan Agreement,
including without limitation, the Notes and the Second Amended and Restated
Surety Agreements (identified in paragraph 11 below) shall collectively be
referred to as the "Loan Documents."
NOW, THEREFORE, with the foregoing background incorporated by reference,
the parties hereto, intending to be legally bound hereby, agree as follows:
1. TERM. The Current Term of the Credit Facility is hereby extended from
July 31, 2000 to July 31, 2005.
2. MAXIMUM CREDIT LIMIT. The Maximum Credit Limit is hereby: (i)
$215,000,000 for the period commencing the date of this Third Amendment through
July 31, 2003; (ii) $193,500,000 for the period commencing August 1, 2003
through July 31, 2004 and (iii) $172,000,000 for the period commencing August 1,
2004 through the last day of the Current Term.
3. CREDIT FACILITY MATURITY DATE. All Obligations shall be paid in full on
the Credit Facility Maturity Date. After the Credit Facility Maturity Date, the
Credit Facility shall expire and no further Advances shall be available from
Lenders. In addition, the parties hereby agree that Borrowers are no longer
permitted to convert outstanding Revolving Credit Loans to Term Loans as
provided in Section 2.1(d) of the Loan Agreement. Accordingly, as of the date of
this Third Amendment, Section 2.1(d) of the Loan Agreement shall be deemed
amended by deleting the entire section except for the first sentence.
4. RELEASE OF COLLATERAL. The conditions set forth in Sections 3.8 and 3.9
of the Loan Agreement have not occurred. The parties hereby agree that option to
release certain Collateral as provided in these Sections is no longer available.
Accordingly, Sections 3.8 and 3.9 of the Loan Agreement are hereby deleted in
their entirety.
5. SPECIAL PURPOSE ENTITY. Any newly created Subsidiary of a Borrower
created with the express written consent of Agent and: (i) established for the
sole purpose of purchasing assets from a Borrower or other Subsidiary; (ii)
which has no creditors other than the such selling Borrower or Subsidiary; (iii)
which has no interest in any property other than such purchased assets; and (iv)
which has funded debt which is not consolidated with the Funded Debt of the
Borrowers or a Subsidiary shall be hereinafter referred to as a "SPE." Creation
of such SPE in accordance with this paragraph shall not cause a breach of any
provision of the Loan Agreement including without limitation Sections 5.9 and
7.1 of the Loan Agreement.
6. TANGIBLE NET WORTH. Tangible Net Worth as defined in Section 1.1 of the
Loan Agreement shall be amended and restated in its entirety as follows:
At any time, the amount of stockholders equity of Interpool and its
Consolidated Subsidiaries, other than equity relating to a SPE, as
appearing in the Financial Statements, adjusted to exclude trademarks,
goodwill, covenants not to compete and all other intangible assets as
that term is defined under GAAP, provided that Tangible Net Worth
shall include, without duplication, "Company-obligated mandatorily
redeemable, preferred securities in grantor trusts," a shown on the
Financial Statements.
7. SYNDICATION AGENT. The parties hereto covenant and agree that PNC shall
be the Syndication Agent and shall have no rights, duties or responsibilities,
except for those received, undertaken or incurred by its capacity as Lender. No
duty, responsibility, right or option granted to the Agent herein is delegated
or transferred, in whole or in part, to the Syndication Agent and no
compensation payable to the Agent shall be shared with, or paid to, the
Syndication Agent. Syndication Agent shall not be entitled to any fees or
reimbursement of Expenses except as PNC shall otherwise be entitled in its
capacity as Lender. Each disclaimer, exculpation provision and indemnity
contained in Section 9 of the Loan Agreement provided for the benefit of the
Agent shall likewise be deemed given to and provided for the Syndication Agent.
Notwithstanding anything to the contrary in the Loan Agreement, no amendment to
this paragraph relating to or affecting PNC shall be effective without the
written consent of PNC.
