AMENDMENT NUMBER 5 TO AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.6
AMENDMENT NUMBER 5
TO AMENDED AND RESTATED LOAN AGREEMENT
TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NUMBER 5, dated as of June 15, 2004 (this “Amendment”) to the Amended and
Restated Loan Agreement, dated as of March 7, 2003 (as amended or supplemented from time to time as
permitted thereby, the “Loan Agreement”), among CF LEASING LTD., a company with limited liability
organized and existing under the laws of Bermuda (together with its successors and permitted
assigns, the “Borrower”), FORTIS BANK (NEDERLAND) N.V., a Naamloze Vennootschap (“Fortis”), as
agent on behalf of the Lenders (in such capacity, the “Agent”), BTM CAPITAL CORPORATION (“BTMCC”),
a Delaware corporation, HSH NORDBANK AG, NEW YORK BRANCH (“HSH”), a banking institution duly
organized and validly existing under the laws of Germany, and the other financial institutions from
time to time party hereto (each, including Fortis, BTMCC and HSH, a “Lender” or “Co-Purchaser” and
collectively, the “Lenders” or the “Co-Purchasers”).
W I T N E S S E T H:
WHEREAS, the Borrower, Fortis and BTM have previously entered into the Loan Agreement, dated
as of September 18, 2002, as amended and restated as of March 7, 2003, and subsequently amended by
Amendment Number 1 thereto, dated as of October 15, 2003, Amendment Number 2 thereto, dated as of
March 4, 2004, Amendment Number 3 thereto, dated as of April 30, 2004, and Amendment Number 4
thereto, dated as of May 31, 2004;
WHEREAS, the parties desire to further amend the Loan Agreement in order to (i) increase the
Aggregate Commitment from Eighty Million Dollars ($80,000,000) to One Hundred Fifty Million Dollars
($150,000,000), (ii) increase the Class A Commitment with respect to Fortis from Thirty-Five
Million Dollars ($35,000,000) to Forty-Five Million Dollars ($45,000,000), (iii) increase the
portion of the Class A Commitment with respect to BTMCC from Forty Million Dollars ($40,000,000) to
Fifty Million Dollars ($50,000,000), (iv) add HSH as a Lender under the terms of the Loan Agreement
with a Class A Commitment of Fifty Million Dollars ($50,000,000), (v) extend the Conversion Date
from June 15, 2004 to June 15, 2005, (vi) exchange the promissory notes issued pursuant to the Loan
Agreement as amended by Amendment No. 1 to the Loan Agreement, dated as of October 15, 2003, for
new Notes, and (vii) to make certain other amendments, all upon the terms, and subject to the
conditions, hereinafter set forth, and in reliance on the representations and warranties of
Borrower set forth herein;
NOW THEREFORE, in consideration of the premises and mutual covenants herein contained, the
parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings assigned in the Loan Agreement.
SECTION 2. Full Force and Effect. Other than as specifically modified hereby, the Loan
Agreement shall remain in full force and effect in accordance with the terms and provisions thereof
and is hereby ratified and confirmed by the parties hereto.
