Exhibit 10.3


 


THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT


 


 


Dated as of


 


January 26, 2010


 


 


by and among


 


CONTAINER LEASING INTERNATIONAL, LLC


(D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or
SEACASTLE

CONTAINER LEASING, LLC),


as the Borrower


 


DEUTSCHE BANK TRUST COMPANY AMERICAS,


as the Lender


 


and


 


DEUTSCHE BANK SECURITIES INC.


as the Lead Arranger


 


THE LENDERS REFERRED TO HEREIN,


 


and


 


DEUTSCHE BANK TRUST COMPANY AMERICAS,


as the Administrative Agent


 

















 


TABLE OF
CONTENTS


 


	
  1.

  	
  DEFINITIONS AND RULES OF INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1.

  	
  Definitions

  	
  1

  
	
   

  	
  1.2.

  	
  Rules of
  Interpretation

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  THE REVOLVING CREDIT FACILITY

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1.

  	
  Commitment
  to Lend

  	
  25

  
	
   

  	
  2.2.

  	
  Commitment
  Fee

  	
  25

  
	
   

  	
  2.3.

  	
  Reduction
  of Total Commitment

  	
  25

  
	
   

  	
  2.4.

  	
  The
  Notes

  	
  25

  
	
   

  	
  2.5.

  	
  Interest
  on Revolving Credit Loans

  	
  26

  
	
   

  	
  2.6.

  	
  Requests
  for Revolving Credit Loans

  	
  26

  
	
   

  	
  2.7.

  	
  Conversion
  Options

  	
  27

  
	
   

  	
  2.8.

  	
  Funds
  for Revolving Credit Loan

  	
  27

  
	
   

  	
  2.9.

  	
  The
  Swing Line

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  REPAYMENT OF THE REVOLVING CREDIT LOANS

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1.

  	
  Maturity

  	
  30

  
	
   

  	
  3.2.

  	
  Mandatory
  Repayments of Revolving Credit Loans

  	
  30

  
	
   

  	
  3.3.

  	
  Optional
  Repayments of Revolving Credit Loans

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  LETTERS OF CREDIT

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Letter
  of Credit Commitments

  	
  31

  
	
   

  	
  4.2.

  	
  Reimbursement
  Obligation of the Borrower

  	
  32

  
	
   

  	
  4.3.

  	
  Letter
  of Credit Payments

  	
  33

  
	
   

  	
  4.4.

  	
  Obligations
  Absolute

  	
  34

  
	
   

  	
  4.5.

  	
  Reliance
  by Issuer

  	
  34

  
	
   

  	
  4.6.

  	
  Letter
  of Credit Fee

  	
  35

  
	
   

  	
  4.7.

  	
  Replacement
  of Issuing Bank

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  CERTAIN GENERAL PROVISIONS

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1.

  	
  Funds
  for Payments

  	
  35

  
	
   

  	
  5.2.

  	
  Computations

  	
  38

  
	
   

  	
  5.3.

  	
  Inability
  to Determine LIBOR Rate

  	
  38

  
	
   

  	
  5.4.

  	
  Illegality

  	
  38

  
	
   

  	
  5.5.

  	
  Additional
  Costs, etc.

  	
  39

  
	
   

  	
  5.6.

  	
  Capital
  Adequacy

  	
  40

  
	
   

  	
  5.7.

  	
  Certificate

  	
  40

  
	
   

  	
  5.8.

  	
  Indemnity

  	
  40

  
	
   

  	
  5.9.

  	
  Limitation
  on Increased Costs

  	
  41

  
	
   

  	
  5.10.

  	
  Interest
  After Default

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  COLLATERAL SECURITY AND GUARANTIES

  	
  41

  



 


i

















 


	
   

  	
  6.1.

  	
  Security
  of Borrower

  	
  41

  
	
   

  	
  6.2.

  	
  Guaranties
  and Security of Restricted Subsidiaries

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1.

  	
  Corporate
  Authority

  	
  42

  
	
   

  	
  7.2.

  	
  Governmental
  Approvals

  	
  42

  
	
   

  	
  7.3.

  	
  Title
  to Properties; Leases

  	
  42

  
	
   

  	
  7.4.

  	
  Financial
  Statements and Projections

  	
  43

  
	
   

  	
  7.5.

  	
  Franchises,
  Patents, Copyrights, etc.

  	
  43

  
	
   

  	
  7.6.

  	
  Litigation

  	
  43

  
	
   

  	
  7.7.

  	
  No
  Materially Adverse Contracts, etc.

  	
  43

  
	
   

  	
  7.8.

  	
  Compliance
  with Other Instruments, Laws, etc.

  	
  44

  
	
   

  	
  7.9.

  	
  Tax
  Status

  	
  44

  
	
   

  	
  7.10.

  	
  Investment
  Company Act

  	
  44

  
	
   

  	
  7.11.

  	
  Perfection
  of Security Interest

  	
  44

  
	
   

  	
  7.12.

  	
  Employee
  Benefit Plans

  	
  44

  
	
   

  	
  7.13.

  	
  Environmental
  Compliance

  	
  45

  
	
   

  	
  7.14.

  	
  Subsidiaries,
  etc.

  	
  47

  
	
   

  	
  7.15.

  	
  Bank
  Accounts

  	
  47

  
	
   

  	
  7.16.

  	
  Disclosure

  	
  47

  
	
   

  	
  7.17.

  	
  Foreign
  Assets Control Regulations, Etc.

  	
  47

  
	
   

  	
  7.18.

  	
  Appraisal
  and Valuation Report

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  AFFIRMATIVE COVENANTS

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1.

  	
  [Reserved]

  	
  48

  
	
   

  	
  8.2.

  	
  Maintenance
  of Office

  	
  48

  
	
   

  	
  8.3.

  	
  Records
  and Accounts

  	
  48

  
	
   

  	
  8.4.

  	
  Financial
  Statements, Certificates and Information

  	
  48

  
	
   

  	
  8.5.

  	
  Notices

  	
  50

  
	
   

  	
  8.6.

  	
  Legal
  Existence; Maintenance of Properties

  	
  51

  
	
   

  	
  8.7.

  	
  Insurance

  	
  51

  
	
   

  	
  8.8.

  	
  Taxes

  	
  51

  
	
   

  	
  8.9.

  	
  Inspection
  of Properties and Books, etc.

  	
  51

  
	
   

  	
  8.10.

  	
  Compliance
  with Laws, Contracts, Licenses, and Permits

  	
  52

  
	
   

  	
  8.11.

  	
  Use
  of Proceeds

  	
  53

  
	
   

  	
  8.12.

  	
  Employee
  Benefit Plans

  	
  53

  
	
   

  	
  8.13.

  	
  Further
  Assurances

  	
  53

  
	
   

  	
  8.14.

  	
  New
  Subsidiaries

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  CERTAIN NEGATIVE COVENANTS

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1.

  	
  Restrictions
  on Indebtedness

  	
  54

  
	
   

  	
  9.2.

  	
  Restrictions
  on Liens

  	
  56

  
	
   

  	
  9.3.

  	
  Restrictions
  on Investments

  	
  59

  
	
   

  	
  9.4.

  	
  Restricted
  Payments

  	
  61

  
	
   

  	
  9.5.

  	
  Merger,
  Consolidation and Disposition of Assets

  	
  61

  



 


ii

















 


	
   

  	
  9.6.

  	
  Sale
  and Leaseback

  	
  62

  
	
   

  	
  9.7.

  	
  Compliance
  with Environmental Laws

  	
  62

  
	
   

  	
  9.8.

  	
  Employee
  Benefit Plans

  	
  63

  
	
   

  	
  9.9.

  	
  Business
  Activities

  	
  63

  
	
   

  	
  9.10.

  	
  Fiscal
  Year

  	
  63

  
	
   

  	
  9.11.

  	
  Transactions
  with Affiliates

  	
  63

  
	
   

  	
  9.12.

  	
  Container
  Management System

  	
  64

  
	
   

  	
  9.13.

  	
  Ownership
  Interest in Unrestricted Subsidiaries

  	
  64

  
	
   

  	
  9.14.

  	
  Indebtedness
  of CLIF

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  FINANCIAL COVENANTS

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1.

  	
  Consolidated
  Tangible Net Worth

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  CLOSING CONDITIONS

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1.

  	
  Loan
  Documents, etc.

  	
  65

  
	
   

  	
  11.2.

  	
  Certified
  Copies of Governing Documents

  	
  65

  
	
   

  	
  11.3.

  	
  Corporate
  or Other Action

  	
  65

  
	
   

  	
  11.4.

  	
  Incumbency
  Certificate

  	
  65

  
	
   

  	
  11.5.

  	
  Validity
  of Liens

  	
  65

  
	
   

  	
  11.6.

  	
  Perfection
  Certificates and UCC Search Results

  	
  66

  
	
   

  	
  11.7.

  	
  Financial
  Statements; Projections

  	
  66

  
	
   

  	
  11.8.

  	
  Certificates
  of Insurance

  	
  66

  
	
   

  	
  11.9.

  	
  Other
  Financings

  	
  66

  
	
   

  	
  11.10.

  	
  Borrowing
  Base Report

  	
  66

  
	
   

  	
  11.11.

  	
  Solvency
  Certificate

  	
  66

  
	
   

  	
  11.12.

  	
  Opinion
  of Counsel

  	
  66

  
	
   

  	
  11.13.

  	
  Payment
  of Fees

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  11A.

  	
  CONDITIONS TO EFFECTIVENESS OF AMENDMENT TO ORIGINAL
  AGREEMENT

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11A.1

  	
  Representation

  	
  67

  
	
   

  	
  11A.2

  	
  Executed
  Agreement

  	
  67

  
	
   

  	
  11A.3

  	
  Certified
  Copies of Governing Documents

  	
  67

  
	
   

  	
  11A.4

  	
  Corporate
  or Other Action

  	
  67

  
	
   

  	
  11A.5

  	
  Incumbency
  Certificate

  	
  67

  
	
   

  	
  11A.6

  	
  Payment
  of Fees

  	
  67

  
	
   

  	
  11A.7

  	
  Delivery
  of Note

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  CONDITIONS TO ALL BORROWINGS

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1.

  	
  Representations
  True; No Event of Default

  	
  68

  
	
   

  	
  12.2.

  	
  Borrowing
  Base Report

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  EVENTS OF DEFAULT; ACCELERATION; ETC.

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1.

  	
  Events
  of Default and Acceleration

  	
  68

  



 


iii

















 


	
   

  	
  13.2.

  	
  Termination
  of Commitments

  	
  71

  
	
   

  	
  13.3.

  	
  Remedies

  	
  72

  
	
   

  	
  13.4.

  	
  Distribution
  of Collateral Proceeds

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  THE ADMINISTRATIVE AGENT

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1.

  	
  Authorization;
  Reliance by Agent

  	
  73

  
	
   

  	
  14.2.

  	
  Delegation
  of Duties

  	
  74

  
	
   

  	
  14.3.

  	
  Exculpatory
  Provisions

  	
  74

  
	
   

  	
  14.4.

  	
  No
  Representations

  	
  75

  
	
   

  	
  14.5.

  	
  Payments

  	
  75

  
	
   

  	
  14.6.

  	
  Holders
  of Notes

  	
  76

  
	
   

  	
  14.7.

  	
  Reimbursement
  by Lenders

  	
  76

  
	
   

  	
  14.8.

  	
  Rights
  as Lender

  	
  76

  
	
   

  	
  14.9.

  	
  Resignation
  of Agent

  	
  77

  
	
   

  	
  14.10.

  	
  Notification
  of Defaults and Events of Default

  	
  77

  
	
   

  	
  14.11.

  	
  Duties
  in the Case of Enforcement

  	
  77

  
	
   

  	
  14.12.

  	
  Agent
  May File Proofs of Claim

  	
  78

  
	
   

  	
  14.13.

  	
  No
  Other Duties, etc.

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  ASSIGNMENT

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1.

  	
  General
  Conditions

  	
  79

  
	
   

  	
  15.2.

  	
  Assignments

  	
  79

  
	
   

  	
  15.3.

  	
  Register

  	
  80

  
	
   

  	
  15.4.

  	
  Participations

  	
  80

  
	
   

  	
  15.5.

  	
  Certain
  Pledges

  	
  81

  
	
   

  	
  15.6.

  	
  New
  Notes

  	
  81

  
	
   

  	
  15.7.

  	
  Assignment
  by Borrower

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  PROVISIONS OF GENERAL APPLICATIONS

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1.

  	
  Setoff;
  Proration of Payments

  	
  81

  
	
   

  	
  16.2.

  	
  Expenses

  	
  82

  
	
   

  	
  16.3.

  	
  Indemnification

  	
  83

  
	
   

  	
  16.4.

  	
  Treatment
  of Certain Confidential Information

  	
  84

  
	
   

  	
  16.5.

  	
  Survival
  of Covenants, Etc.

  	
  85

  
	
   

  	
  16.6.

  	
  Notices

  	
  85

  
	
   

  	
  16.7.

  	
  Governing
  Law; Submission to Jurisdiction; Waiver of Venue

  	
  86

  
	
   

  	
  16.8.

  	
  Headings

  	
  86

  
	
   

  	
  16.9.

  	
  Counterparts

  	
  86

  
	
   

  	
  16.10.

  	
  Entire
  Agreement, Etc.

  	
  87

  
	
   

  	
  16.11.

  	
  Waiver
  of Jury Trial

  	
  87

  
	
   

  	
  16.12.

  	
  Consents,
  Amendments, Waivers, Etc.

  	
  87

  
	
   

  	
  16.13.

  	
  Severability

  	
  89

  
	
   

  	
  16.14.

  	
  Ratification
  of Original Agreement

  	
  89

  



 


iv

















 


Exhibits


 


	
  Exhibit A

  	
  Form of
  Borrowing Base Report

  
	
  Exhibit B

  	
  Form of
  Note

  
	
  Exhibit C

  	
  Form of
  Revolving Loan Request

  
	
  Exhibit D

  	
  Form of
  Compliance Certificate

  
	
  Exhibit E

  	
  Assignment
  and Acceptance

  
	
  Exhibit F

  	
  Form of
  Guaranty

  
	
  Exhibit G

  	
  Form of
  Restricted Subsidiary Security Agreement

  
	
  Exhibit H

  	
  Form of
  Stock Pledge Agreement

  
	
  Exhibit I

  	
  Form of
  Letter of Credit Request

  
	
  Exhibit J

  	
  Form of
  Management Financial Report

  



 


Schedules


 


	
  Schedule
  1

  	
  Lenders
  and Commitments

  
	
  Schedule
  7.3

  	
  Title
  to Properties; Leases

  
	
  Schedule
  7.6

  	
  Litigation

  
	
  Schedule
  7.12

  	
  Employee
  Benefit Plans

  
	
  Schedule
  7.13(a)

  	
  Owned
  Real Estate

  
	
  Schedule
  7.13(b)

  	
  Leased
  Real Estate

  
	
  Schedule
  7.14

  	
  Subsidiaries
  Etc.

  
	
  Schedule
  7.15

  	
  Bank
  Accounts

  
	
  Schedule
  9.1

  	
  Existing
  Indebtedness

  
	
  Schedule
  9.2

  	
  Existing
  Liens

  
	
  Schedule
  9.2.2

  	
  Existing
  Restrictions on Negative Pledges and Upstream Limitations

  
	
  Schedule
  9.3

  	
  Existing
  Investments

  



 


v

















 


THIRD AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT


 


This THIRD
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of January 26,
2010, by and among CONTAINER LEASING
INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC  and/or SEACASTLE CONTAINER LEASING, LLC) (the “Borrower”), a
New York limited liability company having its principal place of business at
One Maynard Drive, Park Ridge, New Jersey 07656, and DEUTSCHE
BANK TRUST COMPANY AMERICAS, a banking corporation organized under
the laws of the State of New York (“DB”) and the Persons who are or may become
a party to this Agreement and are listed on Schedule 1 hereto (the
“Lenders” and each a “Lender”), DEUTSCHE BANK SECURITIES
(the “Lead Arranger”) and DEUTSCHE BANK TRUST
COMPANY AMERICAS, a banking corporation organized under the laws of
the State of New York, as administrative agent for itself and such other
lending institutions (the “Agent”).


 


W I T N E S S E T H:


 


WHEREAS, the Borrower, the
Lenders and the Agent have previously entered into a revolving credit
agreement, dated as of August 24, 2006 and amended and restated as of August 19,
2008 and further amended and restated as of August 3, 2009 (the “Original
Agreement”), which provides for revolving credit loans to the Borrower with the
maximum principal amount outstanding at any one time not to exceed the sum of
the Commitments in effect from time to time;


 


WHEREAS, the Borrower, DB,
the Lead Arranger and the Agent have agreed to (i) increase from
$25,000,000 to $40,000,000 the Total Commitments, (ii) adjust certain of
the economic terms applicable to the Loans, and (iii) make certain
amendments to the Original Agreement and, for ease of reference, to restate the
Original Agreement in its entirety on the terms set forth herein;


 


NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth herein below,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:


 


1.             DEFINITIONS
AND RULES OF INTERPRETATION.


 


1.1.         Definitions.  As used in this Credit Agreement, the
following terms shall have the following meanings:


 


Additional Securitization
Entity.  As to the Borrower or any of
its Subsidiaries, (i) CLIF, (ii) CLIF II, (iii) CLIF III, (iv) a
special purpose bankruptcy-remote corporation, partnership, trust, limited
liability company or other business entity that is formed by and will remain
wholly owned by the Borrower or any Subsidiary for the sole and exclusive
purpose of purchasing or financing assets of the Borrower and/or its
Subsidiaries pursuant to a Permitted Securitization, or (v) a special
purpose corporation, partnership, trust, limited liability company or other
business entity that is formed by and will remain wholly owned by the Borrower
for the sole and exclusive purpose of purchasing or financing assets of the
Borrower and/or its Subsidiaries pursuant to a Permitted Securitization
described in clause (c) of the definition thereof.


 

















 


Adjusted Value.  With respect to any Container, Generator or
Chassis, the appraised value, expressed in Dollars, set forth in the Appraisal
and Valuation Report as of the Adjusted Value Date.


 


Adjusted Value Date.  February 15, 2006.


 


Administrative Questionnaire.  An Administrative Questionnaire in a form
supplied by the Agent.


 


Agent.  As defined in the preamble hereto and each
other Person appointed as the successor Agent in accordance with §14.9.


 


Agent’s Office.  The Agent’s office located at 60 Wall Street,
New York, New York 10005, or at such other location as the Agent may designate
from time to time.


 


Agent’s Special Counsel.  Sonnenschein Nath & Rosenthal LLP or
such other counsel as may be selected by the Agent.


 


Aggregate Exposure.  As of any date of determination, the then
outstanding amount of all Revolving Credit Loans and Swing Line Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations.


 


Affiliate.  Any Person which, directly or indirectly,
controls, is controlled by or is under common control with another Person.  “Control” of a Person means the power,
directly or indirectly, (a) to vote ten percent (10%) or more of the
Capital Stock (on a fully diluted basis) of such Person having ordinary voting
power for the election of directors, managing members or general partners (as
applicable); or (b) to direct or cause the direction of the management and
policies of such Person (whether by contract or otherwise).


 


Aggregate Determined Value:  As of any date of determination, an amount
equal to the sum of the Determined Values (measured as of the last day of the
month immediately preceding such date of determination) of all Eligible
Containers, all Eligible Generators, all Eligible Refrigerator Units and all
Eligible Chassis; provided however, that (A) the sum of the Determined
Values of all Eligible Generators shall not at any time exceed an amount equal
to twenty-five percent (25%) of the Aggregate Determined Value, and (B) the
sum of the Determined Values of all Eligible Refrigeration Units shall not at
any time exceed an amount equal to fifteen percent (15%) of the Aggregate
Determined Value.


 


Applicable Margin.  The Applicable Margin for each day during
each Interest Period shall be one of the following:


 


(x) with respect to
LIBOR Rate Loans,


 


(A) so long as the
Aggregate Exposure on such day does not exceed $25,000,000, three and one-half
of one percent (3.50%) per annum, or


 


(B) so long as the
Aggregate Exposure on such day exceeds $25,000,000, a rate per annum equal to
the sum of (x) three and one-half of one percent (3.50%) per annum
multiplied by a fraction, the numerator of which is $25,000,000 and the
denominator of 


 


2

















 


which
is the Aggregate Exposure on such day, and (y) four percent (4.00%) per
annum multiplied by a fraction, the numerator of which is the Aggregate
Exposure on such day minus $25,000,000, and the denominator of which is the
Aggregate Exposure on such day, and


 


(y) with respect to
Base Rate Loans, either


 


(A) so long as the
Aggregate Exposure on such day does not exceed $25,000,000, two and one-half of
one percent (2.50%) per annum, or


 


(B) so long as the
Aggregate Exposure on such day exceeds $25,000,000, a rate per annum equal to
the sum of (x) two and one-half of one percent (2.50%) per annum
multiplied by a fraction, the numerator of which is $25,000,000 and the
denominator of which is the Aggregate Exposure on such day, and (y) three
percent (3.00%) per annum multiplied by a fraction, the numerator of which is
the Aggregate Exposure on such day minus $25,000,000, and the denominator of
which is the Aggregate Exposure on such day .


 


For purposes of determining
the appropriate Applicable Margin, if the Aggregate Exposure exceeds
$25,000,000 for any portion of any day, then clause (x)(B) of this
definition (in the case of LIBOR Rate Loans) and clause (y)(B) of this
definition (in the case of Base Rate Loans), as applicable, shall be applicable
for such day.


 


Applicable Pension
Legislation.  At any
time, any pension or retirement benefits legislation (be it national, federal,
provincial, territorial or otherwise) then applicable to the Borrower or any of
its Subsidiaries.


 


Appraisal and Valuation
Report.  The report prepared by the
Appraisal Firm, entitled “Valuation of the Assets of Carlisle Leasing
International, LLC as of February 15, 2006”.


 


Appraisal Firm.  Valuation Research Corporation.


 


Approved Fund.  Any Fund that is administered or managed by (a) an
Initial Lender, (b) an Affiliate of an Initial Lender or (c) an
entity or an Affiliate of an entity that administers or manages an Initial
Lender.


 


Assignment and Acceptance.  An assignment and acceptance entered into by
a Lender and an Eligible Assignee (with the consent of any party whose consent
is required by §15.2), and accepted by the Agent, in substantially the form of Exhibit E
or any other form approved by the Agent.


 


Balance Sheet Date.  December 31, 2008.


 


Base Rate.  The higher of (a) the variable annual
rate of interest so designated from time to time by the Agent as its “prime
rate”, such rate being a reference rate and not necessarily representing the
lowest or best rate being charged to any customer, and (b) one-half of one
percent (0.5%) above the Federal Funds Effective Rate.  For the purposes of this definition, “Federal
Funds Effective Rate” shall mean for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve 


 


3

















 


System
arranged by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such transactions
received by the Agent from three (3) funds brokers of recognized standing
selected by the Agent.  Changes in the
Base Rate resulting from any publicly announced changes in the Agent’s “prime
rate” shall take place immediately without notice or demand of any kind.


 


Base Rate Loans.  Those Revolving Credit Loans and Swing Line
Loans bearing interest calculated by reference to the Base Rate.


 


Borrower.  As defined in the preamble hereto.


 


Borrower Security Agreement.  The Security Agreement, dated as of the
Original Closing Date, between the Borrower and the Agent and in form and
substance satisfactory to the Agent.


 


Borrowing Base.  At the relevant time of reference thereto, an
amount, determined by the Agent by reference to the most recent Borrowing Base
Report delivered to the Lenders and the Agent pursuant to §8.4(e), which is
equal to the sum, without duplication, of the following:


 


(i) amount equal to the
product of (x) 85% and (y) the lesser of (i) $29,411,765 and (ii) the
Aggregate Determined Value, measured as of the last day of the month
immediately preceding such date of determination, or


 


(ii) an amount equal to
the product of (x) 80% and (y) an amount equal to the excess of (i) the
Aggregate Determined Value, measured as of the last day of the month
immediately preceding such date of determination, over (ii) $29,411,765.


 


Borrowing Base Report.  A Borrowing Base Report signed by the chief
financial officer of the Borrower and in substantially the form of Exhibit A
hereto.


 


Business Day.  Any day on which banking institutions in New
York, New York, are open for the transaction of banking business and, in the
case of LIBOR Rate Loans, also a day which is a LIBOR Business Day.


 


Capitalized Leases.  Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.


 


Capital Stock.  Any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of the
foregoing.


 


Casualty Event.  With respect to any property (including any
interest in property) of the Borrower or any of its Subsidiaries, any loss of,
damage to, or condemnation or other taking of, such property for which the
Borrower or such Subsidiary receives insurance proceeds, proceeds of a
condemnation award or other compensation.


 


4














 


CERCLA.  See §7.12.


 


Change of Control.  One of the following:  (a) prior to the occurrence of a
Qualifying IPO, an event or series of events by which Fortress Investment Group
(i) legally or beneficially owns, directly or indirectly, less than 51% of
the Capital Stock or less than 51% of the Voting Stock of the Borrower, in each
case as adjusted pursuant to any stock split, stock dividend, recapitalization,
or reclassification of the capital of the Borrower or (ii) fails to have
the power to elect a majority of the Managers Committee of the Borrower,
unless, at the time any such event or series of events occurs, the Required
Lenders approves the identity of the Person who has the power to elect a
majority of the Managers Committee of the Borrower, such approval not to be
unreasonably withheld, or (b) upon or following the occurrence of a
Qualifying IPO, any Person other than Fortress Investment Group acquires (A) legal
or beneficial ownership of more than 50% of the Capital Stock or Voting Stock
of the Borrower, in each case as adjusted pursuant to any stock split, stock
dividend, recapitalization, or reclassification of the capital of the Borrower
or (B) the power to elect a majority of the Managers Committee of the
Borrower.


 


Chassis.  The chassis for marine and intermodal cargo
containers to which the Borrower or any Restricted Subsidiary (i) has good
title, or (ii) is the lessor under a Direct Finance Lease and, in either
case, is held for sale or re-lease by the Borrower or such Restricted
Subsidiary in the conduct of its business.


 


CLIF.  CLI Funding LLC, a limited liability company
organized under the laws of the State of Delaware.


 


CLIF Pledge Agreement.  The pledge agreement, dated as of October 26,
2001, between the Borrower and the Trustee, as amended, modified or
supplemented from time to time in accordance with its terms.


 


CLIF II.  CLI Funding II LLC, a limited liability
company organized under the laws of the State of Delaware.


 


CLIF III.  CLI Funding III LLC, a limited liability
company organized under the laws of the State of Delaware.


 


CLIF III Credit Agreement.  The Credit Agreement, dated as of October 31,
2007, by and among CLIF III, as borrower, the lenders from time to time party
thereto, and ING Bank N.V., as Administrative Agent and as Collateral Agent, as
amended, restated or otherwise modified from time to time in accordance with
its terms.


 


CLIF III Pledge Agreement.  The pledge agreement, dated as of October 31,
2007, between the Borrower and ING Bank N.V., in its capacity as collateral
agent, as amended, modified or supplemented from time to time in accordance
with its terms.


 


Closing Date.  The first date on which the conditions set
forth in §11 have been satisfied and any Revolving Credit Loans are to be made
or any Letter of Credit is to be issued hereunder.


 


Code.  The Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.  Section references to
the Code are to the 


 


5

















 


Code
as in effect at the date of this Credit Agreement and any subsequent provisions
of the Code amendatory thereof, supplemental thereto or substituted therefor.


 


Collateral.  All of the property, rights and interests of
the Borrower and its Restricted Subsidiaries that are or are intended to be
subject to the Liens created by the Security Documents.


 


Commitment.  With respect to each Lender, the amount set
forth on Schedule 1 hereto as the amount of such Lender’s commitment to make
Revolving Credit Loans to, and to participate in the issuance, extension and
renewal of Letters of Credit for the account of, the Borrower, as the same may
be reduced from time to time; or if such commitment is terminated pursuant to
the provisions hereof, zero.


 


Commitment Fee.  See §2.2.


 


Commitment Percentage.  With respect to each Lender, the percentage
set forth on Schedule 1 hereto as such Lender’s percentage of the aggregate
Commitments of all of the Lenders.


 


Compliance Certificate.  A compliance certificate, substantially in
the form of Exhibit D attached hereto.


 


Consolidated or consolidated.  With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with GAAP.


 


Consolidated Tangible Net
Worth.  The excess of Consolidated
Total Assets over Consolidated Total Liabilities (excluding in each case
adjustments to translate foreign assets and liabilities for changes in foreign
exchange rates made in accordance with Financial Accounting Standards Board
Statement (“FASB”) No. 52 and further excluding adjustments due to
derivative transactions and other interest rate swap and hedging transactions
made in accordance with FASB No. 133), and less the total book value of
all assets properly classified as intangible assets under GAAP, including such
items as goodwill, the purchase price of acquired assets in excess of the fair
market value thereof, trademarks, trade names, service marks, brand names,
copyrights, patents and licenses, and rights with respect to the foregoing.


 


Consolidated Total Assets.  The sum of (a) all assets (“consolidated
balance sheet assets”) of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP, plus (b) without duplication,
all assets of the Borrower or any Subsidiary as lessee under any Synthetic
Lease to the extent that such assets would have been consolidated balance sheet
assets had the Synthetic Lease been treated for accounting purposes as a
Capitalized Lease.


 


Consolidated Total
Liabilities.  The sum of (a) all
liabilities of the Borrower and its Subsidiaries determined on a consolidated
basis in accordance with GAAP and classified as such on the consolidated
balance sheet of the Borrower and its Subsidiaries and all other Indebtedness
of the Borrower and its Subsidiaries, whether or not so classified plus (b) without
duplication, all liabilities leased by the Borrower or any Subsidiary as lessee
under any Synthetic Lease to the extent that such liabilities would have been
included in Consolidated Total Liabilities had the Synthetic Lease been treated
for accounting purposes as a Capitalized Lease.


 


6

















 


Container Management System.  The tracking and billing system used by the
Borrower and its Affiliates and any upgrade of, successor to, or replacement
for, such system.


 


Containers.  The marine and intermodal cargo containers to
which the Borrower or any Restricted Subsidiary (i) has good title, or (ii) is
the lessor under a Direct Finance Lease and, in either such case, is held for
sale or re-sale by the Borrower or such Restricted Subsidiary in the conduct of
its business, including, without limitation, refrigerated containers.


 


Conversion Request.  A notice given by the Borrower to the Agent
of the Borrower’s election to convert or continue a Revolving Credit Loan in
accordance with §2.7.


 


Credit Agreement.  This Third Amended and Restated Revolving
Credit Agreement, including the Schedules and Exhibits hereto.


 


DB.  As defined in the preamble hereto.


 


Default.  See §13.1.


 


Defaulted Finance Lease.  Any Direct Finance Lease for which (A) any
regularly scheduled rental payment or other material payment (or portion
thereof) owing pursuant to the terms of such Direct Finance Lease is more than
120 days delinquent (measured from its contractual due date), or (B) the
Borrower has repossessed the Containers, Chassis or other equipment that is
subject to such Direct Finance Lease or is otherwise exercising remedies
pursuant to the terms of such Direct Finance Lease, or (C) the Borrower
has otherwise determined that all or any regularly scheduled rental payments or
end of term payments owing pursuant to the terms of such Direct Finance Lease
are wholly or partially uncollectible, or (D) both of the following shall
have occurred with respect to such Direct Finance Lease:  (i) the lessee under such Direct Finance
Lease is the subject of a bankruptcy or insolvency proceeding under applicable
law, and (ii) such lessee is not current in the payment of rental or other
payments owing by the lessee thereunder within ninety (90) days subsequent to
the commencement of such bankruptcy or insolvency proceedings.


 


Determined Value.  At the relevant time of reference thereto,
the Net Book Value of an Eligible Container, Eligible Generator, Eligible
Refrigeration Unit or Eligible Chassis, as the case may be, determined in
accordance with GAAP.


 


Direct Finance Lease
Receivables.  All rights
of the Borrower and the Restricted Subsidiaries to payment in respect of
Eligible Direct Finance Leases.


 


Direct Finance Lease Rate.  With respect to any Direct Finance Lease, the
interest rate applicable to such Direct Finance Lease.


 


Direct Finance Leases.  Leases pursuant to which the Borrower or a
Restricted Subsidiary as lessor leases Containers or Generators to a lessee and
(a) the terms of such lease provide that title to such Containers or
Generators, as the case may be, will pass to such lessee at the end of the
lease term automatically or at the option of the lessee for no additional
consideration or for consideration so nominal that the lessee would be
economically compelled to exercise such option and (b) the interest
component of the proceeds of such lease are booked on the Borrower’s and the
Restricted Subsidiaries’ financial statements as “Income from Direct Finance
Leases”.


 


7

















 


Distribution.  The declaration or payment of any dividend on
or in respect of any shares of any class of Capital Stock of a Person, other
than dividends payable solely in shares of Capital Stock of such Person; the
purchase, redemption, defeasance, retirement or other acquisition of any shares
of any class of Capital Stock of a Person, directly or indirectly through a
Subsidiary of such Person or otherwise (including the setting apart of assets
for a sinking or other analogous fund to be used for such purpose); the return
of capital by a Person to its shareholders as such; or any other distribution
on or in respect of any shares of any class of Capital Stock of a Person.


 


Dollars or $.  Dollars in lawful currency of the United
States of America.


 


Domestic Lending Office.  Initially, the office of each Lender
designated as such in Schedule 1 hereto; thereafter, such other office of such
Lender, if any, located within the United States that will be making or
maintaining Base Rate Loans.


 


Drawdown Date.  The date on which any Revolving Credit Loan
is made or is to be made, and the date on which any Revolving Credit Loan is
converted or continued in accordance with §2.7.


 


Eligible Assignee.  Any of (a) an Initial Lender, (b) an
Affiliate of an Initial Lender, (c) an Approved Fund and (d) any
other Person (other than (x) the Borrower, (y) any Affiliate of the
Borrower or Subsidiary of the Borrower, or (z) a natural person) approved
by (i) the Agent (such approval not to be unreasonably withheld or
delayed), (ii) in the case of an assignment of a Commitment to a Person
other than another Lender, the Issuing Bank (such consent not to be unreasonably
withheld or delayed), and (iii) unless a Default or an Event of Default
has occurred and is continuing, the Borrower (such approval not to be
unreasonably withheld or delayed).


 


Eligible Chassis.  Chassis which (a) are subject to a first
priority fully perfected security interest in favor of the Agent for the
benefit of the Lenders, (b) are subject to no other Liens other than Liens
permitted pursuant to §§9.2.1 (ii), (iv), (v) (so long as underlying
obligations are not overdue), (x) and (xiv), (c) are in roadworthy
condition, subject to ordinary wear and tear and ordinary maintenance and
repair, and conform to all regulations promulgated by the United States
Department of Transportation, (d) have a then Determined Value greater
than zero, (e) have not suffered an Event of Loss and (f) is not then
on lease to a Sanctioned Person.


 


Eligible Containers.  Containers which (a) are subject to a
first priority fully perfected security interest in favor of the Agent for the
benefit of the Lenders, (b) are subject to no other Liens other than Liens
permitted pursuant to §§9.2.l (ii), (v) (so long as underlying obligations
are not overdue), (x) and (xiv), (c) are in a serviceable condition
in the normal course of business, subject to ordinary wear and tear and ordinary
maintenance and repair, and substantially conform to the standard
specifications used by the Borrower for that category of container and
applicable industry standards including, without limitation, The Customs
Convention on Containers, The International Convention for Safe Containers and
the International Organization for Standardization, (d) have a then
Determined Value greater than zero, (e) have not suffered an Event of Loss
and (f) is not then on lease to a Sanctioned Person or a Sanctioned Entity.


 


Eligible Direct Finance
Lease.  A Direct Finance Lease that
complies with all of the following:  (i) the
related lessee is not an Affiliate of the Borrower or a Sanctioned Person or a 


 


8

















 


Sanctioned
Entity; (ii) the Direct Finance Lease is not a Defaulted Finance Lease;
and (iii) such Direct Finance Lease and the related receivables are
subject to no other Liens other than Liens permitted pursuant to §§9.2.l (ii),
(iv), (v) (so long as underlying obligations are not overdue), (x) and
(xiv).


 


Eligible Generators.  Generators which (a) are subject to a
first priority fully perfected security interest in favor of the Agent for the
benefit of the Lenders, (b) are subject to no other Liens other than Liens
permitted pursuant to §§9.2.l (ii), (iv), (v) (so long as underlying
obligations are not overdue), (x) and (xiv), (c) are in a serviceable
condition in the normal course of business, (d) have a then Determined
Value greater than zero, (e) have not suffered an Event of Loss and (f) is
not then on lease to a Sanctioned Person or a Sanctioned Entity.


 


Eligible Refrigeration Units.  Refrigeration Units owned by the Borrower or
a Restricted Subsidiary which (a) are subject to a first priority fully
perfected security interest in favor of the Agent for the benefit of the
Lenders, (b) are subject to no other Liens other than Liens permitted
pursuant to §§9.2.l (ii), (iv), (v) (so long as underlying obligations are
not overdue), (x) and (xiv), (c) are designated to be utilized by the
Borrower or a Restricted Subsidiary in its normal course of business upon
installation into a Container but which have not yet been installed in a
Container, (d) have a then Determined Value greater than zero, (e) have
been owned by the Borrower or a Restricted Subsidiary for no longer than 180
days, (f) have not suffered an Event of Loss and (g) is not then on
lease to a Sanctioned Person or a Sanctioned Entity.


 


Employee Benefit Plan.  Any employee benefit plan within the meaning
of §3(3) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.


 


Environmental Laws.  See §7.13.


 


EPA.  See §7.13.


 


ERISA.  The Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.  Section references
to ERISA are to ERISA as in effect at the date of this Credit Agreement and any
subsequent provisions of ERISA amendatory thereof, supplemental thereto or
substituted therefor.


 


ERISA Affiliate.  Any Person which is treated as a single
employer with the Borrower under §414 of the Code.


 


ERISA Reportable Event.  A reportable event with respect to a
Guaranteed Pension Plan within the meaning of §4043 of ERISA and the
regulations promulgated thereunder.


 


Eurocurrency Reserve Rate.  For any day with respect to a LIBOR Rate
Loan, the maximum rate (expressed as a decimal) at which any bank subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against “Eurocurrency
Liabilities” (as that term is used in Regulation D), if such liabilities were
outstanding.  The Eurocurrency Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in the Eurocurrency Reserve Rate.


 


9

















 


Event of Default.  See §13.1.


 


Event of Loss.  With respect to any Container, Chassis,
Refrigeration Unit or Generator, any of the following:


 


(a)           total loss or destruction
thereof;


 


(b)           theft or disappearance
thereof without recovery within sixty (60) days after such theft or
disappearance becomes known to the Borrower;


 


(c)           damage rendering such
Container, Chassis, Refrigeration Unit or Generator, as the case may be, unfit
for normal use and, in the judgment of the Borrower, beyond repair at
reasonable cost;


 


(d)           any condemnation or seizure
for more than sixty (60) days after the earlier of (i) receipt of notice
thereof by the Borrower and (ii) actual knowledge thereof by the Borrower;
and


 


(e)           any forced sale or other
taking of title to or use of any such Container, Chassis, Refrigeration Unit or
Generator, as the case may be.


 


Fee Letter.  That certain arrangement fee letter
agreement, dated January 26, 2010, between the Borrower, the Lenders and
the Agent.


 


Fees.  Collectively, the Commitment Fee, the Letter
of Credit Fees, the Fronting Fees and the fees to be paid to the Lenders and
the Agent pursuant to the terms of the Fee Letter.


 


Financial Affiliate.  A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary is engaging in any of the activities
permitted by §4(e) of the Bank Holding Company Act of 1956 (12 U.S.C.
§1843).


 


Fortress Entity.  Any of (i) any investment fund
controlled or managed by Fortress Investment Group LLC, a Delaware limited
liability company (“Fortress”), including Fortress Investment Fund III LP, a
Delaware limited partnership, or any Affiliate of Fortress, or (ii) any
Person of which the majority of its Capital Stock is owned, directly or
indirectly, by any Person described in the foregoing clause (i).


 


Fortress Investment Group.  Collectively, each Fortress Entity that holds
Capital Stock of the Borrower.


 


Fronting Fee.  See §4.6.


 


Fund.  Any Person (other than a natural person) that
is (or will be) engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary course of
its business.


