EXHIBIT 10.10


 


CREDIT AGREEMENT


 


Dated as of October 31, 2007


 


Among


 


CLI FUNDING III LLC,


as Borrower,


 


THE LENDERS FROM TIME TO TIME PARTY HERETO,


as Lenders,


 


and


 


ING BANK N.V.,


as Administrative Agent and as Collateral Agent


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND RULES
  OF INTERPRETATION

  	
  1

  
	
   

  	
  1.1.

  	
  Definitions

  	
  1

  
	
   

  	
  1.2.

  	
  Rules of Interpretation

  	
  29

  
	
   

  	
  1.3.

  	
  Use of Defined Terms

  	
  30

  
	
   

  	
  1.4.

  	
  Accounting and
  Financial Determinations

  	
  30

  
	
  2.

  	
  COMMITMENTS OF LENDER

  	
  31

  
	
   

  	
  2.1.

  	
  Commitments to Make
  Loans

  	
  31

  
	
   

  	
  2.2.

  	
  Requests for Loan

  	
  31

  
	
   

  	
  2.3.

  	
  The Revolving Credit
  Notes

  	
  31

  
	
   

  	
  2.4.

  	
  Termination or
  Reduction of Commitments; Increase in Commitments

  	
  32

  
	
   

  	
  2.5.

  	
  Bank Accounts and
  Payments

  	
  32

  
	
   

  	
  2.6.

  	
  Funding by Lenders;
  Presumption by Administrative Agent

  	
  34

  
	
   

  	
  2.7.

  	
  Failure to Satisfy
  Conditions Precedent

  	
  35

  
	
   

  	
  2.8.

  	
  Obligations of Lenders
  Several

  	
  35

  
	
   

  	
  2.9.

  	
  Revolving Credit
  Facility

  	
  35

  
	
  3.

  	
  [RESERVED]

  	
  35

  
	
  4.

  	
  PROVISIONS APPLICABLE
  TO ALL LOANS

  	
  35

  
	
   

  	
  4.1.

  	
  Interest on Loans

  	
  35

  
	
   

  	
  4.2.

  	
  Mandatory Repayments of
  the Loans

  	
  36

  
	
   

  	
  4.3.

  	
  Optional Prepayment of
  Loans

  	
  36

  
	
   

  	
  4.4.

  	
  Payments by Borrower;
  Presumptions by Administrative Agent

  	
  37

  
	
   

  	
  4.5.

  	
  Sharing of Payments by
  Lenders

  	
  37

  
	
   

  	
  4.6.

  	
  Funding Source

  	
  38

  
	
  5.

  	
  CERTAIN GENERAL
  PROVISIONS

  	
  38

  
	
   

  	
  5.1.

  	
  Fees

  	
  38

  
	
   

  	
  5.2.

  	
  Funds for Payments

  	
  38

  
	
   

  	
  5.3.

  	
  Computations

  	
  42

  
	
   

  	
  5.4.

  	
  Inability to Determine
  LIBOR Rate

  	
  42

  
	
   

  	
  5.5.

  	
  Illegality

  	
  42

  
	
   

  	
  5.6.

  	
  Additional Costs, etc

  	
  43

  



 

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7.

  	
  Capital Adequacy

  	
  44

  
	
   

  	
  5.8.

  	
  Certificate

  	
  45

  
	
   

  	
  5.9.

  	
  Indemnity

  	
  45

  
	
   

  	
  5.10.

  	
  Interest After Default

  	
  45

  
	
  6.

  	
  COLLATERAL SECURITY

  	
  45

  
	
   

  	
  6.1.

  	
  Security of Borrower

  	
  45

  
	
  7.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  46

  
	
   

  	
  7.1.

  	
  Company Status

  	
  46

  
	
   

  	
  7.2.

  	
  Company Power and
  Authority

  	
  46

  
	
   

  	
  7.3.