Exhibit 10.6
SECTION 3. Amendment to the Loan Agreement. Effective upon the date hereof, following
the execution and delivery hereof, the following Sections are hereby amended as follows:
(a) Section 101 is hereby amended by deleting the term “Aggregate Principal Balance” in its
entirety and replacing such term with the following:
“Aggregate Principal Balance: As of any date of determination, an amount equal to the sum of the
then Principal Balance of all Notes then Outstanding.”;
(b) Section 101 is hereby amended by deleting the term “Aggregate Asset Base” in its entirety
and replacing such term with the following:
“Aggregate Asset Base: As of any date of determination, an amount equal to: the sum, without
duplication, of:
| (1) | the product of (x) eighty percent (80%) and (y) the sum of the Net Book Values (determined as of the last day of the Collection Period immediately preceding such date of determination) of all Eligible Containers (to the extent not then subject to a Finance Lease); | ||
| (2) | the amount of cash and the face amount of Eligible Investments then on deposit in the Trust Account (excluding the amount necessary to pay all interest and principal which shall be due and owing as of the next succeeding Payment Date on all Notes then Outstanding) and the Restricted Cash Account; and | ||
| (3) | the product of (x) eighty percent (80%) and (y) the sum of the then Net Book Values of all Eligible Containers then subject to Finance Leases.”; |
(c) Section 101 is hereby amended by deleting the term “Commitment Fee Percentage” in its
entirety and replacing such term with the following:
“Commitment Fee Percentage: The percentage specified as such in the letter agreement, dated as of
June 15, 2004, between the Borrower and the Agent, as such letter agreement may be amended,
modified or supplemented from time to time in accordance with its terms.”;
(d) Section 101 is hereby amended by deleting the term “Conversion Date” in its entirety and
replacing such term with the following:
“Conversion Date: With respect to the Commitment of any Lender, the earlier to occur of (i) June
15, 2005 (as such date may be extended in accordance with Section 201(f)), and (ii) the date on
which an Early Amortization Event initially occurs.”;
(e) Section 101 is hereby amended by adding the following defined term in the proper
alphabetical order:
“Co-Purchaser: This term shall mean any Lender.”;
Exhibit 10.6
(f) Section 101 is hereby amended by adding the following defined term in the proper
alphabetical order:
“Effective Date: June 15, 2004.”;
(g) Section 101 is hereby amended by deleting the term “Eligible Container” in its entirety
and replacing such term with the following:
“Eligible Container: Any Container which shall comply with each of the following requirements as
of the date indicated below:
(i) Purchase Parameters. Such Container conformed, on the date of
its original acquisition by the Borrower, with the Purchase Parameters in effect on such
date of acquisition;
(ii) Casualty Losses. Such Container shall not have suffered a
Casualty Loss on such date of determination;
(iii) Title. The Borrower shall have had good and marketable title
to such Container, free and clear of all Liens other than Permitted Liens, on such date of
determination;
(iv) Maximum Concentration of Non-Monthly Lease Agreements. If such
Container is on lease, then when considered with all other Eligible Containers owned by the
Borrower, the sum of the Net Book Values of all Eligible Containers then subject to a Lease
for which rent is payable on other than a monthly basis shall not exceed five percent (5%)
of the Aggregate Net Book Value;
(v) Valid and Perfected Security Interest. The Security Agreement is
effective to create in favor of the Agent a valid and perfected first security interest in
such Container, subject only to Permitted Liens;
(vi) Maximum Concentration of Refrigerated Containers. When
considered with all other Eligible Containers owned by the Borrower, the sum of the Net Book
Values of all refrigerated Containers will not exceed an amount equal to thirty-five percent
(35%) of the then Aggregate Net Book Value;
(vii) Specialized Containers. When considered with all other
Eligible Containers owned by the Borrower, all of the following are correct: (A) the sum of
the Net Book Values of all Specialized Containers (other than refrigerated Containers) will
not exceed an amount equal to twenty-five percent (25%) of the then Aggregate Net Book
Value, (B) the sum of the Net Book Values of a particular type of Specialized Container
(other than refrigerated Containers) shall not exceed Fifteen Million Dollars ($15,000,000),
and (C) all Specialized Containers acquired by the Borrower on or after the Restatement Date