 


GAAP or generally
accepted accounting principles.  (a) When
used in §10, whether directly or indirectly through reference to a capitalized
term used therein, means (i) principles that are consistent with the
principles promulgated or adopted by the Financial Accounting 


 


10

















 


Standards
Board and its predecessors, in effect for the fiscal year ended on the Balance
Sheet Date, and (ii) to the extent consistent with such principles, the
accounting practice of the Borrower reflected in its financial statements for
the year ended on the Balance Sheet Date, and (b) when used in general,
other than as provided above, means principles that are (i) consistent
with the principles promulgated or adopted by the Financial Accounting
Standards Board and its predecessors, as in effect from time to time, and (ii) consistently
applied with past financial statements of the Borrower adopting the same
principles, provided that in each case referred to in this definition of “GAAP”
a certified public accountant would, insofar as the use of such accounting
principles is pertinent, be in a position to deliver an unqualified opinion
(other than a qualification regarding changes in GAAP) as to financial statements
in which such principles have been properly applied.


 


Generators.  The generator sets to which the Borrower or
any Restricted Subsidiary (i) has good title, or (ii) is the lessor
under a Direct Finance Lease and, in either case, is held for sale or re-lease
in the conduct of its business.


 


Governing Documents.  With respect to any Person, its certificate
or articles of incorporation (if applicable), its articles of organization and
certificate of formation (if applicable), its by-laws, operating agreement and
all shareholder agreements, voting trusts and similar arrangements applicable
to any of its Capital Stock or other membership interests.


 


Governmental Authority.  Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or
arbitrator.


 


Guaranteed Pension Plan.  Any employee pension benefit plan within the
meaning of §3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.


 


Guarantor.  Each Restricted Subsidiary in existence as of
the Closing Date and each additional Restricted Subsidiary that provides a
Guaranty pursuant to §8.14.1.


 


Guaranty.  The Guaranty entered into and delivered by
each Restricted Subsidiary in favor of the Lenders and the Agent and
substantially in the form of Exhibit F hereto.


 


Hazardous Substances.  See §7.13.


 


Hedge Agreement.  Any forward contract, futures contract, swap,
option or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements), the value of which
is dependent upon movements in interest rates, currency exchange rates,
commodities or other indices, to which the Borrower and any Lender is a party.


 


Indebtedness.  As to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the
assets of such Person and whether or not contingent, but without duplication:


 


(a)           every obligation of such
Person for money borrowed,


 


11

















 


(b)           every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses,


 


(c)           every reimbursement
obligation of such Person with respect to letters of credit, bankers’ acceptances
or similar facilities issued for the account of such Person,


 


(d)           every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(including securities repurchase agreements but excluding operating leases,
trade accounts payable and accrued liabilities arising in the ordinary course
of business which are not overdue or which are being contested in good faith),


 


(e)           every obligation of such
Person under any Capitalized Lease,


 


(f)            every obligation of such Person
under any Synthetic Lease,


 


(g)           all sales by such Person of (i) accounts
or general intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of money or (iii) other
receivables (collectively “receivables”), whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of
defaulted receivables for collection and not as a financing arrangement, and
together with any obligation of such Person to pay any discount, interest,
fees, indemnities, penalties, recourse, expenses or other amounts in connection
therewith,


 


(h)           every obligation of such
Person (i) to purchase, redeem, retire or otherwise acquire for value any
shares of Capital Stock issued by such Person or any rights measured by the
value of such Capital Stock (an “equity related purchase obligation”), and (ii) under
any forward contract, futures contract, swap, option or other financing
agreement or arrangement, the value of which is dependent upon movements in
interest rates, currency exchange rates, commodities or other indices (a
“derivative contract”),


 


(i)            every obligation in respect
of Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent that such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor and such terms are enforceable under
applicable law,


 


(j)            every obligation, contingent
or otherwise, of such Person guaranteeing, or having the economic effect of
guarantying or otherwise acting as surety for, any obligation of a type
described in any of clauses (a) through (i) (the “primary
obligation”) of another Person (the “primary obligor”), in any manner, whether
directly or indirectly, and including, without limitation, any obligation of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase of) any security for the payment of such primary obligation, (ii) to
purchase property, securities or services for the purpose of assuring the
payment of such primary obligation, or (iii) to maintain working capital,
equity capital or other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such primary
obligation.


 


12

















 


The “amount” or “principal
amount” of any Indebtedness at any time of determination represented by (s) any
Indebtedness, issued at a price that is less than the principal amount at
maturity thereof, shall be the amount of the liability in respect thereof
determined in accordance with GAAP, (t) any Capitalized Lease shall be the
principal component of the aggregate of the rentals obligation under such
Capitalized Lease payable over the term thereof that is not subject to
termination by the lessee, (u) any sale of receivables shall be the amount
of recourse to the Borrower or any Subsidiary in respect thereto, (v) any
Synthetic Lease shall be the net present value, calculated at the discount rate
implicit in such Synthetic Lease, of all present and future obligations under
such lease (including any residual obligations), (w) any derivative
contract shall be the maximum amount of any termination, unwind or loss payment
required to be paid by such Person if such derivative contract were, at the
time of determination, to be terminated by reason of any event of default or
early termination event thereunder, whether or not such event of default or
early termination event has in fact occurred, (x) any equity related
purchase obligation shall be the maximum fixed redemption or purchase price
thereof inclusive of any accrued and unpaid dividends to be comprised in such
redemption or purchase price, (y) any Indebtedness shall be reduced by the
amount of any irrevocable reserve or defeasance for the payment thereof, and (z) any
guaranty or other contingent liability referred to in clause (j) shall be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such guaranty or other contingent obligation is made or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.


 


Indenture.  The Second Amended and Restated Indenture,
dated as of October 26, 2001, and amended and restated as of August 24,
2006, between CLIF and the Trustee and all amendments thereof and supplements
thereto.


 


Ineligible Securities.  Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of
the Banking Act of 1933 (12 U.S.C. §24, Seventh), as amended.


 


Initial Lender.  DB.


 


Intercreditor Agreement.  The Second Amended and Restated Intercreditor
Collateral Agreement dated as of October 26, 2001, and amended and restated
as of August 24, 2006 (as amended, amended and restated or otherwise
modified and in effect from time to time), among the Agent, CLIF, the Trustee,
U.S. Bank National Association, as collateral agent, the Borrower and the other
parties joined thereto from time to time.


 


Interest Payment Date.  (a) As to any Base Rate Loan, the last
day of the calendar quarter with respect to interest accrued during such
calendar quarter, including, without limitation, the calendar quarter which
includes the Drawdown Date of such Base Rate Loan; and (b) as to any LIBOR
Rate Loan in respect of which the Interest Period is (i) 3 months or less,
the last day of such Interest Period and (ii) more than 3 months, the date
that is 3 months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.


 


Interest Period.  With respect to each Revolving Credit Loan, (a) initially,
the period commencing on the Drawdown Date of such Revolving Credit Loan and
ending on the last day of one of the periods set forth below, as selected by
the Borrower in a Revolving Credit Loan 


 


13

















 


Request
or as otherwise required by the terms of this Credit Agreement (i) for any
Base Rate Loan, the last day of the calendar quarter; and (ii) for any
LIBOR Rate Loan, 1, 2 or 3 months, or subject to availability to all Lenders, 6
months; and (b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Revolving Credit Loan and
ending on the last day of one of the periods set forth above, as selected by
the Borrower in a Conversion Request; provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:


 


(A)          if any Interest Period with
respect to a LIBOR Rate Loan would otherwise end on a day that is not a LIBOR
Business Day, that Interest Period shall be extended to the next succeeding
LIBOR Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding LIBOR Business Day;


 


(B)           if any Interest Period with
respect to a Base Rate Loan would end on a day that is not a Business Day, that
Interest Period shall end on the next succeeding Business Day;


 


(C)           if the Borrower shall fail
to give notice as provided in §2.7, the Borrower shall be deemed to have
requested a conversion of the affected LIBOR Rate Loan to a Base Rate Loan and
the continuance of all Base Rate Loans as Base Rate Loans on the last day of
the then current Interest Period with respect thereto;


 


(D)          any Interest Period relating
to any LIBOR Rate Loan that begins on the last LIBOR Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last LIBOR
Business Day of a calendar month; and


 


(E)           any Interest Period that
would otherwise extend beyond the Maturity Date shall end on the Maturity Date.


 


Investments.  All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties (or other commitments as described
under Indebtedness), or obligations of, any Person.  In determining the aggregate amount of
Investments outstanding at any particular time: 
(a) the amount of any Investment represented by a guaranty shall be
taken at not less than the principal amount of the obligations guaranteed and
still outstanding; (b) there shall be deducted in respect of each such
Investment any amount received as a return of capital (but only by repurchase,
redemption, retirement, repayment, liquidating dividend or liquidating
distribution); (c) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise; and (d) there shall not be deducted from
the aggregate amount of Investments any decrease in the value thereof.


 


Issuing Bank.  Either or both of Deutsche Bank Trust Company
Americas or Deutsche Bank AG New York, each in its capacity as an issuer of
Letters of Credit hereunder, and their respective successors in such capacity
as provided in Section 4.7.  Each
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing 


 


14














 


Bank
reasonably acceptable to the Borrower, in which case the term “Issuing Bank”
shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.


 


Lead Arranger.  Deutsche Bank Securities Inc.


 


Lender.  As defined in the preamble hereto and any
other Person who becomes an assignee of any rights and obligations of a Lender
pursuant to §15.


 


Lender Affiliate.  (a) With respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, limited liability company, trust or legal entity) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by such Lender or an Affiliate of such Lender and (b) with
respect to any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other entity (whether a corporation, partnership,
limited liability company, trust or other legal entity) that is a fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.


 


Letter of Credit.  See §4.1.1.


 


Letter of Credit Fee.  See §4.6.


 


Letter of Credit
Participation.  See §4.1.4.


 


Letter of Credit Request.  A Letter of Credit Request substantially in
the form of Exhibit I hereto.


 


LIBOR Business Day.  Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London or
such other eurodollar interbank market as may be selected by the Agent in its
sole discretion acting in good faith.


 


LIBOR Lending Office.  Initially, the office of each Lender
designated as such in Schedule 1 hereto; thereafter, such other office of such
Lender, if any, that shall be making or maintaining LIBOR Rate Loans.


 


LIBOR Rate.  For any Interest Period with respect to a
LIBOR Rate Loan, the rate of interest equal to (i) the rate determined by
the Agent at which Dollar deposits for such Interest Period are offered based
on information presented on Reuters Screen LIBOR01 page as of 11:00 a.m.
London time on the second LIBOR Business Day prior to the first day of such
Interest Period, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate.  If the rate
described above does not appear on the Reuters Screen LIBOR01 page on any
applicable interest determination date, the LIBOR Rate shall be 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 time comparable to such LIBOR Rate Loan which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the second LIBOR Business Day prior to the
first day of such Interest Period as selected by the Agent.  The principal London office of each of the
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 


 


15

















 


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
for a period of time comparable to such Interest Period offered by major banks
in New York City at approximately 11:00 a.m. New York City time, on the
second LIBOR Business Day prior to 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 considered that LIBOR
Rate pursuant to a LIBOR Rate Loan cannot be determined.


 


LIBOR Rate Loans.  Revolving Credit Loans bearing interest
calculated by reference to the LIBOR Rate.


 


Lien.  Any mortgage, deed of trust, security
interest, pledge, hypothecation, assignment, attachment, deposit arrangement,
encumbrance, lien (statutory, judgment or otherwise), or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any
Capitalized Lease, any Synthetic Lease, any financing lease involving substantially
the same economic effect as any of the foregoing and the filing of any
financing statement under the UCC or comparable law of any jurisdiction).


 


Loan.  Any Revolving Credit Loan or Reimbursement
Obligation.


 


Loan Documents.  This Credit Agreement, the Notes, the Letter
of Credit Requests, the Letters of Credit, the Intercreditor Agreement, the
Security Documents, the Fee Letter and any Hedge Agreement(s).


 


Management Agreement.  This term shall have the meaning set forth in
the Indenture.


 


Material Adverse Effect.  Any event or occurrence of whatever nature
(including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding) which results in:


 


(a) a material adverse
effect on the business, properties, financial condition, assets or operations
of the Borrower and its Subsidiaries, taken as a whole;


 


(b) a material adverse
effect on the ability of the Borrower and the Restricted Subsidiaries, taken as
a whole, to perform their Obligations under the Loan Documents;


 


(c) a material adverse
effect on (i) the validity, binding effect or enforceability of the
Borrower’s or any of its Subsidiaries’ obligations under any of the Loan
Documents to which such Person is a party, or (ii) the rights, remedies or
benefits available to the Agent or any Lender under any Loan Document; or


 


(d) a material adverse
effect on the attachment, perfection or priority of any Lien of the Agent under
the Security Documents on any material portion of the Collateral included in
the Borrowing Base.


 


Maturity Date.  January 25, 2011.


 


Maximum Drawing Amount.  The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.


 


16

















 


Moody’s.  Moody’s Investors Services, Inc.


 


Multiemployer Plan.  Any multiemployer pension plan within the
meaning of §3(37) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate.


 


Net Book Value.  With respect to any date of determination,
one of the following amounts:  (1) with
respect to any Eligible Container, Eligible Generator or Eligible Chassis, the
excess of:


 


(i)            either (A) with respect
to any Eligible Container, Eligible Generator or Eligible Chassis in existence
on the Original Closing Date, the Adjusted Value as of the Adjusted Value Date
of such Eligible Container, Eligible Generator or Eligible Chassis, as the case
may be, or (B) with respect to any Eligible Container, Eligible Generator,
Eligible Chassis or other equipment to be included in the Asset Base acquired
subsequent to the Original Closing Date, the Original Cost of such Eligible
Container, Eligible Generator, Eligible Chassis or other equipment, as the case
may be, over


 


(ii)           accumulated depreciation on
such item from the Adjusted Value Date or subsequent acquisition date, as the
case may be, to such date of determination, measured in accordance with the
following depreciation methods:  (a) all
Eligible Containers that are refrigerated Containers are to be depreciated over
a fifteen year useful life on a straight-line basis to a residual value of no
more than 10% of Original Cost of such item, (b) all Eligible Generators
are to be depreciated over a twelve year useful life on a straight-line basis
to a residual value of no more than 10% of Original Cost of such item, (c) all
Eligible Containers that are not refrigerated Containers are to be depreciated
over a twelve and a half year useful life on a straight line basis to a
residual value of no more than 37% of Original Cost of such item and (d) all
Eligible Chassis and all other equipment (other than Eligible Containers,
Eligible Generators and Refrigeration Units) that are acquired by the Borrower
or any Restricted Subsidiary after the Original Closing Date and may be
included in the Borrowing Base are to be depreciated utilizing a depreciable
methodology consistent with the Borrower’s GAAP depreciation policy with
respect to Chassis or other equipment as the case may be;


 


and (2) with respect to
any Refrigeration Unit owned by the Borrower or a Restricted Subsidiary, the
Original Cost to the Borrower or such Restricted Subsidiary of such
Refrigeration Unit until the date of the initial installation of such
Refrigeration Unit into a Container, and $0 thereafter.


 


Net Cash Sale Proceeds.  The net cash proceeds received by a Person in
respect of any sale or other disposition of assets, net of (a) all
reasonable out-of-pocket fees, commissions and other reasonable and customary
direct expenses actually incurred and paid in connection with such asset sale
or disposition, including the amount of any transfer or documentary taxes
required to be paid by such Person in connection with such asset sale or
disposition, and (b) repayment of any Indebtedness secured by such assets.


 


Net Present Value.  At the relevant time of reference thereto,
the discounted present value of the Direct Finance Lease Receivables,
discounted with respect to each Direct Finance Lease, at the Direct Finance
Lease Rate per annum of the remaining term of the applicable Direct Finance
Lease.


 


17

















 


Note Placement 2006-1.  The $685,000,000 Floating Rate Asset Backed
Notes, Series 2006-1 Notes issued by CLIF on August 24, 2006,
pursuant to a supplement to the Indenture.


 


Note Record.  A Record with respect to a Note.


 


Notes.  See §2.4.


 


Notice of Swing Line
Borrowing.  See §2.9.2.


 


Obligations.  All indebtedness, obligations and liabilities
of any of the Borrower and its Subsidiaries to any of the Lenders and the
Agent, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, 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, arising or
incurred under this Credit Agreement or any of the other Loan Documents or any
Hedge Agreement or in respect of any of the Revolving Credit Loans made or
Reimbursement Obligations incurred or any of the Notes, Letter of Credit
Requests, Letters of Credit or other instruments at any time evidencing any
thereof.


 


OFAC.  The U.S. Department of the Treasury’s Office
of Foreign Assets Control.


 


Original Closing Date.  August 24, 2006.


 


Original Cost.  With respect to any Container, Generator,
Chassis or Refrigeration Unit, the purchase price, expressed in Dollars, as
determined in accordance with GAAP, consistently applied, including, in the
case of any Container, Generator, Chassis or Refrigeration Unit acquired by the
Borrower or any Restricted Subsidiary after the Closing Date pursuant to a
Permitted Acquisition, an allocated portion of any asset write-up resulting
from the consummation of such Permitted Acquisition, provided that (i) the
amount and allocation of such asset write-up complies with GAAP and has been
approved by Ernst & Young LLP or another nationally recognized
accounting firm reasonably satisfactory to the Agent, and (ii) the Agent
consents to the amount and allocation of such asset write-up, and (iii) the
Agent and each Lender is provided a copy of each independent appraisal or
similar report prepared in support of such allocation of asset write-up.


 


outstanding or Outstanding.  With respect to the Revolving Credit Loans,
the aggregate unpaid principal thereof as of any date of determination.


 


PBGC.  The Pension Benefit Guaranty Corporation
created by §4002 of ERISA and any successor entity or entities having similar
responsibilities.


 


Perfection Certificates.  The Perfection Certificates as defined in the
Security Agreement.


 


Permitted Acquisition.  Any acquisition by the Borrower or any of its
Subsidiaries, in a single transaction or a series of related transactions,
through a merger, stock purchase or otherwise, of assets or companies if, (i) the
Borrower or its Subsidiary is the surviving or continuing Person, (ii) immediately
before and after giving effect thereto, no Default or Event of Default exists
or results therefrom, (iii) after giving effect to such acquisition, the
Borrower and its Subsidiaries derive and will derive at least 85% of their
consolidated revenue from the ownership or management of marine containers or
any ancillary, related or complementary 


 


18

















 


business,
(iv) all transactions related thereto are consummated in accordance with
applicable laws, (v) all actions required to be taken with respect to such
acquired or newly formed Subsidiary under §8.14 have been taken, (vi) the
Borrower and its Subsidiaries are in compliance, on a pro forma basis after
giving effect to such acquisition, with §10.1, recomputed as of the last day of
the most recently ended fiscal quarter of the Borrower for which financial statements
are available, as if such acquisition (and any related incurrence or repayment
of Indebtedness with any new Indebtedness being deemed to be amortized over the
applicable testing period in accordance with its terms) had occurred on the
first day of each relevant period for testing such compliance and (vii) the
Borrower has delivered a certificate to the Agent and each Lender to the effect
set forth in clauses (i), (ii), (iii), (iv), (v) and (vi) above.


 


Permitted Liens.  Liens permitted by §9.2.


 


Permitted Securitization.  Each of the following:


 


(a)           Any secured lending facility
entered into by an Additional Securitization Entity solely for the purpose of
purchasing or financing assets of the Borrower and/or its Subsidiaries,
provided that (i) any Indebtedness incurred in connection with such
facility is non-recourse to the Borrower, its other Restricted Subsidiaries and
their respective assets, (ii) such Additional Securitization Entity
engages in no business and incurs no Indebtedness or other liabilities or
obligations other than those related to or incidental to such facility, (iii) such
facility has an initial term of not less than seven (7) years, (iv) such
facility provides for an initial advance rate of not less than seventy-five
percent (75%) of the Net Book Value, determined as of the closing date for such
facility, of the Containers and Generators owned by such Additional
Securitization Entity, (v) other than the initial Investment in such
facility, neither the Borrower nor any of its other Restricted Subsidiaries is
required to make additional Investments in connection with such facility, (vi) neither
the Borrower nor any of its other Restricted Subsidiaries has any material
contract, agreement, arrangement or understanding other than on terms (x) not
substantially less favorable to the Borrower or such Restricted Subsidiary than
the terms set forth in the “Related Documents” (as defined in the Indenture) or
(y) no less favorable to the Borrower or such Restricted Subsidiary (as
the case may be) than those that might be obtained at that time from Persons
that are not Affiliates of the Borrower, (vii) neither the Borrower nor
any of its Restricted Subsidiaries (other than such Additional Securitization
Entity) has any obligation to maintain such Additional Securitization Entity’s
financial condition or cause such Additional Securitization Entity to achieve
certain levels of operating results (other than incidental capital costs
relating to Containers, Generators, Chassis and Refrigeration Units then owned
by such entity and incurred in the ordinary course of business) and (viii) the
Borrower and its Subsidiaries are in compliance on a pro forma basis after
giving effect to such securitization transaction with § 10.1, recomputed as of
the last day of the most recently ended fiscal quarter of the Borrower for
which financial statements are available, as if such securitization transaction
had occurred on the first day of each relevant period for testing such
compliance; and


 


(b)           The CLIF III Credit Agreement
and any other secured lending facility entered into by an Additional
Securitization Entity solely for the purpose of purchasing or financing Direct
Finance Leases owned or acquired by the Borrower and/or its 


 


19

















 


Subsidiaries,
provided that (i) except with respect to any financing that has the
benefit of a Recourse Guaranty, any Indebtedness incurred in connection with
such facility is non-recourse to the Borrower, its other Restricted
Subsidiaries and their respective assets, (ii) such Additional
Securitization Entity engages in no business and incurs no Indebtedness or
other liabilities or obligations other than those related to or incidental to
such facility, (iii) such facility has a maturity date that is not earlier
than the Maturity Date, (iv) such facility provides for an initial advance
rate of not less than seventy-five percent (75%) nor more than one hundred
percent (100%) of the present value, discounted at an interest rate per annum
equal to the applicable Direct Finance Lease Rate, of the fixed rental payments
payable under such Direct Finance Leases determined as of the Closing Date and (v) the
Borrower and its Subsidiaries are in compliance on a pro forma basis after
giving effect to such securitization transaction with § 10.1, recomputed as of
the last day of the most recently ended fiscal quarter of the Borrower for
which financial statements are available, as if such securitization transaction
had occurred on the first day of each relevant period for testing such
compliance.


 


Person.  Any individual, corporation, limited
liability company, partnership, limited liability partnership, trust, other
unincorporated association, business, or other legal entity, and any
Governmental Authority.


 


Qualifying IPO.  The first underwritten public offering of the
Capital Stock of the Borrower or any holding company parent of which the
Borrower is a wholly-owned Subsidiary pursuant to an effective registration
statement under the Securities Act of 1933 that results in the listing or
quotation of the Capital Stock of the Borrower or such holding company on a
recognized U.S. or international securities exchange.


 


RCRA.  See §7.13.


 


Real Estate.  All real property at any time owned or leased
(as lessee or sublessee) by the Borrower or any of its Subsidiaries.


 


Record.  The grid attached to a Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by any Lender with respect to any Revolving Credit Loan
referred to in such Note.


 


Recourse Guaranty.  Any general recourse guarantee by the
Borrower or any Restricted Subsidiary of Indebtedness pursuant to a Permitted
Securitization of the type described in clause (c) of the definition of
such term which is either unsecured or secured solely by a pledge of the
Capital Stock of the Additional Securitization Entity entering into such
Permitted Securitization.


 


Refinance.  In respect of any security or Indebtedness,
means to refinance, extend, renew or re-fund, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part.  Refinanced and Refinancing
shall have correlative meanings.


 


Refrigeration Units.  The refrigeration units acquired by the
Borrower or a Restricted Subsidiary in the ordinary course of business for
installation in refrigerated Containers.


 


Register.  See §15.3.


 


20

















 


Reimbursement Obligation.  The Borrower’s obligation to reimburse the
Issuing Banks and the Lenders on account of any drawing under any Letter of
Credit as provided in §4.2.


 


Related Document.  This term shall have the meaning set forth in
the Indenture.


 


Related Parties.  With respect to any specified Person, such
Person’s Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person’s Affiliates.


 


Rental Expense.  For any period, all consolidated rental
expenses of the Borrower and its Subsidiaries under any rental agreements or
leases of Containers or Generators.


 


Required Lenders.  As of any date of determination, Lenders
holding at least fifty-one percent (51%) of the outstanding principal amount of
the Notes on such date; and if no such principal is outstanding, the Lenders
whose aggregate Commitments constitutes at least fifty-one percent (51%) of the
Total Commitment.  For the purposes of
calculating the Required Lenders, any Swing Line Loan then Outstanding shall be
allocated to each Lender in proportion to the then Commitment Percentage of
each Lender at such time.


 


Restricted Payment.  In relation to the Borrower and its
Restricted Subsidiaries, any (a) Distribution, (b) payment or
prepayment by the Borrower or its Restricted Subsidiaries to the Borrower’s or
any Restricted Subsidiary’s shareholders (or other equity holders), other than,
in the case of a Restricted Subsidiary, to the Borrower or any of its
Restricted Subsidiaries, (c) derivatives or other transactions with any
financial institution, commodities or stock exchange or clearinghouse (a
“Derivatives Counterparty”) obligating the Borrower or any Restricted
Subsidiary to make payments to such Derivatives Counterparty as a result of any
change in market value of any Capital Stock of the Borrower or such Restricted
Subsidiary, (d) payments of management, consulting or similar fees to
Affiliates of the Borrower, or (e) payment of Subordinated Debt; provided  that,
investments contemplated pursuant to Section 9.3(g) shall not be a
Restricted Payment.


 


Restricted Subsidiaries.  At any time, all Subsidiaries of the Borrower
at such time except for Unrestricted Subsidiaries.


 


Restricted Subsidiary
Security Agreement.  The
Restricted Subsidiary Security Agreement entered into by each Restricted
Subsidiary and the Agent from time to time pursuant to §8.14.1 in favor of the
Lenders and the Agent and substantially in the form of Exhibit G hereto.


 


Revolving Credit Loan
Request.  See §2.6.


 


Revolving Credit Loans.  Revolving credit loans made or to be made by
the Lenders to the Borrower pursuant to §2.


 


Sanctioned Entity.  Means (i) an agency of the government
of, (ii) an organization directly or indirectly controlled by or (iii) a
natural person resident in a country that is subject to a sanctions program
identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise
published from time to time as such program may be applicable to such agency,
organization or person.


 


21

















 


Sanctioned Person.  A person named on the list of Specially
Designated Nationals or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise
published from time to time.


 


SARA.  See §7.13.


 


Seacastle Credit Agreement.  That certain Amended and Restated Credit
Agreement (2007-A), dated as of January 29, 2009, by and among Seacastle, Inc.,
Seacastle Operating Company Ltd., as the borrower thereunder, Citicorp North
America, Inc., as agent, and the lenders from time to time parties
thereto, as amended, modified or supplemented from time to time in accordance
with its terms.


 


Security Documents.  Each Guaranty, each Restricted Subsidiary
Security Agreement, the Borrower Security Agreement, the Stock Pledge Agreement
and all other instruments and documents, including without limitation Uniform
Commercial Code financing statements, pursuant to which security is granted to
the Agent.


 


Settlement.  See §2.9.2 hereof.


 


S&P.  Standard & Poor’s Ratings Group.


 


Stock Pledge Agreement.  The Stock Pledge Agreement entered into by
the Borrower and the Agent, substantially in the form of Exhibit H hereto.


 


Subordinated Debt.  Unsecured Indebtedness of the Borrower or any
of its Subsidiaries that is expressly subordinated and made junior to the
payment and performance in full of the Obligations, and evidenced by a written
instrument containing subordination provisions in form and substance approved
by the Lenders in writing.


 


Subsidiary.  Any corporation, association, trust, or other
business entity of which the designated parent shall at any time own directly
or indirectly through a Subsidiary or Subsidiaries at least a majority (by
number of votes) of the outstanding Voting Stock.


 


Swing Line Loan.  Any loan made by any Swing Line Lender
pursuant to §2.9.


 


Swing Line Borrowing.  A borrowing consisting of a Swing Line Loan
made by any Swing Line Lender.


 


Swing Line Borrowing Date.  See §2.9.2 hereof.


 


Swing Line Facility.  See §2.9.1 hereof.


 


Swing Line Lender.  The Agent.


 


Synthetic Lease.  Any lease of goods or other property, whether
real or personal, which is treated as an operating lease under GAAP and as a
loan or financing for U.S. income tax purposes.


 


22

















 


TEU.  A twenty (20) foot equivalent unit, an
industry standard measure based on the physical dimensions of a Container.


 


Third Amended and Restated
Credit Agreement Effective Date.  January 27, 2010.


 


Total Commitment.  The sum of the Commitments of the Lenders, as
in effect from time to time.


 


Trustee.  U.S. Bank National Association or any
successor or assignee under the Indenture.


 


Type.  As to any Revolving Credit Loan, its nature
as a Base Rate Loan or a LIBOR Rate Loan.


 


U.S. Person.  A “United States person” as such term is
defined in Section 7701(a)(30)(A), (B) or (C) of the Code.


 


Unpaid Reimbursement
Obligation.  Any
Reimbursement Obligation for which the Borrower does not reimburse the Issuing
Banks and the Lenders on the date specified in, and in accordance with, §4.2.


 


Unrestricted Subsidiaries.  Each of the following:  (i) CLIF, (ii) CLIF II, (iii) CLIF
III, (iv) any Additional Securitization Entities formed subsequent to the
Closing Date in connection with a Permitted Securitization, (v) Resale Group
(Europe) ApS, a Subsidiary organized under the laws of Denmark, and (vi) subject
to the aggregate limitation on Investment set forth in § 9.3(m), other
Subsidiaries formed or acquired from time to time subsequent to the Closing
Date by the Borrower and designated as Unrestricted Subsidiaries by the
Borrower.


 


Voting Stock.  Stock or similar interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association, trust or
other business entity involved, whether or not the right so to vote exists by
reason of the happening of a contingency.


 


Weighted Average Life to
Maturity.  When
applied to any Indebtedness at any date, means the number of years obtained by
dividing (1) the then outstanding aggregate principal amount of such
Indebtedness into (2) the sum of the total of the products obtained by
multiplying:


 


(A)          the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by


 


(B)           the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.


 


23

















 


1.2.         Rules of
Interpretation.


 


1.2.1.1.           A reference to any document
or agreement shall include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Credit Agreement.


 


1.2.1.2.           The singular includes the
plural and the plural includes the singular.


 


1.2.1.3.           A reference to any law
includes any amendment or modification to such law.


 


1.2.1.4.           A reference to any Person
includes its permitted successors and permitted assigns.


 


1.2.1.5.           Accounting terms not
otherwise defined herein have the meanings assigned to them by GAAP applied on
a consistent basis by the accounting entity to which they refer.


 


1.2.1.6.           The words “include”,
“includes” and “including” are not limiting.


 


1.2.1.7.           All terms not specifically
defined herein or by GAAP, which terms are defined in the Uniform Commercial
Code as in effect in the State of New York, have the meanings assigned to them
therein, with the term “instrument” being that defined under Article 9 of
the Uniform Commercial Code.


 


1.2.1.8.           Reference to a particular
“§” refers to that section of this Credit Agreement unless otherwise indicated.


 


1.2.1.9.           The words “herein”,
“hereof”, “hereunder” and words of like import shall refer to this Credit
Agreement as a whole and not to any particular section or subdivision of this
Credit Agreement.


 


1.2.1.10.        Unless otherwise expressly
indicated, in the computation of periods of time from a specified date to a
later specified date, the word “from” means “from and including”, the words
“to” and “until” each mean “to but excluding”, and the word “through” means “to
and including.”


 


1.2.1.11.        This Credit Agreement and
the other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters.  All such limitations, tests and measurements
are, however, cumulative and are to be performed in accordance with the terms
thereof.


 


1.2.1.12.        This Credit Agreement and
the other Loan Documents are the result of negotiation among, and have been
reviewed by counsel to, among others, the Agent and the Borrower and are the
product of discussions and negotiations among all parties.  Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the Agent or any
of the Lenders merely on account of the Agent’s or any Lender’s involvement in
the preparation of such documents.


 


24














 


2.             THE
REVOLVING CREDIT FACILITY.


 


2.1.         Commitment
to Lend.  Subject to the terms and
conditions set forth in this Credit Agreement, each of the Lenders severally
agrees to lend to the Borrower and the Borrower may borrow, repay, and reborrow
from time to time from the Closing Date up to but not including the Maturity
Date upon notice by the Borrower to the Agent given in accordance with §2.6,
such sums as are requested by the Borrower up to a maximum aggregate amount
outstanding (after giving effect to all amounts requested) at any one time
equal to such Lender’s Commitment minus such Lender’s Commitment Percentage of
the sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations,
provided that the sum of the outstanding amount of the Revolving Credit Loans
(after giving effect to all amounts requested) plus Swing Line Loans plus the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not at
any time exceed the lesser of (i) the Total Commitment at such time and (ii) the
Borrowing Base at such time.  The
Revolving Credit Loans shall be made pro rata in accordance with each Lender’s
Commitment Percentage.  Each request for
a Revolving Credit Loan hereunder shall constitute a representation and
warranty by the Borrower that the conditions set forth in §11 and §12, in the
case of the initial Revolving Credit Loans to be made on the Closing Date, and
§12, in the case of all other Revolving Credit Loans, have been satisfied on
the date of such request.


 


2.2.         Commitment
Fee.  The Borrower agrees to pay to
the Agent for the accounts of the Lenders in accordance with their respective
Commitment Percentages a commitment fee (the “Commitment Fee”) calculated at
the rate per annum of three quarters of one percent (0.75%) of the average daily
amount during each calendar quarter or portion thereof from the date hereof to
the Maturity Date by which the Total Commitment minus the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations exceeds the outstanding
amount of Revolving Credit Loans during such calendar quarter.  The Commitment Fee shall be payable quarterly
in arrears on the last day of each calendar quarter for the immediately
preceding calendar quarter commencing on the first such date following the date
hereof, with a final payment on the Maturity Date or any earlier date on which
the Commitments shall terminate.


 


2.3.         Reduction
of Total Commitment.  The
Borrower shall have the right at any time and from time to time upon five (5) Business
Days’ prior written notice to the Agent to reduce by the minimum amount of
$5,000,000 and integral multiples of $1,000,000 thereafter or to terminate
entirely the Total Commitment, whereupon the Commitments of the Lenders shall
be reduced pro rata in accordance with their respective Commitment Percentages
of the amount specified in such notice or, as the case may be, terminated.  Promptly after receiving any notice of the
Borrower delivered pursuant to this §2.3, the Agent will notify the Lenders of
the substance thereof.  Upon the
effective date of any such reduction or termination, the Borrower shall pay to
the Agent for the respective accounts of the Lenders the full amount of any
Commitment Fee then accrued on the amount of the reduction.  No reduction or termination of the Commitments
may be reinstated.


 


2.4.         The
Notes.  The Revolving Credit Loans
shall be evidenced by separate promissory notes of the Borrower in
substantially the form of Exhibit B hereto (each a “Note”), dated as of
the Closing Date (or such other date on which a Lender may become a party
hereto in accordance with §15) and completed with appropriate insertions.  One Note shall be payable to the order of
each Lender in a principal amount equal to such Lender’s Commitment or, if
less,


 


25

















 


the
outstanding amount of all Revolving Credit Loans made by such Lender, plus
interest accrued thereon, as set forth below. 
The Borrower irrevocably authorizes each Lender to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of such Lender’s receipt of any payment of principal on such Lender’s
Note, an appropriate notation on such Lender’s Note Record reflecting the
making of such Revolving Credit Loan or (as the case may be) the receipt of
such payment.  The outstanding amount of
the Revolving Credit Loans set forth on such Lender’s Note Record shall be
prima facie evidence of the principal amount thereof owing and unpaid to such
Lender as described in §5.2, but the failure to record, or any error in so
recording, any such amount on such Lender’s Note Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any Note to
make payments of principal of or interest on any Note when due.


 


2.5.         Interest
on Revolving Credit Loans. 
Except as otherwise provided in §5.10,


 


2.5.1.1.           Each Revolving Credit Loan
which is a Base Rate Loan shall bear interest for the period commencing with
the Drawdown Date thereof and ending on the last day of the Interest Period
with respect thereto at the rate per annum equal to the Base Rate plus the
Applicable Margin with respect to Base Rate Loans as in effect from time to
time.


 


2.5.1.2.           Each Revolving Credit Loan
which is a LIBOR Rate Loan shall bear interest for the period commencing with
the Drawdown Date thereof and ending on the last day of the Interest Period
with respect thereto at the rate per annum equal to the LIBOR Rate determined
for such Interest Period plus the Applicable Margin with respect to LIBOR Rate
Loans as in effect from time to time.


 


The Borrower promises to pay
interest on each Revolving Credit Loan in arrears on each Interest Payment Date
with respect thereto.


 


2.6.         Requests
for Revolving Credit Loans.  The Borrower shall give to the Agent written
notice in the form of Exhibit C hereto (or telephonic notice confirmed in
a writing in the form of Exhibit C hereto) of each Revolving Credit Loan
requested hereunder (a “Revolving Credit Loan Request”) by 11:00 a.m. (New
York time) no less than (a) one (1) Business Day prior to the
proposed Drawdown Date of any Base Rate Loan and (b) three (3) LIBOR
Business Days prior to the proposed Drawdown Date of any LIBOR Rate Loan.  Each such notice shall specify (i) the
principal amount of the Revolving Credit Loan requested, (ii) the proposed
Drawdown Date of such Revolving Credit Loan, (iii) the Interest Period for
such Revolving Credit Loan and (iv) the Type of such Revolving Credit
Loan.  Promptly upon receipt of any such
notice, the Agent shall notify each of the Lenders thereof.  Each Revolving Credit Loan Request shall be
irrevocable and binding on the Borrower and shall obligate the Borrower to
accept the Revolving Credit Loan requested from the Lenders on the proposed
Drawdown Date.  Each Revolving Credit
Loan Request shall be in a minimum aggregate amount of $1,000,000 and shall be
in integral multiples of $500,000 or, if less, the remaining unutilized amount
of the Total Commitment.


 


26

















 


2.7.         Conversion
Options.


 


2.7.1.      Conversion
to Different Type of Revolving Credit Loan.  The Borrower may elect from time to time to
convert any outstanding Revolving Credit Loan to a Revolving Credit Loan of
another Type, provided that (a) with respect to any such conversion of a
LIBOR Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least
one (1) Business Day prior written notice of such election; (b) with
respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the
Borrower shall give the Agent at least three (3) LIBOR Business Days prior
written notice of such election; (c) with respect to any such conversion
of a LIBOR Rate Loan into a Base Rate Loan, such conversion shall only be made
on the last day of the Interest Period with respect thereto unless the Borrower
pays all amounts owing pursuant to §5.8 herein on the date of such conversion
and (d) no Revolving Credit Loan may be converted into a LIBOR Rate Loan
when any Default or Event of Default has occurred and is continuing.  On the date on which such conversion is being
made each Lender shall take such action as is necessary to transfer its
Commitment Percentage of such Revolving Credit Loans to its Domestic Lending
Office or its LIBOR Lending Office, as the case may be.  All or any part of outstanding Revolving
Credit Loans of any Type may be converted into a Revolving Credit Loan of
another Type as provided herein, provided that any partial conversion shall be
in an aggregate principal amount of $1,000,000 or a whole multiple
thereof.  Each Conversion Request
relating to the conversion of a Loan to a LIBOR Rate Loan shall be irrevocable
by the Borrower.


 


2.7.2.      Continuation
of Type of Revolving Credit Loan.  Any Revolving Credit Loan of any Type may,
upon the expiration of an Interest Period with respect thereto, be (a) continued
as a Revolving Credit Loan of the same Type or (b) converted to a
Revolving Credit Loan of a different Type by compliance by the Borrower with
the notice provisions contained in §2.7.1; provided that no LIBOR Rate Loan may
be continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto ending during the continuance
of any Default or Event of Default of which officers of the Agent active upon
the Borrower’s account have actual knowledge. 
In the event that the Borrower fails to provide any such notice with
respect to the continuation of any LIBOR Rate Loan as such, then such LIBOR
Rate Loan shall be automatically converted to a Base Rate Loan on the last day
of the first Interest Period relating thereto. 
The Agent shall notify the Lenders promptly when any such automatic
conversion contemplated by this §2.7 is scheduled to occur.


 


2.7.3.      LIBOR
Rate Loans.  Any
conversion to or from LIBOR Rate Loans shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of all LIBOR Rate Loans having the same Interest Period shall
not be less than $1,000,000 and shall be in integral multiples of $500,000.