  	
  No Violation

  	
  46

  
	
   

  	
  7.4.

  	
  Litigation

  	
  47

  
	
   

  	
  7.5.

  	
  Margin Regulations

  	
  47

  
	
   

  	
  7.6.

  	
  Governmental Approvals

  	
  47

  
	
   

  	
  7.7.

  	
  Investment Company Act

  	
  47

  
	
   

  	
  7.8.

  	
  [Reserved]

  	
  47

  
	
   

  	
  7.9.

  	
  True and Complete
  Disclosure

  	
  48

  
	
   

  	
  7.10.

  	
  Financial Condition;
  Financial Statements

  	
  48

  
	
   

  	
  7.11.

  	
  Security Interests

  	
  49

  
	
   

  	
  7.12.

  	
  Compliance with ERISA

  	
  49

  
	
   

  	
  7.13.

  	
  Subsidiaries

  	
  49

  
	
   

  	
  7.14.

  	
  Compliance with
  Statutes; Agreements, etc

  	
  50

  
	
   

  	
  7.15.

  	
  Environmental Matters

  	
  50

  
	
   

  	
  7.16.

  	
  Labor Relations

  	
  50

  
	
   

  	
  7.17.

  	
  Tax Returns and
  Payments

  	
  51

  
	
   

  	
  7.18.

  	
  Scheduled Existing
  Indebtedness

  	
  51

  
	
   

  	
  7.19.

  	
  Insurance

  	
  51

  
	
   

  	
  7.20.

  	
  Foreign Assets Control
  Regulations, etc

  	
  51

  
	
   

  	
  7.21.

  	
  Credit and Collection
  Policy

  	
  51

  
	
   

  	
  7.22.

  	
  Solvency and
  Separateness

  	
  52

  
	
   

  	
  7.23.

  	
  No Default

  	
  52

  
	
   

  	
  7.24.

  	
  Ownership of the
  Borrower

  	
  52

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.25.

  	
  Use of Proceeds

  	
  52

  
	
   

  	
  7.26.

  	
  ERISA Lien

  	
  53

  
	
   

  	
  7.27.

  	
  Tax Election of the
  Borrower

  	
  53

  
	
  8.

  	
  AFFIRMATIVE COVENANTS

  	
  53

  
	
   

  	
  8.1.

  	
  Information Covenants

  	
  53

  
	
   

  	
  8.2.

  	
  Books, Records and
  Inspections

  	
  55

  
	
   

  	
  8.3.

  	
  Maintenance of Office

  	
  56

  
	
   

  	
  8.4.

  	
  Payment of Taxes

  	
  56

  
	
   

  	
  8.5.

  	
  Existence; Franchises

  	
  56

  
	
   

  	
  8.6.

  	
  Compliance with
  Statutes; etc

  	
  56

  
	
   

  	
  8.7.

  	
  End of Fiscal Years;
  Fiscal Quarters

  	
  56

  
	
   

  	
  8.8.

  	
  Further Assurances

  	
  57

  
	
   

  	
  8.9.

  	
  Performance of
  Obligations

  	
  57

  
	
   

  	
  8.10.

  	
  Maintenance of
  Containers

  	
  57

  
	
   

  	
  8.11.

  	
  Insurance

  	
  58

  
	
   

  	
  8.12.

  	
  Interest Rate Hedging
  Agreements

  	
  58

  
	
   

  	
  8.13.

  	
  UNIDROIT Convention

  	
  59

  
	
   

  	
  8.14.

  	
  Compliance with Credit
  and Collection Policy

  	
  59

  
	
   

  	
  8.15.

  	
  Non-Consolidation of
  the Borrower

  	
  59

  
	
  9.

  	
  NEGATIVE COVENANTS

  	
  60

  
	
   

  	
  9.1.

  	
  Restrictions on
  Indebtedness

  	
  60

  
	
   

  	
  9.2.