shall be twenty feet (20’) long or forty feet (40’) long;
(viii) Maximum Lessee Concentrations. If such Container is then on
lease, then, when considered with all other Eligible Containers then on lease, the sum of
the Net
Exhibit 10.6
Book Values of all Eligible Containers then on lease to any single lessee will not
exceed the following:
(a) if such lessee is set forth on Exhibit E hereto, an amount equal to the
greater of (x) twelve Million Dollars ($12,000,000) and (y) twelve percent (12%) of
the then Aggregate Net Book Value; or
(b) in all other instances not covered by clause (a), an amount equal to the
greater of (x) five Million Dollars ($5,000,000) and (y) five percent (5%) of the
then Aggregate Net Book Value;
(ix) Maximum Concentration of Finance Leases. If such Container is
then subject to the terms of a Finance Lease, then, when considered with all other Eligible
Containers then on lease, the sum of the Net Book Values of all Containers subject to
Finance Leases shall not exceed twenty (20%) of the then Aggregate Net Book Value;
(x) Maximum Concentration of Non-USD Denominated Leases. When
considered with all other Eligible Containers owned by the Borrower, the sum of the Net Book
Values of all Containers subject to Non-USD Denominated Leases will not exceed an amount
equal to five percent (5%) of the then Aggregate Net Book Value;
(xi) Compliance with ISO; Age; Term Lease. Each New Container
acquired by the Borrower on or after the Restatement Date shall comply with all of the
following: (A) be an ISO compliant Container (excluding any tank containers), (B) be less
than twenty-four (24) months old as of the date of acquisition by the Borrower, and (C) when
considered with all other Eligible Containers owned by the Borrower, at least eighty-five
percent (85%) of such New Containers (based on the sum of the Net Book Values of all such
New Containers) shall then be subject to a Term Lease;
(xii) Purchase Price. The purchase price for any New Container
acquired by the Borrower on or after the Restatement Date shall not exceed its then fair
market value; and
(xiii) Lessee Bankruptcy. If such Container is then subject to a
Finance Lease, the related lessee is not, to the knowledge of the Borrower or the Manager,
subject to bankruptcy, insolvency or similar proceedings.”;
(h) Section 101 is hereby amended by deleting the term “Eligible Interest Rate Hedge Provider”
in its entirety and replacing it with the following:
“Eligible Interest Rate Hedge Provider: One of the following:
(i) so long as the Notes are not rated by a Rating Agency, either (A) Bank of
Tokyo — Mitsubishi Ltd., New York Branch or any of its Affiliates, (B) HSH Nordbank
AG, New York Branch or any of its Affiliates, or (C) a bank or financial institution
that has a long-term unsecured indebtedness rated not less than “A” by S&P or “A3”
by Xxxxx’x and which is reasonably satisfactory to the Agent; or
Exhibit 10.6
(ii) if the Notes are rated by a Rating Agency, a bank or financial institution
that has (A) a long-term unsecured indebtedness rated not less than “A+” by S&P or
“A3” by Xxxxx’x, or (B) made arrangements satisfactory to the Rating Agencies to
secure its obligations under such Hedge Agreement.”;
(i) Section 101 is hereby amended by deleting the term “Final Payment Date” in its entirety
and replacing such term with the following:
“Final Payment Date: The Payment Date occuring on June 15, 2013.”;
(j) Section 101 is hereby amended by amending and restating the defined term “Interest Rate”
to read as follows:
“(A) if no Early Amortization Event has occurred and is then continuing, with respect to the
Class A Notes, a rate per annum equal to the sum of (i) Adjusted LIBOR (or, if a Eurodollar
Disruption Event is then continuing, the Prime Rate) for such Interest Period, plus (ii) one
of the following: (x) during the period from and including the Effective Date to, but
excluding, the Conversion Date, one and one-half of one percent (1.50%) per annum, (y) during
the period from and including the Conversion Date to, but excluding, the one year anniversary
thereof, one and three-quarters of one percent (1.75%) per annum or (z) thereafter, two
percent (2%) per annum;
“(B) if no Early Amortization Event has occurred and is then continuing, with respect to the
Class B Notes, a rate per annum equal to the sum of (i) Adjusted LIBOR (or, if a Eurodollar
Disruption Event is then continuing, the Prime Rate) for such Interest Period, plus (ii) four
and one-half of one percent (4.50%) per annum;
(C) if an Early Amortization Event has occurred and is then continuing, with
respect to the Class A Notes, a rate per annum equal to the sum of (i) Adjusted
LIBOR (or, if a Eurodollar Disruption Event is then continuing, the Prime Rate) for