 


2.8.         Funds
for Revolving Credit Loan.


 


2.8.1.      Funding
Procedures.  Not later
than 2:00 p.m. (New York time) on the proposed Drawdown Date of any Revolving
Credit Loans, and provided that each of the Lenders have been given notice of
the Revolving Credit Loan Request, each of the Lenders will make available to
the Agent, at the Agent’s Office, in immediately available funds, the amount of
such Lender’s Commitment Percentage of the amount of the requested Revolving
Credit Loans.  Upon receipt from each
Lender of such amount, and upon receipt of the documents required by §§11 and
12 and the satisfaction of the other conditions set forth therein, to the extent
applicable, the


 


27

















 


Agent
will make available to the Borrower the aggregate amount of such Revolving
Credit Loans made available to the Agent by the Lenders.  The failure or refusal of any Lender to make
available to the Agent at the aforesaid time and place on any Drawdown Date the
amount of its Commitment Percentage of the requested Revolving Credit Loans
shall not relieve any other Lender from its several obligation hereunder to
make available to the Agent the amount of such other Lender’s Commitment
Percentage of any requested Revolving Credit Loans.


 


2.8.2.      Advances
by Agent.  The Agent
may, unless notified to the contrary by any Lender prior to a Drawdown Date,
assume that such Lender has made available to the Agent on such Drawdown Date
the amount of such Lender’s Commitment Percentage of the Revolving Credit Loans
to be made on such Drawdown Date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the Borrower
a corresponding amount.  If any Lender
makes available to the Agent such amount on a date after such Drawdown Date,
such Lender shall pay to the Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Agent for federal funds acquired by
the Agent during each day included in such period, times (b) the amount of
such Lender’s Commitment Percentage of such Revolving Credit Loans, times (c) a
fraction, the numerator of which is the number of days that elapse from and
including such Drawdown Date to the date on which the amount of such Lender’s
Commitment Percentage of such Revolving Credit Loans shall become immediately
available to the Agent, and the denominator of which is 360.  A statement of the Agent submitted to such
Lender with respect to any amounts owing under this paragraph shall be prima
facie evidence of the amount due and owing to the Agent by such Lender.  If the amount of such Lender’s Commitment
Percentage of such Revolving Credit Loans is not made available to the Agent by
such Lender within three (3) Business Days following such Drawdown Date,
the Agent shall be entitled to recover such amount from the Borrower on demand,
with interest thereon at the rate per annum applicable to the Revolving Credit
Loans made on such Drawdown Date.


 


2.9.         The
Swing Line.


 


2.9.1.      The
Swing Line Loans.  Subject to
the terms and conditions hereinafter set forth, including without limitation,
§12 hereof, upon notice from the Borrower to the Agent in accordance with
§2.9.2 herein, the Agent agrees to make Swing Line Loans to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Maturity Date in an aggregate amount not to exceed at any time outstanding
$10,000,000 (the “Swing Line Facility”), provided, however, that while the
outstanding amount of all outstanding Swing Line Loans and outstanding
Revolving Credit Loans made by a Lender may exceed such Lender’s Commitment,
the aggregate amount of all Swing Line Loans outstanding shall not exceed the
lesser of (a) the Total Commitment and (b) the Borrowing Base, less
the sum of all Revolving Credit Loans outstanding and the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations.  No Swing Line Loan shall be used for the
purpose of funding the payment of principal of any other Swing Line Loan.  Each Swing Line Borrowing shall be in an
amount of $500,000 or an integral multiple of $100,000 in excess thereof.  Swing Line Loans must be Base Rate Loans
only, and may not be LIBOR Rate Loans and, prior to a Settlement, interest on
such Swing Line Loans shall be for the account of the Agent.  For purposes of §3 through §16 of this Credit
Agreement, unless otherwise specified, the term “Revolving Credit Loans” shall
be deemed to include “Swing Line Loans”.


 


28

















 


2.9.2.      Notice.  Each Swing Line Borrowing shall be made on
notice, given not later than 11:00 a.m. (New York time) on the date of the
proposed Swing Line Borrowing, by the Borrower to the Swing Line Lender and the
Agent.  The Agent shall immediately
advise the Swing Line Lender of the available amount of the Swing Line
Facility.  Each such notice of a Swing
Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone,
telex or telecopier, confirmed immediately in writing, specifying therein the
requested (a) date of such borrowing (the “Swing Line Borrowing Date”), (b) amount
of such borrowing and (c) maturity of such borrowing (which maturity shall
be no later than the fifth (5th) Business Day after the Swing Line Borrowing
Date).  Each Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower.  The Swing Line Lender will make the amount of
the requested Swing Line Loan available to the Agent at the Agent’s Office, in
same day funds not later than 2:00 p.m. (New York time); provided,
however, that the Swing Line Bank shall not advance any Swing Line Loans after
it has received notice from any Lender that a Default or Event of Default has
occurred and stating that no new Swing Line Loans are to be made until such
Default or Event of Default has been cured or waived in accordance with the
provisions of this Credit Agreement.  The
Swing Line Lender shall not be obligated to make any Swing Line Loans at any
time when any Lender has failed (x) to make available to the Agent its pro
rata share of any Revolving Credit Loan or to purchase any Letter of Credit
Participation or (y) to comply with the provisions of §16.1 with respect
to making dispositions and arrangements with the other Lenders, where such
Lender’s share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all of the
Lenders, in each case as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent unless the
Swing Line Lender has entered into arrangements reasonably satisfactory to it
to eliminate the Swing Line Lender’s risk with respect to such delinquent
Lender, which may include cash collateralizing such delinquent Lender’s
Commitment Percentage of the outstanding Swing Line Loans and any such
additional Swing Line Loans to be made. 
After the Agent’s receipt of such funds and upon fulfillment of the
applicable conditions set forth in §11 (for any Swing Line Loan to be made on
the Closing Date) and §12, the Agent will promptly make such funds available to
the Borrower in such manner as the Borrower and the Agent may agree.  Upon written demand by any Swing Line Lender
with an outstanding Swing Line Loan, with a copy of such demand to the Agent,
each other Lender shall purchase from such Swing Line Lender, and such Swing
Line Lender shall sell and assign to each such other Lender, such other Lender’s
pro rata share (determined by its Commitment Percentage) of such outstanding
Swing Line Loan as of the date of such demand, by making available on behalf of
its Domestic Lending Office to the Agent for the account of such Swing Line
Lender, in immediately available funds, an amount equal to the portion of the
outstanding principal amount of such Swing Line Loan to be purchased by such
Lender (a “Settlement”).  In the event
that any bankruptcy, reorganization, liquidation, receivership or similar cases
or proceedings in which the Borrower is a debtor prevents any Lender from
making a Revolving Credit Loan to effect a Settlement to the Swing Line Lender
as contemplated hereby, such Lender will make such dispositions and
arrangements with the other Lenders and the Swing Line Lender with respect to
such Swing Line Loans, either by way of purchase of participations,
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Lender’s share of the outstanding Swing Line Loans and Revolving
Credit Loans being equal, as nearly as may be, to such Lender’s Commitment
Percentage of the outstanding amount of the Swing Line Loans and Revolving
Credit Loans.  The Borrower hereby agrees
to each such sale and assignment.  Each
Lender agrees to purchase its pro rata share (determined by its Commitment
Percentage) of an outstanding Swing Line Loan (a) within two (2) Business
Days of the Business Day on which


 


29

















 


demand
therefor is made by the Swing Line Lender which made such Swing Line Loan,
provided that notice of such demand is given not later than 1:00 p.m. (New
York time) on such Business Day or (b) within two (2) Business Days
of the first Business Day next succeeding such demand if notice of such demand
is given after such time.  Upon any such
assignment by a Swing Line Lender to any other Lender of a portion of a Swing
Line Loan, such Swing Line Lender represents and warrants to such other Lender
that such Swing Line Lender is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to such Swing Line Loan, the Loan Documents or the
Borrower.  If and to the extent that any
Lender shall not have so made the amount of such Swing Line Loan available to
the Agent, such Lender agrees to pay to the Agent for the account of such Swing
Line Lender forthwith on demand by such Swing Line Lender such amount together
with interest thereon, for each day from the date of demand by such Swing Line
Lender until the date such amount is paid to the Agent, at the Federal Funds
Effective Rate.  If such Lender shall pay
to the Agent such amount for the account of such Swing Line Lender on any
Business Day, such amount so paid in respect of principal shall constitute a
Swing Line Loan made by such Lender on such Business Day for purposes of this
Credit Agreement, and the outstanding principal amount of the Swing Line Loan
made by such Swing Line Lender shall be reduced by such amount on such Business
Day.


 


2.9.3.      Repayment
of Swing Line Loans.  Each Swing
Line Loan shall be paid in full by the Borrower (by means of a Revolving Credit
Loan or otherwise) on or before the earlier of (a) the fifth (5th)
Business Day after the Swing Line Borrowing Date for such Swing Line Loan and (b) the
Maturity Date.  The Borrower may at any
time pay, without penalty or premium, all outstanding Swing Line Loans or, in a
minimum amount of $500,000 and increments of $100,000 in excess thereof, any
portion of the outstanding Swing Line Loans, upon notice to the Agent and the
Swing Line Lender.


 


3.             REPAYMENT
OF THE REVOLVING CREDIT LOANS.


 


3.1.         Maturity.  The Borrower promises to pay on the Maturity
Date, and there shall become absolutely due and payable on the Maturity Date,
all of the Revolving Credit Loans and Swing Line Loans outstanding on such
date, together with any and all accrued and unpaid interest thereon.


 


3.2.         Mandatory
Repayments of Revolving Credit Loans.


 


3.2.1.      Borrowing
Base Imbalance.  If at any
time the sum of the outstanding amount of the Revolving Credit Loans, the Swing
Line Loans, the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the lesser of (a) the Total Commitment at such time and (b) the
Borrowing Base at such time, then the Borrower shall immediately pay the amount
of such excess to the Agent for the respective accounts of the Lenders for
application:  first, to any Unpaid Reimbursement
Obligations; second, to the Revolving Credit Loans; and third, to provide to
the Agent cash collateral for Reimbursement Obligations as contemplated by §4.2(b) and
(c).  Each payment of any Unpaid
Reimbursement Obligations or prepayment of Revolving Credit Loans shall be
allocated among the Lenders, in proportion, as nearly as practicable, to each
Reimbursement Obligation or (as the case may be) the respective unpaid
principal amount of each Lender’s Note, with adjustments to the extent
practicable to equalize any prior payments or repayments not exactly in
proportion.


 


30

















 


3.2.2.      Disposition
of Assets.  In addition
to the foregoing, concurrently with the receipt by the Borrower or any
Subsidiary of Net Cash Sale Proceeds from sales or other disposition of assets
(other than in connection with sales or dispositions of assets permitted by Section 9.5.2),
the Borrower shall pay to the Agent for the respective accounts of the Lenders
an amount equal to one hundred percent (100%) of such Net Cash Sale Proceeds,
to be applied in the manner set forth in Section 3.2.1 above.


 


3.3.         Optional
Repayments of Revolving Credit Loans.  The Borrower shall have the right, at its
election, to repay the outstanding amount of the Revolving Credit Loans, as a
whole or in part, at any time without penalty or premium, provided that any
full or partial prepayment of the outstanding amount of any LIBOR Rate Loans
pursuant to this §3.3 may be made only on the last day of the Interest Period
relating thereto unless accompanied by all amounts owing pursuant to §5.8
herein.  The Borrower shall give the
Agent, no later than 11:00 a.m. (New York time) at least one (1) Business
Day’s prior written notice of any proposed prepayment pursuant to this §3.3 of
Base Rate Loans, and three (3) LIBOR Business Days notice of any proposed
prepayment pursuant to this §3.3 of LIBOR Rate Loans, in each case specifying
the proposed date of prepayment of Revolving Credit Loans and the principal
amount to be prepaid.  Each such partial
prepayment of the Revolving Credit Loans shall be in an integral multiple of
$500,000, and shall be applied, in the absence of instruction by the Borrower,
first to the principal of Base Rate Loans and then to the principal of LIBOR
Rate Loans.  Each partial prepayment
shall be allocated among the Lenders, in proportion, as nearly as practicable,
to the respective unpaid principal amount of each Lender’s Note, with
adjustments to the extent practicable to equalize any prior repayments not
exactly in proportion.


 


4.             LETTERS OF CREDIT.


 


4.1.         Letter
of Credit Commitments.


 


4.1.1.      Commitment
to Issue Letters of Credit.  Subject to the terms and conditions hereof
and the execution and delivery by the Borrower of a Letter of Credit Request,
each Issuing Bank, on behalf of the Lenders and in reliance upon the agreement
of the Lenders set forth in §4.1.4 and upon the representations and warranties
of the Borrower contained herein, agrees, in its individual capacity, to issue,
extend and renew for the account of the Borrower one or more standby or
documentary letters of credit (individually, a “Letter of Credit”), in such
form as may be requested from time to time by the Borrower and agreed to by the
respective Issuing Bank; provided, however, that, after giving effect to such
request, (a) the sum of the aggregate Maximum Drawing Amount and all
Unpaid Reimbursement Obligations shall not exceed $10,000,000 at any one time
and (b) the sum of (i) the Maximum Drawing Amount on all Letters of Credit,
(ii) all Unpaid Reimbursement Obligations, and (iii) the amount of
all Revolving Credit Loans outstanding shall not exceed the lesser of (A) the
Total Commitment at such time and (B) the Borrowing Base at such
time.  Notwithstanding the foregoing, no
Issuing Bank shall have any obligation to issue any Letter of Credit (1) to
remedy the failure of a Lender to advance its pro rata
share of any Revolving Credit Loan, or (2) to support or secure any
Indebtedness of the Borrower or any of its Subsidiaries to the extent that such
Indebtedness was incurred prior to the proposed issuance date of such Letter of
Credit, unless in any such case the Borrower demonstrates to the satisfaction
of the respective Issuing Bank that (x) such prior incurred Indebtedness
was then fully secured by a prior perfected and unavoidable security interest
in collateral provided by the Borrower or such Subsidiary to the proposed
beneficiary of such Letter


 


31

















 


of
Credit or (y) such prior incurred Indebtedness was then secured or
supported by a letter of credit issued for the account of the Borrower or such
Subsidiary and the reimbursement obligation with respect to such letter of
credit was fully secured by a prior perfected and unavoidable security interest
in collateral provided to the issuer of such letter of credit by the Borrower
or such Subsidiary.


 


4.1.2.      Letter
of Credit Requests.  Each Letter
of Credit Request shall be completed to the satisfaction of the respective
Issuing Bank and the completed Letter of Credit Request must be issued to such
Issuing Bank not later than 11:00 a.m. (New York time) on the third (3rd) Business Day prior to
proposed issuance date of the related Letter of Credit.  In the event that any provision of any Letter
of Credit Request shall be inconsistent with any provision of this Credit
Agreement, then the provisions of this Credit Agreement shall, to the extent of
any such inconsistency, govern.


 


4.1.3.      Terms
of Letters of Credit.  Each Letter
of Credit issued, extended or renewed hereunder shall, among other things, (a) provide
for the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (b) have an expiry date (without giving effect to
any renewal options) no later than the date which is thirty (30) days (or, if
the Letter of Credit is confirmed by a confirmer or otherwise provides for one
or more nominated persons, forty-five (45) days) prior to the Maturity
Date.  Each Letter of Credit so issued,
extended or renewed shall be subject to the Uniform Customs and Practice for
Documentary Credits (2007 Revision), International Chamber of Commerce
Publication No. 600 or any successor version thereto adopted by the
respective Issuing Bank in the ordinary course of its business as a letter of
credit issuer and in effect at the time of issuance of such Letter of Credit
(the “Uniform Customs”) or, in the case of a standby Letter of Credit, either
the Uniform Customs or the International Standby Practices (ISP98),
International Chamber of Commerce Publication No. 590, or any successor
code of standby letter of credit practices among banks adopted by the
respective Issuing Bank in the ordinary course of its business as a standby
letter of credit issuer and in effect at the time of issuance of such Letter of
Credit.


 


4.1.4.      Reimbursement
Obligations of Lenders.  Each
Lender severally agrees that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Lender’s Commitment Percentage, to
reimburse the respective Issuing Bank on demand for the amount of each draft
paid by such Issuing Bank under each Letter of Credit to the extent that such
amount is not reimbursed by the Borrower pursuant to §4.2 (such agreement for a
Lender being called herein the “Letter of Credit Participation” of such
Lender).


 


4.1.5.      Participations
of Lenders.  Each such
payment made by a Lender shall be treated as the purchase by such Lender of a
participating interest in the Borrower’s Reimbursement Obligation under §4.2 in
an amount equal to such payment.  Each
Lender shall share in accordance with its participating interest in any interest
which accrues pursuant to §4.2.


 


4.2.         Reimbursement
Obligation of the Borrower.  In order to induce each Issuing Bank to
issue, extend and renew each Letter of Credit and the Lenders to participate
therein, the Borrower hereby agrees to reimburse or pay to the respective
Issuing Bank, for the account of


 


32

















 


the
respective Issuing Bank or (as the case may be) the Lenders, with respect to
each Letter of Credit issued, extended or renewed by the respective Issuing
Bank hereunder,


 


(a)           except as otherwise
expressly provided in §4.2(b) and (c), on each date that any draft
presented under such Letter of Credit is honored by the respective Issuing
Bank, or the respective Issuing Bank otherwise makes a payment with respect
thereto, (i) the amount paid by the respective Issuing Bank under or with
respect to such Letter of Credit, and (ii) the amount of any taxes, fees,
charges or other costs and expenses whatsoever incurred by the respective
Issuing Bank or any Lender in connection with any payment made by the
respective Issuing Bank or any Lender under, or with respect to, such Letter of
Credit,


 


(b)           upon the reduction (but not
termination) of the Total Commitment to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be held by the
Agent for the benefit of the Issuing Banks and the Lenders as cash collateral
for all Reimbursement Obligations, and


 


(c)           upon the termination of the
Total Commitment, or the acceleration of the Reimbursement Obligations with
respect to all Letters of Credit in accordance with §13, an amount equal to the
then Maximum Drawing Amount on all Letters of Credit, which amount shall be
held by the Agent for the benefit of the Issuing Banks and the Lenders as cash
collateral for all Reimbursement Obligations.


 


(d)           Each such payment shall be
made to the respective Issuing Bank at such Person’s office in immediately
available funds.  Interest on any and all
amounts remaining unpaid by the Borrower under this §4.2 at any time from the
date such amounts become due and payable (whether as stated in this §4.2, by
acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the respective Issuing Bank on demand at the rate
specified in §5.10 for overdue principal on the Revolving Credit Loans.


 


4.3.         Letter
of Credit Payments.  If any
draft shall be presented or other demand for payment shall be made under any
Letter of Credit, the respective Issuing Bank shall notify the Borrower of the
date and amount of the draft presented or demand for payment and of the date
and time when it expects to pay such draft or honor such demand for
payment.  If the Borrower fails to
reimburse the respective Issuing Bank as provided in §4.2 on or before the date
that such draft is paid or other payment is made by the respective Issuing
Bank, the respective Issuing Bank may at any time thereafter notify the Lenders
of the amount of any such Unpaid Reimbursement Obligation.  No later than 3:00 p.m. (New York time)
on the Business Day next following the receipt of such notice, each Lender
shall make available to the respective Issuing Bank, at the respective Issuing
Bank’s office, in immediately available funds, such Lender’s Commitment Percentage
of such Unpaid Reimbursement Obligation, together with an amount equal to the
product of (a) the average, computed for the period referred to in clause (c) below,
of the weighted average interest rate paid by the respective Issuing Bank for
federal funds acquired by the respective Issuing Bank during each day included
in such period, times (b) the amount equal to such Lender’s Commitment
Percentage of such Unpaid Reimbursement Obligation,


 


33

















 


times
(c) a fraction, the numerator of which is the number of days that elapse
from and including the date the respective Issuing Bank paid the draft
presented for honor or otherwise made payment to the date on which such Lender’s
Commitment Percentage of such Unpaid Reimbursement Obligation shall become
immediately available to the respective Issuing Bank, and the denominator of
which is 360.  The responsibility of the
respective Issuing Bank to the Borrower and the Lenders shall be only to
determine that that the documents (including drafts, if applicable) delivered
under each Letter of Credit in connection with such presentment shall be in
substantial compliance with the terms and conditions of such Letter of Credit.


 


4.4.         Obligations
Absolute.  The
Borrower’s obligations under this §4 shall, absent gross negligence or willful
misconduct, be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to
payment which the Borrower may have or have had against any Issuing Bank, the
Agent, any Lender or any beneficiary of a Letter of Credit.  The Borrower further agrees with each Issuing
Bank, the Agent and the Lenders that the Issuing Banks, the Agent and the
Lenders shall, absent gross negligence or willful misconduct, not be
responsible for, and the Borrower’s Reimbursement Obligations under §4.2 shall
not be affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even if such documents should in fact prove to
be in any or all respects invalid, fraudulent or forged, or any dispute between
or among the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of
any Letter of Credit or any such transferee. 
The Issuing Banks, the Agent and the Lenders shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit.  The Borrower agrees that any
action taken or omitted by the Agent or any Lender under or in connection with
each Letter of Credit and the related drafts and documents, if done in good
faith, shall be binding upon the Borrower and shall not result in any liability
on the part of the Agent or any Lender to the Borrower, unless a court of
competent jurisdiction has issued a final nonappealable judgment that such
action amounted to gross negligence or willful misconduct by the Agent or the
Lender, as the case may be.


 


4.5.         Reliance
by Issuer.  To the
extent not inconsistent with §4.4, the respective Issuing Bank shall be
entitled to rely, and shall be fully protected in relying upon, any Letter of
Credit, draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document believed by it in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the respective Issuing Bank.  The respective Issuing Bank shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first have received such advice or concurrence of the Required
Lenders as it reasonably deems appropriate or it shall first be indemnified to
its reasonable satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.  The respective Issuing Bank
shall in all cases be fully protected in acting, or in refraining from acting,
under this Credit Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Lenders and all future holders of the Notes
or of a Letter of Credit Participation.


 


34














 


4.6.                            Letter
of Credit Fee.  The
Borrower shall pay a fee to the respective Issuing Bank (in each case, a
“Letter of Credit Fee”) in respect of each Letter of Credit in an amount equal
to the Applicable Margin then in effect with respect to LIBOR Loans per annum
on the Maximum Drawing Amount of such Letter of Credit, for the accounts of the
Lenders in accordance with their respective Commitment Percentages.  Additionally, the Borrower shall pay to the
respective Issuing Bank, for its own account, a fronting fee (the “Fronting
Fee”) in an amount equal to the greater of (i) Five Hundred Dollars ($500)
for each Letter of Credit and (ii) one-eighth of one percent (0.125%) per
annum on the Maximum Drawing Amount of each Letter of Credit.  In respect of each Letter of Credit, the
Borrower shall also pay to the respective Issuing Bank for the respective
Issuing Bank’s own account, at such other time or times as such charges are
customarily made by the respective Issuing Bank, the respective Issuing Bank’s
customary issuance, amendment, negotiation or document examination and other
administrative fees with respect to letters of credit that the respective
Issuing Bank is generally imposing at such time.  Accrued Letter of Credit Fees, Fronting Fees
and such additional fees (if any) shall be payable quarterly in arrears on the
last day of each calendar quarter.


 


4.7.                            Replacement
of Issuing Bank.  An Issuing
Bank may be replaced at any time by written agreement among the Borrower, the
Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Agent shall notify the Lenders of any
such replacement of an Issuing Bank.  At
the time any such replacement shall become effective, the Borrower shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to § 4.6.  From and after the effective
date of any such replacement, (i) the successor Issuing Bank shall have
all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term “Issuing Bank” shall be deemed to refer to such successor or
to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. 
After the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.


 


5.                                      CERTAIN
GENERAL PROVISIONS.


 


5.1.                            Funds
for Payments.


 


5.1.1.                  Payments
to Agent.  All
payments of principal, interest, Reimbursement Obligations, Fees and any other
amounts due hereunder or under any of the other Loan Documents shall be made on
the due date thereof to the Agent in Dollars, for the respective accounts of
the Lenders and the Agent, at the Agent’s Office or at such other place that
the Agent may from time to time designate, in each case at or about 11:00 a.m.
(New York time or other local time at the place of payment) and in immediately
available funds.


 


5.1.2.                  No
Offset, etc.  All
payments by the Borrower hereunder and under any of the other Loan Documents
shall be made without recoupment, setoff or counterclaim and free and clear of
and without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political subdivision
thereof or taxing or other authority therein with respect to such payments (but
excluding any tax imposed on or measured by the net income, net profits or net
worth of any Lender or the Agent and any franchise taxes imposed on any 


 


35

















 


Lender
or the Agent in each case as a result of a present or former connection between
such Lender or Agent and such jurisdiction or any political subdivision or
taxing authority thereof or therein (other than solely as a result of entering
into this Credit Agreement or any of the other Loan Documents or performing any
obligations, receiving payments or enforcing any rights hereunder or
thereunder) or as a result of any Lender or the Agent not being a U.S. Person)
unless the Borrower is compelled by law to make such deduction or
withholding.  If any such obligation is
imposed upon the Borrower with respect to any amount payable by it hereunder or
under any of the other Loan Documents, the Borrower will pay to the Agent, for
the account of the Lenders or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to enable the
Lenders or the Agent to receive the same net amount which the Lenders or the
Agent would have received on such due date had no such obligation been imposed
upon the Borrower.  The Borrower will
deliver promptly to the Agent certificates or other valid vouchers reasonably
available to it for all taxes or other charges deducted from or paid with
respect to payments made by the Borrower hereunder or under such other Loan
Document.


 


Notwithstanding the
foregoing, the Borrower shall not be obligated to pay any additional amount pursuant
to this §5.1.2 to any Lender or the Agent if such Lender or the Agent is not a
U.S. Person and (a) is legally eligible but fails to comply with the
requirements of §5.1.3 or (b) is not legally eligible to comply with the
requirements of §5.1.3.


 


If the Borrower is required
to pay additional amounts to or for the account of any Lender pursuant to this
§5.1.2, then such Lender will, at the request of the Borrower, change the
jurisdiction of its applicable lending office if such change (i) would
eliminate or reduce any such additional payment which may thereafter accrue and
(ii) is, in such Lender’s sole good faith discretion, determined not to be
non-immaterially disadvantageous or cause non-immaterial hardship to such
Lender; provided that any out-of-pocket costs or expenses that are incurred in
connection with such change shall be borne by the Borrower on behalf of such
Lender.


 


Each Lender and the Agent
agrees that it will, to the extent not non-immaterially disadvantageous or
causing non-immaterial hardship, (y) take all reasonable actions
reasonably requested by the Borrower that are consistent with all legal and
regulatory restrictions applicable to it to maintain all exemptions, if any,
available to it from withholding taxes (whether available by treaty or existing
administrative waiver) and (z) otherwise cooperate with the Borrower to
minimize any amounts payable by the Borrower under this §5.1.2; provided,
however, that in each case, all out-of-pocket costs of each Lender and the
Agent relating to such action or cooperation requested by the Borrower shall be
borne by the Borrower.


 


5.1.3.                  Tax
Forms.  Each Lender (which term, for
purposes of this §5.1.3, shall include the Agent if the Agent is acting as a
Lender) that is not a U.S. Person agrees to deliver to the Borrower and the
Agent on or prior to the Closing Date, or in the case of a Lender that is an
assignee or transferee of an interest under the terms of §15 of this Credit
Agreement (unless such Lender was already a Lender hereunder immediately prior
to such assignment or transfer), on or prior to the date of such assignment or
transfer to such Lender, an accurate, complete and 


 


36

















 


executed
form or certification as may be required in order to establish such Lender’s
entitlement as of such date to a complete exemption from U.S. withholding tax
with respect to payments by the Borrower hereunder and under any of the other
Loan Documents and any other forms or certifications that the Borrower may reasonably
request from time to time.  In addition,
each Lender that is not a U.S. Person agrees that from time to time, when a
lapse in time or change in circumstances renders the previous form or
certification obsolete or inaccurate in any material respect, it will deliver
to the Borrower and the Agent a new accurate, complete and executed form or
certification as may be required in order to confirm or establish such Lender’s
entitlement as of such date to a continued complete exemption from U.S.
withholding tax with respect to payments by the Borrower hereunder and under
any of the other Loan Documents.


 


5.1.4.                  Other
Taxes.  The Borrower shall pay, and
hold the Lenders, the Agent, and its affiliates harmless from and against, any
present or future stamp, documentary, registration, excise, property,
intangibles, transfer, license, sales, use, value added or ad valorem taxes,
charges or similar levies (including any interest and penalties in respect
thereto and associated liabilities, losses, damages and expenses) which arise
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Credit Agreement or any other Loan
Document or the transactions contemplated thereby (hereinafter referred to as
“Other Taxes”) unless arising as a result of any Lender’s or the Agent’s
connection to the taxing jurisdiction (other than solely as a result of
entering into this Credit Agreement or any of the other Loan Documents or
performing any obligations, receiving payments or enforcing any rights
hereunder or thereunder) or as a result of the gross negligence or willful
misconduct of such Lender or the Agent; provided that the Borrower shall not be
liable for any Other Taxes arising from any Lender’s or the Agent’s failure to
give timely notice thereof.  Such Lender
or the Agent, as the case may be, shall give prompt notice to the Borrower of
any assertion of Other Taxes so that the Borrower may, at its option, contest
such assertion.  Such Lender or the
Agent, as the case may be, agrees that the Borrower shall exercise control over
any such contest; provided that (i) no other taxes of such Lender or the
Agent, as the case may be, shall be adversely affected thereby, (ii) the
Borrower shall have acknowledged in writing its liability for such contested
Taxes in the event such contest is not successful; provided that such
acknowledgment of liability will not be binding if the contest is resolved by
the written decision of the taxing authority or a court of competent jurisdiction
which states with reasonable clarity the reasons for sustaining the proposed
adjustment and such reasons would not have resulted in an obligation of the
Borrower to indemnify the Lender or the Agent, as the case may be, in the
absence of such acknowledgment (but provided, further, that the Lender or the
Agent, as the case may be, shall exercise control over any such contest
(including without limitation the right to withhold consent to any settlement
of the contest) with respect to the response (including the manner of making
the response) to any assertion or proposed assertion by the applicable taxing
authority or the Borrower of any such reasons), (iii) no Event of Default
or payment default or bankruptcy default shall have occurred and be continuing,
and (iv) if such contested Taxes are required to be paid prior to or as a
condition of the initiation of such contest, the Borrower shall have paid such
Taxes.  If and to the extent the Borrower
indemnifies the Agent or any Lender for any Other Taxes, the Borrower shall
have all rights of subrogation with respect thereto.  The covenants contained in this Section 5.1.4
shall survive payment or satisfaction in full of all other Obligations.


 


5.1.5.                  Tax
Savings.  If a Lender or the Agent
becomes aware that it has obtained or received a tax refund or credit or other
tax benefit in respect of any amount for which it has 


 


37

















 


been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to §5.1.2, then, within thirty (30) days of
becoming so aware, such Lender or the Agent (as the case may be) shall, if in
its sole discretion it reasonably determines that it can do so without any
non-immaterial adverse consequences for such Lender or the Agent (as the case
may be), reimburse such amount of tax refund or credit or other tax benefit to
the Borrower.  Each Lender and the Agent
agrees to act in good faith with respect to any such refund, credit and other
tax benefits without discriminating against the Borrower.  If and to the extent the Borrower indemnifies
the Agent or any Lender for any taxes, the Borrower shall have all rights of
subrogation with respect thereto.


 


5.2.                            Computations.  All computations of interest on LIBOR Rate Loans
shall be based on a 360-day year and paid for the actual number of days
elapsed.  All computations of interest on
Base Rate Loans and of Commitment Fees, Letter of Credit Fees and all other
fees calculated hereunder shall be based on a 365-day year and paid for the
actual number of days elapsed.  Except as
otherwise provided in the definition of the term “Interest Period” with respect
to LIBOR Rate Loans, whenever a payment hereunder or under any of the other Loan
Documents becomes due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding Business Day, and
interest shall accrue during such extension at the rate otherwise applicable
pursuant to §2.5.  The outstanding amount
of the Revolving Credit Loans as reflected on the Note Records from time to
time shall be considered correct and binding on the Borrower absent manifest
error unless within fifteen (15) Business Days after receipt of any notice from
the Agent or any of the Lenders of such outstanding amount, the Borrower shall
notify the Agent or such Lender to the contrary.


 


5.3.                            Inability
to Determine LIBOR Rate.  In
the event, prior to the commencement of any Interest Period relating to any
LIBOR Rate Loan, the Agent shall determine or be notified by the Required
Lenders that (a) adequate and reasonable methods do not exist for
ascertaining the LIBOR Rate that would otherwise determine the rate of interest
to be applicable to any LIBOR Rate Loan during any Interest Period or (b) the
LIBOR Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to the Lenders of making or maintaining
their LIBOR Rate Loans during such period, the Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrower and the Lenders) to the Borrower and the Lenders.  In such event (i) any Revolving Credit
Loan Request for LIBOR Rate Loans or Conversion Request with respect to
conversion of Base Rate Loans to LIBOR Rate Loans shall be automatically
withdrawn and shall, in the case of such a Revolving Credit Loan Request, be
deemed a request for, or in the case of such a Conversion Request, a request
for continuation of, Base Rate Loans, (ii) each LIBOR Rate Loan will
automatically, on the last day of the then current Interest Period relating
thereto, become a Base Rate Loan, and (iii) the obligations of the Lenders
to make LIBOR Rate Loans shall be suspended, in each case, until the Agent
determines in good faith that the circumstances giving rise to such suspension
no longer exist, whereupon the Agent shall promptly so notify the Borrower and
the Lenders.


 


5.4.                            Illegality.  Notwithstanding any other provisions herein,
if any present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Rate Loans, such Lender shall forthwith give notice of
such circumstances to the Borrower and the other Lenders and thereupon (a) the
commitment of such Lender to make LIBOR Rate Loans or convert Base Rate Loans
to LIBOR 


 


38

















 


Rate
Loans shall forthwith be suspended and (b) such Lender’s Revolving Credit
Loans then outstanding as LIBOR Rate Loans, if any, shall be converted
automatically to Base Rate Loans on the last day of each Interest Period
applicable to such LIBOR Rate Loans or within such earlier period as may be
required by law.  The Borrower hereby
agrees promptly to pay the Agent for the account of such Lender, upon demand by
such Lender describing in reasonable detail the nature of such increased costs
and showing the calculation thereof in reasonable detail, any additional
amounts necessary to compensate such Lender for any increased costs incurred by
such Lender in making any conversion made necessary by events described above
in this §5.4, including any interest or fees payable by such Lender to lenders
of funds obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder.


 


5.5.                            Additional
Costs, etc.  If any
present or future applicable 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 the 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 or the Agent by any central bank or
other fiscal, monetary or other authority (whether or not having the force of
law), shall:


 


(a)                                  impose or
increase or render applicable (other than to the extent specifically provided
for elsewhere in this Credit Agreement, including without limitation, to the
extent considered in the calculation of the LIBOR Rate) any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or deposits in
or for the account of, or loans by, or letters of credit issued by, or
commitments of an office of any Lender, or


 


(b)                                 impose on any
Lender or the Agent any other conditions or requirements with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit, the LIBOR
Rate Loans, such Lender’s Commitment to make LIBOR Rate Loans, or any class of
loans, letters of credit or commitments of which any of the LIBOR Rate Loans or
such Lender’s Commitment to make LIBOR Rate Loans forms a part, and the result
of any of the foregoing is:


 


(c)                                  to increase the
cost to any Lender of making, funding, issuing, renewing, extending or
maintaining any of the LIBOR Rate Loans or such Lender’s Commitment to make
LIBOR Rate Loans or any Letter of Credit, or


 


(d)                                 to reduce the
amount of principal, interest, Reimbursement Obligation or other amount payable
to such Lender or the Agent hereunder on account of such Lender’s Commitment to
make LIBOR Rate Loans, any Letter of Credit or any of the LIBOR Rate Loans, or


 


(e)                                  to require such
Lender or the Agent to make any payment or to forego any interest or
Reimbursement Obligation or other sum payable hereunder in respect of any LIBOR
Rate Loans or Letters of Credit, the amount of which payment or foregone
interest or Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed 


 


39

















 


received by such Lender or the Agent from the
Borrower hereunder in respect thereof,


 


then, and in each such case,
the Borrower will, upon demand made by such Lender or (as the case may be) the
Agent at any time and from time to time and as often as the occasion therefor
may arise, pay to such Lender or the Agent such additional amounts as will be
sufficient to compensate such Lender or the Agent for such additional cost,
reduction, payment or foregone interest or Reimbursement Obligation or other
sum.


 


5.6.                            Capital
Adequacy.  If after
the date hereof any Lender or the Agent determines that (a) the adoption
of or change in any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) regarding capital
requirements for Lenders or Lender holding companies or any change in the
interpretation or application thereof by a Governmental Authority with
appropriate jurisdiction, or (b) compliance by such Lender or the Agent or
any corporation controlling such Lender or the Agent with any law, governmental
rule, regulation, policy, guideline or directive (whether or not having the force
of law) of any such entity regarding capital adequacy, has the effect of
reducing the return on such Lender’s or the Agent’s commitment with respect to
any Revolving Credit Loans to a level below that which such Lender or the Agent
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s or the Agent’s then existing policies with respect
to capital adequacy and assuming full utilization of such entity’s capital) by
any amount deemed by such Lender or (as the case may be) the Agent to be
material, then such Lender or the Agent may notify the Borrower of such
fact.  To the extent that the amount of
such reduction in the return on capital is not reflected in the Base Rate or
LIBOR Rate, the Borrower agrees to pay the Agent for the account of each Lender
entitled thereto for the amount of such reduction in the return on capital as
and when such reduction is determined upon presentation by such Lender or (as
the case may be) the Agent of a certificate in accordance with §5.7.  Neither the Agent nor any Lender shall be
entitled to assert any claim under this §5.6 in respect of taxes.  Each of the Lenders and the Agent agrees
that, in the event any of the circumstances of the type described in this §5.6,
it shall allocate such cost increases among its customers in good faith and on
a non-discriminatory basis.


 


5.7.                            Certificate.  A certificate setting forth in reasonable
detail a description of any additional amounts payable pursuant to §§5.5 or 5.6
and the calculations necessary to establish such amounts which are due and a
brief explanation sufficient to evidence the affected Lender’s or the Agent’s
entitlement thereto, submitted by any Lender or the Agent to the Borrower,
shall be conclusive, absent manifest error, that such amounts are due and
owing.  In determining such additional
amounts, each Lender or the Agent will act reasonably and in good faith and
will use allocation and attribution methods which are reasonable.


 


5.8.                            Indemnity.  The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from and against any loss, cost or expense
(excluding loss of anticipated profits) that such Lender may sustain or incur
as a consequence of (a) default by the Borrower in payment of the
principal amount of or any interest on any LIBOR Rate Loans as and when due and
payable, including any such loss or expense arising from interest or fees
payable by such Lender to banks of funds obtained by it in order to maintain
the respective LIBOR Rate Loan or Loans which are the subject of such default, (b) default
by the Borrower in making a borrowing or conversion after the Borrower has
given (or is deemed to have given) a Revolving Credit Loan 


 


40

















 


Request
or a Conversion Request relating thereto in accordance with §2.6 or §2.7 or (c) the
making of any payment of a LIBOR Rate Loan or the making of any conversion of
any such Revolving Credit Loan to a Base Rate Loan on a day that is not the
last day of the applicable Interest Period with respect thereto, including
interest or fees payable by such Lender to lenders of funds obtained by it in
order to maintain any such Revolving Credit Loans.


 


5.9.                            Limitation
on Increased Costs. 
Notwithstanding anything to the contrary contained in §5.4, 5.5 or 5.6,
unless a Lender or the Agent gives notice to the Borrower that it is obligated
to pay an amount under any such Section within ninety (90) days after the
later of (a) the date such Lender or the Agent (as the case may be) actually
incurs the respective increased costs, loss, expense or liability, or reduction
in return on capital and (b) the date such Lender or the Agent (as the
case may be) has actual knowledge of its incurrence of the respective increased
costs, loss, expense or liability, or reduction in the return on capital, then
such Lender or the Agent (as the case may be) shall only be entitled to be
compensated for such amount by the Borrower pursuant to said §5.4, 5.5 or 5.6
(as the case may be) to the extent the costs, loss, expense or liability, or
reduction in return on capital are incurred or suffered on or after the date
which occurs ninety (90) days prior to such Lender or the Agent giving notice
to the Borrower that it is obligated to pay the respective amounts pursuant to
said §5.4, 5.5 or 5.6 (as the case may be).