  	
  Restrictions on Liens

  	
  60

  
	
   

  	
  9.3.

  	
  Restrictions on Investments

  	
  61

  
	
   

  	
  9.4.

  	
  Restricted Payments

  	
  61

  
	
   

  	
  9.5.

  	
  Merger, Consolidation
  and Disposition of Assets

  	
  61

  
	
   

  	
  9.6.

  	
  Sale and Leaseback

  	
  62

  
	
   

  	
  9.7.

  	
  Compliance with
  Environmental Laws

  	
  62

  
	
   

  	
  9.8.

  	
  Employee Benefit Plans

  	
  62

  
	
   

  	
  9.9.

  	
  Business Activities

  	
  63

  
	
   

  	
  9.10.

  	
  Fiscal Year

  	
  63

  
	
   

  	
  9.11.

  	
  Transactions with
  Affiliates

  	
  63

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.12.

  	
  Other Agreements

  	
  64

  
	
   

  	
  9.13.

  	
  Charter Documents

  	
  64

  
	
   

  	
  9.14.

  	
  Capital Expenditures

  	
  64

  
	
   

  	
  9.15.

  	
  Permitted Activities;
  Compliance with Organizational Documents

  	
  64

  
	
   

  	
  9.16.

  	
  Subsidiaries

  	
  64

  
	
   

  	
  9.17.

  	
  Amendment of
  Intercreditor Agreement

  	
  64

  
	
   

  	
  9.18.

  	
  OFAC

  	
  64

  
	
  10.

  	
  FINANCIAL COVENANTS

  	
  65

  
	
   

  	
  10.1.

  	
  Minimum Tangible Net
  Worth

  	
  65

  
	
  11.

  	
  CLOSING CONDITIONS

  	
  65

  
	
   

  	
  11.1.

  	
  Execution of Agreement;
  Notes

  	
  65

  
	
   

  	
  11.2.

  	
  Officer’s Certificate

  	
  65

  
	
   

  	
  11.3.

  	
  Opinions of Counsel

  	
  65

  
	
   

  	
  11.4.

  	
  Company Documents;
  Proceedings

  	
  66

  
	
   

  	
  11.5.

  	
  Approvals

  	
  66

  
	
   

  	
  11.6.

  	
  Guaranty by Carlisle

  	
  66

  
	
   

  	
  11.7.

  	
  Security Agreement

  	
  67

  
	
   

  	
  11.8.

  	
  Pledge Agreement

  	
  67

  
	
   

  	
  11.9.

  	
  Insurance Certificates;
  etc

  	
  68

  
	
   

  	
  11.10.

  	
  Audited and Unaudited
  Financial Statements

  	
  68

  
	
   

  	
  11.11.

  	
  Payment of Fees

  	
  69

  
	
   

  	
  11.12.

  	
  Intercreditor Agreement

  	
  69

  
	
  12.

  	
  CONDITIONS PRECEDENT TO
  ALL LOANS

  	
  69

  
	
   

  	
  12.1.

  	
  Closing Date

  	
  69

  
	
   

  	
  12.2.

  	
  No Default;
  Representations and Warranties

  	
  69

  
	
   

  	
  12.3.

  	
  Loan Request

  	
  70

  
	
   

  	
  12.4.

  	
  Certification

  	
  70

  
	
   

  	
  12.5.

  	
  Amendments to
  Management Agreement

  	
  70

  
	
   

  	
  12.6.

  	
  Execution of the CLIF
  II Sale Agreement

  	
  70

  
	
  13.

  	
  EVENTS OF DEFAULT;
  ACCELERATION; ETC

  	
  70

  
	
   

  	
  13.1.

  	
  Events of Default and
  Acceleration

  	
  70

  



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.2.

  	
  Termination of
  Commitments

  	
  73

  
	
   

  	
  13.3.

  	
  Remedies

  	
  74

  
	
   

  	
  13.4.