8. DOCUMENTATION AGENT. The parties hereto covenant and agree that Fleet
shall be the Documentation Agent and shall have no rights, duties or
responsibilities, except for those received, undertaken or incurred by Fleet in
its capacity as Lender. No duty, responsibility, right or option granted to the
Agent herein is delegated or transferred, in whole or in part, to the
Documentation Agent and no compensation payable to the Agent shall be shared
with, or paid to, Documentation Agent. Documentation Agent shall not be entitled
to any fees or reimbursement of Expenses except as Fleet shall otherwise be
entitled in their capacity as Lender. Each disclaimer, exculpation provision and
indemnity contained in Section 9 of the Loan Agreement provided for the benefit
of the Agent shall likewise be deemed given to and provided for the
Documentation Agent. Notwithstanding anything to the contrary contained in the
Loan Agreement, no amendment to this paragraph relating to or affecting Fleet
shall be effective without the written consent of Fleet.
9. RENEWAL FEE. In consideration for this Third Amendment, Borrowers shall
pay to Lenders contemporaneously upon execution of this Third Amendment, a
Renewal Fee in the amount of $215,000.
10. BORROWERS' RATIFICATION. Borrowers agree that they have no defenses or
set-offs against the Agent, Co-Agents or Lenders, their respective officers,
directors, employees, agents or attorneys with respect to the Loan Documents,
including without limitation, the Notes, the Loan Agreement or related
instruments, agreements or documents, all of which are in full force and effect
and shall remain in full force and effect unless and until modified or amended
in writing in accordance with their terms. Borrowers hereby ratify and confirm
their Obligations under the Loan Documents, including without limitation, the
Notes, the Loan Agreement and related instruments, agreements and documents and
agree that the execution and the delivery of this Third Amendment does not in
any way diminish or invalidate any of their Obligations thereunder.
11. REAFFIRMATION OF SURETIES. Each Surety, parties to those certain Second
Amended and Restated Surety Agreements each dated December 19, 1997 in favor of
Agent for the benefit of the Lenders, by execution hereof in its capacity as
Surety, hereby consents to the amendments set forth in this Third Amendment, and
acknowledges that the Second Amended and Restated Surety Agreements remain in
full force and effect and that each remains liable for obligations to Lenders
referenced therein under the Loan Documents, as amended hereby.
12. BORROWERS' REPRESENTATION AND WARRANTIES. Borrowers represent and
warrant the following and such representations and warranties shall survive the
making of this Third Amendment:
a. as of the date hereof no Event of Default or Unmatured Event of
Default has occurred or is existing under the Loan Documents;
b. except as otherwise previously disclosed to Agent, Co-Agents
and/or Lenders in writing, the representations and warranties
made in the Loan Agreement are true and correct as of the date
hereof;
c. the execution and delivery by each Borrower of this Third
Amendment and performance by it of the transactions herein
contemplated (i) are and will be within its powers, (ii) have
been authorized by all necessary corporate action, and (iii) are
not and will not be in contravention of any order of any court or
other agency of government, of law or any other indenture,
agreement or undertaking to which such Borrower is a party or by
which the property of such Borrower is bound, or be in conflict
with, result in a breach of or constitute (with due notice and/or
lapse of time) a default under any such indenture, agreement or
undertaking or result in the imposition of any lien, charge or
encumbrance of any nature on any of the properties of such
Borrower; and
d. this Third Amendment, and each other agreement, instrument or
document executed and/or delivered in connection herewith, shall
be valid, binding and enforceable in accordance with its
respective terms.
13. NO WAIVER. This Third Amendment does not and shall not be deemed to
constitute a waiver by Agent, Co-Agents or Lenders of any Event of Default under
the Loan Documents, including without limitation, the Notes, or the Loan
Agreement, of any event which with the passage of time or the giving of notice
or both would constitute an Event of Default, nor does it obligate Agent,
Co-Agents or Lenders to agree to any further extension of the Credit Facility or
modifications of the terms of any of the Loan Documents or constitute a waiver
of any other rights or remedies of Agent, Co-Agents or Lenders.