 


5.10.                     Interest
After Default.  Upon the
occurrence and during the continuance of any Event of Default, and upon notice
from the Agent to the Borrower, amounts due and payable under any of the Loan
Documents shall bear interest (compounded monthly and payable on demand in
respect of overdue amounts) at a rate per annum which is equal to two percent
(2%) above the rate of interest otherwise applicable to such amounts (or if no
rate of interest is otherwise applicable, two percent (2%) above the Base Rate)
until such amount is paid in full or (as the case may be) such Event of Default
has been cured or waived in writing by the Lenders (after as well as before
judgment).


 


6.                                      COLLATERAL
SECURITY AND GUARANTIES.


 


6.1.                            Security
of Borrower.  The
Obligations shall be secured by a perfected first priority security interest
(subject only to Permitted Liens) in favor of the Agent on behalf of the
Lenders in all of the assets of the Borrower which are the subject of the
Security Documents, whether now owned or hereafter acquired, pursuant to the
terms of the Security Documents to which the Borrower is a party.


 


6.2.                            Guaranties
and Security of Restricted Subsidiaries.  The Obligations shall also be guaranteed
pursuant to the terms of the Guaranties entered into by each Restricted
Subsidiary in existence on the Closing Date and each new Restricted Subsidiary
in accordance with the provisions of Section 8.14 of this Agreement from
time to time.  The obligations of the Restricted
Subsidiaries under the Guaranties shall be in turn secured by a perfected first
priority security interest (subject only to Permitted Liens) in favor of the
Agent on behalf of the Lenders in all of the assets of each such Restricted
Subsidiary, whether now owned or hereafter acquired, which are the subject of
the Security Documents pursuant to the terms of the Security Documents to which
each such Restricted Subsidiary is a party.


 


41

















 


7.                                      REPRESENTATIONS
AND WARRANTIES.


 


The Borrower represents and
warrants to the Lenders and the Agent as follows (it being understood and
agreed that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct only as of such
specified date):


 


7.1.                            Corporate
Authority.


 


7.1.1.                  Incorporation;
Good Standing.  Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and
in good standing (to the extent the concept applies to such entity) under the
laws of its jurisdiction of incorporation or formation, (b) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated, and (c) is in good standing (to the extent
the concept applies to such entity) and is duly authorized to do business in
each jurisdiction where such qualification is necessary except where a failure
to be so qualified would not reasonably be expected to have a Material Adverse
Effect.


 


7.1.2.                  Authorization.  The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the Borrower or any
of its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (a) are within the corporate (or the
equivalent company) authority of such Person, (b) have been duly
authorized by all necessary corporate (or the equivalent company) proceedings, (c) do
not and will not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which the Borrower or any
of its Subsidiaries is subject or any judgment, order, writ, injunction,
license or permit applicable to the Borrower or any of its Subsidiaries and (d) do
not conflict with any provision of the Governing Documents of, or any material
agreement or other instrument binding upon, the Borrower or any of its
Subsidiaries.


 


7.1.3.                  Enforceability.  The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance with
the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditors’
rights and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court before
which any proceeding therefor may be brought.


 


7.2.                            Governmental
Approvals.  The
execution, delivery and performance by the Borrower and any of its Subsidiaries
of this Credit Agreement and the other Loan Documents to which the Borrower or
any of its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than (i) those
already obtained, (ii) filings and other actions necessary to perfect
Liens created by the Loan Documents and (iii) others approvals, consents
and filings which the failure to obtain would not reasonably be expected to
have a Material Adverse Effect.


 


7.3.                            Title
to Properties; Leases. 
Except as indicated on Schedule 7.3 hereto and for transactions after
the date hereof which are not prohibited by this Agreement, the Borrower and


 


42

















 


its
Subsidiaries own all of the material assets reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries as at the Balance Sheet Date
or acquired since that date (except property and assets sold or otherwise
disposed of in the ordinary course of business or as permitted hereunder since
that date), subject to no Liens or other rights of others, except Permitted
Liens.


 


7.4.                            Financial
Statements and Projections.


 


7.4.1.                  Fiscal
Year.  The Borrower and each of its
Subsidiaries has a fiscal year which is the twelve months ending on December 31
of each calendar year.


 


7.4.2.                  Financial
Statements.  There has
been furnished to the Agent and each Lender a consolidated balance sheet of the
Borrower and its Subsidiaries as at the Balance Sheet Date, and a consolidated
statement of income and cash flows of the Borrower and its Subsidiaries for the
fiscal year then ended, audited and certified by Ernst & Young, LLP or
other independent certified public accountants of national standing reasonably
satisfactory to the Agent.  In addition,
there has been furnished to the Agent and each Lender unaudited consolidated
balance sheets and unaudited consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the fiscal quarter ending September 30,
2009.  Such balance sheets and statements
of income and cash flows have been prepared in accordance with GAAP and fairly
present in all material respects the financial condition of the Borrower as at
the close of business on the date thereof and the results of operations for the
fiscal period then ended, subject to year-end audit adjustments and the absence
of footnotes with respect to the quarterly financial statements.  There are no contingent liabilities of the
Borrower or any of its Subsidiaries as of such dates involving material
amounts, known to the officers of the Borrower, which were not disclosed in
such balance sheets and the notes related thereto, subject to year-end audit
adjustments and the absence of footnotes with respect to quarterly financial
statements.


 


7.5.                            Franchises,
Patents, Copyrights, etc.  The
Borrower and each of its Subsidiaries possesses all franchises, patents,
copyrights, trademarks, trade names, licenses and permits, and rights in
respect of the foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with any rights of others
material to the conduct of its business.


 


7.6.                            Litigation.  Except as set forth in Schedule 7.6 hereto,
there are no actions, suits, proceedings or investigations of any kind pending
or threatened against the Borrower or any of its Subsidiaries before any
Governmental Authority (a) as to which there is a reasonable likelihood of
an adverse determination and that, if adversely determined, could reasonably be
expected to, either in any one case or in the aggregate of all such cases, have
a Material Adverse Effect, or (b) as of the date hereof, which question
the validity of this Credit Agreement or any of the other Loan Documents, or
any action taken or to be taken pursuant hereto or thereto.


 


7.7.                            No
Materially Adverse Contracts, etc.  Neither the Borrower nor any of its
Subsidiaries is subject to any Governing Document or other legal restriction,
or any judgment, decree, order, law, statute, rule or regulation that has
or is expected in the future to have a Material Adverse Effect.  Neither the Borrower nor any of its
Subsidiaries is a party to any contract or agreement that has or is expected,
in the judgment of the Borrower’s officers, to have any Material Adverse Effect.


 


43

















 


7.8.                            Compliance
with Other Instruments, Laws, etc.  Neither the Borrower nor any of its
Subsidiaries is in violation of any provision of its Governing Documents, or
any agreement or instrument to which it may be subject or by which it or any of
its properties may be bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could have a
Material Adverse Effect.


 


7.9.                            Tax
Status.  The Borrower and its
Subsidiaries (a) have made or filed all material federal, state and
foreign income and all other tax returns, reports and declarations required to
have been made or filed by any jurisdiction to which any of them is subject, (b) have
paid all material taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (c) have
set aside on their books provisions reasonably adequate for the payment of all
material taxes for periods subsequent to the periods to which such returns,
reports or declarations apply.  There are
no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and none of the officers of the Borrower know of
any basis for any such claim.  The amount
of reserves established by the Borrower and each of its Subsidiaries to cover
the Borrower’s or such Subsidiary’s material sales or use tax obligations in
each jurisdiction where the Borrower or such Subsidiary is required to pay such
taxes is adequate for the payment of all of such obligations.


 


7.10.                     Investment
Company Act.  Neither the
Borrower nor any of its Subsidiaries is an “investment company”, or an
“affiliated company” or a “principal underwriter” of an “investment company”,
as such terms are defined in the Investment Company Act of 1940.


 


7.11.                     Perfection
of Security Interest.  As of the
date hereof, to the extent required by the Security Documents, all filings,
assignments, pledges and deposits of documents or instruments have been made
(or will, within ten (10) days of the Closing Date, be made) and all other
actions have been taken (or will, within ten (10) days of the Closing
Date, be taken) that are necessary or (if requested by the Agent) advisable,
under applicable law, to establish and perfect the Agent’s security interest in
the Collateral.  The Collateral and the
Agent’s rights with respect to the Collateral are not subject to any setoff,
claims, withholdings or other defenses (other than in connection with Permitted
Liens).


 


7.12.                     Employee
Benefit Plans.


 


7.12.1.           In
General.  Each Employee Benefit Plan and
each Guaranteed Pension Plan has been maintained and operated in compliance in
all material respects with the provisions of ERISA and all Applicable Pension
Legislation and, to the extent applicable, the Code, including but not limited
to the provisions thereunder respecting prohibited transactions and the bonding
of fiduciaries and other persons handling plan funds as required by §412 of
ERISA.  The Borrower has heretofore
delivered to the Agent the most recently completed annual report, Form 5500,
with all required attachments, and actuarial statement required to be submitted
under §103(d) of ERISA, with respect to each Guaranteed Pension Plan.


 


7.12.2.           Welfare
Plans.  Except as disclosed on
Schedule 7.11, no Employee Benefit Plan, which is an employee welfare benefit
plan within the meaning of §3(1) or §3(2)(B) of ERISA, provides
benefit coverage subsequent to termination of employment, except as required by
Title I, Part 6 of ERISA or the applicable state insurance laws.


 


44














 


7.12.3.    Guaranteed Pension Plans. 
Each contribution required to be made to a Guaranteed Pension Plan,
whether required to be made to avoid the incurrence of an accumulated funding
deficiency or the notice or lien provisions of §302(f) of ERISA, has been timely
made.  No waiver of an accumulated
funding deficiency or extension of amortization periods has been received with
respect to any Guaranteed Pension Plan, and neither the Borrower nor any ERISA
Affiliate is obligated to or has posted security in connection with an
amendment to a Guaranteed Pension Plan pursuant to §307 of ERISA or §401(a)(29)
of the Code.  No liability to the PBGC
(other than required insurance premiums, all of which have been paid) has been
incurred by the Borrower or any ERISA Affiliate with respect to any Guaranteed
Pension Plan and there has not been any ERISA Reportable Event (other than an
ERISA Reportable Event as to which the requirement of 30 days notice has been
waived), or any other event or condition which presents a material risk of
termination of any Guaranteed Pension Plan by the PBGC.  Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within twelve months of
the date of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of §4001 of ERISA did not exceed
the aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.


 


7.12.4.    Multiemployer Plans. 
Neither the Borrower nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan under §4201 of
ERISA or as a result of a sale of assets described in §4204 of ERISA.  Neither the Borrower nor any ERISA Affiliate
has been notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of §4241 or §4245 of ERISA or is at risk of
entering reorganization or becoming insolvent, or that any Multiemployer Plan
intends to terminate or has been terminated under §4041A of ERISA.


 


7.13.       Environmental Compliance. 
As of the date hereof, all of the Real Estate owned by the Borrower or
any of its Subsidiaries is set forth on Schedule 7.13(a) hereto and all of
the Real Estate leased (as lessee or sublessee) by the Borrower or any of its
Subsidiaries (other than space leases of office space) is set forth on Schedule
7.13(b) hereto.  The Borrower has
made due efforts to investigate the past and present condition and usage of the
Real Estate, the Containers, the Generators, the Refrigeration Units and the
Chassis and the operations conducted thereon and therewith, and based upon such
reasonable investigation, as of the date hereof, has determined (a) with
respect to the Containers, the Generators and the Real Estate listed on
Schedule 7.13(a), and (b) to the best of its knowledge with respect to the
Real Estate listed on Schedule 7.13(b), that:


 


(i)            none of the Borrower, its Subsidiaries or any operator of
the Real Estate, the Containers or the Generators or any operations thereon or
conducted therewith is in violation, or alleged violation, of any judgment,
decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act (“RCRA”), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as amended
(“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986 (“SARA”),
the Federal Clean Water Act, the 


 


45

















 


Federal Clean Air Act, the Toxic Substances
Control Act, or any state, local or foreign law, statute, regulation,
ordinance, order or decree relating to health, safety or the environment
(hereinafter “Environmental Laws”), which violation would have a Material
Adverse Effect;


 


(ii)           neither the Borrower nor any of its Subsidiaries has
received notice from any third party including, without limitation, any
Governmental Authority, (A) that any one of them has been identified by the
United States Environmental Protection Agency (“EPA”) as a potentially
responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B; (B) that any
hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances as
defined by 42 U.S.C. §9601(14), any pollutant or contaminant as defined by 42
U.S.C. §9601(33) and any toxic substances, oil, petroleum or hazardous
materials (including, without limitation, chlorofluorocarbons) or other chemicals
or substances regulated by any Environmental Laws (“Hazardous Substances”)
which any one of them has generated, transported or disposed of has been found
at any site at which a Governmental Authority has conducted or has ordered that
any Borrower or any of its Subsidiaries conduct a remedial investigation,
removal or other response action pursuant to any Environmental Law; or (C) that
it is or shall be a named party to any claim, action, cause of action,
complaint, or legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party’s incurrence of costs, expenses,
losses or damages of any kind whatsoever in connection with the release of
Hazardous Substances;


 


(iii)          except as would not have a Material Adverse Effect:  (A) no portion of the Real Estate, nor
any of the Containers or Generators, have been used for the handling,
processing, storage or disposal of Hazardous Substances except in accordance
with applicable Environmental Laws; (B) in the course of any activities
conducted by the Borrower or its Subsidiaries, no Hazardous Substances have
been generated or are being used on the Real Estate or in connection with the
Containers or Generators except in accordance with applicable Environmental
Laws; (C) there have been no releases (i.e. any past or present releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, disposing or dumping) or threatened releases of Hazardous
Substances on, upon, into or from the properties of the Borrower or its
Subsidiaries; and


 


(iv)          except as would not have a Material Adverse Effect, none of
the Borrower and its Subsidiaries, nor any of the Real Estate is subject to any
applicable Environmental Law requiring the performance of Hazardous Substances
site assessments, or the removal or remediation of Hazardous Substances, or the
giving of notice to any Governmental Authority or the recording or delivery to
other Persons of an environmental disclosure document or statement by virtue of
the 


 


46

















 


transactions set forth herein and
contemplated hereby, or to the effectiveness of any other transactions
contemplated hereby.


 


7.14.       Subsidiaries, etc.  As
of the date hereof, Schedule 7.14 sets forth all the Subsidiaries of the
Borrower and all joint ventures or partnerships between the Borrower or its
Subsidiaries and any other Person.  The
jurisdiction of incorporation/formation and principal place of business of each
Subsidiary of the Borrower, as of the date hereof, is listed on Schedule 7.14
hereto.


 


7.15.       Bank Accounts.  As of
the date hereof, other than accounts maintained with the Agent, the Borrower
maintains the deposit accounts listed on Schedule 7.15 hereto and no other
deposit accounts.  In the event the
Borrower opens or maintains any additional deposit accounts other than the
deposit accounts listed on Schedule 7.15 hereto, the Borrower shall immediately
provide the Agent with notice of such deposit accounts and shall otherwise
comply (to the extent applicable) with the provisions of §4.2 of the Security
Agreement.


 


7.16.       Disclosure.  None of
this Credit Agreement or any of the other Loan Documents contains any untrue
statement of a material fact or omits to state a material fact (known to the
Borrower or any of its Subsidiaries in the case of any document or information
not furnished by it or any of its Subsidiaries) necessary in order to make the
statements herein or therein not misleading.


 


7.17.       Foreign Assets Control Regulations, Etc.  (a)  None of the requesting or borrowing
of the Revolving Credit Loans, the requesting or issuance, extension or renewal
of any Letters of Credit or the use of the proceeds of any thereof will violate
the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the
“Trading With the Enemy Act”) or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) (the “Foreign Assets Control Regulations”) or any enabling legislation
or executive order relating thereto (which for the avoidance of doubt shall
include, but shall not be limited to (a) Executive Order 13224 of September 21,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the
“Executive Order”) and (b) the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Public Law 107-56)).


 


(b)           None of the Borrower, any Subsidiary of the Borrower or
any Affiliate of the Borrower (i) is a Sanctioned Person, (ii) has
more than 10% of its assets in Sanctioned Entities, or (iii) derives more
than 10% of its operating income from investments in, or transactions with
Sanctioned Persons or Sanctioned Entities. 
The proceeds of any Revolving Credit Loan or the issuance or extension
of any Letter of Credit Loan will not be used and have not been used to fund
any operations in, finance any investments or activities in or make any payments
to, a Sanctioned Person or a Sanctioned Entity.


 


7.18.       Appraisal and Valuation Report.  All information submitted by, or on behalf
of, the Borrower to the Appraisal Firm in connection with the preparation of
the Appraisal and Valuation Report and all statements of fact made by, or on
behalf of, the Borrower in connection 


 


47

















 


with
the preparation of the Appraisal and Valuation Report, were, to Borrower’s
knowledge at the time made, not misleading in any material respect.


 


8.             AFFIRMATIVE COVENANTS.


 


The Borrower covenants and
agrees that, so long as any Revolving Credit Loan, Unpaid Reimbursement
Obligation, Letter of Credit or Note is outstanding or any Lender has any
obligation to make any Revolving Credit Loans or the Agent has any obligation
to issue, extend or renew any Letters of Credit:


 


8.1.         [Reserved].


 


8.2.         Maintenance of Office. 
The Borrower will maintain its chief executive office in Park Ridge, New
Jersey, or at such other place in the United States of America as the Borrower
shall designate upon written notice to the Agent, where notices, presentations
and demands to or upon the Borrower in respect of the Loan Documents to which
the Borrower is a party may be given or made.


 


8.3.         Records and Accounts. 
The Borrower will (a) keep, and cause each of its Subsidiaries to
keep proper records and books of account in which full, true and correct
entries in all materials respects will be made in accordance with GAAP, (b) maintain
adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and
the properties of its Subsidiaries, contingencies, and other reserves, and (c) at
all times engage Ernst & Young, LLP or other independent certified
public accountants reasonably satisfactory to the Agent as the independent
certified public accountants of the Borrower and its Subsidiaries and will not
permit more than thirty (30) days to elapse between the cessation of such
firm’s (or any successor firm’s) engagement as the independent certified public
accountants of the Borrower and its Subsidiaries and the appointment in such
capacity of a successor firm as shall be satisfactory to the Agent and each
Lender.


 


8.4.         Financial Statements, Certificates and Information.  The Borrower will deliver to each of the
Lenders:


 


(a)           as soon as practicable, but in any event not later than
one hundred twenty (120) days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such year, and the related consolidated and consolidating
statement of income and consolidated statement of cash flow for such year, each
setting forth in comparative form the figures for the previous fiscal year and
all such consolidated statements to be in reasonable detail, prepared in
accordance with GAAP, audited and certified, without qualification and without
an expression of uncertainty as to the ability of the Borrower or any of its
Subsidiaries to continue as going concerns, by Ernst & Young, LLP or
other independent certified public accountants reasonably satisfactory to the
Agent;


 


(b)           as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of the
Borrower, CLIF, CLIF II and CLIF III, copies of the unaudited consolidated
balance sheet of (i) the Borrower and its Subsidiaries, (ii) CLIF, (iii) CLIF
II and (iv) CLIF III, in each 


 


48

















 


case as at the end of such quarter, and the
related consolidated statement of income and consolidated statement of cash
flow for the portion of the Borrower’s, CLIF’s, CLIF II’s or CLIF III’s, as the
case may be, fiscal year then elapsed, all in reasonable detail and prepared in
accordance with GAAP, together with a certification by the principal financial
or accounting officer of the Borrower that the information contained in such
financial statements fairly presents in all material respects the financial
position of the Borrower and its Subsidiaries, CLIF, CLIF II or CLIF III, as
the case may be, on the date thereof (subject to normal year-end adjustments
made in accordance with GAAP and the absence of footnotes); provided, however,
that if any of CLIF, CLIF II or CLIF III shall hold no assets and have no
outstanding debt during any such fiscal quarter, such entity shall not be
required to deliver the reports described in this clause (b).


 


(c)           simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, (i) a
statement certified by the principal financial or accounting officer of the
Borrower in substantially the form of Exhibit D hereto (a “Compliance
Certificate”) and setting forth in reasonable detail computations evidencing
compliance with the covenants contained in §10 and (if applicable)
reconciliations to reflect changes in GAAP since the Balance Sheet Date and (ii) a
management report in the form of Exhibit J, together with a
bullet-point list of factors affecting market fluctuations analyzed separately
for each business in form and substance as reasonably acceptable to the Agent;


 


(d)           contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities and
Exchange Commission;


 


(e)           (i) within fifteen (15) Business Days after the end
of each calendar month, (ii) within five (5) Business Days of the
Drawdown Date of each Revolving Credit Loan or of the date of issuance,
extension or renewal of each Letter of Credit, (iii) within five (5) Business
Days prior to the date of any removal or sale of any assets from the Borrowing
Base other than asset sales made in the ordinary course of business in an
aggregate amount not to exceed $1,000,000, and (iv) at each other time as
the Agent may reasonably request, a Borrowing Base Report setting forth the
Borrowing Base as at the end of such calendar month, Drawdown Date (which
Borrowing Base Report shall give effect to the transactions to occur on such
Drawdown Date), [sale or
release date (which Borrowing Base Report shall give effect to such sale or
release)] or other date so requested by the Agent;


 


(f)            as soon as available (but in no event later than March 31st of each year), a copy of the annual
consolidated budget for the Borrower and its Subsidiaries for each fiscal year;


 


(g)           together with the quarterly financials delivered pursuant
to §8.3(b), a separate calculation of the utilization rate for the Eligible
Containers as a  group and the Eligible
Chassis as a group and a separate weighted average calculation of the per diem
rate for the preceding fiscal quarter for the Eligible Containers as a group
and the Eligible Chassis as a group; and


 


49

















 


(h)           from time to time such other financial data and
information (including accountants’ management letters) as the Agent or any
Lender may reasonably request.


 


8.5.         Notices.


 


8.5.1.      Defaults.  The
Borrower will, within three (3) days of the occurrence thereof, notify the
Agent in writing of the occurrence of any Default or Event of Default, together
with a reasonably detailed description thereof, and the actions the Borrower
proposes to take with respect thereto. 
If any Person shall give any notice (including a notice of an event of
termination or an early amortization event, if applicable, under the Note
Placement 2006-1 or any Permitted Securitization) or take any other enforcement
action in respect of a claimed default (whether or not constituting an Event of
Default) under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other obligation to which or with respect to which
the Borrower or any of its Subsidiaries is a party or obligor, whether as
principal, guarantor, surety or otherwise, the Borrower shall forthwith give
written notice thereof to the Agent and each of the Lenders, describing the
notice or action and the nature of the claimed default.


 


8.5.2.      Environmental Events. 
The Borrower will provide notice to the Agent within ten (10) days (a) of
any violation of any Environmental Law that the Borrower or any of its
Subsidiaries reports in writing or is reportable by such Person (to the extent
that such violation is known or knowable to such Person after reasonable
investigation and diligence) in writing (or for which any written report
supplemental to any oral report is made) to any Governmental Authority and (b) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency or any Governmental Authority of a
potential environmental liability that would have a Material Adverse Effect.


 


8.5.3.      Notification of Claim against Collateral.  The Borrower will, within three (3) days
of becoming aware thereof, notify the Agent in writing of any Lien upon any of
the Collateral having an aggregate value of $500,000 or more.


 


8.5.4.      Notice of Litigation and Judgments.  The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Agent and each of the Lenders in writing within
fifteen (15) days of becoming aware of any litigation or proceedings threatened
in writing or any pending litigation and proceedings affecting the Borrower or
any of its Subsidiaries or to which the Borrower or any of its Subsidiaries is
or becomes a party involving an uninsured claim against the Borrower or any of
its Subsidiaries that could reasonably be expected to have a Material Adverse
Effect on the Borrower or any of its Subsidiaries and stating the nature and
status of such litigation or proceedings. 
The Borrower will, and will cause each of its Subsidiaries to, give
notice to the Agent and each of the Lenders, in writing, in form and detail
satisfactory to the Agent, within ten (10) days of any judgment not
covered by insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $1,000,000.


 


8.5.5.      Notices Concerning Tax Treatment.  In the event the Borrower determines to take
any action inconsistent with its intention to not treat the Revolving Credit
Loans, Letters of Credit and/or related transactions hereunder as a “reportable
transaction” (within the meaning of Treasury Regulation Section 1.6011-4),
it will promptly notify the Agent 


 


50

















 


in
writing thereof and will provide the Agent with a duly completed copy of IRS Form 8886
or any successor form.


 


8.6.         Legal Existence; Maintenance of Properties.  The Borrower will do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence, rights and franchises and those of its Subsidiaries, except as
otherwise contemplated or not prohibited by this Credit Agreement.  It (a) will cause all of its properties
and those of its Subsidiaries material to the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition,
repair and working order, ordinary wear and tear excepted, and supplied with
all necessary equipment, (b) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
and (c) will, and will cause each of its Subsidiaries to, continue to
engage primarily in the businesses now conducted by them and in related
businesses; provided, that nothing in this §8.6 shall prevent the Borrower from
discontinuing the operation and maintenance of any of its properties or any of
those of its Subsidiaries if such discontinuance is, in the judgment of the
Borrower, desirable in the conduct of its or their business and does not in the
aggregate have a Material Adverse Effect.


 


8.7.         Insurance.  The
Borrower will, and will cause each of its Subsidiaries or lessees to, maintain
with financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall be
in accordance with the general practices of businesses engaged in similar
activities in similar geographic areas and in amounts, containing such terms,
in such forms and for such periods as may be reasonable and prudent.


 


8.8.         Taxes.  The Borrower
will, and will cause each of its Subsidiaries to, duly pay and discharge, or
cause to be paid and discharged, before the same shall become overdue, all
material taxes, assessments and other governmental charges imposed upon it and
its properties, sales and activities, or any part thereof, or upon the income
or profits therefrom, as well as all material claims for labor, materials, or
supplies that if unpaid might by law become a Lien or charge upon any of its
property; provided, that any such tax, assessment, charge, levy or claim need
not be paid if the validity or amount thereof shall currently be contested in
good faith by appropriate proceedings and if the Borrower or such Subsidiary
shall have set aside on its books adequate reserves with respect thereto; and
provided, further, that the Borrower and each Subsidiary of the Borrower will
pay all such material taxes, assessments, charges, levies or claims forthwith
upon the commencement of proceedings to foreclose any Lien that may have
attached as security therefor.


 


8.9.         Inspection of Properties and Books, etc.


 


8.9.1.      General.  The Borrower
shall permit the Agent or any of its designated representatives:


 


(a)           if no Default or Event of Default then exists, at the
expense of the Lenders and at such reasonable times and intervals as the Agent
or any Lender may reasonably request in writing, to visit and inspect any of
the properties of the Borrower or any of its Subsidiaries, to examine the books
of account of the Borrower and its Subsidiaries (and to make copies thereof and
extracts 


 


51

















 


therefrom), and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with, and to be
advised as to the same by, its and their officers, and to conduct examinations
and verifications (whether by internal commercial finance examiners or
independent auditors) of all components included in the Borrowing Base; and


 


(b)           if a Default or Event of Default then exists, at the
expense of the Borrower at all such times and as often as the Agent requests,
to visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of the Borrower and its Subsidiaries
with, and to be advised as to the same by, its and their officers, and to
conduct examinations and verifications (whether by internal commercial finance
examiners or independent auditors) of all components included in the Borrowing
Base.


 


8.9.2.      Commercial Finance Examinations.  Once during each calendar year, or more
frequently if the Agent reasonably determines or if an Event of Default shall
have occurred and be continuing, upon the request of the Agent, the Borrower
will obtain and deliver to the Agent or, if the Agent so elects, will cooperate
with the Agent in obtaining, a report of an independent commercial finance
examiner satisfactory to the Agent (which may be affiliated with one of the
Lenders) with respect to the Eligible Containers, Eligible Generators and
Eligible Chassis included in the Borrowing Base, which report shall indicate
whether or not the information set forth in the Borrowing Base Report most
recently delivered is accurate and complete in all material respects based upon
a review by such auditors of the Eligible Containers, Eligible Generators and
Eligible Chassis.  Prior to an Event of
Default, one (1) such commercial finance examinations per annum shall be
conducted and made at the expense of the Borrower and any additional commercial
finance examination shall be conducted and made at the expense of the
Lenders.  After the occurrence and during
the continuance of an Event of Default, all such commercial finance examinations
shall be conducted and made at the expense of the Borrower.  The Agent agrees to make all such commercial
finance examinations available to each of the Lenders.


 


8.10.       Compliance with Laws, Contracts, Licenses, and Permits.  The Borrower will, and will cause each of its
Subsidiaries to, comply with (a) all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, (b) the
provisions of its Governing Documents and (c) all material agreements and
instruments by which it or any of its properties may be bound, except where, in
all such instances, the failure to do so, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect.  If any authorization, consent, approval, permit
or license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrower or any of its
Subsidiaries may fulfill any of its obligations hereunder or under any of the
other Loan Documents to which the Borrower or such Subsidiary is a party, the
Borrower will, or (as the case may be) will cause such Subsidiary to,
immediately take or cause to be taken all reasonable steps within the power of
the Borrower or such Subsidiary to obtain such authorization, consent,
approval, permit or license and furnish the Agent and the Lenders with evidence
thereof.


 


52

















 


8.11.       Use of Proceeds.


 


8.11.1.    General.  The Borrower
will use the proceeds of the Revolving Credit Loans and obtain Letters of
Credit solely to Refinance existing Indebtedness of the Borrower and pay any
associated fees and expenses, and for working capital and general corporate
purposes, including capital expenditures.


 


8.11.2.    Regulations U and X. 
No portion of any Revolving Credit Loan is to be used, and no portion of
any Letter of Credit is to be obtained, for the purpose of purchasing or
carrying any “margin security” or “margin stock” as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224.


 


8.11.3.    Ineligible Securities. 
No portion of the proceeds of any Revolving Credit Loans is to be used,
and no portion of any Letter of Credit is to be obtained, for the purpose of
knowingly purchasing, or providing credit support for the purchase of, during
the underwriting or placement period or within thirty (30) days thereafter, any
Ineligible Securities underwritten or privately placed by a Financial
Affiliate.


 


8.12.       Employee Benefit Plans. 
The Borrower will (a) upon the Agent’s request, furnish to the
Agent a copy of the most recent actuarial statement required to be submitted
under §103(d) of ERISA and Annual Report, Form 5500, with all
required attachments, in respect of each Guaranteed Pension Plan, and (b) within
thirty (30) days after receipt or dispatch, furnish to the Agent any notice,
report or demand sent or received in respect of a Guaranteed Pension Plan under
§§302, 4041, 4042, 4043, 4063, 4066 and 4068 of ERISA, or in respect of a
Multiemployer Plan, under §§4041A, 4202, 4219, 4242, or 4245 of ERISA.


 


8.13.       Further Assurances. 
The Borrower will, and will cause each of its Restricted Subsidiaries
to, cooperate with the Agent and execute such further instruments and documents
as the Agent shall reasonably request to satisfactorily effectuate the
transactions contemplated by this Credit Agreement and the other Loan
Documents.


 


8.14.       New Subsidiaries.


 


8.14.1.    New Subsidiary Security Documents.  The Borrower will cause each Restricted
Subsidiary to have executed and delivered each of the following documents
within ten (10) days after the date such Restricted Subsidiary becomes a
Restricted Subsidiary:


 


(a)           the Guaranty substantially in the form of Exhibit F
hereto;


 


(b)           the Restricted Subsidiary Security Agreement substantially
in the form of Exhibit G hereto;


 


(c)           copies of Governing Documents of such Restricted
Subsidiary, and copies of all corporate (or other) action of such Restricted
Subsidiary authorizing its execution and delivery of its Guaranty and its
Restricted Subsidiary Security Agreement, and the transactions contemplated
thereby (in each case, certified as correct and complete copies by the
secretary of such Restricted Subsidiary); and


 


(d)           a legal opinion, satisfactory in form, scope and substance
to the Agent, of counsel which may be internal counsel to the effect that (i) such
Restricted Subsidiary is duly and validly organized and existing under the laws
of 


 


53

















 


its jurisdiction of organization and is in
good standing in such jurisdiction, (ii) such Guaranty and Restricted
Subsidiary Security Agreement have been duly executed and delivered by such
Restricted Subsidiary and are within the corporate objects and purposes of such
Restricted Subsidiary, and (iii) such Guaranty and Restricted Subsidiary
Security Agreement are enforceable in accordance with their terms.


 


8.14.2.    Pledge of New Subsidiary Capital Stock.  The Borrower shall at all times directly or
indirectly through a Restricted Subsidiary own all of the Capital Stock of each
of the Restricted Subsidiaries which are corporations, and such shares shall be
pledged to the Agent, for the benefit of the Agent and the Lenders, pursuant to
and to the extent provided in the Stock Pledge Agreement within ten (10) days
after the date such Restricted Subsidiary becomes a Restricted Subsidiary.  The Borrower shall at all times directly or
indirectly through a Restricted Subsidiary own all of the partnership or joint
venture interests in each of the Restricted Subsidiaries which are partnerships
or joint ventures, and such interests shall at all times be pledged to the
Agent, for the benefit of the Agent and the Lenders, pursuant to and to the
extent provided in a partnership pledge agreement in form and substance
reasonably satisfactory to the Agent.


 


9.             CERTAIN NEGATIVE COVENANTS.


 


The Borrower covenants and
agrees that, so long as any Revolving Credit Loan, Unpaid Reimbursement
Obligation, Letter of Credit or Note is outstanding or any Lender has any obligation
to make any Revolving Credit Loans or the Agent has any obligations to issue,
extend or renew any Letters of Credit:


 


9.1.         Restrictions on Indebtedness.  The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume, guarantee or be
or remain liable, contingently or otherwise, with respect to any Indebtedness
other than:


 


(a)           Indebtedness to the Lenders, the Issuing Bank and the
Agent arising under any of the Loan Documents;


 


(b)           endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;


 


(c)           Indebtedness incurred in connection with the acquisition
or lease after the date hereof of any real or personal property by the Borrower
or such Restricted Subsidiary (including Indebtedness evidenced by Capital
Leases and Synthetic Leases permitted pursuant to § 9.6 herein), provided that (i) the
aggregate principal amount of such Indebtedness of the Borrower and its
Restricted Subsidiaries shall not exceed the aggregate amount of $40,000,000 at
any one time;


 


(d)           Indebtedness existing on the date hereof and listed and
described on Schedule 9.1 hereto and any Refinancing or renewal of such
Indebtedness; provided, that any such Refinancing or renewal does not (i) increase
the aggregate amount of such Indebtedness (except by the amount of any premium
or fee paid or payable in connection with such extension, renewal or
replacement), (ii) 


 


54














 


shorten the Weighted Average Life to Maturity
of, such Indebtedness,  (iii) change,
alter or modify the terms of such Indebtedness in any manner which violates
either §9.8 or the Intercreditor Agreement or (iv) add to the collateral
or other credit support securing such Indebtedness;


 


(e)           Indebtedness of the Borrower
to any of its Restricted Subsidiaries or of any Restricted Subsidiary to the
Borrower or any other Subsidiary of the Borrower; provided, that Indebtedness
of any Subsidiary of the Borrower that is not a Guarantor shall be subject to
§9.3, and guarantees by the Borrower of the obligations of any of its
Subsidiaries or guarantees by any Subsidiary of the obligations of the Borrower
or any its other Subsidiaries; provided, that guarantees by the Borrower or any
Guarantor of obligations of any Subsidiary that is not a Guarantor shall be
subject to §9.3;


 


(f)            Indebtedness of the Borrower
or any Restricted Subsidiary incurred to Refinance the Indebtedness incurred in
connection with a Permitted Securitization and otherwise solely for the purpose
of financing assets of the Borrower and/or its Subsidiaries, provided, that any such Refinancing of a
Permitted Securitization (i) does not increase the aggregate amount of
such Indebtedness or, in the case of any revolving Indebtedness, increase the
maximum permitted amount of such Indebtedness, (ii) does not result in
Indebtedness having a Weighted Average Life to Maturity of less than one year,
or (iii) change, alter or modify the terms of such Indebtedness in any
manner which violates either §9.11 or the Intercreditor Agreement;


 


(g)           Indebtedness of the Borrower
incurred under a Recourse Guaranty issued pursuant to clause (c) of the
definition of the term “Permitted Securitization”, in an aggregate amount not
to exceed Four Hundred Million Dollars ($400,000,000);


 


(h)           Indebtedness under interest
rate protection agreements and hedging agreements which are non-speculative in
nature and are entered into to protect the Borrower and/or its Subsidiaries
against fluctuations in interest rates, currency exchange rates or commodity
prices;


 


(i)            Indebtedness of any Person
that becomes a Restricted Subsidiary of the Borrower after the date hereof,
provided, that such Indebtedness (1) exists at the time such Person
becomes a Restricted Subsidiary of the Borrower, (2) is not created in
contemplation of or in connection with such Person becoming a Subsidiary of the
Borrower and (3) otherwise complies with the provisions of this §9.1
including §9.1(k);


 


(j)            any guaranty of payment not
secured by any assets of the Borrower or any of its Restricted Subsidiaries, in
form and substance satisfactory to the Administrative Agent, issued by the
Borrower with respect to, and not in excess of, the Indebtedness owed by
Seacastle Operating Company Ltd. pursuant to the Seacastle Credit Agreement, as
in effect on the Third Amended and Restated Credit Agreement Effective Date and
without regard to any subsequent 


 


55

















 


amendment to the Seacastle Credit Agreement,
provided that both immediately prior to and after giving effect to the issuance
of such guaranty, no Default or Event of Default is continuing; and


 


(k)           additional Indebtedness of
the Borrower and its Restricted Subsidiaries not to exceed $40,000,000 at any
time outstanding.