  	
  Distribution of
  Collateral Proceeds

  	
  74

  
	
   

  	
  13.5.

  	
  Quiet Enjoyment

  	
  75

  
	
  14.

  	
  ADMINISTRATIVE AGENT
  AND COLLATERAL AGENT

  	
  75

  
	
   

  	
  14.1.

  	
  Appointment and
  Authority

  	
  75

  
	
   

  	
  14.2.

  	
  Rights as a Lender

  	
  75

  
	
   

  	
  14.3.

  	
  Exculpatory Provisions

  	
  75

  
	
   

  	
  14.4.

  	
  Reliance by
  Administrative Agent

  	
  77

  
	
   

  	
  14.5.

  	
  Delegation of Duties

  	
  77

  
	
   

  	
  14.6.

  	
  Resignation of
  Administrative Agent

  	
  77

  
	
   

  	
  14.7.

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
  78

  
	
   

  	
  14.8.

  	
  Administrative Agent
  May File Proofs of Claim

  	
  78

  
	
   

  	
  14.9.

  	
  Collateral Matters

  	
  79

  
	
   

  	
  14.10.

  	
  Collateral Agent

  	
  80

  
	
   

  	
  14.11.

  	
  Delivery of Documents

  	
  80

  
	
  15.

  	
  SUCCESSORS AND ASSIGNS

  	
  80

  
	
   

  	
  15.1.

  	
  General Conditions

  	
  80

  
	
   

  	
  15.2.

  	
  Assignments

  	
  80

  
	
   

  	
  15.3.

  	
  Register

  	
  82

  
	
   

  	
  15.4.

  	
  Participations

  	
  82

  
	
   

  	
  15.5.

  	
  Certain Pledges

  	
  83

  
	
   

  	
  15.6.

  	
  New Notes

  	
  83

  
	
   

  	
  15.7.

  	
  Assignment by Borrower

  	
  83

  
	
  16.

  	
  PROVISIONS OF GENERAL
  APPLICATIONS

  	
  83

  
	
   

  	
  16.1.

  	
  Setoff

  	
  83

  
	
   

  	
  16.2.

  	
  Expenses

  	
  84

  
	
   

  	
  16.3.

  	
  Indemnification

  	
  85

  
	
   

  	
  16.4.

  	
  Treatment of Certain
  Confidential Information

  	
  86

  
	
   

  	
  16.5.

  	
  Survival of Covenants,
  etc

  	
  87

  
	
   

  	
  16.6.

  	
  Notices

  	
  87

  



 


v

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.7.

  	
  Governing Law

  	
  88

  
	
   

  	
  16.8.

  	
  Headings

  	
  89

  
	
   

  	
  16.9.

  	
  Counterparts

  	
  89

  
	
   

  	
  16.10.

  	
  Entire Agreement, etc

  	
  89

  
	
   

  	
  16.11.

  	
  Waiver of Jury Trial

  	
  89

  
	
   

  	
  16.12.

  	
  Consents, Amendments,
  Waivers, Etc

  	
  90

  
	
   

  	
  16.13.

  	
  Replacement of Lenders

  	
  91

  
	
   

  	
  16.14.

  	
  Severability

  	
  92

  
	
   

  	
  16.15.

  	
  USA Patriot Act

  	
  93

  



 


vi

















 


	
   

  	
  Exhibits

  	
   

  
	
  Exhibit A

  	
  Form of Asset Base
  Report

  	
   

  
	
  Exhibit B

  	
  Form of Assignment and
  Acceptance

  	
   

  
	
  Exhibit C

  	
  Form of Equipment
  Report

  	
   

  
	
  Exhibit D

  	
  Form of Loan Request

  	
   

  
	
  Exhibit E

  	
  Form of Revolving
  Credit Note

  	
   

  
	
  Exhibit F

  	
  Credit and Collection
  Policy

  	
   

  
	