such Interest Period, plus (ii) two and three-quarters percent (2.75%) per annum;
and
(D) if an Early Amortization Event has occurred and is then continuing, with
respect to the Class B Notes, a rate per annum equal to the sum of (x) Adjusted
LIBOR (or, if a Eurodollar Disruption Event is then continuing, the Prime Rate) for
such Interest Period, plus (y) five and one-half percent (5.50%) per annum.”;
(k) Section 101 is hereby amended by inserting the following defined term in the appropriate
alphabetical order:
“Non-USD Denominated Leases: Leases of Containers under which the related rent is payable in
currencies other than United States Dollars and the Lease does not contain a clause providing for
adjustment of such rent to reflect exchange rate movements between such currency and the United
States Dollar.”;
Exhibit 10.6
(l) Section 101 is hereby amended by deleting the table in clause (2) of the defined term
“Principal Payment Amount” in its entirety and replacing such table with the following:
“
| Number of Payment Dates After | ||||||||
| Conversion Date | Annual Principal Reduction Required | |||||||
| 1-12 | 10.0 | % | ||||||
| 13-24 | 10.0 | % | ||||||
| 25-36 | 12.5 | % | ||||||
| 37-48 | 12.5 | % | ||||||
| 49-60 | 12.5 | % | ||||||
| 61-72 | 12.5 | % | ||||||
| 73-84 | 15.0 | % | ||||||
| 85-96 | 15.0 | %”; | ||||||
(m) Clause (a) of Section 201 is hereby amended by deleting the reference to “Eighty Million
Dollars ($80,000,000)” and replacing it with “One Hundred Fifty Million Dollars ($150,000,000)”;
(n) Clause (b) of Section 201 is hereby amended by deleting it in its entirety and replacing
such clause with the following:
“(b) Advances. Prior to the Conversion Date, each of the Class A Notes and
Class B Notes shall be a revolving note with a maximum principal amount equal to the then current
Class A Commitment and Class B Commitment, respectively, for the related Lender, and the Borrower
may, subject to the terms and conditions of this Loan Agreement, borrow, repay and reborrow amounts
in respect of such Class A Commitment and Class B Commitment; provided, however, that if the
Aggregate Class A Principal Balance shall be less than the then current Class A Aggregate
Commitment, then the Lenders shall, at the request of the Borrower and subject to compliance with
the terms of Section 1002 of this Agreement, make one or more Class A Advances (for each such
Lender, pro rata, in proportion to such Lender’s Class A Commitment) in such aggregate amount that
the Aggregate Class A Principal Balance (after giving effect to such Class A Advance(s)) then
Outstanding shall not exceed One Hundred Forty-Five Million Dollars ($145,000,000); provided,
further, that in no event shall any Lender be required to make a Class A Advance that, when
considered with all unpaid Class A Advances previously made by such Lender, would exceed the
related Class A Commitment of such Lender. The failure of any Lender to make an Advance on any
Funding Date shall not relieve any other Lender of its obligation to make an Advance, but no Lender
shall (i) be responsible for the failure of any other
Exhibit 10.6
Lender to make an Advance on any Funding Date or (ii) be obligated to make an incremental Advance
on behalf of such non-performing Lender. Each Lender, or the Agent on its behalf, shall maintain a
record of all Advances and repayments made on the Notes and such records shall be conclusive absent
manifest error. On the Original Closing Date, the Borrower issued a note (the “Closing Date Note”)
to Fortis in a maximum principal amount equal to Thirty-Five Million Dollars ($35,000,000). On the
Restatement Date, the Borrower issued the following Notes to the respective Lenders: (i) a Class A
Note in the maximum principal balance of Twenty Million Dollars ($20,000,000) (of which Eight
Million Eight Hundred Forty-Seven Thousand One Hundred Twenty-Two and 47/100 Dollars
($8,847,122.47) was outstanding after giving effect to the Advances made on the Restatement Date)
to Fortis, (ii) a Class A Note in the maximum principal amount of Twenty-Five Million Dollars
($25,000,000) (of which Eleven Million Fifty-Eight Thousand Nine Hundred Three and 08/100 Dollars
($11,058,903.08) was outstanding after giving effect to the Advances made on the Restatement Date)
to BTMCC and (iii) a Class B Note in the maximum principal balance of Five Million Dollars
($5,000,000) (of which Five Million Dollars ($5,000,000) was outstanding after giving effect to the
Advances made on the Restatement Date, and such amount being the maximum principal balance of such
Class B Note permitted hereunder, there were no additional Advances available to the Borrower with
respect to such Class B Note) to Fortis. Immediately thereafter, the Closing Date Note was