 


9.2.         Restrictions
on Liens.


 


9.2.1.      Permitted
Liens.  The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, (a) create or incur
or suffer to be created or incurred or to exist any Lien upon any of its
property or assets of any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (b) transfer any of such property or
assets or the income or profits therefrom for the purpose of subjecting the
same to the payment of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (c) acquire, or agree or
have an option to acquire, any property or assets upon conditional sale or
other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than thirty (30)
days after the same shall have been incurred any Indebtedness or claim or
demand against it that if unpaid might by law or upon bankruptcy or insolvency,
or otherwise, be given any priority whatsoever over its general creditors; or (e) sell,
assign, pledge or otherwise transfer any “receivables” as defined in clause (g) of
the definition of the term “Indebtedness”, with or without recourse; provided,
that the Borrower or any of its Restricted Subsidiaries may create or incur or
suffer to be created or incurred or to exist:


 


(i)            Liens in favor of the
Borrower on all or part of the assets of a Restricted Subsidiary of the
Borrower securing Indebtedness owing by such Restricted Subsidiary of the
Borrower to the Borrower;


 


(ii)           Liens to secure taxes,
assessments and other government charges in respect of obligations not overdue
or which the failure to pay does not result in noncompliance with §8.8 or Liens
on properties to secure claims for labor, material or supplies in respect of
obligations not overdue or which the failure to pay does not result in
noncompliance with §8.8;


 


(iii)          deposits or pledges made in
connection with, or to secure payment of, workmen’s compensation, unemployment
insurance, old age pensions or other social security obligations, and pledges
and deposits to secure the performance of bids, trade contracts, leases,
statutory obligations and other obligations of a like nature, in each case in
the ordinary course of business;


 


(iv)          Liens on properties in
respect of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as execution is not levied
thereunder or in respect of which the Borrower or such Restricted Subsidiary
shall at the time in good faith be 


 


56

















 


prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been obtained
pending such appeal or review;


 


(v)           Liens of carriers,
warehousemen, mechanics and materialmen, and other like Liens on properties, in
existence less than 120 days after the Borrower or such Restricted Subsidiary,
as the case may be, has knowledge thereof and covering assets having a Net Book
Value not in excess of $500,000;


 


(vi)          encumbrances on Real Estate
consisting of easements, rights of way, zoning restrictions, restrictions on
the use of real property and defects and irregularities in the title thereto,
landlord’s or lessor’s liens and other minor Liens, provided, that none of such
Liens (A) interferes materially with the use of the property affected in
the ordinary conduct of the business of the Borrower and its Subsidiaries, and (B) individually
or in the aggregate have a Material Adverse Effect;


 


(vii)         Liens existing on the date
hereof and listed on Schedule 9.2 hereto;


 


(viii)        purchase money security
interests in or purchase money mortgages on real or personal property acquired
after the date hereof to secure purchase money Indebtedness of the type and
amount permitted by §9.1(c), incurred in connection with the acquisition of
such property, which security interests or mortgages cover only the real or
personal property so acquired and, if granted upon any asset included in the
calculation of the Borrowing Base, shall be discharged in full within 120 days
after the date on which such purchase money undertaking has been incurred;


 


(ix)           Liens arising out of the
sale, assignment, pledge or transfer of assets to CLIF, CLIF II, CLIF III or
any Additional Securitization Entities arising in connection with Permitted
Securitizations;


 


(x)            Liens in favor of the Agent
for the benefit of the Lenders and the Agent under the Loan Documents;


 


(xi)           Liens which are granted to
secure any Refinancing or renewal of Indebtedness permitted under §9.1(d) or
§9.1(f); provided, that (A) such Liens encumber the same property (and no
additional assets or property of the Borrower or its Restricted Subsidiaries)
as secured by the Indebtedness that was so Refinanced or renewed (except in
connection with any future financings of newly acquired assets under such
replacement facility), (B) the Liens securing the Indebtedness that was so
Refinanced or renewed were permitted under this §9.2, and (C) the aggregate
amount of Indebtedness secured by such property has not increased as a result
of such Refinancing or renewal (except by the amount of any premium or fee paid
or payable in connection with such extension, 


 


57

















 


renewal or replacement and in connection with
any future financing of newly acquired assets under such replacement facility);


 


(xii)          Liens in favor of lessors of
property leased to the Borrower or a Restricted Subsidiary under §9.1(c);


 


(xiii)         Liens upon assets of the
Borrower and any of its Restricted Subsidiaries subject to Capitalized Leases
or Synthetic Leases to the extent such Capitalized Leases or Synthetic Leases
are permitted by §§ 9.1(c) and 9.6, provided, that (x) such Liens
only secure the payment of Indebtedness arising under such Capitalized Leases
or Synthetic Leases and (y) the Liens encumbering the assets leased in
such Capitalized Leases or Synthetic Leases do not encumber any other assets of
the Borrower or any Subsidiary of the Borrower (other than proceeds of such
leased assets);


 


(xiv)        Liens consisting of
interests of lessees of the Containers, Chassis, Generators and Refrigeration
Units or arising from precautionary UCC financing statement filings regarding
leases entered into in the ordinary course;


 


(xv)         Liens in favor of banks on
items in collection (and the documents related thereto) arising in the ordinary
course of business of the Borrower and its Subsidiaries under Article IV
of the Uniform Commercial Code;


 


(xvi)        Liens existing on any
property or asset of any Person that becomes a Restricted Subsidiary after the
Closing Date pursuant to a Permitted Acquisition that exists prior to the time
such Person becomes a Restricted Subsidiary of the Borrower; provided that (A) such
Lien is not created in contemplation of or in connection with such Person
becoming a Restricted Subsidiary of the Borrower, (B) such Lien shall not
apply to any other property or assets of the Borrower or any of its other
Restricted Subsidiaries, (C) such Lien shall secure only those obligations
which it secures on the date such Person becomes a Restricted Subsidiary of the
Borrower, and (D) the Indebtedness secured by such Lien is permitted
pursuant to §9.1(i);


 


(xvii)       Liens created by the
Borrower pursuant to the CLIF Pledge Agreement, the CLIF III Pledge Agreement
and any substantially similar pledge created by the Borrower with respect to
the Voting Stock and/or Capital Stock of any Additional Securitization Entity
in connection with a Permitted Securitization and any pledge of such Voting
Stock and/or Capital Stock of any Additional Securitization Entity pursuant to
a Recourse Guaranty in connection with a Permitted Securitization of the type
described in clause (c) of the definition of such term; and


 


58

















 


(xviii)      other Liens not permitted
under the foregoing clauses securing Indebtedness or other obligations of the
Borrower and/or its Restricted Subsidiaries permitted under §9.1(k).


 


9.2.2.      Restrictions
on Negative Pledges and Upstream Limitations.  The Borrower will not, nor will it permit any
of its Restricted Subsidiaries to (a) enter into or permit to exist any
arrangement or agreement (excluding the Credit Agreement and the other Loan
Documents) which directly or indirectly prohibits the Borrower or any of its
Restricted Subsidiaries from creating, assuming or incurring any Lien upon its
properties, revenues or assets or those of any of its Restricted Subsidiaries
whether now owned or hereafter acquired, or (b) enter into any agreement,
contract or arrangement (excluding the Credit Agreement and the other Loan
Documents) restricting the ability of any Restricted Subsidiary of the Borrower
to pay or make dividends or distributions in cash or kind to the Borrower, to
make loans, advances or other payments of whatsoever nature to the Borrower, or
to make transfers or distributions of all or any part of its assets to the
Borrower; in each case other than (i) restrictions on specific assets
permitted under §9.2.1, (ii) customary anti-assignment provisions
contained in leases, permit, licensing agreements and other contracts entered
into by the Borrower or such Restricted Subsidiary in the ordinary course of
its business, (iii) restrictions and conditions imposed by any laws, rules or
regulations of any Governmental Authority, (iv) restrictions and
conditions arising under this Credit Agreement and the other Loan Documents, (v) restrictions
and conditions existing on the Closing Date and listed on Schedule 9.2.2 hereto;
provided, however, that the scope or duration of any such restrictions and
conditions shall not be amended or modified subsequent to the Closing Date, (vi) customary
restrictions and conditions contained in agreements relating to the sale of a
Restricted Subsidiary that is permitted pursuant to the terms of this Credit
Agreement and the other Loan Documents pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (vii) restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Credit
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (viii) customary provisions in joint
venture agreements related to Investments that are permitted pursuant to Section 9.3
provided that such restrictions relate solely to the respective joint venture
or the Capital Stock therein, and (ix) restrictions and conditions set
forth in Section 9.13 hereof, and (x) restrictions and conditions
contained in any agreements existing at the time of (and not created in
contemplation of or in connection with) a Permitted Acquisition or other
transaction not prohibited by this Credit Agreement or any other Loan Document,
provided that such restrictions and conditions apply only to the Person or
assets so acquired in connection with such Permitted Acquisition or other
transaction.


 


9.3.         Restrictions
on Investments.  The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
make or permit to exist or to remain outstanding any Investment except
Investments in:


 


(a)           marketable direct or
guaranteed obligations of the United States of America that mature within one (1) year
from the date of purchase by the Borrower;


 


(b)           demand deposits,
certificates of deposit, bank acceptances and time deposits of United States
banks having total assets in excess of $1,000,000,000;


 


59

















 


(c)           securities commonly known as
“commercial paper” issued by a corporation organized and existing under the
laws of the United States of America or any state thereof that at the time of
purchase have been rated and the ratings for which are not less than “P-1” if
rated by Moody’s, and not less than “A-1” if rated by S&P;


 


(d)           Investments existing on the
Closing Date hereof in its Subsidiaries, joint ventures and partnerships or
listed on Schedule 9.3 hereto;


 


(e)           Investments by the Borrower
in CLIF and Additional Securitization Entities in connection with Permitted
Securitizations, provided that such Investments are used exclusively for the
purpose of  financing or Refinancing
Containers, Refrigeration Units, Generators, Chassis, Direct Finance Leases and
other related assets newly financed or Refinanced under such Permitted
Securitization;


 


(f)            Investments consisting of
accounts receivable owing to the Borrower and its Subsidiaries in the ordinary
course of business and payable or dischargeable in accordance with customary
terms;


 


(g)           one or more term loans made
by the Borrower to Seacastle Operating Company Ltd. (either directly or
indirectly through Seacastle, Inc.) the proceeds of which are used by
Seacastle Operating Company Ltd. solely for the purpose of permanently reducing
the principal amount of the loans then outstanding to Seacastle Operating
Company Ltd., as borrower under and pursuant to the Seacastle Credit Agreement,
provided that (both immediately
prior to and after giving effect to each such term loan) (i) no Default or
Event of Default is continuing on the date of such term loan; (ii) each of
Seacastle Inc. and Seacastle Operating Company Ltd. are (x) solvent and (y) not
in default under the Seacastle Credit Agreement on the date of such term loan;
and (iii) no bankruptcy or insolvency proceeding under any applicable law
exists with respect to either Seacastle Inc. or Seacastle Operating Company
Ltd. on the date of each such term loan;


 


(h)           Investments by the Borrower
and its Restricted Subsidiaries in the Borrower or any of its Restricted
Subsidiaries or in the Capital Stock thereof;


 


(i)            Investments received in
connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers, lessees and suppliers arising
in the ordinary course of business;


 


(j)            Investments constituting
expenditures for any purchase or other acquisition of any asset which would be
classified as a fixed or capital asset on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP or Investments
in connection with any permitted Synthetic Lease;


 


(k)           Investments constituting
loans and advances to officers and employees of the Borrower or its
Subsidiaries arising in the ordinary course of 


 


60

















 


business and in a manner with prior
practices, in aggregate amount outstanding not to exceed Five Million Dollars
($5,000,000) at any time outstanding;


 


(l)            Investments pursuant to
transactions permitted under §9.5.1;


 


(m)          Investments by the Borrower
and its Restricted Subsidiaries in Unrestricted Subsidiaries not exceeding
$40,000,000 at any time outstanding so long as neither the Borrower nor any of
its other Restricted Subsidiaries is required to make additional Investments in
connection with any Unrestricted Subsidiaries that, if made, would cause such
Investments to exceed $40,000,000;


 


(n)           other Investments not
exceeding $5,000,000 in the aggregate; and


 


(o)           shares of money market funds
that are subject to the risk limiting conditions of Rule 2a-7 or any
successor rule of the Securities and Exchange Commission under the
Investment Company Act of 1940, as amended.


 


provided, however, that such
Investments will be considered Investments permitted by this §9.3 only if all actions
have been taken to the satisfaction of the Agent to provide to the Agent, for
the benefit of the Lenders and the Agent, a first priority perfected security
interest, free of all Liens other than Permitted Liens, in all of such
Investments (i) of amounts in the Borrower’s collection accounts (and
investments thereof) as provided in the Intercreditor Agreement, (ii) of
proceeds of Collateral, and (iii) of Investments referred to in §9.3(o).


 


9.4.         Restricted
Payments.  The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
make any Restricted Payments if a Default or an Event of Default is then
continuing or would result from such payment; provided,
that (i) the Borrower and its Restricted Subsidiaries may make payments to
its Affiliates with respect to services rendered or products delivered to the
extent not prohibited by §9.11, (ii) any direct or indirect, wholly-owned
Subsidiary of the Borrower may make Distributions to the Borrower or any
Restricted Subsidiary, and (iii) the Borrower and any Restricted
Subsidiary may make Restricted Payments permitted pursuant to §9.5.2(h); provided, notwithstanding the foregoing, CLIF may only make
Distributions to the Borrower.


 


9.5.         Merger,
Consolidation and Disposition of Assets.


 


9.5.1.      Mergers
and Acquisitions.  The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
become a party to any merger, amalgamation or consolidation, or agree to or
effect any asset acquisition of a facility, division or line or business or
acquisition of a majority of the Voting Stock of any Person (other than the
acquisition of assets in the ordinary course of business consistent with past
practices and, for the avoidance of doubt, the purchase of Containers,
Generators, Chassis and Refrigerated Units shall not be prohibited) except (a) Permitted
Acquisitions or (b) if at the time thereof and immediately after giving
effect thereto, no Default or Event of Default shall exist (i) one or more
Subsidiaries of the Borrower may merge or consolidate with and into the
Borrower, and (ii) a Restricted Subsidiary of the Borrower may merge into
another Restricted Subsidiary of the Borrower.


 


9.5.2.      Disposition
of Assets.  The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
become a party to or agree to or effect any sale, transfer, 


 


61

















 


conveyance,
lease or other disposition of assets, other than (a) the sale of
Investments permitted pursuant to §9.3 hereof (other than §§9.3(d) and
(e)); (b) sales permitted under §9.6; (c) the disposition or transfer
of assets by the Borrower or its Restricted Subsidiaries to the Borrower or a
Restricted Subsidiary; (d) the disposition of obsolete or unusable
Containers and Chassis or other assets in the ordinary course of business
consistent with past practices; (e) in connection with the Note Placement
2006-1 and any Permitted Securitization; (f) leases of assets in the
ordinary course of business consistent with past practices; (g) the
disposition of containers, chassis and generator sets and other assets in the
ordinary course of business to the extent that, immediately after giving effect
to such disposition, (i) no Default or Event of Default would exist and (ii) the
net book value of all such assets that was the subject of any asset disposition
in the then current fiscal year of the Borrower (including the proposed asset
disposition) would not exceed 15% of the aggregate amount of all assets of the
Borrower and its Restricted Subsidiaries determined as of the end of the then
most recently ended fiscal year of the Borrower in accordance with GAAP; and (h) any
other disposition of Containers, Chassis, Generators and/or other assets
(including management rights or a sale of equity in Unrestricted Subsidiaries),
whether or not in the ordinary course of business, so long as (i) in the
case of Containers, Chassis and Generators, the sale proceeds from such
disposition are not less than the Net Book Value of the assets sold, (ii) the
Borrower is in compliance with §10.1 immediately after giving effect thereto, (iii) the
Borrower shall have delivered to the Agent a pro forma Borrowing Base Report
setting forth the Borrowing Base after giving effect to the asset sale, and (iv) any
Net Cash Sale Proceeds (after any required secured debt repayments) shall be
distributed by the Borrower or such Restricted Subsidiary as a Restricted
Payment (or through a loan permitted by Section 9.3(g)) to Seacastle, Inc.
in order to repay outstanding principal amounts and permanently reduce existing
commitments under the Seacastle Credit Agreement.


 


9.6.         Sale
and Leaseback.  The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
enter into any arrangement, directly or indirectly, whereby the Borrower or any
Restricted Subsidiary of the Borrower shall sell or transfer any property owned
by it in an aggregate amount in excess of $40,000,000 (such amount being in
addition to any arrangement or transaction resulting in Indebtedness in existence
on the Closing Date and permitted pursuant to §9.1(d)) in order then or
thereafter to lease such property or lease other property that the Borrower or
any Restricted Subsidiary intends to use for substantially the same purpose as
the property being sold or transferred, and provided, that all Indebtedness
(including any Capitalized Lease and Synthetic Lease) incurred in connection
with the transactions of the type described in this §9.6 shall comply with
§§9.1(c), 9.1(d) and 10.1.


 


9.7.         Compliance
with Environmental Laws.  The
Borrower will not, and will not permit any of its Subsidiaries to, (a) use
any of the Real Estate or any portion thereof, or any Containers or Generators,
for the handling, processing, storage or disposal of Hazardous Substances in
any material respect, (b) cause or permit to be located on any of the Real
Estate any underground tank or other underground storage receptacle for
Hazardous Substances, (c) generate any Hazardous Substances on any of the
Real Estate, (d) conduct any activity at any Real Estate or use any Real
Estate in any manner so as to cause a release (i.e. releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping) or threatened release of Hazardous Substances
on, upon or into the Real Estate or (e) otherwise conduct any activity at
any Real Estate or use any Real Estate, Container or Generator in any manner
that would violate in any material respect any Environmental Law or 


 


62

















 


bring
such Real Estate, Container or Generator, as the case may be (with respect to
each clause (a) through e) of this Section), in violation of any
Environmental Law in any material respect.


 


9.8.         Employee
Benefit Plans.  Neither the
Borrower nor any ERISA Affiliate will:


 


(a)           engage in any “prohibited
transaction” within the meaning of §406 of ERISA or §4975 of the Code which
could result in a material liability for the Borrower or any of its
Subsidiaries; or


 


(b)           permit any Guaranteed
Pension Plan to incur an “accumulated funding deficiency”, as such term is
defined in §302 of ERISA, whether or not such deficiency is or may be waived;
or


 


(c)           fail to contribute to any
Guaranteed Pension Plan to an extent which, or terminate any Guaranteed Pension
Plan in a manner which, could result in the imposition of a lien or encumbrance
on the assets of the Borrower or any of its Subsidiaries pursuant to §302(f) or
§4068 of ERISA; or


 


(d)           amend any Guaranteed Pension
Plan in circumstances requiring the posting of security pursuant to §307 of
ERISA or §401(a)(29) of the Code;


 


(e)           permit or take any action
which would result in the aggregate benefit liabilities (with the meaning of
§4001 of ERISA) of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of benefit
liabilities; or


 


(f)            permit or take any action
which would contravene any Applicable Pension Legislation and would have a
Material Adverse Effect.


 


9.9.         Business
Activities.  The
Borrower will not, and will not permit any of its Restricted Subsidiaries to
materially change the general nature of their primary businesses conducted by
them on the Closing Date.


 


9.10.       Fiscal
Year.  The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, change the date of the
end of its fiscal year from that set forth in §7.4.1.


 


9.11.       Transactions
with Affiliates.  Except as
expressly permitted under §§9.1, 9.2, 9.3, 9.4 and 9.5, the Borrower will not,
and will not permit any of its Restricted Subsidiaries to, engage in any
transaction with any Affiliate, including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any such Affiliate or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any such Affiliate has
a substantial interest or is an officer, director, trustee or partner, on terms
more favorable to such Person than would have been obtainable on an
arm’s-length basis in the ordinary course of business; provided,
this Section 9.11 shall not prohibit (a) any of the transactions
between (i) (x) the Borrower and CLIF contemplated by the Indenture
or any Related Document or (y) the Borrower and CLIF III contemplated by
the CLIF III Credit Agreement, or (ii) the Borrower (or any Subsidiary
thereof) and any Additional Securitization 


 


63

















 


Entity
in connection with a Permitted Securitization; provided
further, that the provision in clause (i) above
shall not extend to any amendment, waiver or modification made to the Indenture
or any Related Document subsequent to the Closing Date if the effect of such
amendment, waiver or modification is to materially decrease (1) the amount
of the Management Fee (as defined in the Management Agreement) or (2) the
purchase price which is payable to the Borrower for any assets sold by the
Borrower under any Related Document, or (b) any transaction expressly
permitted pursuant to Section 9.1(j) and Section 9.3(g) hereof.


 


9.12.       Container
Management System.  (a) 
The Borrower agrees that (to the extent of its ownership or other interest
therein) neither it nor any of its Affiliates shall create, incur, assume or
grant or suffer to exist, directly or indirectly, in favor of any Person, any
Lien (other than Permitted Liens) on the Container Management System.  The Borrower shall promptly take or cause to
be taken such actions as may be necessary to discharge any such Lien (other
than Permitted Liens).


 


(b)           In the event that the
Borrower fails to maintain the Manager Transition Threshold (as defined in the
Indenture) or an Early Amortization Event (as defined in the Indenture) or a
Manager Default (as defined in the Indenture) or an Event of Default occurs,
the Borrower shall, to the extent required under the Indenture, cause the
Transition Agent (as defined in the Indenture) to obtain the necessary licenses
for essential servicing software necessary in order to service the assets
included in the Borrowing Base.


 


9.13.       Ownership
Interest in Unrestricted Subsidiaries.  The Borrower agrees that neither it nor any
of its Restricted Subsidiaries or Affiliates shall (i) sell, transfer or
otherwise dispose of the Voting Stock or Capital Stock of CLIF except for any
such sale, transfer or disposition made pursuant to the terms of the CLIF
Pledge Agreement, or (ii) create, incur, assume or grant or suffer to
exist, directly or indirectly, in favor of any Person (A) any Lien on the
Voting Stock or Capital Stock of CLIF other than (x) the Lien created
pursuant to the terms of the CLIF Pledge Agreement and (y) Liens permitted
pursuant to §9.2.1(ii) and (iv), and (B) any Lien on the Voting Stock
of any Unrestricted Subsidiary not covered in clause (A), other than (x) any
Lien created by the Borrower with respect to the Voting Stock and/or Capital
Stock of any Additional Securitization Entity in connection with a Permitted
Securitization pursuant to (I) an agreement that is substantially similar
to the CLIF Pledge Agreement or (II) the terms of a Recourse Guaranty and (y) Liens
permitted pursuant to §9.2.1(ii) and (iv).


 


9.14.       Indebtedness
of CLIF.  The Borrower will not permit
the aggregate amount of Indebtedness of CLIF at any time outstanding to exceed
the sum of (i) the greater of (a) [$610,000,000] or (b) the
Asset Base (as defined in the Indenture) and (ii) the aggregate
Indebtedness evidenced by derivative contracts that CLIF is required or
permitted to maintain pursuant to the terms of the Indenture.


 


10.          FINANCIAL
COVENANTS.


 


The Borrower covenants and
agrees that, so long as any Revolving Credit Loan, Unpaid Reimbursement
Obligation, Letter of Credit or Note is outstanding or any Lender has any
obligation to make any Revolving Credit Loans or the Agent has any obligation
to issue, extend or renew any Letters of Credit:


 


64














 


10.1.       Consolidated
Tangible Net Worth.  The
Borrower will not permit Consolidated Tangible Net Worth at any time to be less
than Two Hundred Million Dollars ($200,000,000), minus the amount, if any, of
any dividend or distribution made by the Borrower to its parent which is then
immediately used to repay or retire amounts owed under the Seacastle Credit
Agreement.  The Borrower shall give
prompt written notice to the Agent and the Lenders of any such distribution and
the resulting recalculation of the Minimum Consolidated Tangible Net Worth.


 


11.          CLOSING
CONDITIONS.


 


In connection with the
execution and delivery of the Original Agreement, the Borrower satisfied all of
the following conditions precedent:


 


11.1.       Loan
Documents, etc.  All
proceedings in connection with the transactions contemplated by this Credit
Agreement, the other Loan Documents and all other documents incident thereto
were satisfactory in substance and in form to the Lenders and to the Agent and
the Agent’s Special Counsel, and the Lenders, the Agent and such counsel
received all information and such counterpart originals or certified or other
copies of such documents as the Agent or any Lender reasonably requested.


 


11.1.1.    Loan
Documents.  Each of the
Loan Documents were duly executed and delivered by the respective parties
thereto, were in full force and effect and were in form and substance
satisfactory to the Agent and each Lender. 
Each Lender received a fully executed copy of each such document.


 


11.2.       Certified
Copies of Governing Documents.  The Agent received from the Borrower a copy,
certified by a duly authorized officer of such Person to be true and complete
on the Original Closing Date, of each of its Governing Documents as in effect
on such date of certification.


 


11.3.       Corporate
or Other Action.  All
corporate (or other) action necessary for the valid execution, delivery and
performance by the Borrower of this Credit Agreement and the other Loan
Documents to which it is or is to become a party were duly and effectively
taken, and evidence thereof satisfactory to the Agent was provided to each of
the Lenders.


 


11.4.       Incumbency
Certificate.  The Agent
received from the Borrower an incumbency certificate, dated as of the Original
Closing Date, signed by a duly authorized officer of the Borrower, and giving
the name and bearing a specimen signature of each individual who was
authorized:  (a) to sign, in the
name and on behalf of the Borrower each of the Loan Documents to which the
Borrower is or is to become a party; (b) to make Revolving Credit Loan
Requests, Notices of Swing Line Borrowing and Conversion Requests and to apply
for Letters of Credit; and (c) to give notices and to take other action on
its behalf under the Loan Documents.


 


11.5.       Validity
of Liens.  The
Security Documents were effective to create in favor of the Agent a legal,
valid and enforceable first (except for Permitted Liens entitled to priority
under applicable law) security interest in and Lien upon the Collateral.  All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of the
Agent to protect and preserve such security interests were duly effected.  The Agent received evidence thereof in form
and substance satisfactory to the Agent.


 


65

















 


11.6.       Perfection
Certificates and UCC Search Results.  The Agent received from the Borrower a
completed and fully executed Perfection Certificate and the results of UCC and
similar domestic searches with respect to the Collateral, indicating no Liens
other than Permitted Liens and otherwise in form and substance satisfactory to
the Agent.


 


11.7.       Financial
Statements; Projections.  The
Agent received (a) the financial statements described in §7.4.2 and (b) financial
projections of the Borrower for 2006 through 2008, in each case in form and
substance reasonably satisfactory to the Agent and each Lender.


 


11.8.       Certificates
of Insurance.  The Agent
received (a) a certificate of insurance from an independent insurance
broker dated as of the Original Closing Date, identifying insurers, types of
insurance, insurance limits, and policy terms, and otherwise describing the
insurance obtained in accordance with the provisions of the Security Agreement
and (b) certified copies of all policies evidencing such insurance (or
certificates therefor signed by the insurer or an agent authorized to bind the
insurer).


 


11.9.       Other
Financings.  The Agent
received from the Borrower evidence acceptable to the Agent and each Lender
that the Note Placement 2006-1 has been consummated on terms and conditions
acceptable to the Agent and the Required Lenders.


 


11.10.     Borrowing
Base Report.  The Agent
received from the Borrower the initial Borrowing Base Report dated as of the
Original Closing Date.


 


11.11.     Solvency
Certificate.  Each of the
Lenders received an officer’s certificate of the Borrower dated as of the
Original Closing Date as to the solvency of the Borrower and its Subsidiaries
following the consummation of the transactions contemplated herein and in form
and substance satisfactory to the Lenders.


 


11.12.     Opinion
of Counsel.  The Agent
received a favorable legal opinion addressed to the Lenders and the Agent,
dated as of the Original Closing Date, in form and substance reasonably
satisfactory to the Agent, from:


 


(a)           Sidley Austin LLP, special
counsel to the Borrower; and


 


(b)           Lisa Leach, Esq.,
general counsel to the Borrower.


 


11.13.     Payment
of Fees.  The Borrower paid to the
Lenders or the Agent, as appropriate, the fees owing on the Original Closing
Date and shall have paid all reasonable outstanding legal and other
professional fees pursuant to §16.2.


 


11A.       CONDITIONS TO EFFECTIVENESS
OF AMENDMENT TO ORIGINAL AGREEMENT


 


The obligation of the
Lenders to enter into this Third Amended and Restated Credit Agreement shall be
subject to the satisfaction of the following conditions precedent:


 


66

















 


11A.1     Representation.


 


Each of the representations
and warranties of any of the Borrower and its Subsidiaries contained in this
Credit Agreement, the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with this Credit Agreement shall be true
as of the Third Amended and Restated Credit Agreement Effective Date.  The Agent shall have received a certificate
of the Borrower signed by an authorized officer of the Borrower to such effect.


 


11A.2     Executed
Agreement.


 


Each of the Loan Documents
shall have been duly executed and delivered by the respective parties thereto,
shall be in full force and effect and shall be in form and substance
satisfactory to the Agent and each Lender. 
Each Lender shall have received a fully executed copy of each such
document.


 


11A.3     Certified
Copies of Governing Documents.


 


The Agent shall have
received from the Borrower a copy, certified by a duly authorized officer of
such Person to be true and complete on the Third Amended and Restated Credit
Agreement Effective Date, of each of its Governing Documents as in effect on
such date of certification.


 


11A.4     Corporate
or Other Action.


 


All corporate (or other)
action necessary for the valid execution, delivery and performance by the
Borrower of this Credit Agreement and the other Loan Documents to which it is
or is to become a party shall be duly and effectively taken, and evidence
thereof satisfactory to the Agent shall have been provided to each of the
Lenders.


 


11A.5     Incumbency
Certificate.


 


The Agent shall have
received from the Borrower an incumbency certificate, dated as of the Third
Amended and Restated Credit Agreement Effective Date, signed by a duly
authorized officer of the Borrower, and giving the name and bearing a specimen
signature of each individual who shall be authorized:  (a) to sign, in the name and on behalf
of the Borrower each of the Loan Documents to which the Borrower is or is to
become a party; (b) to make Revolving Credit Loan Requests, Notices of
Swing Line Borrowing and Conversion Requests and to apply for Letters of
Credit; and (c) to give notices and to take other action on its behalf
under the Loan Documents.


 


11A.6     Payment
of Fees.


 


The Borrower shall have paid
to the Lenders or the Agent, as appropriate, the Fees then due and shall have
paid all reasonable outstanding legal and other professional fees pursuant to
§16.2.


 


11A.7     Delivery
of Note.


 


The Borrower shall have
delivered to the Lender a fully executed Note in the maximum principal amount
of $40,000,000.  Such Note shall replace
any note issued pursuant to the terms of the Original Agreement, and all unpaid
Loans under the Original Agreement shall be evidenced by such Note.


 


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12.          CONDITIONS
TO ALL BORROWINGS.


 


The obligations of the
Lenders to make any Revolving Credit Loan, and of the Agent to issue, extend or
renew any Letter of Credit, in each case whether on or after the Closing Date,
shall also be subject to the satisfaction of the following conditions
precedent:


 


12.1.       Representations
True; No Event of Default.  Each
of the representations and warranties of any of the Borrower and its
Subsidiaries contained in this Credit Agreement, the other Loan Documents or in
any document or instrument delivered pursuant to or in connection with this
Credit Agreement shall be true as of the date as of which they were made and
shall also be true at and as of the time of the making of such Revolving Credit
Loan or the issuance, extension or renewal of such Letter of Credit, with the
same effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or not prohibited by this Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business, in each case referred to above, that singly or in the
aggregate would not have a Material Adverse Effect, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing or would
result from the making of such Revolving Credit Loan or the issuance, extension
or renewal of such Letter of Credit.  The
Agent shall have received a certificate of the Borrower signed by an authorized
officer of the Borrower to such effect.


 


12.2.       Borrowing
Base Report.  The Agent
shall have received the most recent Borrowing Base Report required to be
delivered to the Agent in accordance with §8.4(e) and a Borrowing Base
Report dated as of the Drawdown Date (and giving effect to the transactions to
occur on such Drawdown Date) of such Revolving Credit Loan or of the date of
issuance, extension or renewal of such Letter of Credit.


 


13.          EVENTS
OF DEFAULT; ACCELERATION; ETC.


 


13.1.       Events
of Default and Acceleration.  If any of the following events (“Events of
Default” or, if the giving of notice or the lapse of time or both is required,
then, prior to such notice or lapse of time, “Defaults”) shall occur:


 


(a)           the Borrower shall fail to
pay any principal of the Revolving Credit Loans or any Reimbursement Obligation
when the same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for payment;


 


(b)           the Borrower or any of its
Subsidiaries shall fail to pay any interest on the Revolving Credit Loans, any
Fees, or other sums due hereunder or under any of the other Loan Documents,
within three (3) Business Days of the date the same shall become due and
payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;


 


(c)           the Borrower shall fail to
comply (i) with any of its covenants contained in §§8.12, 9 (with the
exception of 9.7) or 10, or (ii) within ten (10) days after the
delivery dates required therein, with any of its covenants contained in §§8.4
or 8.9;


 


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(d)           the Borrower or any of its
Subsidiaries shall fail to perform any term, covenant or agreement contained
herein or in any of the other Loan Documents (other than those specified
elsewhere in this §13.1) for thirty (30) days after written notice of such
failure has been given to the Borrower by the Agent;


 


(e)           any representation or
warranty of the Borrower or any of its Subsidiaries in this Credit Agreement or
any of the other Loan Documents or in any other document or instrument
delivered pursuant to or in connection with this Credit Agreement shall prove
to have been false in any material respect upon the date when made or deemed to
have been made or repeated (with such qualifications applicable at such time);


 


(f)            the Borrower or any of its
Subsidiaries shall fail to pay at maturity, or within any applicable period of
grace, any obligation for borrowed money or credit received or in respect of
any Capitalized Leases in the aggregate amount of $7,000,000 or more, or fail
to observe or perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed money or credit
received or in respect of any Capitalized Leases in the aggregate amount of
$7,000,000 or more for such period of time as would permit (assuming the giving
of appropriate notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof, or any such
holder or holders shall rescind or shall have a right to rescind the purchase
of any such obligations;


 


(g)           the Borrower or any of its
Subsidiaries shall make an assignment for the benefit of creditors, or admit in
writing its inability to pay or generally fail to pay its debts as they mature
or become due, or shall petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of the Borrower or any of its
Subsidiaries or of any substantial part of the assets of the Borrower or any of
its Subsidiaries or shall commence any case or other proceeding relating to the
Borrower or any of its Subsidiaries under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such petition or application shall
not have been dismissed within sixty (60) days following the filing thereof;


 


(h)           a decree or order is entered
appointing any such trustee, custodian, liquidator or receiver or adjudicating
the Borrower or any of its Subsidiaries bankrupt or insolvent, or approving a
petition in any such case or other proceeding, or a decree or order for relief
is entered in respect of the Borrower or any Subsidiary of the Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter constituted;


 


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(i)            there shall remain in force,
undischarged, unsatisfied and unstayed, for more than thirty (30) consecutive
days, any final judgment against the Borrower or any of its Subsidiaries not
covered by insurance that, with other outstanding final judgments,
undischarged, against the Borrower or any of its Subsidiaries not covered by
insurance exceeds in the aggregate $3,000,000;


 


(j)            if any of the Loan Documents
shall be cancelled, terminated, revoked or rescinded or if the Agent’s security
interests, mortgages or liens in a substantial portion of the Collateral shall
cease to be perfected, or shall cease to have the priority contemplated by the
Security Documents, in each case otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Lenders, or any action at law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any of its Subsidiaries party thereto or any of their
respective members or stockholders (as the case may be), or any court of
competent jurisdiction or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the
terms thereof;


 


(k)           the Borrower or any ERISA
Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan
pursuant to Title IV of ERISA in an aggregate amount exceeding $3,000,000, or
the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant
to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual
payments exceeding $3,000,000, or any of the following occurs with respect to a
Guaranteed Pension Plan:  (i) an ERISA
Reportable Event, or a failure to make a required installment or other payment
(within the meaning of §302(f)(1) of ERISA), provided, that the Agent
determines in its reasonable discretion that such event (A) could be
expected to result in liability of the Borrower or any of its Subsidiaries to
the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$3,000,000 and (B) could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan;
or (ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the
PBGC of proceedings to terminate such Guaranteed Pension Plan;


 


(l)            there shall occur any
strike, lockout, labor dispute, embargo, condemnation, act of God or public
enemy, or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of the Borrower or any of its Subsidiaries
if such event or circumstance is not covered by business interruption insurance
and would reasonably be expected to have a Material Adverse Effect;


 


70

















 


(m)          a Change of Control shall
occur;


 


(n)           the sum of the outstanding
amount of the Revolving Credit Loans, the Swing Line Loans, the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations exceeds the lesser of (a) the
Total Commitment at such time and (b) the Borrowing Base at such time and
the Borrower does not remedy such situation (by payment of the amount set forth
in § 3.2 or otherwise) within ten (10) days;


 


(o)           there shall occur the loss,
suspension or revocation of, or failure to renew, any license or permit now
held or hereafter acquired by the Borrower or any of its Subsidiaries if such
loss, suspension, revocation or failure to renew would reasonably be expected
to have a Material Adverse Effect;


 


(p)           the Borrower or any of its
Subsidiaries shall be indicted for a state or federal crime, for which the
punishment in such case could include the forfeiture of any assets of the
Borrower or such Subsidiary not included in the Borrowing Base but having a
fair market value in excess of $7,000,000; or


 


(q)           the number of cost
equivalent units (or CEUs) included in the fleet of containers owned by the Borrower
or managed by the Borrower on behalf of third-parties (such CEUs to be
calculated by Borrower consistently with the current manner in which it
calculates CEUs on behalf of third-party owners of fleets that it manages),
shall, as of the last business day of any calendar month, be less than 300,000;


 


then, and in any such event,
so long as the same may be continuing, the Agent may, and upon the request of
the Required Lenders shall, by notice in writing to the Borrower declare all
amounts owing with respect to this Credit Agreement, the Notes and the other
Loan Documents and all Reimbursement Obligations to be, and they shall
thereupon forthwith become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, that in the event of any Event of Default
specified in §§13.1(g) or 13.1(h), all such amounts shall become
immediately due and payable automatically and without any requirement of notice
from the Agent or any Lender.


 


13.2.       Termination
of Commitments.  If any one
or more of the Events of Default specified in §§13.1(g) or §13.1(h) shall
occur, any unused portion of the credit hereunder shall forthwith terminate and
each of the Lenders shall be relieved of all further obligations to make
Revolving Credit Loans to the Borrower and the Agent shall be relieved of all
further obligations to issue, extend or renew Letters of Credit.  If any other Event of Default shall have
occurred and be continuing, the Agent may and, upon the request of the Required
Lenders, shall, by notice in writing to the Borrower, terminate the unused
portion of the credit hereunder, and upon such notice being given such unused
portion of the credit hereunder shall terminate immediately and each of the
Lenders shall be relieved of all further obligations to make Revolving Credit
Loans and the Agent shall be relieved of all further obligations to issue,
extend or renew Letters of Credit.  No
termination of the credit hereunder shall relieve the Borrower or any of its
Subsidiaries of any of the Obligations other than Commitment Fees not yet
accrued.


 


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13.3.       Remedies.  In case any one or more of the Events of
Default shall have occurred and be continuing, and whether or not the Lenders
shall have accelerated the maturity of the Revolving Credit Loans pursuant to
§13.1, each Lender, if owed any amount with respect to the Revolving Credit
Loans or the Reimbursement Obligations, may, with the consent of the Required
Lenders but not otherwise, proceed to protect and enforce its rights by suit in
equity, action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Credit Agreement and
the other Loan Documents or any instrument pursuant to which the Obligations to
such Lender are evidenced, including as permitted by applicable law the
obtaining of the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of such Lender.  No remedy herein conferred upon any Lender or
the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and
every remedy shall, to the extent permitted by applicable law, be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other provision of
law.


 


13.4.       Distribution
of Collateral Proceeds.  In
the event that, following the occurrence or during the continuance of any Event
of Default, the Agent or any Lender, as the case may be, receives any monies in
connection with the enforcement of any of the Security Documents, or otherwise
with respect to the realization upon any of the Collateral, such monies shall
be distributed for application as follows:


 


(a)           First, to the payment of, or
(as the case may be) the reimbursement of the Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Agent in connection with the collection of such
monies by the Agent, for the exercise, protection or enforcement by the Agent
of all or any of the rights, remedies, powers and privileges of the Agent under
this Credit Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to the Agent
against any taxes or liens which by law shall have, or may have, priority over
the rights of the Agent to such monies;


 


(b)           Second, to all other
Obligations; provided, however, that (i) distributions shall be made (A) pari passu
among Obligations with respect to the Fees and all other Obligations and (B) with
respect to each type of Obligation owing to the Lenders, such as interest,
principal, fees and expenses, among the Lenders pro rata,
and (ii) the Agent may in its discretion make proper allowance to take
into account any Obligations not then due and payable;


 


(c)           Third, upon payment and
satisfaction in full or other provisions for payment in full satisfactory to
the Lenders and the Agent of all of the Obligations, to the payment of any
obligations required to be paid pursuant to §9-608(a)(1)(C) or 9-615(a)(3) of
the Uniform Commercial Code of the State of New York; and


 


(d)           Fourth, the excess, if any,
shall be returned to the Borrower or, to the extent directed by applicable
legal authority, to such other Persons as are legally entitled thereto.


 


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14.          THE
ADMINISTRATIVE AGENT.


 


14.1.       Authorization;
Reliance by Agent.


 


(a)           Appointment and Authority.  Each of the Lenders hereby irrevocably
appoints Deutsche Bank Trust Company Americas to act on its behalf as the Agent
hereunder and under the other Loan Documents and authorizes the Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the Agent and the
Lenders and the Borrower shall not have rights as a third party beneficiary of
any of such provisions.


 


(b)           The Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person.  The Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the
proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of a Revolving Credit Loan, or the issuance of a Letter
of Credit, that by its terms must be fulfilled to the satisfaction of a Lender
or the Issuing Bank, the Agent may presume that such condition is satisfactory
to such Lender or the Issuing Bank unless the Agent shall have received notice
to the contrary from such Lender or the Issuing Bank prior to the making of
such Revolving Credit Loan or the issuance of such Letter of Credit.  The Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.


 


(c)           The relationship between the
Agent and each of the Lenders is that of an independent contractor.  The use of the term “Agent” is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the
Lenders.  Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the Agent and any of the
Lenders.


 


(d)           As an independent contractor
empowered by the Lenders to exercise certain rights and perform certain duties
and responsibilities hereunder and under the other Loan Documents, the Agent is
nevertheless a “representative” of the Lenders, as that term is defined in Article 1
of the Uniform Commercial Code, for purposes of actions for the benefit of the
Lenders and the Agent with respect to all collateral security and guaranties
contemplated by the Loan Documents.  Such
actions include the designation of the Agent as “secured party”, “mortgagee” or
the like on all financing statements and other documents and


 


73

















 


instruments, whether recorded or otherwise,
relating to the attachment, perfection, priority or enforcement of any security
interests, mortgages or deeds of trust in collateral security intended to
secure the payment or performance of any of the Obligations, all for the
benefit of the Lenders and the Agent.