  Exhibit G

  	
  [Reserved]

  	
   

  
	
  Exhibit H

  	
  Form of Opinion of
  Borrower’s Counsel

  	
   

  
	
  Exhibit I

  	
  Form of Officer’s
  Certificate of Borrower

  	
   

  
	
  Exhibit J

  	
  Form of Security
  Agreement

  	
   

  
	
  Exhibit K

  	
  Form of Pledge
  Agreement

  	
   

  
	
  Exhibit L

  	
  Form of Guaranty

  	
   

  
	
  Exhibit M

  	
  Agreed Upon Procedures

  	
   

  
	
  Exhibit N

  	
  Form of Management
  Agreement

  	
   

  
	
   

  	
  Schedules

  	
   

  
	
  Schedule 1

  	
  Funding Commitments of
  Lenders

  	
   

  
	
  Schedule 1.1(x)

  	
  Non “Hell or High
  Water” Leases

  	
   

  
	
  Schedule 1.1(y)

  	
  Permitted Missing
  Leases

  	
   

  
	
  Schedule 7.13

  	
  List of Subsidiaries

  	
   

  
	
  Schedule 7.18

  	
  Existing Indebtedness
  of Borrower and Subsidiaries

  	
   

  
	
  Schedule 7.19

  	
  Insurance Maintained by
  Borrower and Subsidiaries

  	
   

  



 


vii














 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT is made as of October 31, 2007, by and among CLI FUNDING III
LLC, a limited liability company organized and existing under the laws of the
State of Delaware (together with its successors and permitted assigns, the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), and ING BANK N.V., a Naamloze Vennootschap organized and existing under the laws
of the Netherlands (together with its successors and permitted assigns, the “Administrative
Agent”).


 


WHEREAS,
subject to and upon the terms and conditions set forth herein, the Lenders are
willing to make available to the Borrower the credit facility provided for
herein; and


 


WHEREAS,
the Borrower shall use the proceeds of the credit facility provided for herein
in order to refinance Borrower’s existing portfolio of finance leases acquired
from Carlisle and CLIF II and to finance future acquisitions of Containers;


 


NOW,
THEREFORE, in consideration of the foregoing, 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 agree as follows:


 


1. DEFINITIONS AND RULES OF
INTERPRETATION.


 


1.1. Definitions.
The following
terms shall have the meanings set forth in this Section 1 or elsewhere in the
provisions of this Credit Agreement referred to below:


 


Administrative
Agent. ING,
acting as Administrative Agent for the Lenders, and each other Person appointed
as the successor Administrative Agent in accordance with Section 14.6.


 


Administrative
Agent Fee. This
term shall have the meaning set forth in the Administrative Agent Fee Letter.


 


Administrative
Agent Fee Letter.
The Administrative Agent Fee Letter, dated as of the Closing Date, between the
Borrower and the Administrative Agent.


 


Administrative
Agent’s Office.
The Administrative Agent’s office located at Bijlmerplein 888, Amsterdam, The
Netherlands, or at such other location as the Administrative Agent may
designate from time to time.


 


Administrative
Agent’s Special Counsel. Thacher Proffitt & Wood LLP or such other counsel as may be
approved by the Administrative Agent.


 


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


 

















 


Advance
Rate. Eighty-five
percent (85%).


 


Affiliate. With respect to any Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.


 


Aggregate
Commitments. An
amount equal to the sum of the Commitments of all the Lenders.


 


Aggregate
Discounted Net Present Value of Receivables. As of any date of determination, an amount equal to
the sum of the Discounted Net Present Values of Receivables (measured as of the
last day of the prior month) related to all Non-Defaulted Finance Leases.


 


Aggregate
Note Principal Balance. As of any date of determination, an amount equal to the sum of the
then unpaid principal balance of all Revolving Credit Notes.


 


Applicable
Margin. With
respect to each Loan for each Interest Period, eighty-five hundredths of one
percent (0.85%) per annum.


