Exhibit 10.38
FIRST AMENDMENT TO THIRD AMENDED AND
RESTATED SENIOR LOAN AND SECURITY AGREEMENT
This First Amendment to Third Amended and Restated Senior Loan and Security
Agreement ("First Amendment") entered into as of November 17, 1998, 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 co-agent and as lender ("PNC"),
BankBoston, N.A., a national banking corporation, in its capacity as co-agent
and as lender ("BankBoston") (singly, each PNC and BankBoston is a "Co-Agent"
and collectively, both are "Co-Agents"), along with each of the other lenders
listed on the signature pages hereof and the First Amended Schedule A attached
hereto and made a part hereof, in their capacity as lenders (singly, each,
including First Union, PNC and BankBoston 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, as Co-Agent,
and CoreStates Bank, N.A., PNC, The Sumitomo Bank Limited ("Sumitomo"), Summit
Bank, ABN AMRO Bank N.V., Union Bank of California, N.A., Credit Lyonnais New
York Branch and The Bank of Nova Scotia ("Nova Scotia"), as lenders
(collectively "Initial Lenders"), entered into a certain Third Amended and
Restated Senior Loan and Security Agreement (as amended from time to time, the
"Loan Agreement") pursuant to which Initial Lenders agreed to make advances to
Borrowers up to a maximum aggregate amount of $200,000,000, evidenced by each
Borrower's delivery of a revolving credit note to each Initial Lender.
B. Borrowers have requested that the Maximum Credit Limit be increased to
$215,000,000 and in conjunction therewith Borrowers have requested that The
Chase Manhattan Bank ("Chase") and BankBoston, N.A. ("BankBoston") become
Lenders under the Loan Agreement and that BankBoston become a Co-Agent under the
Loan Agreement.
C. In addition, Sumitomo and Nova Scotia have requested that they be
permitted to exit the Credit Facility as a Lender.
D. The parties are willing to permit Chase and BankBoston to become Lenders
under the Loan Agreement and to continue to make Loans and grant extensions of
credit to Borrowers under the terms and conditions hereinafter set forth, which
include without limitation a redistribution of the respective Lenders' Pro Rata
Shares and Pro Rata Percentages.
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. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Loan Agreement.
NOW, THEREFORE, with the foregoing background incorporated by reference,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. JOINDER BY CHASE AND BANKBOSTON: Upon execution of this First Amendment
by all parties hereto, (i) Chase and BankBoston (collectively "New Lenders")
shall each be a party to the Loan Agreement and shall assume all of the rights
and obligations of a Lender under the Loan Documents; (ii) Sumitomo shall no
longer be a party to the Loan Agreement; and (iii) Nova Scotia shall no longer
be a party to the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT:
a. The Loan Agreement is hereby amended by deleting the definition of
"Maximum Credit Limit" in its entirety and replacing it with the following:
MAXIMUM CREDIT LIMIT - The sum of the Pro Rata Shares not to
exceed $215,000,000 in the aggregate.
b. The Current Term of the Credit Facility has been extended and shall
expire on May 31, 2000.
c. The last sentence of Section 2.4(c) of the Loan Agreement is
deleted and replaced as follows:
The fixed rate of interest quoted by the Agent will be a bid formed by
unanimous consent of the Lenders.
d. Section 9.15(b) of the Loan Agreement is deleted and replaced in
its entirety as follows:
(b) Notwithstanding anything to the contrary contained in
subparagraph (a) above, Agent shall not, without the prior written
consent of all Lenders: (i) extend or renew the Current Term or, any
payment date under the Credit Facility, (ii) decrease any interest
rate on the Credit Facility, (iii) compromise or settle all or a
portion of the Obligations, (iv) release any obligor from the
Obligations (including without limitation, any Surety) except in
connection with termination of the Credit Facility and full payment
and satisfaction of all Obligations, (v) increase the Borrowing Base
advance rate, (vi) modify Section 9.15(b) or (c) or Sections 3.8 or
3.9, (vii) modify the definition of Majority Lenders or SuperMajority
Lenders, or (viii) increase the Maximum Credit Limit; provided,
however, that Agent may increase the Maximum Credit Limit by first
offering the amount of any such increase to each of the Lenders in
accordance with their respective Pro Rata Percentage. To the extent
any Lender(s) may choose not to increase its/their respective Pro Rata
Shares by the amount attributable to its/their Pro Rata Percentage of
such increase, such amount will be offered to the other Lenders on
such sharing basis as Agent may reasonably establish. After each
Lender choosing to increase its Pro Rata Share has agreed to do so,
and in conjunction with the modification of this Agreement to reflect
such increase executed by those Lenders sharing in the increase of the
Credit Facility, the Lenders' Pro Rata Percentages will be adjusted
accordingly and all Lenders (whether or not sharing in such increase)
shall be bound by such modification.