 


14.2.       Delegation
of Duties.  The Agent
may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Agent, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower. 
The Agent and any such sub-agent may perform any and all of its duties
and exercise its rights and powers by or through their respective Related
Parties.  The exculpatory provisions of
this Article shall apply to any such sub-agent and to the Related Parties
of the Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Agent.


 


14.3.       Exculpatory
Provisions.  The Agent
shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. 
Without limiting the generality of the foregoing, the Agent:


 


(a)           shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event
of Default has occurred and is continuing;


 


(b)           shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that the Agent is required to exercise as directed in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Agent to liability or
that is contrary to any Loan Document or applicable law; and


 


(c)           shall not, except as
expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Affiliates that is communicated to or obtained
by the Person serving as the Agent or any of its Affiliates in any capacity.


 


The Agent shall not be
liable for any action taken or not taken by it (i) with the consent or at
the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary), or as the Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections 16.12 and
13.3 or (ii) in the absence of its own gross negligence or willful
misconduct.  The Agent shall be deemed
not to have knowledge of any Default or an Event of Default unless and until
notice describing such Default or an Event of Default is given to the Agent by
the Borrower or a Lender.


 


The Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Credit
Agreement or


 


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any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default or an Event of
Default, (iv) the validity, enforceability, effectiveness or genuineness
of this Credit Agreement, any other Loan Document or any other agreement,
instrument or document, (v) the value of any Collateral or (vi) the
satisfaction of any condition set forth in Section 11 or 12 or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Agent.


 


14.4.       No
Representations.


 


14.4.1.    General.  The Agent has not made nor does it now make
any representations or warranties, express or implied, nor does it assume any
liability to the Lenders, with respect to the credit worthiness or financial
conditions of the Borrower or any of its Subsidiaries.


 


14.4.2.    Closing
Documentation, etc.  For
purposes of determining compliance with the conditions set forth in §11, each
Lender that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each document and
matter either sent, or made available, by the Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be to be
consent to or approved by or acceptable or satisfactory to such Lender, unless
an officer of the Agent active upon the Borrower’s account shall have received
notice from such Lender prior to the Closing Date specifying such Lender’s
objection thereto and such objection shall not have been withdrawn by notice to
the Agent to such effect on or prior to the Closing Date.


 


14.4.3.    Non-Reliance
on Agent and Other Lenders.  Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Credit Agreement.  Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender or any of their Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon this
Credit Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.


 


14.5.       Payments.


 


14.5.1.    Payments
to Agent.  A payment
by the Borrower to the Agent hereunder or any of the other Loan Documents for
the account of any Lender shall constitute a payment to such Lender.  The Agent agrees promptly to distribute to
each Lender such Lender’s pro rata share of payments received by the Agent for
the account of the Lenders except as otherwise expressly provided herein or in
any of the other Loan Documents.


 


14.5.2.    Distribution
by Agent.  If in the
opinion of the Agent the distribution of any amount received by it in such
capacity hereunder, under the Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution until
its right to make distribution shall have been adjudicated by a court of
competent jurisdiction.  If a


 


75

















 


court
of competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over
the same in such manner and to such Persons as shall be determined by such
court.


 


14.5.3.    Delinquent
Lenders.  Notwithstanding anything to
the contrary contained in this Credit Agreement or any of the other Loan
Documents, any Lender that fails (a) to make available to the Agent its
pro rata share of any Revolving Credit Loan or to purchase any Letter of Credit
Participation or (b) to comply with the provisions of §16.1 with respect
to making dispositions and arrangements with the other Lenders, where such
Lender’s share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all of the
Lenders, in each case as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent (a “Delinquent
Lender”) and shall be deemed a Delinquent Lender until such time as such
delinquency is satisfied.  A Delinquent
Lender shall be deemed to have assigned any and all payments due to it from the
Borrower, whether on account of outstanding Revolving Credit Loans, Unpaid
Reimbursement Obligations, interest, fees or otherwise, to the remaining
nondelinquent Lenders for application to, and reduction of, their respective
pro rata shares of all outstanding Revolving Credit Loans and Unpaid
Reimbursement Obligations.  The
Delinquent Lender hereby authorizes the Agent to distribute such payments to
the nondelinquent Lenders in proportion to their respective pro rata shares of
all outstanding Revolving Credit Loans and Unpaid Reimbursement
Obligations.  A Delinquent Lender shall
be deemed to have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Revolving Credit Loans
and Unpaid Reimbursement Obligations of the nondelinquent Lenders, the Lenders’
respective pro rata shares of all outstanding Revolving Credit Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately prior to
such delinquency and without giving effect to the nonpayment causing such
delinquency.


 


14.6.       Holders
of Notes.  The Agent may
deem and treat the payee of any Note or the purchaser of any Letter of Credit
Participation as the absolute owner or purchaser thereof for all purposes
hereof until it shall have been furnished in writing with a different name by
such payee or by a subsequent holder, assignee or transferee.


 


14.7.       Reimbursement
by Lenders.  To the
extent that the Borrower for any reason fails to indefeasibly pay any amount
required under § 16.2 or § 16.3 to be paid by it to the Agent (or any sub-agent
thereof) or any Related Party of the Agent, each Lender severally agrees to pay
to the Agent (or any such sub-agent) or such Related Party, as the case may be,
such Lender’s Commitment Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Agent (or any such sub-agent) or against any Related Party
of any of the foregoing acting for the Agent (or any such sub-agent) in
connection with such capacity.  The
obligations of each Lender under this § 14.7 are several.


 


14.8.       Rights
as Lender.  The Person
serving as the Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the
Person serving as the


 


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Agent
hereunder in its individual capacity. 
Such Person and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Agent hereunder and
without any duty to account therefor to the Lenders.


 


14.9.       Resignation
of Agent.  The Agent
may at any time by giving thirty (30) days prior written notice of its
resignation to the Lenders and the Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right to appoint a successor, which (i) shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States and (ii) unless a Default or Event of Default
shall have occurred and be continuing, shall be acceptable to the
Borrower.  If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders, appoint a
successor Agent which shall be a financial institution having a rating of not
less than “A” or its equivalent by S&P. 
If the Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents (except that in the case of any collateral
security held by the Agent on behalf of the Lenders under any of the Loan
Documents, the retiring Agent shall continue to hold such collateral security
until such time as a successor Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Agent
shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Agent as provided for above in this
paragraph.  Upon the acceptance of a
successor’s appointment as Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring (or retired) Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
paragraph).  The fees payable by the
Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring (or
retired) Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 16.2 shall continue in effect
for the benefit of such retiring (or retired) Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring (or retired) Agent was acting as Agent.


 


14.10.     Notification
of Defaults and Events of Default.  Each Lender hereby agrees that, upon learning
of the existence of a Default or an Event of Default, it shall promptly notify
the Agent thereof.  The Agent hereby
agrees that upon receipt of any notice under this §14.10, the Agent shall
promptly notify the other Lenders of the existence of such Default or Event of
Default.


 


14.11.     Duties
in the Case of Enforcement.  In case one of more Events of Default have
occurred and shall be continuing, and whether or not acceleration of the
Obligations shall have occurred, the Agent shall, if (a) so requested by
the Required Lenders and (b) the Lenders have provided to the Agent such
additional indemnities and assurances against expenses and liabilities as the
Agent may reasonably request, proceed to enforce the provisions of the Security


 


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Documents
authorizing the sale or other disposition of all or any part of the Collateral
and exercise all or any such other legal and equitable and other rights or
remedies as it may have in respect of such Collateral.  The Required Lenders may direct the Agent in
writing as to the method and the extent of any such sale or other disposition,
the Lenders hereby agreeing to indemnify and hold the Agent, harmless from all
liabilities incurred in respect of all actions taken or omitted in accordance
with such directions, provided that the Agent need not comply with any such
direction to the extent that the Agent reasonably believes the Agent’s
compliance with such direction to be unlawful or commercially unreasonable in
any applicable jurisdiction.


 


14.12.     Agent May File
Proofs of Claim.


 


(a)           In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial, administrative or like
proceeding or any assignment for the benefit of creditors relative to the
Borrower or any of its Subsidiaries, the Agent (irrespective of whether the
principal of any Revolving Credit Loan, Reimbursement Obligation or Unpaid
Reimbursement Obligation shall then be due and payable as herein expressed or
by declaration or otherwise and irrespective of whether the Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding, under any such assignment or otherwise:


 


(i)            to file and prove a claim
for the whole amount of the principal and interest owing and unpaid in respect
of the Revolving Credit Loans, Reimbursement Obligations or Unpaid
Reimbursement Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders
and the Agent and their respective agents and counsel and all other amounts due
the Lenders and the Agent under §§2.2, 4.6, 5.1 and 16.2) allowed in such
proceeding or under any such assignment; and


 


(ii)           to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same;


 


(b)           Any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such proceeding or under any such assignment is hereby authorized by each
Lender to make such payments to the Agent and, in the event that the Agent
shall consent to the making of such payments directly to the Lenders,
nevertheless to pay to the Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Agent and its agents
and counsel, and any other amounts due the Agent under §§2.2, 4.6, 5.1 and
16.2.


 


(c)           Nothing contained herein
shall authorize the Agent to consent to or accept or adopt on behalf of any
Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations owed to such Lender or the


 


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rights of any Lender or to authorize the
Agent to vote in respect of the claim of any Lender in any such proceeding or
under any such assignment.


 


14.13.     No Other
Duties, etc.  Anything
herein to the contrary notwithstanding, the Lead Arranger shall not have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Agent or a Lender
hereunder.


 


15.          ASSIGNMENT.


 


15.1.       General
Conditions.  The
provisions of this Credit Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Agent and each Lender and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (a) to an Eligible Assignee in
accordance with the provisions of §15.2, (b) by way of participation in
accordance with the provisions of Section 15.4, or (c) by way of
pledge or assignment of a security interest subject to the restrictions of
§15.4 (and any other attempted assignment or transfer by any party hereto shall
be null and void).  Nothing in this
Credit Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in Section 15.4 and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Agent and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Credit Agreement or any of the other Loan Documents.


 


15.2.       Assignments.  Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it); provided that:


 


(a)           except in the cases of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans at the time owing to it or of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if the applicable Commitment is not then in effect, the principal outstanding
balance of the Loan of the assigning Lender subject to each such assignment
(determined as of the date on which the Assignment and Acceptance with respect
to such assignment is delivered to the Agent) shall not be less than $5,000,000
unless each of the Agent and, so long as no Default or Event of Default has occurred
and is continuing, the Borrower otherwise consent (each such consent not to be
unreasonably withheld or delayed);


 


(b)           each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Credit Agreement with respect to the
Loan or the Commitment assigned;


 


(c)           any assignment of a
Commitment must be approved by the Agent (such consent not to be unreasonably
withheld or delayed) unless the Person that


 


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is the proposed assignee is itself a Lender,
an Affiliate of a Lender or an Approved Fund; and


 


(d)           the parties to each
assignment shall execute and deliver to the Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Agent an
Administrative Questionnaire.


 


Subject to acceptance and
recording thereof by the Agent pursuant to §15.3, from and after the effective
date specified in each Assignment and Acceptance, the assignee thereunder shall
be a party to this Credit Agreement and, to the extent of the interest assigned
by such Assignment and Acceptance have the rights and obligations of a Lender
under this Credit Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Credit Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Credit Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of (i) §§5.1.2,
5.1.4, 5.4, 5.5, 5.6, and 5.8 with respect to facts and circumstances occurring
prior to the effective date of such assignment and (ii) §16.3
notwithstanding such assignment.  Any
assignment or transfer by a Lender of rights or obligations under this Credit
Agreement that does not comply with this paragraph shall be null and void.


 


15.3.       Register.  The Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Agent’s Office a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Revolving Credit Loans owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Credit Agreement, notwithstanding notice to
the contrary.  The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


15.4.       Participations.  Any Lender may at any time, with the
approval, not to be unreasonably withheld or delayed of the Borrower so long as
no Default or Event of Default is continuing, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Credit Agreement (including all
or a portion of its Commitment and/or the Loans owing to it); provided that (a) such
Lender’s obligations under this Credit Agreement shall remain unchanged, (b) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (c) the Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Credit
Agreement.


 


Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Credit Agreement and to
approve any amendment, modification or waiver of any provision of this Credit
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the


 


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consent
of the Participant, agree to any amendment, modification or waiver of the type
described in § 16.12(a) or § 16.12(b), that in each case, affects such
Participant.  Subject to the last
paragraph of this Section 15.4, the Borrower agrees that each Participant
shall be entitled to the benefits of §§ 5.1.2, 5.1.4, 5.4, 5.5, 5.6 and 5.8 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to § 15.2.  To the
extent permitted by law, each Participant also shall be entitled to the
benefits of § 16.1 as though it were a Lender, provided such Participant agrees
to be subject to § 16.1 as though it were a Lender.


 


A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits of
§  5.12 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with § 
5.13 as though it were a Lender.


 


15.5.       Certain
Pledges.  A Lender may at any time grant
a security interest in all or any portion of its rights under this Credit
Agreement to secure obligations of such Lender, including without limitation (a) any
pledge or assignment to secure obligations to any of the twelve Federal Reserve
Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341 and (b) with
respect to any Lender that is a Fund, to any lender or any trustee for, or any
other representative of, holders of obligations owed or securities issued by
such Fund as security for such obligations or securities or any institutional
custodian for such Fund or for such lender; provided that no such grant shall
release such Lender from any of its obligations hereunder or substitute any
such secured party for such Lender as a party hereto.


 


15.6.       New
Notes.  Upon its receipt of an
Assignment and Acceptance executed by the parties to such assignment, together
with each Note subject to such assignment, the Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Borrower and the Lenders (other than the assigning Lender).  The Borrower, at its own expense, shall,
promptly upon its receipt thereof, execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of such Assignee in
an amount equal to the amount assumed by such Assignee pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Lender in an
amount equal to the amount retained by it hereunder.  Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes (after
giving effect to any permanent reductions in the applicable Commitments), shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes.  The surrendered Notes shall be cancelled and
returned to the Borrower.


 


15.7.       Assignment
by Borrower.  The
Borrower shall not assign or transfer any of its rights or obligations under
any of the Loan Documents without the prior written consent of each of the
Lenders.


 


16.          PROVISIONS
OF GENERAL APPLICATIONS.


 


16.1.       Setoff;
Proration of Payments.  The
Borrower hereby grants to the Agent and each of the Lenders a continuing lien,
security interest and right of setoff as security for all liabilities and
obligations to the Agent and each Lender, whether now existing or hereafter
arising, upon and against all deposits, credits, collateral and property, now
or hereafter in the


 


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possession,
custody, safekeeping or control of the Agent or such Lender or any Lender
Affiliate and their successors and assigns or in transit to any of them.  Regardless of the adequacy of any collateral,
if any of the Obligations are due and payable and have not been paid or any
Event of Default shall have occurred, any deposits or other sums credited by or
due from any of the Lenders to the Borrower and any securities or other
property of the Borrower in the possession of such Lender may, to the extent
permitted by applicable law, be applied to or set off by such Lender against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Lender.  ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES
THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.


 


Each of the Lenders agree
with each other Lender that (a) if an amount to be set off is to be applied
to Indebtedness of the Borrower to such Lender, other than Indebtedness
evidenced by the Notes held by such Lender or constituting Reimbursement
Obligations owed to such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by all such Notes held by
such Lender or constituting Reimbursement Obligations owed to such Lender, and (b) if
such Lender shall receive from the Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim evidenced by the Notes held by, or constituting Reimbursement Obligations
owed to, such Lender by proceedings against the Borrower at law or in equity or
by proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by, or Reimbursement Obligations owed to, such Lender
any amount in excess of its ratable portion of the payments received by all of
the Lenders with respect to the Notes held by, and Reimbursement Obligations
owed to, all of the Lenders, such Lender will make such disposition and
arrangements with the other Lenders with respect to such excess, either by way
of distribution, pro tanto assignment of claims, subrogation
or otherwise as shall result in each Lender receiving in respect of the Notes
held by it or Reimbursement Obligations owed it, its proportionate payment as
contemplated by this Credit Agreement; provided, that if all or any part of
such excess payment is thereafter recovered from such Lender, such disposition
and arrangements shall be rescinded and the amount restored to the extent of
such recovery, but without interest.


 


16.2.       Expenses.  The Borrower agrees to pay (a) the
reasonable costs of the Agent in producing and reproducing this Credit
Agreement, the other Loan Documents and the other agreements and instruments
mentioned herein, (b) the reasonable fees, expenses and disbursements of
the Agent’s Special Counsel or any local counsel to the Agent incurred in
connection with the preparation, syndication, administration or interpretation
of the Loan Documents and other instruments mentioned herein, each closing
hereunder, any amendments, modifications, approvals, consents or waivers hereto
or hereunder requested by the Borrower, or the cancellation of any Loan
Document upon payment in full in cash of all of the Obligations or pursuant to
any terms of such Loan Document for providing for such cancellation, (c) the
reasonable fees, expenses and disbursements of the Agent or any of its
affiliates incurred by the Agent or such affiliate in connection with the
preparation, administration or interpretation of the Loan Documents and other
instruments mentioned herein as provided in the Fee Letter, including all
commercial finance examination charges, (d) all reasonable out-of-pocket
expenses


 


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(including
without limitation reasonable attorneys’ fees and costs, which attorneys may be
employees of any Lender or the Agent, and reasonable consulting, accounting,
appraisal, commercial finance examination, investment banking and similar
professional fees and charges) incurred by any Lender or the Agent in
connection with (i) the enforcement of or preservation of rights under any
of the Loan Documents against the Borrower or any of its Subsidiaries or the
administration thereof after the occurrence of a Default or Event of Default
and (ii) any litigation, proceeding or dispute whether arising hereunder
or otherwise, in any way related to any Lender’s or the Agent’s relationship
with the Borrower or any of its Subsidiaries in connection herewith and (e) all
reasonable fees, expenses and disbursements of the Agent incurred in connection
with UCC searches, UCC filings or mortgage recordings relating to the Loan
Documents.  The covenants contained in
this §16.2 shall survive payment or satisfaction in full of all other
Obligations.


 


16.3.       Indemnification.  The Borrower agrees to indemnify and hold
harmless the Agent, its affiliates, its sub-agents, the Issuing Bank, each
Lender, the Lead Arranger and each Related Party of any of the foregoing (each,
an “Indemnified Party”) from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and related expenses of every nature and character (other than
taxes) arising out of this Credit Agreement or any of the other Loan Documents,
the performance by the respective parties of their obligations hereunder or
thereunder, or the consummation of the transactions contemplated hereby
including, without limitation, (a) any actual or proposed use by the
Borrower or any of its Subsidiaries of the proceeds of any of the Revolving
Credit Loans or Letters of Credit, (b) the reversal or withdrawal of any
provisional credits granted by the Agent upon the transfer of funds from lock
box, bank agency, concentration accounts or otherwise under any cash management
arrangements with the Borrower or any Subsidiary or in connection with the
provisional honoring of funds transfers, checks or other items, (c) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort, or any other theory,
and regardless of whether any Indemnified Party is a party thereof, (d) any
civil penalty or fine assessed by OFAC against, and all reasonable costs and
expenses (including reasonable counsel fees and disbursements) incurred in
connection with defense thereof by, the Agent or any Lender as a result of
conduct of the Borrower that violates a sanction enforced by OFAC or (e) with
respect to the Borrower and its Subsidiaries and their respective properties
and assets, the violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, release or threatened
release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding; provided, however, the Borrower shall not be responsible for any
liabilities, losses, damages and/or expenses under this §16.3 were caused by
such Indemnified Party’s own gross negligence or willful misconduct.  In litigation, or the preparation therefor,
the Lenders and the Agent and its affiliates shall be entitled to select their
own counsel and, in addition to the foregoing indemnity, the Borrower agrees to
pay promptly the reasonable fees and expenses of such counsel.  To the extent that the respective interests
of the Lenders and the Agent in such litigation do not, and reasonably could
not be expected to, conflict (such determination of existing or potential
conflict to be made by the Lenders and the Agent using their reasonable good
faith judgment), the Lenders and the Agent shall make reasonable efforts to use
common


 


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counsel
in connection with such litigation and the preparation therefor.  If, and to the extent that the obligations of
the Borrower under this §16.3 are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment in satisfaction
of such obligations which is permissible under applicable law.  The covenants contained in this §16.3 shall
survive payment or satisfaction in full of all other Obligations.


 


16.4.       Treatment
of Certain Confidential Information.


 


16.4.1.    Confidentiality.  Each of the Lenders and the Agent agrees, on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential
information of the same nature and in accordance with safe and sound banking
practices, any non-public information supplied to it by the Borrower or any of
its Subsidiaries pursuant to this Credit Agreement that is identified by such
Person as being confidential at the time the same is delivered to the Lenders
or the Agent, provided that nothing herein shall limit the disclosure of any
such information (a) after such information shall have become public other
than through a violation of this §16.4, or becomes available to any of the
Lenders or the Agent on a nonconfidential basis from a source other than the
Borrower, (b) to the extent required by statute, rule, regulation or
judicial process, (c) to counsel for any of the Lenders or the Agent, (d) to
bank examiners or any other regulatory authority having jurisdiction over any
Lender or the Agent, or to auditors or accountants, so long as such information
is disclosed to such Persons on a confidential basis and such Persons are made
aware of the applicability thereto of the provisions of this §16.4.1, (e) to
the Agent, any Lender or any Financial Affiliate, (f) in connection with
any litigation to which any one or more of the Lenders, the Agent or any
Financial Affiliate is a party, or in connection with the enforcement of rights
or remedies hereunder or under any other Loan Document, (g) to a Lender
Affiliate or a Subsidiary or affiliate of the Agent, so long as such
information is disclosed to such Persons on a confidential basis and such
Persons are made aware of the applicability thereto of the provisions of this
§16.4.1, (h) to any actual or prospective assignee or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under this
Credit Agreement or any other Loan Document so long as such assignee or
counterparty, as the case may be, agrees to be bound by the provisions of §16.4
or (i) with the prior written consent of the Borrower.  Notwithstanding anything herein to the
contrary:  (i) each party hereto
(and each employee, representative or other agent of such party) may disclose
to any and all Persons, beginning immediately upon commencement of discussions
regarding the transactions contemplated hereby, and without limitation of any
kind, any information with respect to the “tax treatment” and “tax structure”
(in each case, within the meaning of Treasury Regulation Section 1.6011-4)
of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to such party (or
such employee, representative or other agent of such party) relating to such
tax treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information,
this sentence shall only apply to such portions of the document or similar item
that relate to the tax treatment or tax structure of the Loans, Letters of
Credit and transactions contemplated hereby; and (ii) any Lender may
disclose confidential information, without notice to the Borrower, to
governmental regulatory authorities in connection with any regulatory
examination of such Lender or in accordance with such Lender’s regulatory
compliance policy.


 


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16.4.2.    Prior Notification. 
Unless specifically prohibited by applicable law or court order, each of
the Lenders and the Agent shall, prior to disclosure thereof, notify the
Borrower of any request for disclosure of any such non-public information by
any governmental agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such Lender by
such governmental agency) or pursuant to legal process.


 


16.4.3.    Other.  In no event
shall any Lender or the Agent be obligated or required to return any materials
furnished to it or any Financial Affiliate by the Borrower or any of its
Subsidiaries.  The obligations of each
Lender under this §16.4 shall supersede and replace the obligations of such
Lender under any confidentiality letter in respect of this financing signed and
delivered by such Lender to the Borrower prior to the date hereof and shall be
binding upon any assignee of any interest in any of the Revolving Credit Loans
or Reimbursement Obligations from any Lender and shall apply to all information
delivered to such Person either before or after the date of this Credit
Agreement.


 


16.5.       Survival of Covenants, Etc. 
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Lenders and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Lenders of any of the Revolving
Credit Loans and the issuance, extension or renewal of any Letters of Credit,
as herein contemplated, and shall continue in full force and effect so long as
any Letter of Credit or any amount due under this Credit Agreement or the Notes
or any of the other Loan Documents remains outstanding or any Lender has any
obligation to make any Revolving Credit Loans or the Agent has any obligation
to issue, extend or renew any Letter of Credit, and for such further time as
may be otherwise expressly specified in this Credit Agreement.  All statements contained in any certificate
or other paper delivered to any Lender or the Agent at any time by or on behalf
of the Borrower or any of its Subsidiaries pursuant hereto or in connection
with the transactions contemplated hereby shall constitute representations and
warranties by the Borrower or such Subsidiary hereunder that the matters set
forth therein are true and correct in all material respects as of the time
delivered.


 


16.6.       Notices.  Except as
otherwise expressly provided in this Credit Agreement, all notices and other
communications made or required to be given pursuant to this Credit Agreement or
the Notes or any Letter of Credit Requests shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier, or sent by telegraph,
telecopy, facsimile or telex and confirmed by delivery via courier or postal
service, addressed as follows:


 


(a)           if to the Borrower, at One Maynard Drive, Park Ridge, New
Jersey 07656, Attention:  Lisa Leach, Esq.,
or at such other address for notice as the Borrower shall last have furnished
in writing to the Person giving the notice;


 


(b)           if to the Agent, at Deutsche Bank Trust Company Americas,
60 Wall Street, MS NYC60-0208, New York, New York 10005, Attention:  Omayra Laucella, or such other address for
notice as the Agent shall last have furnished in writing to the Person giving
the notice; and


 


85

















 


(c)           if to any Lender, at such Lender’s address set forth on
Schedule 1 hereto, or such other address for notice as such Lender shall have
last furnished in writing to the Person giving the notice.


 


Any such notice or demand
shall be deemed to have been duly given or made and to have become effective (i) if
delivered by hand, overnight courier or facsimile to a responsible officer of the
party to which it is directed, at the time of the receipt thereof by such
officer or the confirmation of transmission of such facsimile and (ii) if
sent by registered or certified first-class mail, postage prepaid, on the fifth
Business Day following the mailing thereof. 
Any notice or other communication to be made hereunder or under the
Notes or any Letter of Credit Requests, even if otherwise required to be in
writing under other provisions of this Credit Agreement, the Notes or any
Letter of Credit Requests, may alternatively be made in an electronic record
transmitted electronically under such authentication and other procedures as
the parties hereto may from time to time agree in writing (but not an
electronic record), and such electronic transmission shall be effective at the
time set forth in such procedures. 
Unless otherwise expressly provided in such procedures, such an
electronic record shall be equivalent to a writing under the other provisions
of this Credit Agreement, the Notes or any Letter of Credit Requests, and such
authentication, if made in compliance with the procedures so agreed by the
parties hereto in writing (but not an electronic record), shall be equivalent
to a signature under the other provisions of this Credit Agreement, the Notes
or any Letter of Credit Requests.


 


16.7.       Governing Law; Submission to Jurisdiction; Waiver of Venue.  THIS CREDIT AGREEMENT AND, EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE
CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK
INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS THEREOF
BUT OTHERWISE WITHOUT REGARD TO THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF
LAW.  The Borrower irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York sitting in New York County
and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Credit Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court
or, to the full extent permitted by applicable law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this Credit
Agreement or in any other Loan Document shall affect any right that the Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against the Borrower or its
properties in the courts of any jurisdiction.


 


16.8.       Headings.  The
captions in this Credit Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.


 


16.9.       Counterparts.  This
Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when 


 


86

















 


executed
and delivered shall be an original, and all of which together shall constitute
one instrument.  In proving this Credit
Agreement it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom enforcement is sought.  Delivery by facsimile by any of the parties
hereto of an executed counterpart hereof or of any amendment or waiver hereto
shall be as effective as an original executed counterpart hereof or of such
amendment or waiver and shall be considered a representation that an original
executed counterpart hereof or such amendment or waiver, as the case may be,
will be delivered.


 


16.10.     Entire Agreement, Etc. 
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby.  Neither this Credit Agreement nor any term hereof
may be changed, waived, discharged or terminated, except as provided in §16.12.


 


16.11.     Waiver of Jury Trial. 
THE BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE AGENT OR ANY LENDER RELATING
TO THE ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS AND
AGREES THAT IT WILL NOT SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.  EXCEPT AS PROHIBITED BY LAW, THE BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.  THE BORROWER (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES
THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT
AGREEMENT, THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER
THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.


 


16.12.     Consents, Amendments, Waivers, Etc.  Any consent or approval required or permitted
by this Credit Agreement to be given by the Lenders may be given, and any term
of this Credit Agreement, the other Loan Documents or any other instrument
related hereto or mentioned herein may be amended, and the performance or
observance by the Borrower or any of its Subsidiaries of any terms of this
Credit Agreement, the other Loan Documents or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with,
but only with, the written consent of the Borrower and the written consent of
the Required Lenders.  Notwithstanding
the foregoing, no amendment, modification or waiver shall:


 


87

















 


(a)           without the written consent of the Borrower and each
Lender directly affected thereby:


 


(i)            reduce or forgive the principal amount of any Revolving
Credit Loans or Reimbursement Obligations, or reduce the rate of interest on
the Notes or the amount of the Commitment Fee or Letter of Credit Fees (other
than interest accruing pursuant to §5.10 following the effective date of any
waiver by the Required Lenders of the Default or Event of Default relating
thereto);


 


(ii)           increase the amount of such Lender’s Commitment or extend
the expiration date of such Lender’s Commitment (it being understood that any
amendments or waivers that have the effect of waiving or eliminating any
Default or Event of Default shall not constitute an increase in any Lender’s
Commitment);


 


(iii)          postpone or extend the Maturity Date or any other regularly
scheduled dates for payments of principal of, or interest on, the Revolving
Credit Loans or Reimbursement Obligations or any Fees or other amounts payable
to such Lender (it being understood that (A) a waiver of the application
of the default rate of interest pursuant to §5.10, and (B) any vote to
rescind any acceleration made pursuant to §13.1 of amounts owing with respect
to the Revolving Credit Loans and other Obligations shall require only the
approval of the Required Lenders); and


 


(iv)          other than pursuant to a transaction permitted by the terms
of this Credit Agreement, release all or substantially all of the Collateral or
release all or substantially all of the Guarantors from their guaranty
obligations under the Guaranties (excluding, if the Borrower or any Subsidiary
of the Borrower becomes a debtor under the federal Bankruptcy Code, the release
of “cash collateral”, as defined in Section 363(a) of the federal
Bankruptcy Code pursuant to a cash collateral stipulation with the debtor
approved by the Required Lenders);


 


(b)           without the written consent of all of the Lenders, amend
or waive this §16.12 or the definition of Required Lenders;


 


(c)           without the written consent of the Agent, amend or waive Article 14,
the amount or time of payment of the Fees payable for the Agent’s account or
any other provision applicable to the Agent, or without the consent of the
Swing Line Lender, amend or waive any provision of §2.9.


 


No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon.  No course of dealing or delay
or omission on the part of the Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto.  No notice to or demand upon the Borrower shall
entitle the Borrower to other or further notice or demand in similar or other
circumstances.  The Required Lenders
shall take such actions, including executing and filing appropriate releases in
connection with a sale, transfer or 


 


88

















 


other disposition (including
by lease) of Collateral permitted by the terms of this Credit Agreement.


 


16.13.     Severability.  The
provisions of this Credit Agreement are severable and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.


 


16.14.     Ratification of Original Agreement.  The amendment and restatement of the Original
Agreement shall, subject to compliance with the provisions of Section 11A
hereof, become effective on the Third Amended and Restated Credit Agreement
Effective Date.  This Credit Agreement
amends and restates the terms and conditions of the Original Agreement, and is
not a novation of the Obligations incurred by the Borrower pursuant to the
terms of the Original Agreement. 
Accordingly, all of the Obligations of the Borrower incurred pursuant to
the terms of the Original Agreement, and all of the Liens created pursuant to
the terms of the Security Documents, are hereby ratified and affirmed by the Borrower
and remain in full force and effect.  In
furtherance of the foregoing, all Notes issued and unpaid Loans pursuant to the
terms of the Original Agreement that remain unpaid on the Third Amended and
Restated Credit Agreement Effective Date shall remain in full force and effect
and all references to the Original Agreement contained in the Notes are amended
to refer to this Credit Agreement.


 


[Remainder of
Page Intentionally Blank]


 


89

















 


IN WITNESS WHEREOF, the
undersigned have duly executed this Credit Agreement as of the date first set
forth above.


 


	
   

  	
  CONTAINER
  LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or
  SEACASTLE CONTAINER LEASING, LLC)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David F. Doorley

  
	
   

  	
  Name:

  	
  David
  F. Doorley

  
	
   

  	
  Title:

  	
  Treasurer

  



 

















 


	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY AMERICAS, as Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marguerite Sutton

  
	
   

  	
  Name:

  	
  Marguerite
  Sutton

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul O’Leary

  
	
   

  	
  Name:

  	
  Paul
  O’Leary

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY AMERICAS, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marguerite Sutton

  
	
   

  	
  Name:

  	
  Marguerite
  Sutton

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul O’Leary

  
	
   

  	
  Name:

  	
  Paul
  O’Leary

  
	
   

  	
  Title:

  	
  Director

  



 

















 


Schedule 1


 


Lenders and
Commitments


 


	
  Lenders

  	
   

  	
  Commitment

  	
   

  	
  Commitment

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank Trust Company Americas

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  100

  	
  %

  
							



 














 


Exhibit A


 


FORM OF
BORROWING BASE REPORT


 


The undersigned Container
Leasing International, LLC (d/b/a Carlisle Leasing International, LLC) (the “Borrower”)
hereby certifies pursuant to the Amended and Restated Revolving Credit
Agreement, dated as of January 26, 2010 (as amended and in effect from
time to time, the “Credit Agreement”), among the Borrower, the Lenders
party thereto and Deutsche Bank Trust Company Americas, as administrative agent
for the Lenders, that (a) the information set forth in this Borrowing Base
Report was true and correct as of the last day of the period specified herein, (b) this
Borrowing Base Report has been prepared in accordance with the applicable
provisions of the Credit Agreement and the various components thereof, and (c) as
of the date of this Borrowing Base Report, there exists no Default or Event of
Default or condition which would, with either or both the giving of notice or
the lapse of time, result in a Default or Event of Default.


 


Except as otherwise
specified in this Borrowing Base Report, capitalized terms used herein without
definition have the same meanings herein as in the Credit Agreement.


 


	
   

  	
  CONTAINER
  LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC)

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


Borrowing Base as of
                              ,
20    .


 


	
  A.

  	
  Eligible
  Containers Component of Borrowing Base

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Original
  Cost of all Eligible Containers

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Less:
  depreciation (to be determined on a straight-line basis over fifteen years to
  a residual value of no more than 10% of Original Cost)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Determined
  Value of all Eligible Containers (Item A1 minus A2)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Borrowing
  Base

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Eligible
  Generators Component of Borrowing Base

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Original
  Cost of Eligible Generators

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Less:
  depreciation (to be determined on a straight-line basis over twelve years to
  a residual value of no more than 10% of Original Cost)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Determined
  Value of all Eligible Generators (Item B1 minus B2)

  	
   

  	
  $

  	
  (1)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Eligible
  Refrigeration Units Component of Borrowing Base

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Original
  Cost of Eligible Refrigeration Units

  	
   

  	
  $

  	
  (2),(3)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Eligible
  Chassis Component of Borrowing Base

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Original
  Cost of Eligible Chassis

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Less:
  depreciation in accordance with GAAP

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Determined
  Value of Eligible Chassis (Item D1 minus D2)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
  Direct
  Finance Lease Receivables Component of Borrowing Base

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Net
  Present Value of Direct Finance Lease Receivables

  	
   

  	
  $

  	
   

  	
  (4)

  
							



 






(1)           This amount may not at any
time exceed 25% of the Aggregate Determined Value.


 


(2)           Following the date of the
initial installation of any Refrigeration Unit into a Container, such amount
for such Refrigeration Unit shall equal $0.


 


(3)           This amount may not at any
time exceed 15% of the Aggregate Determined Value.


 

















 


	
   

  	
  2.

  	
  Direct
  Finance Lease Receivables Borrowing Base Component

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
  Aggregate
  Determined Value (Sum of Items A3 plus B3 plus C1
  plus D3)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
  Borrowing
  Base

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  85%
  x the lesser of (i) the Aggregate Determined Value, and
  (ii) $29,411,765

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  80%
  x the excess of (i) the Aggregate Determined Value, over
  (ii) $29,411,765

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Borrowing
  Base (G1 + G2)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
  Maximum
  Available Credit (the lesser of the Total Commitment currently in
  effect and Item G)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I.

  	
  Sum
  of outstanding Revolving Credit Loans  plus outstanding
  Swing Line Loans  plus  Maximum
  Drawing Amount  plus Unpaid
  Reimbursement Obligations

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  J.

  	
  Excess/(Shortfall) (Item G
  minus Item I)

  	
   

  	
  $

  	
   

  



 






(4)           Discounted with respect to
each Direct Finance Lease at the Direct Finance Lease Rate per annum of the
remaining term of the applicable Direct Finance Lease.


 

















 


Exhibit B


 


FORM OF 


REVOLVING
CREDIT NOTE


 


	
  $40,000,000

  	
  January 26,
  2010

  



 


FOR VALUE RECEIVED, the
undersigned CONTAINER LEASING INTERNATIONAL, LLC (D/B/A
CARLISLE LEASING INTERNATIONAL, LLC and/or SEACASTLE CONTAINER LEASING, LLC),
a New York limited liability company (the “Borrower”), hereby promises
to pay to the order of DEUTSCHE BANK TRUST
COMPANY AMERICAS, a banking corporation organized under the laws of
the State of New York (the “Bank”), at the Agent’s office at 60 Wall
Street, 45th Floor, New York, New York 10005:


 


(a)           prior to or on January 25,
2011 the principal amount of Forty Million Dollars ($40,000,000) or, if less,
the aggregate unpaid principal amount of Revolving Credit Loans (if any)
advanced by the Bank to the Borrower pursuant to the Third Amended and Restated
Credit Agreement, dated as of January 26, 2010 (as amended and in effect
from time to time, the “Credit Agreement”), among the Borrower, the Bank
and other parties thereto;


 


(b)           the principal outstanding
hereunder from time to time at the times provided in the Credit Agreement; and


 


(c)           interest on the principal
balance hereof from time to time outstanding from the Closing Date through and
including the Maturity Date at the times and at the rate provided in the Credit
Agreement.


 


This Note evidences
borrowings under and has been issued by the Borrower in accordance with the
terms of the Credit Agreement.  The Bank
and any holder hereof is entitled to the benefits of and subject to the
obligations contained in the Credit Agreement, the Security Documents and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided
for thereby or otherwise available in respect thereof, all in accordance with
the respective terms thereof.  All capitalized
terms used in this Note and not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.


 


The Borrower irrevocably
authorizes the Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Revolving Credit Loan or at the time of receipt of any
payment of principal of this Note, an appropriate notation on the grid attached
to this Note, or the continuation of such grid, or any other similar record,
including computer records, reflecting the making of such Revolving Credit Loan
or (as the case may be) the receipt of such payment.  The outstanding amount of the Revolving
Credit Loans set forth on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, maintained
by the Bank with respect to any Revolving Credit Loans shall be prima facie
evidence (absent manifest error) of the principal amount thereof owing and
unpaid to the Bank, but the failure to record, or any error in so recording,
any such amount on any such grid, continuation or other record shall not limit
or otherwise affect the obligation of the Borrower 


 

















 


hereunder
or under the Credit Agreement to make payments of principal of and interest on
this Note when due.


 


The Borrower has the right
in certain circumstances and the obligation under certain other circumstances
to prepay the whole or part of the principal of this Note on the terms and
conditions specified in the Credit Agreement.


 


If any one or more of the Events
of Default shall occur, the entire unpaid principal amount of this Note and all
of the unpaid interest accrued thereon may become or be declared due and
payable in the manner and with the effect provided in the Credit Agreement.


 


No delay or omission on the
part of the Bank or any holder hereof in exercising any right hereunder shall
operate as a waiver of such right or of any other rights of the Bank or such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar or waiver of the same or any other right on any further occasion.


 


The Borrower and every
endorser and guarantor of this Note or the obligation represented hereby waives
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement
of this Note, and assents to any extension or postponement of the time of
payment or any other indulgence, to any substitution, exchange or release of
collateral and to the addition or release of any other party or person
primarily or secondarily liable.


