Exhibit 10.41
FOURTH AMENDMENT TO THIRD AMENDED AND
RESTATED SENIOR LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Third Amended and Restated Senior Loan and
Security Agreement ("Fourth Amendment") entered into as of October 6, 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, 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. On July 20, 2000, the parties hereby entered into the Third Amendment to
the Third Amended and Restated Senior Loan and Security Agreement whereby the
Current Term of the Credit Facility was further extended to July 31, 2005, PNC
was made the Syndication Agent, Fleet was made the Documentation Agent and
certain other amendments to the Loan Agreement were made.
E. Under the terms and conditions hereafter set forth, the parties hereby
desire to enter into certain Interest Hedging Instruments (as defined herein)
and make certain other amendments to the Loan Agreement.
F. 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.
G. Except where the context clearly requires otherwise, all references to
the Loan Agreement in the Loan Agreement, the Revolving Credit 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.
NOW, THEREFORE, with the foregoing background incorporated by reference,
the parties hereto, intending to be legally bound hereby, agree as follows:
1. INTEREST HEDGING INSTRUMENT. The following definition of Interest
Hedging Instrument is hereby added to Section 1.1 of the Loan Agreement:
INTEREST HEDGING INSTRUMENT - Any documentation evidencing any
interest rate swap, interest "cap" or "collar" or any other interest
rate hedging device or swap agreement (as defined in 11 U.S.C. ss.101)
between any Borrower and any Lender (or any Affiliate of Lender)
relating to the obligations of such Borrower under the Credit
Facility.
2. SWAP OBLIGATION. The following definition of Swap Obligations is hereby
added to Section 1.1 of the Loan Agreement:
SWAP OBLIGATIONS - All existing and future debts, liabilities and
obligations of every kind and nature arising under or in connection
with any Interest Hedging Instrument, including, without limitation,
any debts, liabilities or obligations arising in connection with
termination of an Interest Hedging Instrument provided however that
and any such debts, liabilities or obligations arising under or in
connection with any Interest Hedging Instrument shall not have: (i) a
notional balance of in excess of $150,000,000 in the aggregate or (ii)
a maturity date of later than the Current Term of the Credit Facility.
3. GENERAL INTANGIBLES. The definition of "General Intangibles" contained
in Section 1.1 of the Loan Agreement is hereby amended by adding the following
parenthetical at the end of the definition immediately before the last ".":
(provided that for purposes of this definition, General
Intangibles shall not include any Borrower's rights under any Interest
Hedging Instruments).
4. LOAN DOCUMENTS. The definition of Loan Documents in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and replaced as follows:
LOAN DOCUMENTS - This Agreement, the Revolving Credit Notes, the
Term Notes and all agreements, instruments and documents executed
and/or delivered from time to time in connection therewith (but not
including any Interest Hedging Instrument), as amended or replaced
from time to time.
5. LIBOR RATE. The definition of LIBOR Rate in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced as follows:
LIBOR RATE - An annual rate of interest (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined by Agent as being the
rate quoted to the principal London Branch of Agent at approximately
11:00 a.m. London time for the offering by leading banks in the London
interbank market of U.S. Dollar deposits in immediately available
funds for the LIBOR Interest Period elected by Borrowers, in effect
two Business Days prior to the funding date for a requested LIBOR
Based Rate Loan (including those requested in connection with the
conversion of a Loan(s) subject to the Base Rate Option or Term Base
Rate Option to a LIBOR Based Rate Loan in accordance herewith), or for
a LIBOR Based Rate Loan which Borrowers have elected to continue as a
LIBOR Based Rate Loan beyond the expiration of the then current LIBOR
Interest Period with respect thereto, for deposits of dollars in
amounts equal (as nearly as may be estimated) to the amount of the
LIBOR Based Rate Loan which shall then be loaned by Lenders to
Borrowers as of the time of such determination, as such rate may be
adjusted by the reserve percentage applicable during the LIBOR
Interest Period in effect (or if more than one such percentage shall
be applicable, the daily average of such percentages for those days in
such LIBOR Interest Period during which any such percentage shall be
so applicable) under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without
limitation, any emergency, supplemental or other marginal reserve
requirement) for Agent with respect to liabilities or assets
consisting of or including "Eurocurrency Liabilities" as such term is
defined in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time, having a term equal to
such LIBOR Interest Period but without the benefit of credit
proration, exemptions, or offsets that might otherwise be available
from time to time under Regulation D ("Eurocurrency Reserve
Requirement"). Such adjustment shall be effectuated by calculating,
and the LIBOR Rate shall be equal to, the quotient of (i) the rate
determined by Agent divided by (ii) one minus the Eurocurrency Reserve
Requirement plus (iii) the Assessment Rate if applicable. The
"Assessment Rate" for purposes of this definition means the average
rate at which premiums for deposit insurance are then charged by the
Federal Deposit Insurance Corporation (or any successor) to Agent for
time deposits at foreign branches. The LIBOR Rate shall be rounded to
next higher 1/100 of 1%, or if Borrower had hedged the LIBOR Rate Loan
with an Interest Hedging Instrument, the LIBOR Rate shall be rounded
five decimal places as set forth in the 1991 ISDA Definitions
published by the International Swaps and Derivatives Association, Inc.