e. Section 9.15(e) of the Loan Agreement is deleted and replaced in
its entirety as follows:
[INTENTIONALLY OMITTED]
f. Section 9.17 of the Loan Agreement is deleted and replaced in its
entirety as follows:
9.17 CO-AGENTS. The parties hereto covenant and agree that
BankBoston, N.A. and PNC Bank, National Association, shall be
co-agents (singly, each is a "Co-Agent " and collectively, both are
"Co-Agents") and shall have no rights, duties or responsibilities,
except for those received, undertaken or incurred by BankBoston, N.A.
or PNC Bank, National Association in their capacity as Lenders. No
duty, responsibility, right or option granted to the Agent herein is
delegated or transferred, in whole or in part, to the Co-Agents and no
compensation payable to the Agent shall be shared with, or paid to,
the Co-Agents. Co-Agents shall not be entitled to any fees or
reimbursement of Expenses except as BankBoston, N.A. and/or PNC Bank,
National Association shall otherwise be entitled in their capacity as
Lenders. 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
Co-Agents. Notwithstanding anything to the contrary contained in this
Agreement, no amendment to this paragraph relating to or affecting
BankBoston, N.A. shall be effective without the written consent of
BankBoston, N.A. Notwithstanding anything to the contrary in this
Agreement, no amendment to this paragraph relating to or affecting PNC
Bank, National Association shall be effective without the written
consent of PNC Bank, National Association.
3. REVOLVING CREDIT NOTES: Contemporaneously with the execution hereof,
each Borrower shall execute (i) a Revolving Credit Note in the principal amount
of $35,000,000.00 in favor of BankBoston, (ii) a Revolving Credit Note in the
principal amount of $25,000,000.00 in favor of Chase, and (iii) an Amended and
Restated Revolving Credit Note in the principal amount of $10,000,000 in favor
of Summit Bank, which Revolving Credit Notes (collectively "Notes") shall be
delivered to Agent for delivery to BankBoston, Chase and Summit Bank
respectively.
4. AMENDED SCHEDULE A AND B: The Schedule A and Schedule B to the Loan
Agreement are hereby deleted in their entirety and a First Amended Schedule A
and a First Amended Schedule B, each attached to this First Amendment and made a
part hereof, are substituted therefor.
5. CONSENT TO JOINDER: Each Lender's consent to the joinder of the New
Lenders as Lenders under the Loan Documents and the revised Pro Rata Shares and
Pro Rata Percentages, shall be evidenced by each Lender's execution of this
First Amendment.
6. NEW LENDER REPRESENTATIONS: Each New Lender, by executing this First
Amendment, hereby (a) warrants and represents that it is authorized to become a
party to the Loan Documents; (b) appoints and authorizes the Agent to take such
action, exercise such powers, and perform such duties under the Loan Documents
as are specifically delegated to or required of such Agent by the terms of the
Loan Documents, together with such other powers as are reasonably incidental
thereto; and (c) agrees that it will abide and be bound by all of the terms,
covenants and agreements, and perform all of the obligations, which by the terms
of the Loan Documents are required to be abided and performed by it as a Lender
and shall be entitled to all the rights, benefits and privileges available or
accruing to Lenders under the Loan Documents.
7. 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 First 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
(including the New Lenders) referenced therein under the Loan Documents, as
amended hereby.
8. BORROWERS' REPRESENTATION AND WARRANTIES:
a. Borrowers represent and warrant that as of the date hereof no Event
of Default or Unmatured Event of Default has occurred or is existing under the
Loan Documents.
b. Borrowers shall each deliver to Agent, prior to the execution
hereof, certified copies of resolutions of each Borrower's board of directors
authorizing increase in the Maximum Credit Limit, the execution hereof, the
execution of the Notes referenced in Section 3 hereof and each other document
required to be delivered in connection herewith.
c. Borrowers represent and warrant that the execution and delivery by
each Borrower of this First 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.
d. Borrowers represent and warrant that this First Amendment, the
Notes referenced in Section 3 hereof, 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.
e. Borrowers represent and warrant that each Borrower has reviewed the
areas within its business and operations which could be adversely affected by,
and has developed or is developing a program to address on a timely basis, the
risk that certain computer applications used by such Borrower (or any of its
material suppliers, customers or vendors) may be unable to recognize and perform
properly date-sensitive functions involving dates prior to and after December
31, 1999 (the "Year 2000 Problem"). The Year 2000 Problem will not result in any
event, occurrence or development which would reasonably be expected to
materially and adversely effect its business, financial condition, Property,
prospects or its ability to perform under this First Amendment or the Loan
Agreement.