 


THIS NOTE AND THE
OBLIGATIONS OF THE BORROWER HEREUNDER ARE CONTRACTS UNDER THE LAWS OF THE STATE
OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAWS THEREOF BUT OTHERWISE WITHOUT REGARD TO
THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW.  The Borrower irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
courts of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Note, or for recognition or enforcement of any judgment, and each of
the parties hereto irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State court or, to the fully extent permitted by applicable law, in
such Federal court.  The Borrower agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.  Nothing in this
Note shall affect any right that the Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Note against the Borrower or
its properties in the courts of any jurisdiction.


 


2

















 


IN WITNESS WHEREOF, the
undersigned has caused this Revolving Credit Note to be signed in its corporate
name by its duly authorized officer as of the day and year first above written.


 


	
   

  	
  CONTAINER
  LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or
  SEACASTLE CONTAINER LEASING, LLC)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


3

















 


	
  Date

  	
   

  	
  Amount

  of Loan

  	
   

  	
  Amount of

  Principal Paid

  or Prepaid

  	
   

  	
  Balance of

  Principal

  Unpaid

  	
   

  	
  Notation

  Made By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Exhibit C


 


REVOLVING
LOAN REQUEST


 


Date: 
[                    ],
[        ]


 


To:          DEUTSCHE BANK TRUST COMPANY AMERICAS, as Agent


60 Wall Street


New York, New York  10005


Attention:


 


Ladies and Gentlemen:


 


CONTAINER LEASING
INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or SEACASTLE
CONTAINER LEASING, LLC) (the “Borrower”) submits this Revolving Credit
Loan Request in connection with Section 2.6 of the Third Amended and
Restated Revolving Credit Agreement, dated as of January 26, 2010 (as
amended, modified, supplemented or restated from time to time, the “Credit
Agreement”), by and among the Borrower, the Lenders party thereto and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative agent for the
Lenders.  All capitalized terms used in
this Revolving Credit Loan Request shall have the meanings specified in the
Credit Agreement unless otherwise defined herein.


 


We hereby represent, warrant
and certify to you that (a) the proceeds specified herein shall be used in
accordance with the provisions of the Credit Agreement, (b) the
representations and warranties of the Borrower contained in the Credit
Agreement or otherwise made by the Borrower in connection with the transactions
contemplated thereby shall be true as of the date as of which they were made
and shall also be true at and as of the time of the making of the Revolving
Credit Loan requested hereby, with the same effect as if made at and as of that
time (except to the extent of changes resulting from transactions contemplated
or not prohibited by the Credit Agreement and the other Loan Documents and
changes occurring in the ordinary course of business, in each case referred to
above, that singly or in the aggregate would not have a Material Adverse
Effect, and to the extent that such representations and warranties relate
expressly to an earlier date), (c) the Borrower has performed and complied
in all material respects with all of the terms and conditions contained in the
Credit Agreement required to be performed or complied with by the Borrower
prior to or at the time of the borrowing requested hereunder, and (d) at
and as of the date hereof, no Default or Event of Default shall have occurred
and be continuing or would result from the making of the Revolving Credit Loan
requested hereby.


 


In accordance with Section 2.6
of the Credit Agreement, the Borrower hereby requests a Revolving Credit Loan
under the Credit Agreement and that such Revolving Credit Loan allocated among
the Lenders in accordance with Schedule A hereto and hereby sets forth
below the required information relating to such Revolving Credit Loan:


 


(i)            the principal amount of the
Revolving Credit Loan requested is
$                            ,


 


(ii)           the proposed Drawdown Date
of such Revolving Credit Loan is
                          ,


 

















 


(iii)          the Interest Period for such
Revolving Credit Loan is
                            ,
and


 


(iv)          the Type of such Revolving
Credit Loan is a [Base Rate Loan][LIBOR Rate Loan].


 


In addition, the Borrower
hereby requests that the proceeds of the Revolving Credit Loan requested hereby
be distributed in accordance with the wiring instructions set forth on the flow
of funds attached as Schedule B hereto.


 


2

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  CONTAINER LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING
  INTERNATIONAL, LLC and/or SEACASTLE CONTAINER LEASING, LLC)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Schedule A


 


	
  Lenders

  	
   

  	
  Commitment

  	
   

  	
  Commitment

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank Trust Company Americas

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  100

  	
  %

  
							



 














 


Schedule B


 


[Attach flow
of funds]


 

















 


Exhibit D


 


FORM OF
COMPLIANCE CERTIFICATE


 


[                    
    , 200  ]


 


To:  Each of the Lenders


c/o DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Administrative Agent


60 Wall Street


New York, New York  10005


 


Attention:


 


Re:          Compliance Certificate for the Period Ended [                 ]


 


Ladies and Gentlemen:


 


Pursuant to the THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated
as of January 26, 2010 (as amended and in effect from time to time, the “Credit
Agreement”), by and among CONTAINER LEASING
INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or SEACASTLE
CONTAINER LEASING, LLC) (the “Borrower”), the Lenders party
thereto, DEUTSCHE BANK TRUST COMPANY AMERICAS,
as administrative agent (the “Agent”) for itself and such other lending
institutions, and DEUTSCHE BANK SECURITIES
INC., as Lead Arranger (the “Lead Arranger”), the Borrower
and the undersigned principal financial or accounting officer of the Borrower
hereby certify that (a) the information furnished below in this report was
true and correct as of the last day of the fiscal quarter ending
[          ], (b) as of
the date hereof, no Default or Event of Default under the Credit Agreement has
occurred and is continuing, (c) the [quarterly] [annual] financial
statements delivered to the Agent herewith were prepared in accordance with
generally accepted accounting principles and in compliance with §§8.4 and 10 of
the Credit Agreement and (d) the representations and warranties set forth
in §7 of the Credit Agreement are true and correct as of the date hereof
(except to the extent of changes resulting from transactions contemplated or
not prohibited by the Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business, in each case referred to above,
that singly or in the aggregate would not have a Material Adverse Effect, and
to the extent that such representations and warranties relate expressly to an
earlier date).


 


Except as otherwise
specified in this report, the capitalized terms used herein shall have the
meanings ascribed to such terms in the Credit Agreement.


 


	
   

  	
  CONTAINER
  LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or
  SEACASTLE CONTAINER LEASING, LLC)

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


§10.1
Consolidated Tangible Net Worth Test


 

















 


	
  1.

  	
  Consolidated
  Total Assets (excluding adjustments on account of FASB No. 52 and
  No. 133)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  minus:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Consolidated
  Total Liabilities (excluding adjustments on account of FASB No. 52 and
  No. 133)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Total
  book value of intangible assets

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  total
  equals:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Consolidated
  Tangible Net Worth

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4A.

  	
  Cumulative
  amount of dividends or distributions made by the Borrower to its parent used
  to retire amounts owed under the Seacastle Credit Agreement

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Base
  Amount

  	
   

  	
  $

  	
  200,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Comparison

  	
   

  	
   

  	
   

  
	
   

  	
  (line
  4 minus line 4A minus
  line 5)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Minimum
  Amount allowed in line 6:

  	
   

  	
  $

  	
  1

  	
   

  



 


2

















 


Exhibit E


 


FORM OF

ASSIGNMENT AND ACCEPTANCE


 


This Assignment and
Acceptance (the “Assignment and Acceptance”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by the Assignee.  The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this
Assignment and Acceptance as if set forth herein in full.


 


For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the
Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit
Agreement, as of the Effective Date inserted by the Administrative Agent as
contemplated below (a) all of the Assignor’s rights and obligations in its
capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including
without limitation any letters of credit, guarantees, and swingline loans
included in such facilities) and (b) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (a) above
(the rights and obligations sold and assigned pursuant to clauses (a) and (b) above
being referred to herein collectively as, the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Acceptance, without representation or warranty by the Assignor.


 


	
  1.

  	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  	
   

  
	
   

  	
   

  	
  Assignee
  is an Eligible Assignee

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
  CONTAINER
  LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or
  SEACASTLE CONTAINER LEASING, LLC)

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent:

  	
  DEUTSCHE
  BANK TRUST COMPANY AMERICAS, as the administrative agent under the Credit
  Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement:

  	
  The
  Third Amended and Restated Revolving Credit Agreement, dated as of
  January 26, 2010, among 

  



 

















 


	
   

  	
   

  	
  Container
  Leasing International, LLC (D/B/A Carlisle Leasing International, LLC and/or
  Seacastle Container Leasing, LLC), the Lenders parties thereto, Deutsche Bank
  Trust Company Americas, as Administrative Agent, and the other agents parties
  thereto

  



 


6.                                       Assigned
Interest:


 


	
  Aggregate Amount of

  Commitment/Loans for all

  Lenders*

  	
   

  	
  Amount of 

  Commitment/Loans Assigned*

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(5)

  	
   

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  



 


Effective Date: 
                          
      , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this
Assignment and Acceptance are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


	
  Accepted:

  	
   

  
	
   

  	
   

  
	
  DEUTSCHE BANK TRUST COMPANY AMERICAS, as
  Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Consented to:](6)


 






*                           Amount to be adjusted by the
counterparties to take into account any payments or prepayments made between
the Trade Date and the Effective Date.


 


(5)                    Set forth, to
at least 9 decimals, as a percentage of the Commitment / Loans of all Lenders
thereunder.


 


2

















 


	
  [CONTAINER
  LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC)

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:]

  	
   

  



 






(6)                                  So long as no
Default or Event of Default has occurred or is continuing, the consent of the
Borrower is required under §15.2(a) of the Credit Agreement for any
assignment under $5,000,000, unless either (A) the assignment of is for
the entire remaining amount of the assigning Lender’s Commitment and the Loans
at the time owing to it, or (B) the assignment is to a Lender, an
Affiliate of a lender or an Approved Fund. 
In addition, unless a Default or an Event of Default has occurred and is
continuing, the consent of the Borrower is required if the Assignee is being
designated an “Eligible Assignee” pursuant to clause (d) of the definition
of Eligible Assignee in the Credit Agreement.


 


3














 


ANNEX 1


 


THE THIRD AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT DATED AS OF January 26, 2010 AMONG
CONTAINER LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC
and/or SEACASTLE CONTAINER LEASING, LLC), THE LENDERS PARTIES THERETO, DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT, AND THE OTHER AGENTS
PARTIES THERETO


 


STANDARD
TERMS AND CONDITIONS FOR


ASSIGNMENT
AND ACCEPTANCE


 


1.                                       Representations
and Warranties.


 


1.1                                 Assignor.  The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


1.2.                              Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all requirements of an Eligible
Assignee under the Credit Agreement (subject to receipt of such consents as may
be required under the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as
a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, and (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to §§7.4 and 8.4 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 

















 


2.                                       Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to, on or after the Effective
Date.  The Assignor and the Assignee
shall make all appropriate adjustments in payments by the Administrative Agent
for periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.


 


3.                                       General
Provisions.  This
Assignment and Acceptance shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns.  This Assignment and Acceptance may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Acceptance by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.  This
Assignment and Acceptance shall be governed by, and construed in accordance
with, the laws of the State of New York.


 


2

















 


Exhibit F


 


FORM OF
GUARANTY


 


GUARANTY, dated as of
[                                    ],
by EACH GUARANTOR (each, a “Guarantor”)
signatory hereto or signatory to a joinder agreement in the form of Appendix I
hereto (a “Joinder Agreement”) in favor of (i) DEUTSCHE
BANK TRUST COMPANY AMERICAS, a banking corporation organized under
the laws of the State of New York, as administrative agent (hereinafter, in
such capacity, the “Agent”) for itself and the other banking
institutions (hereinafter, collectively, the “Lenders”) which are or may
become parties to a Revolving Credit Agreement dated as of August 24, 2006
(as amended and in effect from time to time, the “Credit Agreement”), among CONTAINER LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING
INTERNATIONAL, LLC and/or SEACASTLE CONTAINER LEASING, LLC), a New
York limited liability company (the “Company”), DEUTSCHE
BANK SECURITIES INC., as the Lead Arranger, the Lenders party
thereto, and the Agent, and (ii) each of the Lenders.


 


WHEREAS, the Company and
each Guarantor are members of a group of related entities, the success of
either one of which is dependent in part on the success of the other member of
such group;


 


WHEREAS, each Guarantor
expects to receive substantial direct and indirect benefits from the extensions
of credit to the Company by the Lenders pursuant to the Credit Agreement (which
benefits are hereby acknowledged);


 


WHEREAS, it is a condition
precedent to the Lenders’ making any loans or otherwise extending credit to the
Company under the Credit Agreement that each Guarantor execute and deliver to
the Agent, for the benefit of the Lenders and the Agent, a guaranty
substantially in the form hereof; and


 


WHEREAS, each Guarantor
wishes to guaranty the Company’s obligations to the Lenders and the Agent under
or in respect of the Credit Agreement as provided herein;


 


NOW, THEREFORE, each
Guarantor hereby agrees with the Lenders and the Agent as follows:


 


1.                                       DEFINITIONS.  The term “Obligations” and all other
capitalized terms used herein without definition shall have the respective
meanings provided therefor in the Credit Agreement.


 


2.                                       GUARANTY OF
PAYMENT AND PERFORMANCE.  Each
Guarantor, jointly and severally, by its execution hereof or a Joinder Agreement
hereto, guarantees to the Lenders and the Agent the full and punctual payment
when due (whether at stated maturity, by required pre-payment, by acceleration
or otherwise), as well as the performance, of all of the Obligations including
all such which would become due but for the operation of the automatic stay
pursuant to §362(a) of the Federal Bankruptcy Code and the operation of
§§502(b) and 506(b) of the Federal Bankruptcy Code.  This Guaranty is an absolute, unconditional
and continuing guaranty of the full and punctual payment and performance of all
of the Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Agent or any 


 

















 


Lender
first attempt to collect any of the Obligations from the Company or resort to
any collateral security or other means of obtaining payment.  Should the Company default in the payment or
performance of any of the Obligations, the obligations of each Guarantor
hereunder with respect to such Obligations in default shall become immediately
due and payable to the Agent, for the benefit of the Lenders and the Agent,
without demand or notice of any nature, all of which are expressly waived by
each Guarantor.  Payments by any
Guarantor hereunder may be required by the Agent on any number of
occasions.  All payments by any Guarantor
hereunder shall be made to the Agent, in the manner and at the place of payment
specified therefor in the Credit Agreement, for the account of the Lenders and
the Agent.


 


3.                                       GUARANTORS’
AGREEMENT TO PAY ENFORCEMENT COSTS, ETC.  Each Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to the Agent, on demand,
all costs and expenses (including court costs and legal expenses) incurred or
expended by the Agent or any Lender in connection with the Obligations, this
Guaranty and the enforcement thereof, together with interest on amounts
recoverable under this §3 from the time when such amounts become due until
payment, whether before or after judgment, at the rate of interest for overdue
principal set forth in the Credit Agreement, provided that if such
interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.


 


4.                                       WAIVERS BY
GUARANTOR; LENDERS’ FREEDOM TO ACT.  Each Guarantor agrees that the Obligations
will be paid and performed strictly in accordance with their respective terms,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Agent or any
Lender with respect thereto.  Each
Guarantor waives promptness, diligence, presentment, demand, protest, notice of
acceptance, notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect, any right to
require the marshalling of assets of the Company or any other entity or other
person primarily or secondarily liable with respect to any of the Obligations,
and all suretyship defenses generally. 
Without limiting the generality of the foregoing, each Guarantor agrees
to the provisions of any instrument evidencing, securing or otherwise executed
in connection with any Obligation and agrees that the obligations of each
Guarantor hereunder shall not be released or discharged, in whole or in part,
or otherwise affected by (i) the failure of the Agent or any Lender to
assert any claim or demand or to enforce any right or remedy against the
Company or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation; (iii) any change
in the time, place or manner of payment of any of the Obligations or any
rescissions, waivers, compromise, refinancing, consolidation or other
amendments or modifications of any of the terms or provisions of the Credit
Agreement, the Note, the other Loan Documents or any other agreement
evidencing, securing or otherwise executed in connection with any of the
Obligations, (iv) the addition, substitution or release of any entity or
other person primarily or secondarily liable for any Obligation; (v) the
adequacy of any rights which the Agent or any Lender may have against any
collateral security or other means of obtaining repayment of any of the
Obligations; (vi) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve
any rights which the Agent or any Lender might have in such collateral security
or the substitution, exchange, surrender, release, loss or destruction of any
such collateral security; or (vii) any other act or omission which might
in any manner or to any extent vary the risk of any 


 


2

















 


Guarantor
or otherwise operate as a release or discharge of any Guarantor, all of which
may be done without notice to the Guarantors. 
To the fullest extent permitted by law, each Guarantor hereby expressly
waives any and all rights or defenses arising by reason of (A) any “one
action” or “anti-deficiency” law which would otherwise prevent the Agent or any
Lender from bringing any action, including any claim for a deficiency, or
exercising any other right or remedy (including any right of set-off), against
any Guarantor before or after the Agent’s or such Lender’s commencement or
completion of any foreclosure action, whether judicially, by exercise of power
of sale or otherwise, or (B) any other law which in any other way would
otherwise require any election of remedies by the Agent or any Lender.


 


5.                                       UNENFORCEABILITY
OF OBLIGATIONS AGAINST COMPANY.  If for any reason the Company has no legal
existence or is under no legal obligation to discharge any of the Obligations,
or if any of the Obligations have become irrecoverable from the Company by
reason of the Company’s insolvency, bankruptcy or reorganization or by other
operation of law or for any other reason, this Guaranty shall nevertheless be
binding on each Guarantor to the same extent as if each Guarantor at all times
had been the principal obligor on all such Obligations.  In the event that acceleration of the time
for payment of any of the Obligations is stayed upon the insolvency, bankruptcy
or reorganization of the Company, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement, the
Note, the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in connection with any Obligation shall be immediately due
and payable by each Guarantor.


 


6.                                       SUBROGATION;
SUBORDINATION.


 


6.1                                 WAIVER OF
RIGHTS AGAINST COMPANY. 
Until the final payment and performance in full of all of the Obligations,
each Guarantor shall not exercise and hereby waives any rights against the
Company arising as a result of payment by such Guarantor hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise, and will
not prove any claim in competition with the Agent or any Lender in respect of
any payment hereunder in any bankruptcy, insolvency or reorganization case or
proceedings of any nature; no Guarantor will claim any setoff, recoupment or
counterclaim against the Company in respect of any liability of any Guarantor
to the Company; and each Guarantor waives any benefit of and any right to
participate in any collateral security which may be held by the Agent or any
Lender.


 


6.2                                 SUBORDINATION.  The payment of any amounts due with respect
to any indebtedness of the Company for money borrowed or credit received now or
hereafter owed to any Guarantor is hereby subordinated to the prior payment in
full of all of the Obligations.  Each
Guarantor agrees that, after the occurrence of any default in the payment or
performance of any of the Obligations, no Guarantor will demand, sue for or
otherwise attempt to collect any such indebtedness of the Company to any
Guarantor until all of the Obligations shall have been paid in full.  If, notwithstanding the foregoing sentence,
any Guarantor shall collect, enforce or receive any amounts in respect of such
indebtedness while any Obligations are still outstanding, such amounts shall be
collected, enforced and received by such Guarantor as trustee for the Lenders
and the Agent and be paid over to the Agent, for the benefit of the Lenders and
the Agent, on account of the Obligations without affecting in any manner the
liability of any Guarantor under the other provisions of this Guaranty.


 


3

















 


6.3                                 PROVISIONS
SUPPLEMENTAL.  The
provisions of this §6 shall be supplemental to and not in derogation of any
rights and remedies of the Lenders and the Agent under any separate
subordination agreement which the Agent may at any time and from time to time
enter into with each Guarantor for the benefit of the Lenders and the Agent.


 


7.                                       SECURITY;
SETOFF.  Each Guarantor grants to each
of the Agent and the Lenders, as security for the full and punctual payment and
performance of all of such Guarantor’s obligations hereunder, a continuing lien
on and security interest in all securities or other property belonging to such
Guarantor now or hereafter held by the Agent or such Lender and in all deposits
(general or special, time or demand, provisional or final) and other sums
credited by or due from the Agent or such Lender to such Guarantor or subject
to withdrawal by such Guarantor. 
Regardless of the adequacy of any collateral security or other means of
obtaining payment of any of the Obligations, each of the Agent and the Lenders
is hereby authorized at any time and from time to time, without notice to any
Guarantor (any such notice being expressly waived by each Guarantor) and to the
fullest extent permitted by law, to set off and apply such deposits and other
sums against the obligations of any Guarantor under this Guaranty, whether or
not the Agent or such Lender shall have made any demand under this Guaranty and
although such obligations may be contingent or unmatured.


 


8.                                       FURTHER
ASSURANCES.  Each
guarantor agrees that it will from time to time, at the request of the agent,
do all such things and execute all such documents as the agent may consider
necessary or desirable to give full effect to this guaranty and to perfect and
preserve the rights and powers of the lenders and the agent hereunder.  Each guarantor acknowledges and confirms that
it has established its own adequate means of obtaining from the company on a
continuing basis all information desired by such guarantor concerning the
financial condition of the company and that each guarantor will look to the
company and not to the agent or any lender in order for such guarantor to keep
adequately informed of changes in the company’s financial condition.


 


9.                                       TERMINATION; REINSTATEMENT.  This Guaranty shall remain in full force and
effect until the Agent is given written notice of the Guarantors’ intention to
discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations, provided
that this Guaranty shall terminate upon irrevocable payment in full of all of
the Obligations and termination of the Commitment.  No such notice shall be effective unless
received and acknowledged by an officer of the Agent at the address of the
Agent for notices set forth in §16.6 of the Credit Agreement.  No such notice shall affect any rights of the
Agent or any Lender hereunder, including without limitation the rights set
forth in §§4 and 6, with respect to any Obligations incurred or accrued prior
to the receipt of such notice or any Obligations incurred or accrued pursuant
to any contract or commitment in existence prior to such receipt.  This Guaranty shall continue to be effective
or be reinstated, notwithstanding any such notice, if at any time any payment
made or value received with respect to any Obligation is rescinded or must
otherwise be returned by the Agent or any Lender upon the insolvency,
bankruptcy or reorganization of the Company, or otherwise, all as though such
payment had not been made or value received.


 


10.                                 SUCCESSORS AND
ASSIGNS.  This Guaranty shall be binding
upon each Guarantor, its successors and assigns, and shall inure to the benefit
of the Agent and the Lenders and their respective successors, transferees and
assigns.  Without limiting the generality
of the 


 


4

















 


foregoing
sentence, each Lender may assign or otherwise transfer the Credit Agreement,
the Note, the other Loan Documents or any other agreement or note held by it
evidencing, securing or otherwise executed in connection with the Obligations,
or sell participations in any interest therein, to any other entity or other
person, and such other entity or other person shall thereupon become vested, to
the extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to such Lender
herein, all in accordance with and to the extent permitted by §15 of the Credit
Agreement.  No Guarantor may assign any
of its obligations hereunder.


 


11.                                 AMENDMENTS AND
WAIVERS.  No amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Guarantor
therefrom shall be effective unless the same shall be in writing and signed by
the Agent with the consent of the Required Lenders.  No failure on the part of the Agent or any
Lender to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right.


 


12.                                 NOTICES.  All notices and other communications called
for hereunder shall be made in writing and, unless otherwise specifically
provided herein, shall be deemed to have been duly made or given when delivered
by hand or mailed first class, postage prepaid, or, in the case of telegraphic
or telexed notice, when transmitted, answer back received, addressed as
follows:  if to any Guarantor, at the
address set forth beneath its signature hereto, and if to the Agent, at the
address for notices to the Agent set forth in §16.6 of the Credit Agreement, or
at such address as either party may designate in writing to the other.


 


13.                                 Governing Law;
Consent to Jurisdiction.  THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAWS THEREOF BUT OTHERWISE WITHOUT REGARD TO THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW.  Each
Guarantor irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the courts of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Guaranty, or for recognition
or enforcement of any judgment, and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
fully extent permitted by applicable law, in such Federal court.  Each Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Guaranty shall
affect any right that the Agent or any Lender may otherwise have to bring any action
or proceeding relating to this Guaranty against any Guarantor or its properties
in the courts of any jurisdiction.


 


14.                                 WAIVER OF JURY
TRIAL.  Each guarantor hereby waives
its right to a jury trial with respect to any action or claim arising out of any
dispute in connection with this guaranty, any rights or obligations hereunder
or thereunder or the performance of such rights and obligations or any course
of conduct, course of dealings, statements (whether verbal or written) or
actions of any party, including any course of conduct, course of dealings,
statements or actions 


 


5

















 


of
the administrative agent or any lender relating to the enforcement of this
guaranty and agrees that it will not seek to consolidate any such action with
any other action in which a jury trial cannot be or has not been waived.  Except as prohibited by law, each guarantor
hereby waives any right it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages.  Each guarantor (a) certifies
that no representative, agent or attorney of any lender or the agent has
represented, expressly or otherwise, that such lender or the agent would not,
in the event of litigation, seek to enforce the foregoing waivers and (b) acknowledges
that the agent and the lenders have been induced to enter into this guaranty
by, among other things, the waivers and certifications contained herein.


 


15.                                 MISCELLANEOUS.  This Guaranty constitutes the entire
agreement of each Guarantor with respect to the matters set forth herein.  The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or any other
agreement, and this Guaranty shall be in addition to any other guaranty of or
collateral security for any of the Obligations. 
The invalidity or unenforceability of any one or more sections of this
Guaranty shall not affect the validity or enforceability of its remaining
provisions.  Captions are for the ease of
reference only and shall not affect the meaning of the relevant
provisions.  The meanings of all defined
terms used in this Guaranty shall be equally applicable to the singular and
plural forms of the terms defined.


 


16.                                 CONTRIBUTION.


 


16.1.                        In addition to
all such rights of indemnity and subrogation as any Guarantor may have under
applicable law, the Company agrees that (a) in the event a payment shall
be made by any Guarantor under this Guaranty on account of any Obligation of
the Company, the Company shall indemnify such Guarantor for the full amount of
such payment and such Guarantor shall be subrogated to the rights of the Person
to whom such payment shall have been made to the extent of such payment and (b) in
the event any assets of any Guarantor shall be sold pursuant to any Loan
Document to satisfy a claim on account of any Obligation of the Company, the
Company shall indemnify such Guarantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.


 


16.2.                        Each Guarantor
(a “Contributing Guarantor”) agrees (subject to Section 6 hereof) that, in
the event a payment shall be made by any other Guarantor under this or any
other Guaranty, or assets of any other Guarantor shall be sold pursuant to any
Loan Document to satisfy a claim described in Section 16.1 and such other
Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by
the Company as provided in Section 16.1, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof.  Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to
this Section 16.2 shall be subrogated to the rights of such Claiming
Guarantor under Section 16.1 to the extent of such payment.


 


17.                                 LIMITATION ON
GUARANTEED OBLIGATIONS.  Each
Guarantor and the Agent (by its acceptance of the benefits of this Guaranty)
hereby confirms that it is its intention 


 


6

















 


that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any similar
Federal or state law.  To effectuate the
foregoing intention, each Guarantor and the Agent (by its acceptance of the
benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed
Obligations guaranteed by such Guarantor shall be limited to such amount as
will, after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws and
after giving effect to any rights to contribution pursuant to any agreement providing
for an equitable contribution among such Guarantor and the other Guarantors,
result in the Obligations of such Guarantor in respect of such maximum amount
not constituting a fraudulent transfer or conveyance.


 


18.                                 COUNTERPARTS.  This Guaranty may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
(including by facsimile), each of which when so executed and delivered shall be
an original, but all of which shall together constitute one and the same instrument.  A set of counterparts executed by all the
parties hereto shall be lodged with the Borrower and the Agent.


 


7

















 


IN WITNESS WHEREOF, each
Guarantor has caused this Guaranty to be executed and delivered as of the date
first above written.


 


	
   

  	
  [                                                                                                    ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  [                                                                                                      ]

  
	
   

  	
   

  
	
   

  	
  [                                                                                                      ]

  
	
   

  	
   

  
	
   

  	
  [                                                                                                      ]

  
	
   

  	
   

  
	
   

  	
  Telex: [                                                                                           ]

  



 


Guaranty


 

















 


Appendix I


 


JOINDER TO
GUARANTY


 


Reference is hereby made to
the Guaranty, dated as of August 24, 2006 (as amended, supplemented and otherwise
modified from time to time, the “Guaranty”), by
[                      ]
and each Person executing a joinder agreement thereto from time to time (each,
a “Guarantor” and collectively, the “Guarantors”) in favor of (i) DEUTSCHE
BANK TRUST COMPANY AMERICAS (in such capacity, the “Agent”) for itself and the
other banking institutions (collectively, the “Lenders”) which are or may
become parties to the Revolving Credit Agreement, dated as of August 24,
2006 (as amended and in effect from time to time, the “Credit Agreement”),
among CONTAINER LEASING INTERNATIONAL, LLC (D/B/A CARLISLE LEASING
INTERNATIONAL, LLC and/or SEACASTLE CONTAINER LEASING, LLC), as borrower (the
“Company”), DEUTSCHE BANK SECURITIES INC. as Lead Arranger, the Lenders party
thereto, and the Agent, and (ii) each of the Lenders.


 


[JOINED
GUARANTOR] (the “Joined Guarantor”), hereby agrees to be bound by all the terms
and provisions of the Guaranty.  Upon the
execution and delivery of this joinder agreement by the Joined Guarantor to
each of the parties to the Guaranty, the Joined Guarantor shall become a party
to the Guaranty and have the rights and obligations of a “Guarantor” party
thereto.


 


Any notice, report or other
communication given under the Guaranty shall be in writing and addressed to the
Joined Guarantor as follows:


 


[Insert Address]


Attn:  [   ]


 


IN WITNESS WHEREOF, the
undersigned has executed this joinder agreement to the Guaranty as of this
         day of [MONTH], [YEAR].


 


	
   

  	
  [JOINED
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 














 


Exhibit G


 


RESTRICTED
SUBSIDIARY SECURITY AGREEMENT


 


RESTRICTED SUBSIDIARY
SECURITY AGREEMENT, dated as of
[                        ],
between each Pledgor (each, a “Pledgor”) signatory hereto or signatory to a
joinder agreement in the form of Appendix I hereto (a “Joinder Agreement”), and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Agent (hereinafter, in such capacity, the “Agent”) for itself and
other lending institutions (hereinafter, collectively, the “Lenders”)
which are or may become parties to an Revolving Credit Agreement, dated as of August 24,
2006 (as amended and in effect from time to time, the “Credit  Agreement”),
among Container Leasing International, LLC (D/B/A Carlisle Leasing
International, LLC) (the “Borrower”), the Lenders and the Agent.


 


WHEREAS, the Borrower,
the Lenders and the Agent have entered into the Credit Agreement;


 


WHEREAS, each Pledgor
has executed the Guaranty guaranteeing the Obligations of the Borrower under
the Credit Agreement;


 


WHEREAS, it is a
condition precedent to the Lenders’ entering into the Credit Agreement and the
making of any loans or otherwise extending credit to the Borrower under the
Credit Agreement that each Pledgor execute and deliver to the Agent, for the
benefit of the Lenders, a security agreement in substantially the form hereof
in order to, among other things, expressly provide a grant of a lien on and a
security interest in the Collateral (as defined herein) to secure the
obligations of the Pledgors under the Guaranty (the “Secured Obligations”); and


 


WHEREAS, each Pledgor
wishes to expressly grant security interests and liens on the Collateral in
favor of the Agent, for the benefit of the Lenders, in order to secure the
Secured Obligations.


 


NOW, THEREFORE, in consideration of the promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, in order to induce the Agent and the Lenders to
make any loans or otherwise extend credit to the Borrower under the Credit
Agreement, and to secure the Secured Obligations, each Pledgor hereby agrees
with the Agent, for the benefit of the Lenders, as follows:


 


1.                                       Definitions.


 


All capitalized terms used
herein without definitions shall have the respective meanings provided therefor
in the Credit Agreement.  The term
“State”, as used herein, means the State of New York.  All terms defined in the Uniform Commercial
Code of the State and used herein shall have the same definitions herein as
specified therein.  However, if a term is
defined in Article 9 of the Uniform Commercial Code of the State
differently than in another Article of the Uniform Commercial Code of the
State, the term has the meaning specified in Article 9.


 

















 


2.                                       Grant of
Security Interest.


 


As collateral security
securing the Secured Obligations, each Pledgor hereby grants to the Agent, for
the benefit of the Lenders, a continuing security interest in and so pledges
and assigns to the Agent, for the benefit of the Lenders, the following
properties, assets and rights of each Pledgor, wherever located, whether now
owned or hereafter acquired or arising, and all proceeds and products thereof
(all of the same being hereinafter called the “Collateral”):


 


(i) the Containers, the
Generators, the Refrigeration Units and the Chassis, including any and all
substitutions therefor acquired from time to time, (ii) all other assets
and properties of each Pledgor, whether now existing or hereafter acquired, (iii) all
income, payments and proceeds of the foregoing and all other assets granted,
assigned, conveyed, mortgaged, pledged, hypothecated and transferred to the
Agent pursuant to this clause, and (iv) all of the following, whether now
existing or hereafter acquired:


 


All Accounts;


 


All Chattel Paper;


 


All Lease Agreements;


 


All Contracts;


 


All Documents;


 


All General Intangibles;


 


All Instruments;


 


All Inventory;


 


All Supporting Obligations;


 


All Equipment;


 


All Letter-of-Credit Rights;


 


All Commercial Tort Claims;


 


All Investment Property;


 


All Deposit Accounts;


 


All property of each Pledgor
held by the Agent including, without limitation, all property of every
description now or hereafter in the possession or custody of or in transit to
the Agent for any purpose, including, without limitation, safekeeping,
collection or pledge, for the account of any Pledgor, or as to which each
Pledgor may have any right or power;


 


To the extent not included
above and without limiting the foregoing, all Chattel Paper, all Leases and all
schedules, supplements, amendments, modifications, renewals, extensions, and guarantees
thereof in every case whether now owned or hereafter acquired and all amounts,
rentals, proceeds and other sums of money due and to become due under the
Leases, including, 


 


2

















 


without
limitation, (i) all rentals, payments and other monies, including all
insurance payments and claims for losses due and to become due to any Pledgor
under, and all claims for damages arising out of the breach of, any Lease; (ii) the
right of any Pledgor to terminate, perform under, or compel performance of the
terms of any Lease; (iii) any guarantee of any Lease and (iv) any
rights of any Pledgor in respect of any subleases or assignments permitted
under the Leases;


 


All insurance proceeds of
the Collateral and all proceeds of the voluntary or involuntary disposition of
the Collateral or such proceeds;


 


Any and all payments made or
due to any Pledgor in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority and any other cash or non-cash receipts from the sale,
exchange, collection or other disposition of the Collateral; and


 


To the extent not otherwise
included, all income and Proceeds of each of the foregoing and all accessions
to, substitutions and replacements for, and rents, profits and products of each
of the foregoing;


 


provided, however, that
notwithstanding the foregoing, the Collateral shall not include any of the
assets of any Pledgor released from the Lien of this Agreement from time to
time pursuant to the terms and conditions hereof and in accordance with the
Credit Agreement.


 


The Agent acknowledges that
the attachment of its security interest in any Commercial Tort Claim as
original collateral is subject to each Pledgor’s compliance with §4.6.


 


3.                                       Authorization
to File Financing Statements.


 


Each Pledgor hereby
irrevocably authorizes the Agent at any time and from time to time to file in
any filing office in any Uniform Commercial Code jurisdiction any initial financing
statements and amendments thereto that (a) indicate the Collateral (i) as
all assets of each Pledgor or words of similar effect, regardless of whether
any particular asset comprised in the Collateral falls within the scope of Article 9
of the Uniform Commercial Code of the State or such jurisdiction, or (ii) as
being of an equal or lesser scope or with greater detail, and (b) provide
any other information required by part 5 of Article 9 of the Uniform
Commercial Code of the State or such other jurisdiction for the sufficiency or
filing office acceptance of any financing statement or amendment, including (i) whether
each Pledgor is an organization, the type of organization and any
organizational identification number issued to each Pledgor and, (ii) in the
case of a financing statement filed as a fixture filing or indicating
Collateral as as-extracted collateral or timber to be cut, a sufficient
description of real property to which the Collateral relates.  Each Pledgor agrees to furnish any such
information to the Agent promptly upon the Agent’s reasonable request.  Each Pledgor also ratifies its authorization
for the Agent to have filed in any Uniform Commercial Code jurisdiction any
like initial financing statements or amendments thereto if filed prior to the
date hereof.


 


4.                                       Other Actions.


 


Further to insure the
attachment, perfection and first priority of, and the ability of the Agent to
enforce, the Agent’s security interest in the Collateral, each Pledgor agrees,
in each case 


 


3

















 


at
each Pledgor’s expense, to take the following actions with respect to the
following Collateral and without limitation on each Pledgor’s other obligations
contained in this Agreement:


 


5.                                       Promissory
Notes and Tangible Chattel Paper.


 


If any Pledgor shall, now or
at any time hereafter, hold or acquire any promissory notes in an aggregate
amount of $1,000,000 or more, such Pledgor shall forthwith endorse, assign and
deliver the same to the Agent, accompanied by such instruments of transfer or
assignment duly executed in blank as the Agent may from time to time specify.


 


6.                                       Deposit
Accounts.


 


For each deposit account
that each Pledgor at any time opens or maintains, each Pledgor shall, at the
Agent’s request and option, pursuant to an agreement in form and substance
satisfactory to the Agent, either (a) cause the depositary bank to agree
to comply, without further consent of any Pledgor, at any time with
instructions from the Agent to such depositary bank directing the disposition
of funds from time to time credited to such deposit account, or (b) cause
the Agent to become the bank at which any such deposit account is
maintained.  The provisions of this
paragraph shall not apply to (i) the Manager Collection Accounts (as
defined in the Intercreditor Agreement), (ii) any deposit accounts which
solely contain proceeds of other secured parties’ collateral or other lenders’
collateral, (iii) any deposit account for which the Agent is the
depositary bank and is in automatic control and (iv) any deposit accounts
specially and exclusively used for payroll, payroll taxes and other employee
wage and benefit payments to or for the benefit of any Pledgor’s salaried
employees.  Prior to an Event of Default,
the Agent shall not pursue its foregoing rights with respect to deposit
accounts which do not contain proceeds of its Collateral.


 


7.                                       Investment
Property.


 


If any Pledgor shall at any
time hold or acquire any certificated securities, such Pledgor shall forthwith
endorse, assign and deliver the same to the Agent, accompanied by such
instruments of transfer or assignment duly executed in blank as the Agent may
from time to time specify.  If any
securities now or hereafter acquired by such Pledgor are uncertificated and are
issued to any Pledgor or its nominee directly by the issuer thereof, any
Pledgor shall immediately notify the Agent thereof and, at the Agent’s request
and option, pursuant to an agreement in form and substance satisfactory to the
Agent, either (a) cause the issuer to agree to comply without further
consent of such Pledgor or such nominee, at any time with instructions from the
Agent as to such securities, or (b) arrange for the Agent to become the
registered owner of the securities.  If
any securities, whether certificated or uncertificated, or other investment
property now or hereafter acquired by any Pledgor are held by such Pledgor or
its nominee through a securities intermediary or commodity intermediary, such
Pledgor shall immediately notify the Agent thereof and, at the Agent’s request
and option, pursuant to an agreement in form and substance satisfactory to the
Agent, either (i) cause such securities intermediary or (as the case may
be) commodity intermediary to agree to comply, in each case without further
consent of such Pledgor or such nominee, at any time with entitlement orders or
other instructions from the Agent to such securities intermediary as to such
securities or other investment property, or (as the case may be) to apply any
value distributed on account of any commodity contract as directed by the Agent
to such commodity intermediary, or (ii) in the case of financial assets or



 


4

















 


other
investment property held through a securities intermediary, arrange for the Agent
to become the entitlement holder with respect to such investment property, with
such Pledgor being permitted, only with the consent of the Agent, to exercise
rights to withdraw or otherwise deal with such investment property.  The provisions of this paragraph shall not
apply to (x) any financial assets credited to a securities account for
which the Agent is the securities intermediary, (y) any Investments of the
type permitted pursuant to §§9.3(e), (h) and (i) of the Credit
Agreement, or (z) the share capital or corporate stock of any Unrestricted
Subsidiary.