cancelled. On October 15, 2003, the Borrower exchanged the Class A Notes issued to Fortis and
BTMCC on March 7, 2003 pursuant to this Loan Agreement and issued the following Notes to the
respective Lenders: (i) a Class A Note in the maximum principal balance of Thirty-Five Million
Dollars ($35,000,000) to Fortis and (ii) a Class A Note in the maximum principal balance of Forty
Million Dollars ($40,000,000) to BTMCC. On the Effective Date, Fortis and BTMCC will exchange the
Class A Notes issued to them on October 15, 2003 pursuant to this Loan Agreement for: (i) in the
case of Fortis, a Class A Note in the maximum principal balance of Forty-Five Million Dollars
($45,000,000) and (ii) in the case of BTMCC, a Class A Note in the maximum principal balance of
Fifty Million Dollars ($50,000,000). In addition, the Borrower will issue to HSH on the Effective
Date a Class A Note in the maximum principal balance of Fifty Million Dollars ($50,000,000). On
the Effective Date, HSH will make an Advance that will be used to prepay the principal balance of
the Class A Notes issued to Fortis and BTMCC in the amounts of Nine Million Six Hundred Forty-Two
Thousand Seven Hundred Eighty-Eight and 23/100 Dollars ($9,642,788.23) and Eleven Million Six
Hundred Twenty-Eight Thousand Sixty-Eight and 16/100 Dollars ($11,628,068.16), respectively. After
giving effect to such advance and prepayment, the unpaid principal balance of the Class A Notes
issued to BTMCC, Fortis and HSH will be Twenty-One Million Two Hundred Seventy Thousand Eight
Hundred Fifty-Six and 40/100 Dollars ($21,270,856.40), Nineteen Million One Hundred Forty-Three
Thousand Seven Hundred Seventy and 76/100 Dollars ($19,143,770.76) and Twenty-One Million Two
Hundred Seventy Thousand Eight Hundred Fifty-Six and 40/100 Dollars ($21,270,856.40),
respectively;”
(o) Clauses (c) and (d) of Section 201 are hereby amended by deleting all references to
“Seventy-Five Million Dollars ($75,000,000)” and replacing them with “One Hundred Forty-Five
Million Dollars ($145,000,000)”;
(p) The last sentence of Section 504 is hereby amended in its entirety by deleting such
sentence and replacing it with the following:
Exhibit 10.6
“None of the Purchase Agreement, the CFB Purchase Agreement, the CCCL Purchase Agreement, the
Security Agreement or any Interest Rate Hedge Agreement have been supplemented, amended or
otherwise modified since the Original Closing Date.”;
(q) The first sentence of Section 1002 shall be amended by deleting the reference to
“Seventy-Five Million Dollars ($75,000,000)” and replacing it with “One Hundred Forty-Five Million
Dollars ($145,000,000)”;
(r) Clause (c) of Section 1002 is hereby amended by deleting such clause in its entirety and
replacing it with the following:
“(c) Asset Base Certificate. Borrower shall have delivered to the Agent a duly completed
and executed Asset Base Certificate, determined as of the last day of the immediately preceding
Collection Period and calculated to give effect to the Containers to be acquired with the proceeds
of such Advance, which certificate shall comply with the requirements therefor set forth in the
Loan Agreement”;
(s) Clause (f) of Section 1002 shall be amended by deleting the reference to “Section 202” and
replacing it with “Section 201”;
(t) Clause (5) of Section 1101 is hereby amended by deleting such clause in its entirety and
replacing it with the following:
“(5) The Weighted Average Age of all Eligible Containers as of the last day of any Collection
Period Date is eight (8) years or more;”;
(u) Clause (D) of Section 1203(i) is hereby amended by deleting such clause in its entirety
and replacing it with the following:
“(D) increase the Commitment of a Lender over the amount thereof in effect (it being understood
and agreed that a waiver of any Potential Event of Default, Manager Default, or Event of Default or
a mandatory reduction in the Commitments shall not constitute a change in the terms of any
Commitment of any Lender) or at any time permit either the Principal Balances of all Class A Notes
then Outstanding to exceed One Hundred Forty-Five Million Dollars ($145,000,000) or the Aggregate
Commitment to exceed One Hundred Fifty Million Dollars ($150,000,000);”; and
(v) Article XII of the Loan Agreement is hereby amended to include the following Section 1225
after Section 1224:
“ Section 1225. Role of Co-Purchaser. The parties hereto agree that each Co-Purchaser
shall have no duties or obligations under this Loan Agreement beyond its duties and/or obligations
as a Lender.”;
(w) Schedule 1 of the Loan Agreement is hereby amended by deleting it in its entirety and
replacing it with Schedule 1 attached hereto.
(x) Schedule 11.01 of the Loan Agreement is hereby amended by deleting it in its entirety and
replacing it with Schedule 11.01 attached hereto.