14. GOVERNING LAW. This Third Amendment shall be governed by, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
15. INTEGRATION. Except as expressly provided herein, all terms and
conditions of the Loan Documents remain in full force and effect, unless such
terms or conditions are no longer applicable by their terms. To the extent the
provisions of this Third Amendment are expressly inconsistent with the
provisions of the Loan Documents, the provisions of this Third Amendment shall
control.
16. COUNTERPARTS AND FACSIMILE. This Third Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute one and the same
respective agreement. Signatures by facsimile shall bind the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be executed and delivered as of the day and year first above written.
BORROWERS:
INTERPOOL, INC.
By:____________________________
Attest:________________________
INTERPOOL, LIMITED
By: ______________________________
Attest: __________________________
TRAC LEASE, INC.
By: ______________________________
Attest: __________________________
INTERPOOL FINANCE CORP.
By: ______________________________
Attest: __________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
SURETIES:
INTERPOOL, INC.
By: ______________________________
Attest: __________________________
INTERPOOL LIMITED
By: ______________________________
Attest: __________________________
INTERPOOL FINANCE CORP.
By: ______________________________
Attest: __________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
LENDERS:
FIRST UNION NATIONAL BANK (successor by
Merger to CORESTATES BANK, N.A.), as Agent
and Lender
By:____________________________
PNC BANK, NATIONAL ASSOCIATION, as
Syndication Agent and Lender
By:_____________________________
FLEET NATIONAL BANK, as Documentation
Agent and Lender
By: _______________________________
CHASE MANHATTAN BANK, as Lender
By: _______________________________
CREDIT LYONNAIS NEW YORK BRANCH, as Lender
By: _______________________________
UNION BANK OF CALIFORNIA, N.A., as Lender
By: ______________________________
ABN-AMRO BANK N.V., as Lender
By:_____________________________
SUMMIT BANK, as Lender
By:______________________________
ADDRESSES OF LENDERS
------------------------------------------------------------ ---------------------------------------------------------
FIRST UNION CAPITAL MARKETS CREDIT LYONNAIS NEW YORK BRANCH
One First Union Center 1301 Avenue of the Americas
000 X. Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000
Xxxxxxxxx, XX 00000-0000 Attention: Xxxx Xxxxxxxx (000) 000-0000
Attention: Xxxxxxx Xxxx (000) 000-0000 Fax: (000) 000-0000
Xxxx Xxxxxxxx (000) 000-0000
Fax: (000) 000-0000
XXXX.XXXXXXXX@XXXXXXX.XXXX.XXX
------------------------------------------------------------ -------------- ---------------------- -------------------
THE CHASE MANHATTAN BANK PNC BANK, N.A.
000 Xxxxx 00 Xxxx 0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx (000) 000-0000 Attention: Xxxxxx Xxxxxxxxxxx (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
----------------- -------------------- --------------------- -------------- ---------------------- -------------------
SUMMIT BANK ABN AMRO BANK, N.C.
000 Xxxxxxxx Xxxxxx 000 XxXxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx (000) 000-0000 Attention: Xxxxx Xxxxxx (000) 000-0000
Fax: (000) 000-0000 Fax (000) 000-0000
---------------- --------------------- --------------------- -------------- ---------------------- -------------------
UNION BANK OF CALIFORNIA N.A. FLEET NATIONAL BANK
Financial Services Industries Division Marine Finance Group
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Mail Xxxx 00-00-00, X.X. Xxx 0000
Xxxxxxxxx: Xxxxxx X. Xxxxx (000) 000-0000 Xxxxxx, XX 00000-0000
Fax: (000) 000-0000 Attention: Xxxx XxXxxxxx (000) 000-0000
Fax: (000) 000-0000
UNION BANK OF CALIFORNIA N.A.
000 X. Xxxxxxxx Xxxxxx XX X00-000
Los Angeles, CA 90071
Attention: S Xxxxx Xxx (000) 000-0000
Fax: (000) 000-0000
---------------- --------------------- --------------------- -------------- ---------------------- -------------------