9. YEAR 2000 PROBLEM: Each Borrower shall take all action within their
power necessary to assure that there will be no event, occurrence or development
which would reasonably be expected to materially and adversely effect its
business, financial condition, Property, prospects or its ability to perform
under this First Amendment or the Loan Agreement because of the Year 2000
Problem. At any Lender's request, Borrowers shall provide to such Lender
assurance reasonably acceptable to such Lender that Borrowers' computer
applications are Year 2000 compatible.
10. GOVERNING LAW: This First Amendment shall be governed by, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
11. INTEGRATION: Except as expressly provided herein, all terms and
conditions of the Loan Documents, including without limitation those certain
Revolving Credit Notes and Amended and Restated Revolving Credit Notes in favor
of the Initial Lenders (other than Sumitomo and Nova Scotia), 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 First Amendment are expressly
inconsistent with the provisions of the Loan Documents, the provisions of this
First Amendment shall control.
12. COUNTERPARTS: This First 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.
IN WITNESS WHEREOF, the parties hereto have caused this First 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]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
SURETIES:
INTERPOOL, INC.
By: ______________________________
INTERPOOL, LIMITED
By: ______________________________
INTERPOOL FINANCE CORP.
By: ______________________________
Attest: __________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
LENDERS:
FIRST UNION NATIONAL BANK (successor by
Merger to CORESTATES BANK, N.A.), as
Agent and Lender
By:____________________________
PNC BANK, NATIONAL ASSOCIATION, as
Co-Agent and Lender
By:_____________________________
BANKBOSTON, N.A., as Co-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:______________________________
FIRST AMENDED
SCHEDULE A
Revolving Credit Revolving Credit
LENDERS PRO RATA SHARE PRO RATA PERCENTAGE
------- -------------- -------------------
First Union National Bank $ 55,000,000.00 25.58139%
PNC Bank, National Association $ 35,000,000.00 16.27907%
Bank Boston, N.A. $ 35,000,000.00 16.27907%
The Chase Manhattan Bank $ 25,000,000.00 11.62791%
Credit Lyonnais New York Branch $20,000,000.00 9.30233%
Union Bank of California, N.A. $ 20,000,000.00 9.30233%
ABN-AMRO Bank N.V. $ 15,000,000.00 6.97674%
Summit Bank $ 10,000,000.00 4.65116%
--------------- --------
$215,000,000.00 100%
FIRST AMENDED
SCHEDULE B
ADDRESSES OF LENDERS
First Union National Bank Credit Lyonnais New York Branch
0000 Xxxxxxxx Xxxxxx 1301 Avenue of the Americas
FC 1-8-11-24 New York, NY 10019-6002
Xxxxxxxxxxxx, XX 00000 Attention: Xxxxx Xxxxxxxxx, Vice President
Attention: Xxxxxxx Xxxxxx, Vice President Telephone: 000-000-0000
Telephone: 000-000-0000 Telecopy: 000-000-0000
Telecopy: 000-000-0000
PNC Bank, National Association Credit Lyonnais New York Branch
0000 Xxxxxx Xxxxxx 0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxxxx, Vice President Attention: Xxxxx Xxxxx, Assistant Treasurer
Telephone: 000-000-0000 Telephone: 000-000-0000
Telecopy: 000-000-0000 Telecopy: 000-000-0000
Summit Bank BankBoston, N.A.
0000 Xxxxx 0 Xxxxx, 0xx Xxxxx Marine Finance Group
Xxxxxxxxx, XX 00000 000 Xxxxxxx Xxxxxx
Attention: Arty X. Xxxxxxxx, Xx. Vice President Mail Code 01-08-01
Telephone: 000-000-0000 X.X. Xxx 0000
Telecopy: 000-000-0000 Boston, MA 062110-2016
Attention: Xxxxxx X. Xxxxxx
ABN Amro Bank N.V. Telephone: 000-000-0000
000 X. XxXxxxx Xxxxxx Telecopy: 000-000-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Vice President The Chase Manhattan Bank
and Director of Surface Transportation 0 Xxxxxx Xxxxx
Telephone: 000-000-0000 2nd Floor
Telecopy: 000-000-0000 Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, V.P.
Union Bank of California, N.A. Telephone: 000-000-0000
Financial Services Industries Division Telecopy: 973-734-1121
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