Exhibit 10.6
SECTION 4. Representations, Warranties and Covenants.
The Borrower hereby confirms that each of the representations, warranties and covenants set
forth in Articles V and VI of the Loan Agreement are true and correct as of the date first written
above with the same effect as though each had been made as of such date, except to the extent that
any of such representations and warranties expressly relate to earlier dates.
SECTION 5. Amendment to Purchase Parameters.
By executing this Amendment, each of the Borrower, the Agent and the Lenders evidence their
consent to the amendment of the Purchase Parameters effected by the amendment attached as Schedule
2 hereto.
SECTION 6. Effectiveness of Amendment; Terms of this Amendment.
(a) This Amendment shall become effective on the date on which all of the conditions precedent
set forth below are satisfied, which shall be in no event later than June 15, 2004:
(i) Amendment. The Agent shall have received this Amendment,
in form and substance satisfactory to the Lenders, executed and delivered by
Borrower and all other parties hereto;
(ii) Notes. The Agent shall have received separate Notes executed
by the Borrower in favor of each Lender;
(iii) Certificate of Officer/Secretary; Organizational Documents.
The Agent shall have received separate certificates, each dated the
Effective Date, executed by authorized signatories of each of the Manager
and the Borrower, certifying (A) that attached to such certificate(s) is a
true, correct and complete copy of the Memorandum of Association or other
organizational document of such company certified by the Secretary of the
Borrower or the Manager, as applicable, as of a date close to the Effective
Date, (B) that attached to such certificate is a true, correct and complete
copy of the bylaws and each other organizational document of such company
then in full force and effect, (C) that attached to such certificate is a
Certificate of Compliance from the Secretary of State (or equivalent) of any
other jurisdiction where such company is required to be qualified to do
business, dated as of a date close to the Effective Date, (D) that attached
to such certificate is a true, correct and complete copy of the resolutions
adopted by the board of directors of each such company then in full force
and effect authorizing the execution, delivery and performance by such
company of each of the amendment documents to which it is a party and (E)
the name of the officer(s) of such company authorized to execute amendment
documents on behalf of such company;
Exhibit 10.6
(iv) Asset Base Certificate. The Borrower shall have delivered to
the Agent and each Lender a duly executed Asset Base Certificate calculated
as of the Effective Date;
(v) Opinions. Xxxxxxx Xxxx & Xxxxxxx shall have delivered to the
Agent its corporate matters opinion for the Borrower with regard to the
documents executed on or as of the Effective Date and a reliance letter with
respect to its September 18, 2002 opinion regarding true sale and
non-consolidation. Xxxxxx & Calder shall have delivered to the Agent its
corporate matters opinion for the Manager with regard to the documents
executed on or as of the Effective Date and a re-issuance of its September
18, 2002 opinion regarding true sale and non-consolidation. Xxxxxx Xxxxx
Sapte shall have delivered to the Agent a reliance letter with respect to
its September 18, 2002 opinion regarding the Purchase Agreement. Xxxxxxx
Xxxxxxxx & Wood LLP shall have delivered to the Agent its opinion letter
regarding the enforceability of the documents executed on or as of the
Effective Date, a reliance letter with respect to its September 18, 2002
opinion regarding security interest and a reliance letter with respect to
its September 18, 2002 opinion regarding enforceability; and
(vi) Payment of Fees. All fees due to the Lenders on or before the
Effective Date shall have been paid to the extent notified to the Borrower
in writing.
(b) This Amendment shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
(c) On and after the execution and delivery hereof, (i) this Amendment shall be a part of the
Loan Agreement, and (ii) each reference in the Loan Agreement to “this Agreement” or “hereof”,
“hereunder” or words of like import, and each reference in any other document to the Loan Agreement
shall mean and be a reference to the Loan Agreement as amended or modified hereby.
(d) Except as expressly amended or modified hereby, the Loan Agreement shall remain in full
force and effect and is hereby ratified and confirmed by the parties hereto.
SECTION 7. Execution in Counterparts. This Amendment may be executed by the parties
hereto in separate counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement.