6. OBLIGATIONS. The definition of Obligations in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced as follows:
OBLIGATIONS - All existing and future liabilities and obligations
of every kind or nature at any time owing by a Borrower to Lenders or
any of them, and/or to Agent if incurred hereunder, whether joint or
several, related or unrelated, primary or secondary, matured or
contingent, due or to become due, and whether principal, interest,
fees or Expenses, including, without limitation, obligations in
respect of any Swap Obligations and the Credit Facility and any
extensions, modifications, substitutions, increases and renewals
thereof, and the payment of all reasonable amounts advanced by Agent
(or any Lender after the occurrence of an Event of Default) to
preserve, protect and enforce rights hereunder and in the Collateral
and all Expenses incurred by Agent in connection therewith
7. ADVANCES, CONVERSIONS, RENEWALS AND PAYMENTS. Section 2.2(a) of the Loan
Agreement is hereby deleted in its entirely and replaced as follows:
(a) Except to the extent otherwise set forth in this Agreement (or in
the case of an Interest Hedging Instrument), all payments of principal and
of interest on the Credit Facility, the Commitment Fee, the Expenses, the
Agent's Fee, and all other charges and any other Obligations of Borrowers
hereunder, shall be made to Agent at its main Philadelphia banking office
0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX, xx Xxxxxx Xxxxxx dollars, in
immediately available funds. Agent, on behalf of all Lenders, upon five (5)
days prior notice to Borrowers shall have the unconditional right and
discretion to make an Advance under the Credit Facility in the form of a
Revolving Credit Loan to pay, and/or to charge any Borrower's operating
account with any such respective institution for, all of such Borrower's
Obligations as they become due from time to time under this Agreement
including without limitation, interest, principal, fees and reimbursement
of Expenses; provided however that so long as no Event of Default has
occurred which has not been expressly waived or excused, such Borrower's
prior approval shall be required before Agent may charge such Borrower's
operating account.
8. PROCEEDS OF COLLATERAL. Section 2.7(d) of the Loan Agreement is hereby
deleted in its entirety and replaced as follows:
(d) PROCEEDS OF COLLATERAL: Following the occurrence of an Event of
Default (which has not been expressly waived or excused) or the continuance
of an Unmatured Event of Default, or if required by Section 2.7(e) below,
Borrowers shall promptly upon the receipt of proceeds of any Collateral,
pay all such proceeds to Agent for application against the outstanding
Obligations associated with the respective Subfacilities under the Credit
Facility, including without limitation, the outstanding Swap Obligations
relating to such Subfacility. Such payments shall first be applied to
outstanding Expenses associated with such Subfacility and then to such
Borrower's Obligations ("NonExpense Obligations")on a pro rata basis based
on the percentage of the Swap Obligations to the total NonExpense
Obligations. The proceeds shall be applied to the Obligations not
constituting the Swap Obligations in the following order; first to the
outstanding balance of the Revolving Credit Loans subject to the Base Rate
Option, then to the Revolving Credit Loans subject to the LIBOR Rate
Option.
9. PREPAYMENTS. The following subsection is hereby added to Section 2.7 of
the Loan Agreement:
(g) A Borrower's prepayment of the Loans (whether in whole or in part)
will in no way limit, affect or impair a Borrower's obligations to continue
making payments in connection with any Interest Hedging Instrument which
will continue in full force and effect notwithstanding any such prepayment.
10. EVENTS OF DEFAULT. The introductory paragraph of Section 8.1(a) of the
Loan Agreement is hereby deleted in its entirety and replaced as follows:
Each of the following events shall constitute an event of default
("Event of Default") and Agent shall thereupon have the option, and
the SuperMajority Lenders shall have the right to cause Agent, to
declare the Obligations (other than the Swap Obligations) immediately
due and payable, all without demand, notice, presentment or protest or
further action of any kind (it also being understood that the
occurrence of any of the events or conditions set forth in
subparagraphs (j), (k) or (l) shall automatically cause an
acceleration of the Obligations).
11. EVENTS OF DEFAULT. Section 8.1(h) of the Loan Agreement is hereby
deleted in its entirety and replaced as follows:
(h) OTHER AGREEMENTS WITH LENDERS - if any Borrower breaches or
violates the terms of, or if a default or an event of default, occurs
under, any Interest Hedging Instrument or any other existing or future
agreement (related or unrelated) between any Borrower or among Borrowers
and Agent or any Lender or all Lenders; or
12. EXPENSES. Section 9.9(a) of the Loan Agreement is hereby deleted in its
entirety and replaced as follows:
(a) All out-of-pocket costs and out-of-pocket expenses incurred by
Agent and not reimbursed on demand by Borrowers, in connection with the
creation, amendment, administration, termination and enforcement of the
Loans (including, without limitation, audit expenses, counsel fees and
expenditures to protect, preserve and defend Agent's and each Lender's
rights and interest under the Loan Documents or any Interest Hedging
Instrument) shall be shared and paid on demand by Lenders pro rata based on
their applicable Pro Rata Percentage.
13. 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 Fourth Amendment does not in
any way diminish or invalidate any of their Obligations thereunder.
14. 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 Fourth 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.
15. BORROWERS' REPRESENTATION AND WARRANTIES. Borrowers represent and
warrant the following and such representations and warranties shall survive the
making of this Fourth 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 Fourth
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 Fourth 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.
16. NO WAIVER. This Fourth 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.
17. GOVERNING LAW. This Fourth Amendment shall be governed by, construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
18. 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 Fourth Amendment are expressly inconsistent with the
provisions of the Loan Documents, the provisions of this Fourth Amendment shall
control.
19. COUNTERPARTS AND FACSIMILE. This Fourth 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 Fourth 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
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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 Fax: Attention: Xxxxxx Xxxxxxxxxxx (000) 000-0000
(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 Fax: Attention: Xxxxx Xxxxxx (000) 000-0000 Fax
(000) 000-0000 (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 Fax: Xxxxxx, XX 00000-0000
(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
------------------------------------------------------------ ---------------------------------------------------------