 


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.


 


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.


 


Asset
Base. As of any
date of determination, an amount equal to the product of (i) the Advance Rate,
times (ii) the Aggregate Discounted Net Present Value of Receivables.


 


Asset
Base Deficiency.
As of any Payment Date, the condition that exists if (i) the Aggregate Note
Principal Balance (calculated after giving effect to any principal payments to
be paid on such Payment Date) exceeds (ii) the Asset Base. If such term is used
in a quantitative context, the amount of the Asset Base Deficiency shall be
equal to the amount of such excess.


 


Asset
Base Report. An
Asset Base Report signed by a responsible officer of the Borrower and in
substantially the form of Exhibit A hereto.


 


Assignment
and Acceptance.
An assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section 15.2), and
accepted by the Administrative Agent (acting at the direction of the Majority
Lenders), in substantially the form of Exhibit B or any other


 


2

















 


form approved by the
Administrative Agent (acting at the direction of the Majority Lenders).


 


Authorized
Officer. With
respect to (i) delivering Loan Requests and similar notices, any person or
persons that has or have been authorized by the Board of Directors of the
Borrower to deliver such notices pursuant to this Credit Agreement and that has
or have appropriate signature cards on file with the Administrative Agent, (ii)
delivering financial information and officer’s certificates pursuant to this
Credit Agreement, any Senior Designated Officer of the Borrower, and (iii) any
other matter in connection with this Credit Agreement or any other Loan
Document, any officer (or a person or persons so designated by any two
officers) of the Borrower.


 


Average
Age. As of any
Determination Date, an amount equal to (a) the aggregate sum of (i) the number
of Eligible Containers multiplied by (ii) the age of such Eligible Containers,
divided by (b) the aggregate number of all Eligible Containers.


 


Balance
Sheet Date. September
30, 2007.


 


Borrower. As defined in the preamble hereto.


 


Breakage
Cost. With
respect to any Lender with respect to any Breakage Prepayment, an amount equal
to the difference (as reasonably determined by such Lender and set forth in a
certificate of such Lender delivered to the Borrower) of (a) such Lender’s cost
of obtaining funds for the LIBOR Rate Loan that is the subject of such Breakage
Prepayment for the period from the date of such Breakage Prepayment to the last
day of the Interest Period in effect (or that would have been in effect) for
such LIBOR Rate Loan, minus (b) the amount of interest likely to be realized by
such Lender in redeploying the funds released or not utilized by reason of such
Breakage Prepayment for such period.


 


Breakage
Prepayment. This
term shall have the meaning set forth in Section 4.3 hereof.


 


Business
Day. One of the
following: (i) for all purposes other than as covered by clause (ii) below, any
day excluding Saturday, Sunday and any day which shall be in New York, New
York, Amsterdam, The Netherlands or the city in which the Administrative Agent’s
office is located, a legal holiday or a day on which banking institutions are
authorized by law or other governmental actions to close and (ii) with respect
to all notices and determinations in connection with, and payments of principal
and interest on or with respect to, LIBOR Rate Loans, any day which is a
Business Day described in clause (i) above and which is also a day for trading
by and between banks in U.S. dollar deposits in the interbank Eurodollar
market.


 


Capitalized
Lease. Any Lease
under which the Borrower or any Affiliate thereof is the lessee or obligor, the
discounted remaining rental payment Obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
GAAP.


 


3

















 


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.


 


Carlisle. Container Leasing International, LLC, a
limited liability company organized under the laws of the State of New York.