SECTION 8. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES; PROVIDED THAT
SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Exhibit 10.6
SECTION 9. Consent to Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE
AGENT ARISING OUT OF OR RELATING TO THIS AMENDMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XXX XXXXXX XX XXX XXXX, XXXXX OF NEW YORK AND
THE AGENT AND THE BORROWER EACH HEREBY WAIVE ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OF
ENFORCING THIS AMENDMENT, THE AGENT, EACH LENDER AND THE BORROWER EACH HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE AGENT AND THE
BORROWER HEREBY EACH IRREVOCABLY APPOINTS AND DESIGNATES CT CORPORATION SYSTEM, HAVING AN ADDRESS
AT 000 XXXXXX XXXXXX, XXX XXXX, XXX XXXX, 00000, ITS TRUE AND DULY AUTHORIZED AGENT FOR THE LIMITED
PURPOSE OF RECEIVING AND FORWARDING LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE
AGENT AND THE BORROWER EACH AGREE THAT SERVICE OF PROCESS UPON SUCH PARTY SHALL CONSTITUTE PERSONAL
SERVICE OF SUCH PROCESS ON SUCH PERSON. PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION
5-1402, THE AGENT AND THE BORROWER SHALL EACH MAINTAIN THE DESIGNATION AND APPOINTMENT OF SUCH
AUTHORIZED AGENT UNTIL ALL AMOUNTS PAYABLE UNDER THE LOAN AGREEMENT SHALL HAVE BEEN PAID IN FULL.
IF SUCH AGENT SHALL CEASE TO SO ACT, THE AGENT OR THE BORROWER, AS THE CASE MAY BE, SHALL
IMMEDIATELY DESIGNATE AND APPOINT ANOTHER SUCH AGENT SATISFACTORY TO THE AGENT AND SHALL PROMPTLY
DELIVER TO THE AGENT EVIDENCE IN WRITING OF SUCH OTHER AGENT’S ACCEPTANCE OF SUCH APPOINTMENT.
SECTION 10. No Novation. Notwithstanding that the Loan Agreement is hereby amended by
this Amendment as of the date hereof, nothing contained herein shall be deemed to cause a novation
or discharge of any existing indebtedness of the Borrower under the Loan Agreement, or the security
interest in the Collateral created thereby.
[Signature page follows.]
Exhibit 10.6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment on the date
first above written.
| CF LEASING LTD. | ||||||
| By: | /s/ XXXXXX X. XXXXX | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Director | ||||||
Amendment
No. 5 to A&R Loan Agt.
Exhibit 10.6
| FORTIS BANK (NEDERLAND) N.V., as Agent and a Lender | ||||||
| By: | /s/ M. A. N. VAN LACUM | |||||
| Name: M. A. N. van Lacum | ||||||
| Title: Director | ||||||
| By: | /s/ P. R. G. ZAMAN | |||||
| Name: P. R. G. Zaman | ||||||
| Title: Deputy Director | ||||||
Amendment
No. 5 to A&R Loan Agt.
Exhibit 10.6
| BTM CAPITAL CORPORATION, as a Lender | ||||||
| By: | /s/ XXXX X. XxXXXXXX | |||||
| Name: Xxxx X. XxXxxxxx | ||||||
| Title: Vice President | ||||||
| Address: | 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 | |||
| Xxxxxx, XX 00000 | ||||
| Attention: | Vice President — Administration | |||
| Facsimile: | (000) 000-0000 | |||
| Telephone: | (000) 000-0000 |
Amendment
No. 5 to A&R Loan Agt.
Exhibit 10.6
| HSH NORDBANK AG, NEW YORK BRANCH, as a Lender |
||||||
| By: | /s/ XXXXXX XXXXXXXX | |||||
| Name: Xxxxxx Xxxxxxxx | ||||||
| Title: Senior Vice President | ||||||
| By: | /s/ XXXXXXXXX XXXX | |||||
| Name: Xxxxxxxxx Xxxx | ||||||
| Title: Vice President | ||||||
Amendment
No. 5 to A&R Loan Agt.