 


8.                                       Electronic
Chattel Paper and Transferable Records.


 


If any Pledgor at any time
holds or acquires an interest in any electronic chattel paper, any electronic
document or any “transferable record,” as that term is defined in Section 7021
of the federal Electronic Signatures in Global and National Commerce Act, or in
§16 of the Uniform Electronic Transactions Act as in effect in any relevant
jurisdiction, such Pledgor shall promptly notify the Agent thereof and, at the
request and option of the Agent, shall take such action as the Agent may
reasonably request to vest in the Agent control, under §9-105 of the Uniform
Commercial Code of such electronic chattel paper, control, under §7-106 of the
Uniform Commercial Code, of such electronic document or control, under Section 201
of the federal Electronic Signatures in Global and National Commerce Act or, as
the case may be, §16 of the Uniform Electronic Transactions Act, as so in
effect in such jurisdiction, of such transferable record.


 


9.                                       Letter-of-Credit
Rights.


 


If any Pledgor is at any
time a beneficiary under one or more letters of credit in an amount or
aggregate amount of $5,000,000 or more, now or hereafter, any Pledgor shall
promptly notify the Agent thereof and, at the request and option of the Agent,
any Pledgor shall, pursuant to an agreement in form and substance satisfactory
to the Agent, either (a) arrange for the issuer and any confirmer or other
nominated person of such letter of credit to consent to an assignment to the
Agent of the proceeds of the letter of credit or (b) arrange for the Agent
to become the transferee beneficiary of the letter of credit, with the Agent
agreeing, in each case, that the proceeds of the letter of credit are to be
applied as provided in the Credit Agreement.


 


10.                                 Commercial Tort
Claims.


 


If any Pledgor shall, now or
at any time hereafter, hold or acquire a commercial tort claim or claims in an
aggregate amount of $1,000,000 or more, such Pledgor shall immediately notify
the Agent in a writing signed by such Pledgor of the particulars thereof and
grant to the Agent, for the benefit of the Lenders, in such writing a security
interest therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance satisfactory to the
Agent.


 


11.                                 Accounts
Receivable; Leases.  With respect to all
existing leases of such Pledgor that are Collateral hereunder or pursuant to
which such Pledgor, as lessor, leases Containers, Generators, Refrigeration
Units, Chassis or other equipment comprising Collateral to third parties, such
Pledgor shall conspicuously stamp such Pledgor’s original counterpart of each
such lease and any other counterpart thereof that comes into such Pledgor’s possession
with a legend, in form and substance satisfactory to the Agent, clearly
indicating that such lease and a portion 


 


5

















 


or
all of the Containers, Generators, Refrigeration Units, Chassis or other
equipment comprising Collateral leased thereunder are subject to the security
interest granted pursuant hereto.  With
respect to all leases of such Pledgor entered into on or after the date hereof
that will constitute Collateral hereunder or pursuant to which such Pledgor, as
lessor, will lease Containers, Generators, Refrigeration Units, Chassis or
other equipment comprising Collateral to third parties, such Pledgor agrees
that (i) each such lease shall be executed in three original counterparts,
one and only one of which shall be designated the “Lessor’s Original”, (ii) only
the Lessor’s Original counterpart of each such lease shall be deemed to
constitute chattel paper under the UCC and (iii) each such lease shall
contain a provision setting forth the terms contained in clauses (i) and (ii) of
this sentence.  Each Pledgor shall
conspicuously stamp the Lessor’s Original counterpart of each such lease and
any other counterpart thereof that comes into such Pledgor’s possession with a
legend, in the form set forth in Section 7 of the Intercreditor Agreement,
clearly indicating that such lease and a portion or all of the Containers,
Generators, Refrigeration Units, Chassis or other equipment comprising
Collateral leased thereunder are subject to the security interest as indicated
in the Intercreditor Agreement.  Each
Pledgor shall provide to the Agent upon request copies of any leases to which
any portion of the Collateral is subject.


 


12.                                 Other Actions
as to any and all Collateral.


 


Each Pledgor further agrees,
upon the reasonable request of the Agent and at the Agent’s option, to take any
and all other actions as the Agent may determine to be necessary or useful for
the attachment, perfection and first priority of, and the ability of the Agent
to enforce, the Agent’s security interest in any and all of the Collateral,
including, without limitation, (a) executing, delivering and, where
appropriate, filing financing statements and amendments relating thereto under
the Uniform Commercial Code, to the extent, if any, that such Pledgor’s
signature thereon is required therefor, (b) complying with any provision
of any statute, regulation or treaty of the United States as to any Collateral
if compliance with such provision is a condition to attachment, perfection or
priority of, or ability of the Agent to enforce, the Agent’s security interest
in such Collateral, (c) obtaining governmental and other third party
waivers, consents and approvals, in form and substance satisfactory to the
Agent, including, without limitation, any consent of any licensor, lessor or
other person obligated on Collateral, (d) obtaining waivers, in form and
substance satisfactory to the Agent, from mortgagees and landlords with respect
to any Collateral and (e) taking all actions under any earlier versions of
the Uniform Commercial Code or under any other law, as reasonably determined by
the Agent to be applicable in any relevant Uniform Commercial Code or other
jurisdiction.


 


13.                                 Collateral in
the Possession of a Bailee.


 


If any Collateral is, now or
at any time hereafter, in the possession of a bailee, the respective Pledgor(s) shall
promptly notify the Agent thereof and, at the Agent’s request and option, shall
promptly obtain an acknowledgement from the bailee, in form and substance
satisfactory to the Agent, that the bailee holds such Collateral for the
benefit of the Agent and such bailee’s agreement to comply, without further
consent of any Pledgor, at any time with instructions of the Agent as to such
Collateral.  This Section 4.9 shall
not apply to any Collateral in the possession of a bailee solely pursuant to a
Permitted Lien.


 


6

















 


14.                                 Certificates of
Title.


 


Each Pledgor agrees, upon
the reasonable request of the Agent and at the Agent’s option, to take all
necessary actions to cause the Agent’s name to be noted as secured party on any
certificate of title for a titled good which is part of the Collateral
(including without limitation all Chassis) if such notation is a condition to
attachment, perfection or priority of, or ability of the Agent to enforce, the
Agent’s security interest in such Collateral.


 


15.                                 Representations
and Warranties Concerning Pledgors’ Legal Status.


 


Each Pledgor has previously
delivered to the Agent a certificate signed by the such Pledgor and entitled
“Perfection Certificate” (as updated from time to time, the “Perfection
Certificate”).  Each Pledgor represents
and warrants to the Lenders and the Agent that :  (a) such Pledgor’s exact legal name is
that indicated on the Perfection Certificate, (b) such Pledgor is an
organization of the type, and is organized in the jurisdiction, set forth in
the Perfection Certificate, (c) the Perfection Certificate accurately sets
forth such Pledgor’s organizational identification number or accurately states
that such Pledgor has none, (d) the Perfection Certificate accurately sets
forth such Pledgor’s place of business or, if more than one, its chief
executive office, as well as such Pledgor’s mailing address, if different, (e) all
other information set forth on the Perfection Certificate pertaining to such
Pledgor is accurate and complete and (f) there has been no change in any
of such information since the date on which the Perfection Certificate was last
updated by such Pledgor (including pursuant to any notice delivered pursuant to
Section 7 hereof).


 


16.                                 Covenants
Concerning Pledgors’ Legal Status.


 


Each Pledgor covenants with
the Lenders and the Agent as follows:  (a) without
providing at least thirty (30) days prior written notice to the Agent, each
Pledgor will not change its name, its place of business or, if more than one,
chief executive office, or its mailing address or organizational identification
number if it has one, (b) if any Pledgor does not have an organizational
identification number and later obtains one, such Pledgor will forthwith notify
the Agent of such organizational identification number, and (c) each
Pledgor will not change its type of organization, jurisdiction of organization
or other legal structure.


 


17.                                 Representations
and Warranties Concerning Collateral, Etc.


 


Each Pledgor further
represents and warrants to the Lenders and the Agent as follows:  (a) except as indicated on Schedule 7.3
to the Credit Agreement and except for Permitted Liens, each Pledgor owns all
of the Collateral, subject to no Liens or other rights of others, (b) none
of the Collateral constitutes, or is the proceeds of, “farm products” as
defined in §9-102(a)(34) of the Uniform Commercial Code of the State, (c) none
of the account debtors or other persons obligated on any of the Collateral is a
governmental authority covered by the Federal Assignment of Claims Act or like
federal, state or local statute or rule in respect of such Collateral, (d) no
Pledgor holds any commercial tort claim except as indicated on the Perfection
Certificate, (e) each Pledgor has at all times operated its business in
compliance with all applicable provisions of the federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local
statutes and ordinances dealing with the control, shipment, storage or disposal
of hazardous materials or substances in accordance with the terms and
conditions set forth in the Credit Agreement, (f) all other information
set forth on the Perfection Certificate pertaining to the Collateral is
accurate and complete in all material 


 


7

















 


respects,
and (g) there has been no change in any of such information since the date
on which the Perfection Certificate was last updated by such Pledgor.


 


18.                                 Covenants
Concerning Collateral, Etc.


 


Each Pledgor further
covenants with the Lenders and the Agent as follows:  (a) except for the security interest
herein granted, except for Permitted Liens and except as indicated on Schedule
7.3 to the Credit Agreement, each Pledgor shall be the owner of the Collateral
free from any right or claim of any other person or any Lien, and each Pledgor
shall defend the same against all claims and demands of all persons at any time
claiming the same or any interests therein adverse to the Agent or any of the
Lenders, (b) except as otherwise permitted under the Credit Agreement, no
Pledgor shall pledge, mortgage or create, or suffer to exist any right of any
person in or claim by any person to the Collateral, or any Lien in the
Collateral in favor of any person, other than the Agent, (c) each Pledgor
will keep the Collateral in good order and repair and will not use the same in
violation of law or any policy of insurance thereon and, with respect to the
Collateral under lease pursuant to leases, each Pledgor will contractually
provide in such leases that the lessees thereunder will keep the Collateral in
good order and repair and will not use the same in violation of law or any
policy of insurance thereon, (d) each Pledgor will permit the Agent, or
its designee, to inspect the Collateral at any reasonable time, wherever
located in accordance with the terms and conditions set forth in the Credit
Agreement, (e) each Pledgor will pay promptly when due all taxes,
assessments, governmental charges and levies upon the Collateral or incurred in
connection with the use or operation of the Collateral or incurred in
connection with this Agreement in accordance with the terms and conditions set
forth in the Credit Agreement, (f) each Pledgor, in accordance with the
terms and conditions set forth in the Credit Agreement, will continue to
operate its business in compliance with all applicable provisions of the
federal Fair Labor Standards Act, as amended, and with all applicable
provisions of federal, state and local statutes and ordinances dealing with the
control, shipment, storage or disposal of hazardous materials or substances,
and (g) except as otherwise permitted under the Credit Agreement, no
Pledgor will sell or otherwise dispose, or offer to sell or otherwise dispose,
of the Collateral or any interest therein.


 


19.                                 Insurance.


 


20.                                 Maintenance of
Insurance.


 


Each Pledgor will, or will
cause each of its Subsidiaries to, or will require each of its lessees pursuant
to its lease agreements to, maintain with financially sound and reputable
insurers insurance with respect to its properties and business against such
casualties and contingencies as shall be in accordance with general practices
of businesses engaged in similar activities in similar geographic areas.  Such insurance shall be in such minimum
amounts that each Pledgor and its Subsidiaries will not be deemed co-insurers
under applicable insurance laws, regulations and policies and otherwise shall
be in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent.  In addition, each Pledgor shall use its
reasonable best efforts to cause all such insurance maintained by each Pledgor
and its Subsidiaries to be payable to the Agent as loss payee under a
“standard” or “New York” loss payee clause for the benefit of the Lenders.  Likewise, each Pledgor shall use reasonable
efforts to cause all such insurance maintained by its lessees to be payable to
each Pledgor as loss payee under a “standard” or “New York” loss payee
clause.  In the event any 


 


8

















 


Pledgor
receives any proceeds from any such insurance maintained by its lessees, such
Pledgor shall promptly notify the Agent of the same and shall cause such
proceeds to be disbursed in accordance with §10.2 herein.  Without limiting the foregoing, each Pledgor
will (a) keep all of its physical property (other than Containers,
Generators, Refrigeration Units, Chassis and other equipment comprising
Collateral which are subject to a lease agreement in which the applicable
Pledgor, pursuant to such lease agreement, has required the lessee thereunder
to maintain insurance with respect thereto) with casualty or physical hazard
insurance on an “all risks” basis, with broad form flood and earthquake
coverages and electronic data processing coverage, with a full replacement cost
endorsement and an “agreed amount” clause in an amount equal to 100% of the
full replacement cost of such property, (b) maintain all such workers’
compensation or similar insurance as may be required by law and (c) maintain,
in amounts and with deductibles equal to those generally maintained by
businesses engaged in similar activities in similar geographic areas, general
public liability insurance against claims of bodily injury, death or property
damage occurring, on, in or about the properties of each Pledgor; and business
interruption insurance.


 


21.                                 Insurance
Proceeds.


 


The proceeds of any casualty
insurance in respect of any casualty loss of any of the Collateral shall,
subject to the rights, if any, of other parties with an interest having
priority in the property covered thereby, (a) so long as no Default or
Event of Default has occurred and is continuing, be disbursed to the respective
Pledgor for direct application by each Pledgor solely to the repair or
replacement of each Pledgor’s property so damaged or destroyed and (b) in
all other circumstances, be paid to the Agent to be held as cash collateral for
the Secured Obligations.  The Agent may,
at its sole option, disburse from time to time all or any part of such proceeds
so held as cash collateral, upon such terms and conditions as the Agent may reasonably
prescribe, for direct application by such Pledgor solely to the repair or
replacement of each such Pledgor’s property so damaged or destroyed, or the
Agent may apply all or any part of such proceeds to the Secured Obligations.


 


22.                                 Continuation of
Insurance.


 


All policies of insurance maintained
by each Pledgor and its Subsidiaries shall provide for at least thirty (30)
days prior written cancellation notice to the Agent.  Likewise, each Pledgor shall use reasonable
efforts to cause such policies of insurance maintained by its lessees to
provide for at least thirty (30) days prior written cancellation notice to such
Pledgor.  In the event any Pledgor
receives a cancellation notice with respect to any policy of insurance
maintained by any Pledgor or its Subsidiaries, such Pledgor shall promptly
provide notice of the same to the Agent. 
In the event of failure by any Pledgor or any of its Subsidiaries to
provide and maintain insurance as herein provided or failure by such Pledgor to
use reasonable efforts to cause its lessees to provide and maintain insurance
as herein provided, the Agent may upon prior written notice to such Pledgor, at
its option, provide such insurance and charge the amount thereof to such
Pledgor.  Each Pledgor shall furnish the
Agent with certificates of insurance and policies evidencing compliance with
the foregoing insurance provision.


 


23.                                 Collateral
Protection Expenses; Preservation of Collateral.


 


9

















 


24.                                 Expenses
Incurred by Agent.


 


In the Agent’s discretion,
if any Pledgor fails to do so, the Agent may discharge taxes and other
encumbrances (other than Permitted Liens) at any time levied or placed on any
of the Collateral, maintain any of the Collateral, make repairs thereto and pay
any necessary filing fees or insurance premiums.  Each Pledgor agrees to reimburse the Agent on
demand for all expenditures so made.  The
Agent shall have no obligation to any Pledgor to make any such expenditures,
nor shall the making thereof be construed as a waiver or cure of any Default or
Event of Default.


 


25.                                 Agent’s
Obligations and Duties.


 


Anything herein to the
contrary notwithstanding, each Pledgor shall remain obligated and liable under
each contract or agreement comprised in the Collateral to be observed or
performed by such Pledgor thereunder. 
Neither the Agent nor any Lender shall have any obligation or liability
under any such contract or agreement by reason of or arising out of this
Agreement or the receipt by the Agent or any Lender of any payment relating to
any of the Collateral, nor shall the Agent or any Lender be obligated in any
manner to perform any of the obligations of any Pledgor under or pursuant to
any such contract or agreement, to make inquiry as to the nature or sufficiency
of any payment received by the Agent or any Lender in respect of the Collateral
or as to the sufficiency of any performance by any party under any such
contract or agreement, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which may have
been assigned to the Agent or to which the Agent or any Lender may be entitled
at any time or times.  The Agent’s sole
duty with respect to the custody, safe keeping and physical preservation of the
Collateral in its possession, under §9-207 of the Uniform Commercial Code of
the State or otherwise, shall be to deal with such Collateral in the same
manner as the Agent deals with similar property for its own account.


 


26.                                 Securities and
Deposits.


 


Upon the occurrence and
during the continuance of an Event of Default, the Agent may at any time, at
its option, transfer to itself or any nominee any securities constituting
Collateral, receive any income thereon and hold such income as additional
Collateral or apply it to the Secured Obligations.  Whether or not any Secured Obligations are
due, the Agent may demand, sue for, collect, or make any settlement or
compromise which it deems desirable with respect to the Collateral.  Regardless of the adequacy of Collateral or
any other security for the Secured Obligations, any deposits or other sums at
any time credited by or due from the Agent or any Lender to any Pledgor may,
upon the occurrence and during the continuance of an Event of Default, be
applied to or set off against any of the Secured Obligations.


 


27.                                 Notification to
Account Debtors and Other Persons Obligated on Collateral; Preservation of
Collateral.


 


Upon the occurrence and
during the continuance of an Event of Default, each Pledgor shall, at the
request and option of the Agent, notify account debtors and other persons
obligated on any of the Collateral of the security interest of the Agent in any
account, chattel paper, general intangible, instrument or other Collateral and
that payment thereof is to be made directly to the Agent or to any financial
institution designated by the Agent as the Agent’s agent therefor, and the
Agent may itself, without notice to or demand upon any Pledgor, so notify
account debtors and other persons obligated on Collateral.  After the making of such a request or the 


 


10














 


giving
of any such notification, each Pledgor shall hold any proceeds of collection of
accounts, chattel paper, general intangibles, instruments and other Collateral
received by such Pledgor as trustee for the Agent, for the benefit of the
Lenders, without commingling the same with other funds of such Pledgor and
shall turn the same over to the Agent in the identical form received, together
with any necessary endorsements or assignments. 
The Agent shall apply the proceeds of collection of accounts, chattel
paper, general intangibles, instruments and other Collateral received by the
Agent to the Secured Obligations, such proceeds to be immediately credited
after final payment in cash or other immediately available funds of the items
giving rise to them.


 


Except as otherwise
permitted by the Loan Documents, each Pledgor will not do anything to
materially impair the rights of the Agent in the Collateral.  Each Pledgor assumes all liability and
responsibility in connection with the Collateral acquired by it and the
liability of each Pledgor to pay the Secured Obligations shall in no way be
affected or diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to such
Pledgor.


 


To the extent practicable,
each Pledgor agrees that if any warehouse receipt or receipt in the nature of a
warehouse receipt is issued with respect to any of the Collateral, such Pledgor
shall request that such warehouse receipt or receipt in the nature thereof shall
not be “negotiable” (as such term is used in Section 7-104 of the Uniform
Commercial Code as in effect in any relevant jurisdiction or under other
relevant law).


 


Upon the occurrence and
during the continuance of an Event of Default each Pledgor will, at its own
expense, from time to time upon the reasonable request of the Agent, promptly
(and in any event within ten (10) Business Days after its receipt of the
respective request) furnish to the Agent such information with respect to the
Collateral (including the identity of the Collateral or such components thereof
as may have been requested by the Agent, the value and location of such
Collateral, etc.) as may be reasonably requested by the Agent.  Without limiting the forgoing, each Pledgor
agrees that during the continuance of an Event of Default it shall promptly
(and in any event within ten (10) Business Days after its receipt of the
respective request) furnish to the Agent an updated Perfection Certificate.


 


Each Pledgor will, at its
own expense and upon the reasonable request of the Agent, make, execute,
endorse, acknowledge, file and/or deliver to the Agent from time to time such
lists, descriptions and designations of its Collateral, warehouse receipts,
receipts in the nature of warehouse receipts, bills of lading, documents of
title, vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, certificates, reports, grants of
security and other assurances or instruments and take such further steps
relating to the Collateral and other property or rights covered by the security
interest hereby granted, which the Agent deems reasonably appropriate or
advisable to perfect, preserve or protect its security interest in the
Collateral.


 


28.                                 Power of Attorney.


 


29.                                 Appointment and
Powers of Agent.


 


Each Pledgor hereby
irrevocably constitutes and appoints the Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full 


 


11

















 


irrevocable
power and authority in the place and stead of such Pledgor or in the Agent’s
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments that may be necessary or useful to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, hereby gives
said attorneys the power and right, on behalf of such Pledgor, without notice
to or assent by such Pledgor, to do the following:


 


(a)                                  upon the
occurrence and during the continuance of an Event of Default, generally to
sell, transfer, pledge, make any agreement with respect to or otherwise dispose
of or deal with any of the Collateral in such manner as is consistent with the
Uniform Commercial Code of the State and as fully and completely as though the
Agent were the absolute owner thereof for all purposes, and to do, at each
Pledgor’s expense, at any time, or from time to time, all acts and things which
the Agent deems necessary or useful to protect, preserve or realize upon the
Collateral and the Agent’s security interest therein, in order to effect the
intent of this Agreement, all no less fully and effectively as each Pledgor
might do, including, without limitation, (i) the filing and prosecuting of
registration and transfer applications with the appropriate federal, state or
local agencies or authorities with respect to trademarks, copyrights and
patentable inventions and processes, (ii) upon written notice to the
applicable Pledgor, the exercise of voting rights with respect to voting
securities, which rights may be exercised, if the Agent so elects, with a view
to causing the liquidation of assets of the issuer of any such securities and (iii) the
execution, delivery and recording, in connection with any sale or other
disposition of any Collateral, of the endorsements, assignments or other
instruments of conveyance or transfer with respect to such Collateral; and


 


(b)                                 to the extent
that any Pledgor’s authorization given in §3 is not sufficient, to file such
financing statements with respect hereto, with or without such Pledgor’s
signature, or a photocopy of this Agreement in substitution for a financing
statement, as the Agent may deem appropriate and to execute in such Pledgor’s
name such financing statements and amendments thereto and continuation
statements which may require such Pledgor’s signature.


 


30.                                 Ratification by
Pledgors.


 


To the extent permitted by
law, each Pledgor hereby ratifies all that said attorneys shall lawfully do or
cause to be done by virtue hereof.  This
power of attorney is a power coupled with an interest and is irrevocable.


 


31.                                 No Duty on
Agent.


 


The powers conferred on the
Agent hereunder are solely to protect the interests of the Agent and the
Lenders in the Collateral and shall not impose any duty upon the Agent to
exercise any such powers.  The Agent
shall be accountable only for the amounts that it actually receives as a result
of the exercise of such powers, and neither it nor any of its officers,
directors, employees or agents shall be responsible to any Pledgor for any act
or failure to act, except for the Agent’s own gross negligence or willful
misconduct.


 


32.                                 Rights and
Remedies.


 


If an Event of Default shall
have occurred and be continuing, the Agent, without any other notice to or
demand upon any Pledgor, shall have in any jurisdiction in which enforcement 


 


12

















 


hereof
is sought, in addition to all other rights and remedies, the rights and
remedies of a secured party under the Uniform Commercial Code of the State and
any additional rights and remedies as may be provided to a secured party in any
jurisdiction in which Collateral is located, including, without limitation, the
right to take possession of the Collateral, and for that purpose the Agent may,
so far as each Pledgor can give authority therefor, enter upon any premises on
which the Collateral may be situated and remove the same therefrom.  The Agent may in its discretion require any
Pledgor to assemble all or any part of the Collateral at such location or
locations within the jurisdiction(s) of such Pledgor’s principal office(s) or
at such other locations as the Agent may reasonably designate.  Unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Agent shall give to the applicable Pledgor at least five
(5) Business Days prior written notice of the time and place of any public
sale of such Pledgor’s Collateral or of the time after which any private sale
or any other intended disposition is to be made.  Each Pledgor hereby acknowledges that five (5) Business
Days prior written notice of such sale or sales shall be reasonable
notice.  In addition, each Pledgor waives
any and all rights that it may have to a judicial hearing in advance of the
enforcement of any of the Agent’s rights and remedies hereunder, including,
without limitation, its right following an Event of Default to take immediate
possession of the Collateral and to exercise its rights and remedies with
respect thereto.


 


33.                                 Standards for
Exercising Rights and Remedies.


 


To the extent that
applicable law imposes duties on the Agent to exercise remedies in a commercially
reasonable manner, each Pledgor acknowledges and agrees that it is not
commercially unreasonable for the Agent (a) to fail to incur expenses
reasonably deemed significant by the Agent to prepare Collateral for
disposition or otherwise to fail to complete raw material or work in process
into finished goods or other finished products for disposition, (b) to
fail to obtain third party consents for access to Collateral to be disposed of,
or to obtain or, if not required by other law, to fail to obtain governmental
or third party consents for the collection or disposition of Collateral to be
collected or disposed of, (c) to fail to exercise collection remedies
against account debtors or other persons obligated on Collateral or to fail to
remove Liens on or any adverse claims against Collateral, (d) to exercise
collection remedies against account debtors and other persons obligated on
Collateral directly or through the use of collection agencies and other
collection specialists, (e) to advertise dispositions of Collateral
through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (f) to contact other persons,
whether or not in the same business as any Pledgor, for expressions of interest
in acquiring all or any portion of the Collateral, (g) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the collateral is of a specialized nature, (h) to dispose of
Collateral by utilizing Internet sites that provide for the auction of assets
of the types included in the Collateral or that have the reasonable capability
of doing so, or that match buyers and sellers of assets, (i) to dispose of
assets in wholesale rather than retail markets, (j) to disclaim
disposition warranties, (k) to purchase insurance or credit enhancements
to insure the Agent against risks of loss, collection or disposition of
Collateral or to provide to the Agent a guaranteed return from the collection
or disposition of Collateral, or (l) to the extent deemed appropriate by
the Agent, to obtain the services of brokers, investment bankers, consultants
and other professionals to assist the Agent in the collection or disposition of
any of the Collateral.  Each Pledgor
acknowledges that the purpose of this §16 is to provide non-exhaustive
indications of what actions or omissions by the Agent would fulfill the Agent’s
duties under the Uniform Commercial Code of the State or any other relevant
jurisdiction in the 


 


13

















 


Agent’s
exercise of remedies against the Collateral and that other actions or omissions
by the Agent shall not be deemed to fail to fulfill such duties solely on
account of not being indicated in this §16. 
Without limitation upon the foregoing, nothing contained in this §16
shall be construed to grant any rights to any Pledgor or to impose any duties
on the Agent that would not have been granted or imposed by this Agreement or
by applicable law in the absence of this §16.


 


34.                                 No Waiver by
Agent, etc.


 


The Agent shall not be
deemed to have waived any of its rights and remedies in respect of the Secured
Obligations or the Collateral unless such waiver shall be in writing and signed
by the Agent with the consent of the Required Lenders.  No delay or omission on the part of the Agent
in exercising any right or remedy shall operate as a waiver of such right or
remedy or any other right or remedy.  A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right or remedy on any future occasion. 
All rights and remedies of the Agent with respect to the Secured
Obligations or the Collateral, whether evidenced hereby or by any other
instrument or papers, shall be cumulative and may be exercised singularly,
alternatively, successively or concurrently at such time or at such times as
the Agent deems expedient.


 


35.                                 Suretyship
Waivers by Pledgors; Waiver of Claims.


 


Each Pledgor waives demand,
notice, protest, notice of acceptance of this Agreement, notice of loans made,
credit extended, Collateral received or delivered or other action taken in
reliance hereon and all other demands and notices of any description.  With respect to both the Secured Obligations
and the Collateral, each Pledgor assents to any extension or postponement of
the time of payment or any other indulgence, to any substitution, exchange or
release of or failure to perfect any security interest in any Collateral, to
the addition or release of any party or person primarily or secondarily liable,
to the acceptance of partial payment thereon and the settlement, compromising
or adjusting of any thereof, all in such manner and at such time or times as
the Agent may deem advisable.  The Agent
shall have no duty as to the collection or protection of the Collateral or any
income therefrom, the preservation of rights against prior parties, or the
preservation of any rights pertaining thereto beyond the safe custody thereof
as set forth in §11.2.  Each Pledgor
further waives any and all other suretyship defenses.


 


Except as otherwise provided
in this Agreement, (a) EACH PLEDGOR HEREBY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE AGENT’S
TAKING POSSESSION OR THE AGENT’S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES, and (b) each Pledgor hereby further
waives, to the extent permitted by law:


 


(i)                                     all damages
occasioned by such taking of possession or any such disposition except any
damages which are the direct result of the Agent’s gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision);


 


(ii)                                  all other
requirements as to the time, place and terms of sale or other requirements with
respect to the enforcement of the Agent’s rights hereunder; and


 


14

















 


(iii)                               all rights of
redemption, appraisement, valuation, stay, extension or moratorium now or
hereafter in force under any applicable law in order to prevent or delay the
enforcement of this Agreement or the absolute sale of the Collateral or any
portion thereof, and each Pledgor, for itself and all who may claim under it,
insofar as it or they now or hereafter lawfully may, hereby waives the benefit
of all such laws.


 


Any sale of, or the grant of
options to purchase, or any other realization upon, any Collateral shall
operate to divest all right, title, interest, claim and demand, either at law
or in equity, of the applicable Pledgor therein and thereto, and shall be a
perpetual bar both at law and in equity against such Pledgor and against any
and all Persons claiming or attempting to claim the Collateral so sold,
optioned or realized upon, or any part thereof, from, through and under such
Pledgor.


 


36.                                 Marshalling.


 


Neither the Agent nor any
Lender shall be required to marshal any present or future collateral security
(including but not limited to the Collateral) for, or other assurances of
payment of, the Secured Obligations or any of them or to resort to such
collateral security or other assurances of payment in any particular order, and
all of the rights and remedies of the Agent or any Lender hereunder and of the
Agent or any Lender in respect of such collateral security and other assurances
of payment shall be cumulative and in addition to all other rights and
remedies, however existing or arising. 
To the extent that it lawfully may, each Pledgor hereby agrees that it
will not invoke any law relating to the marshalling of collateral which might
cause delay in or impede the enforcement of the Agent’s rights and remedies
under this Agreement or under any other instrument creating or evidencing any
of the Secured Obligations or under which any of the Secured Obligations is
outstanding or by which any of the Secured Obligations is secured or payment
thereof is otherwise assured, and, to the extent that it lawfully may, each
Pledgor hereby irrevocably waives the benefits of all such laws.


 


37.                                 Proceeds of
Dispositions; Expenses.


 


The Pledgors shall pay to
the Agent on demand any and all expenses, including reasonable attorneys’ fees
and disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the Agent’s rights and remedies under or in respect of any of the
Secured Obligations or any of the Collateral. 
After deducting all of said expenses, the residue of any proceeds of
collection or sale or other disposition of Collateral shall, to the extent
actually received in cash, be applied to the payment of the Secured
Obligations, proper allowance and provision being made for any Secured
Obligations not then due.  Upon the final
payment and satisfaction in full of all of the Secured Obligations and after
making any payments required by Sections 9-608(a)(1)(C) or 9-615(a)(3) of
the Uniform Commercial Code of the State, any excess shall be returned to the
respective Pledgor(s).  In the absence of
final payment and satisfaction in full of all of the Secured Obligations, the
Pledgors shall remain jointly and severally liable for any deficiency.


 


15

















 


38.                                 Overdue
Amounts.


 


Until paid, all amounts due
and payable by any Pledgor hereunder shall be a debt secured by the Collateral
and shall bear, whether before or after judgment, interest at the rate of
interest set forth in §5.10 of the Credit Agreement (if applicable).


 


39.                                 Governing Law;
Consent to Jurisdiction; Waiver of Venue.


 


THIS AGREEMENT IS A CONTRACT
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS THEREOF BUT
OTHERWISE WITHOUT REGARD TO THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW.  Each Pledgor irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
courts of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State court or, to the full extent permitted by applicable law, in
such Federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement shall affect any right that the Agent or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement against each Pledgor or its properties in the courts of any
jurisdiction.


 


40.                                 Waiver of Jury
Trial.


 


EACH PLEDGOR HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY, INCLUDING ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
OR ACTIONS OF THE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE
LOANS OR ENFORCEMENT OF THIS AGREEMENT AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED.  EXCEPT AS
PROHIBITED BY LAW, EACH PLEDGOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. 
EACH PLEDGOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH LENDER OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE AGENT AND THE
LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS 


 


16

















 


AGREEMENT
BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.


 


41.                                 Discontinuance
of Proceedings.


 


In
case the Agent shall have instituted any proceeding to enforce any right, power
or remedy under this Agreement by foreclosure, sale, entry or otherwise, and
such proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Agent, then and in every such case
each Pledgor, the Agent and each holder of any of the Secured Obligations shall
be restored to their former positions and rights hereunder with respect to the
Collateral subject to the security interest created under this Agreement, and
all rights, remedies and powers of the Agent shall continue as if no such
proceeding had been instituted.


 


42.                                 Miscellaneous.


 


43.                                 Headings.  The headings of each section of this
Agreement are for convenience only and shall not define or limit the provisions
thereof.  This Agreement and all rights
and obligations hereunder shall be binding upon each Pledgor and its successors
and assigns, and shall inure to the benefit of the Agent, the Lenders and their
respective successors and assigns.  If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as
if such invalid, illegal or unenforceable term had not been included
herein.  Each Pledgor acknowledges
receipt of a copy of this Agreement.


 


44.                                 Notices.  Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by courier, be
effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Agent or any Pledgor
shall not be effective until received by the Agent or such Pledgor, as the case
may be.  All notices and other
communications shall be in writing and addressed as set forth in the Credit
Agreement.


 


45.                                 Waiver;
Amendment.  Except as provided in Section 16.12
of the Credit Agreement, none of the terms and conditions of this Agreement may
be changed, waived, modified or varied in any manner whatsoever unless in
writing duly signed by each Pledgor and the Agent (with the written consent of
the Required Lenders).


 


46.                                 Obligations
Absolute.  The obligations of each
Pledgor hereunder shall remain in full force and effect without regard to, and
shall not be impaired by, (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of any Pledgor;
(b) any exercise or non-exercise, or any waiver of, any right, remedy,
power or privilege under or in respect of this Agreement or any other Loan
Document; or (c) any amendment to or modification of any Loan Document or
any security for any of the Secured Obligations; whether or not any Pledgor
shall have notice or knowledge of any of the foregoing.


 


47.                                 Successors and
Assigns.  This Agreement shall create a
continuing security interest in the Collateral and shall (i) remain in
full force and effect, subject to release and/or 


 


17

















 


termination
as set forth in Section 25.8 herein, (ii) be binding upon each
Pledgor, its successors and assigns; provided, however, that no Pledgor shall
assign any of its rights or obligations hereunder without the prior written
consent of the Agent (acting at the direction of the Required Lenders), and (iii) inure,
together with the rights and remedies of the Agent hereunder, to the benefit of
the Agent, the Lenders and their respective successors, transferees and
assigns.  All agreements, statements,
representations and warranties made by any Pledgor herein or in any certificate
or other instrument delivered by any Pledgor or on its behalf under this
Agreement shall be considered to have been relied upon by the Lenders and shall
survive the execution and delivery of this Agreement and the other Loan
Documents regardless of any investigation made by the Lenders or on their
behalf.


 


48.                                 Counterparts.  This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.  A set of counterparts executed by all the
parties hereto shall be lodged with each Pledgor and the Agent.  Execution and delivery of this Agreement by
facsimile signature shall constitute execution and delivery of this Agreement
for all purposes hereof with the same force and effect as execution and
delivery of a manually signed copy hereof.


 


49.                                 Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


50.                                 Termination;
Release.  After the Termination Date
(defined below), this Agreement shall terminate and the Agent, at the request
and expense of the Pledgors, will promptly execute and deliver to each Pledgor
a proper instrument or instruments (including Uniform Commercial Code
termination statements on Form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
each Pledgor (without recourse and without any representation or warranty) such
of the Collateral as may be in the possession of the Agent and which has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement.  As used in this Agreement,
“Termination Date” shall mean the date of expiration of all applicable
preference periods following the date upon which all of the Secured Obligations
have been paid.


 


So long as (A) no
Default or Event of Default has occurred and is continuing and (B) no
Borrowing Base imbalance described in Section 3.2.1 of the Credit
Agreement exists, upon (i) the sale or other disposition of any part of
the Collateral that is not prohibited by the Credit Agreement or any other Loan
Document, (ii) any Proceeds in connection with the acquisition of any
property or to pay any fees, costs and expenses of any Person, (iii) the
release of any part of the Collateral at the direction of the Agent or (iv) the
pledge by any Pledgor of the Voting Stock and/or Capital Stock of any
Additional Securitization Entity in connection with a Permitted Securitization,
such Collateral shall automatically be released from the Lien of this Agreement
and the Lien of this Agreement shall be terminated with respect to such
Collateral.


 


Upon and after any and all
releases contemplated in two immediately preceding paragraphs, at the request
and at the sole cost and expense of the Pledgors, the Agent will 


 


18

















 


execute
and deliver such documentation, including termination or partial release
statements, a release letter and any similar documentation (without recourse
and without any representation or warranty) to evidence such release(s) or
otherwise in connection therewith; provided that, upon request of the Agent,
each Pledgor shall deliver to the Agent a certificate signed by an authorized
officer of such Pledgor stating that each release of the respective Collateral
is permitted pursuant to this Section 25.8.


 


The Agent shall have no
liability whatsoever to any Lender as the result of any release of Collateral
by it in accordance with (or which the Agent in the absence of gross negligence
and willful misconduct believes to be in accordance with) this Section 25.8.


 


[Remainder of Page Intentionally
Blank]


 


19

















 


IN WITNESS WHEREOF, intending to
be legally bound, each Pledgor has caused this Agreement to be duly executed as
of the date first above written.


 


	
   

  	
  [NAME
  OF RESTRICTED SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
  Accepted:

  	
   

  
	
   

  	
   

  
	
  DEUTSCHE
  BANK TRUST

  COMPANY
  AMERICAS, as Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 














 


CERTIFICATE OF
ACKNOWLEDGMENT


 


	
  COMMONWEALTH
  OR STATE OF

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.

  
	
  COUNTY
  OF

  	
  )

  	
   

  



 


Before me, the undersigned,
a Notary Public in and for the county aforesaid, on this
       day of
                      ,
20    , personally appeared
                                      
to me known personally, and who, being by me duly sworn, deposes and says that
[s]he is the                           
of [NAME OF RESTRICTED SUBSIDIARY], and that said instrument was signed and
sealed on behalf of said limited liability company by authority of its
operating agreement, and said
                          
acknowledged said instrument to be the free act and deed of said limited
liability company.


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
  My
  commission expires:

  



 

















 


Appendix I


 


JOINDER TO
RESTRICTED SUBSIDIARY SECURITY AGREEMENT


 


Reference is hereby made to
the Restricted Subsidiary Security Agreement, dated as of
[                      ]
(as amended, supplemented and otherwise modified from time to time, the
“Agreement”), by [NAME OF RESTRICTED SUBSIDIARY] and each Person executing a
joinder agreement thereto from time to time (each, a “Pledgor” and
collectively, the “Pledgors”) in favor of (i) DEUTSCHE BANK TRUST COMPANY
AMERICAS (in such capacity, the “Agent”) for itself and the other banking institutions
(collectively, the “Lenders”) which are or may become parties to the Revolving
Credit Agreement, dated as of August 24, 2006 (as amended and in effect
from time to time, the “Credit Agreement”), among CONTAINER LEASING
INTERNATIONAL, LLC (D/B/A CARLISLE LEASING INTERNATIONAL, LLC and/or SEACASTLE
CONTAINER LEASING, LLC), as borrower (the “Company”), DEUTSCHE BANK SECURITIES
INC., as Lead Arranger, the Lenders party thereto and the Agent, and (ii) each
of the Lenders.


 


[JOINED PLEDGOR] (the “Joined
Pledgor”), hereby agrees to be bound by all the terms and provisions of the
Agreement.  Upon the execution and
delivery of this joinder agreement by the Joined Pledgor to each of the parties
to the Agreement, the Joined Pledgor shall become a party to the Agreement and
have the rights and obligations of a “Pledgor” party thereto.


 


Any notice, report or other
communication given under the Agreement shall be in writing and addressed to
the Joined Pledgor as follows:


 


[Insert Address]

Attn:  [  
]


 


IN WITNESS WHEREOF, the
undersigned has executed this joinder agreement to the Agreement as of this
         day of [MONTH], [YEAR].


 


	
   

  	
  [JOINED
  PLEDGOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 

















 


Exhibit H


 


FORM OF
STOCK PLEDGE AGREEMENT


 

















 


Exhibit I


 


FORM OF
LETTER OF CREDIT REQUEST


 

















 


Exhibit J


 


FORM OF
MANAGEMENT FINANCIAL REPORT