Exhibit 10.6
SCHEDULE 1
LIST OF LENDERS AND RESPECTIVE COMMITMENTS
| Lender | Commitment | |||
Fortis Bank (Nederland) N.V. |
$45,000,000 Class A Commitment |
|||
| and |
||||
| $5,000,000 Class B Commitment | ||||
BTM Capital Corporation |
$50,000,000 Class A Commitment | |||
HSH Nordbank AG, New York Branch |
$50,000,000 Class A Commitment | |||
Exhibit 10.6
SCHEDULE 2
FORM OF AMENDMENT TO PURCHASE PARAMETERS
Effective as of June 15, 2004, the term “Purchase Parameter” in Section 1.1 of the Members
Agreement (as defined in the Loan Agreement), shall be amended to read as follows:
“Purchase Parameters. The policy employed by the Manager from time to time in acquiring New
Containers for the account of the Borrower, as such policy may be amended from time to time by a
Board Majority. The “Purchase Parameters” are as follows:
(i) the maximum purchase price to be paid by the Borrower for any standard dry
cargo Container shall not exceed $2,100 per CEU;
(ii) the maximum purchase price to be paid by the Borrower for any Specialized
Containers shall not exceed the amount in effect and previously approved by a Board
Majority;
(iii) if such Container is a New Container and will be subject to either a Term
Lease or a Finance Lease on the date on which it is acquired by the Borrower, the
projected ARPEC for such Lease shall be not less than the sum of (A) three month
LIBOR on such date and (B) eleven percent (11%). In this regard, “ARPEC” shall mean
a fraction (expressed as a percentage) the numerator of which is equal to the
product of (A) the daily lease rental attributable to such Container pursuant to the
terms of such Lease and (B) 365, and the denominator of which is equal to the
original equipment cost of such Container; and
(iv) if such Container is a New Container and will be subject to a Master Lease
on the date of acquisition by the Borrower, then, when considered with all other New
Containers then owned by the Borrower, the sum of the Net Book Values of all New
Containers then subject to the terms of a Master Lease will shall not exceed an
amount equal to the product of (A) fifteen percent (15%) and (B) the sum of the then
Net Book Values of all New Containers then owned by the Borrower.”.
Exhibit 10.6
SCHEDULE 11.01
NOTICE ADDRESSES
| If to the Borrower: | CF Leasing Ltd. | |||
| Xxxxxxxxx Xxxxx | ||||
| Xxxxxx Xxxxxx | ||||
| Xxxxxxxx XX 00 | ||||
| Xxxxxxx | ||||
| Xxxx: Secretary | ||||
| Telephone: 000 000-0000 | ||||
| Telefax: 000 000-0000 | ||||
| with a copy to: | Cronos Containers Limited | |||
| Xxx Xxx Xxxxx | ||||
| Xxxx Xxxxxx | ||||
| Xxxxxx | ||||
| Xxxxxxxxxxxxxxx XX0 0XX | ||||
| England | ||||
| Attn: Xxxxx X. Xxxxxxx | ||||
| Telephone: 00 0000-000000 | ||||
| Telefax: 00 0000-000000 | ||||
| If to the Agent: | Fortis Bank (Nederland) N.V. | |||
| Xxxxxxxxxx 00/0 | ||||
| X.X. Xxx 000 | ||||
| 0000 XX Xxxxxxxxx | ||||
| Xxx Xxxxxxxxxxx | ||||
| Attention: Menno van Lacum | ||||
| Telephone: 00 00 000 0000 | ||||
| Telefax:31 10 401 6014 | ||||
Schedule 11.01-1
Exhibit 10.6
| If to the Lender(s): | Fortis Bank (Nederland) N.V. | |||
| Xxxxxxxxxx 00/0 | ||||
| X.X. Xxx 000 | ||||
| 0000 XX Xxxxxxxxx | ||||
| Xxx Xxxxxxxxxxx | ||||
| Attention: Menno van Lacum | ||||
| Telephone: 00 00 000 0000 | ||||
| Telefax: 31 10 401 6014 | ||||
| BTM Capital Corporation | ||||
| 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 | ||||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||
| Attention: Senior Vice President — Administration | ||||
| Telephone: (000) 000-0000 | ||||
| Telefax: (000) 000-0000 | ||||
| and | ||||
| HSH Nordbank AG, New York Branch | ||||
| 000 Xxxxxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000-0000 | ||||
| Attention: Xxxxxxxxx Xxxx or Xxxx Xxxxx | ||||
| Tel.: (000) 000-0000 or (000) 000-0000 | ||||
| Fax: (000) 000-0000 | ||||
Schedule 11.01-2