 


Cash
Equivalents. All
of the following: (i) securities issued or directly fully guaranteed or insured
by the governments of the United States, Canada and members of the European
Union or any agency or instrumentality thereof (provided that the full faith
and credit of the respective such government is pledged in support thereof)
having maturities of not more than one year from the date of acquisition, (ii) securities
issued by any state of the United States or any political subdivision of any
such state or any public instrumentality thereof maturing within one year from
the date of acquisition thereof and, at the time of acquisition, having one of
the two highest ratings obtainable from either S&P or Moody’s, (iii) certificates
of deposit and Eurodollar time deposits with maturities of one year or less
from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any domestic
commercial bank or commercial bank of a foreign country recognized by the
United States, (x) in the case of a domestic commercial bank, having capital
and surplus in excess of $500,000,000 and outstanding debt which is rated “A”
(or similar equivalent thereof) or higher by at least one nationally recognized
statistical rating organization (as defined under Rule 436 under the Securities
Act) and (y) in the case of a foreign commercial bank, having capital and
surplus in excess of $250,000,000 (or the foreign currency equivalent thereof),
(iv) repurchase obligations with a term of not more than thirty days for
underlying securities of the types described in clauses (i) and (iii) above
entered into with any financial institution meeting the qualifications
specified in clause (iii) above, (v) commercial paper having a rating of at
least A-2 from S&P or at least P-2 from Moody’s, (vi) securities with
maturities of six (6) months or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (iii)(x) of this definition, (vii) Indebtedness
or preferred stock issued by Persons with a rating of A or higher from S&P
or A2 or higher from Moody’s with maturities of 24 months or less from the date
of acquisition, and (viii) investments in money market funds which invest
substantially all their assets in securities of the types described in clauses (i)
through (vii) above.


 


Casualty
Event. With
respect to any Container, any of the following:


 


(a) total
loss or destruction thereof of which the Borrower or the Manager has knowledge;


 


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


 


4

















 


(c) damage
rendering such Container 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.


 


Casualty
Proceeds. Any
payment to, or on behalf of, the Borrower in connection with a Casualty Event.


 


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


 


CLIF
II Sale Agreement.
That certain Sale Agreement, dated on or before December 31, 2007, between CLIF
II and the Borrower, as such agreement may be amended, modified or supplemented
from time to time in accordance with its terms.


 


Closing
Date. October 31,
2007.


 


Code. The United States Internal Revenue Code
of 1986, as amended from time to time (and any successor statute thereto), and
the regulations promulgated and rulings issued thereunder. Section references
to the Code are to the Code as in effect on the Closing Date, and any
subsequent provisions of the Code, amendments thereto or substituted therefrom.


 


Collateral. All of the property, rights and
interests of the Borrower (including without limitation all Receivables) that
are or are intended to be subject to the Liens created by the Security
Documents.


 


Collateral
Agent. ING Bank
N.V., acting as collateral agent under the Security Documents.


 


Collection
Period.
Initially, the period commencing on the Closing Date to and including October 31,
2007, and thereafter each calendar month.


 


Collections. With respect to any Collection Period,
an amount equal to all cash collected and applied by the Borrower in respect of
the Leases included in the Asset Base (including, without limitation, cash
collected and applied in respect of any casualty proceeds, sales proceeds and
payments with respect to insurance) less any allocated Direct Operating
Expenses in respect of such Leases.


 


Commitment. With respect to each Lender, the
amounts set forth on Schedule 1 hereto as the amounts of such Lender’s
commitment to make Loans to the Borrower pursuant to this Credit Agreement, as
the same may be increased or reduced


 


5

















 


from time to time
pursuant to the provisions hereof; or if such commitments are terminated
pursuant to the provisions hereof, zero.


 


Commitment
Fee. This term
shall have the meaning set forth in Section 5.1.1.


 


Commitment
Percentage. With
respect to any Lender, the percentage (carried out to the ninth decimal place)
of the Aggregate Commitments represented by such Lender’s Commitment at such
time. If the commitment of each Lender to make Loans has been terminated
pursuant to this Credit Agreement or if the Aggregate Commitments have expired,
then the Commitment Percentage of each Lender shall be determined based on the
outstanding Loans owing to such Lender at such time. The initial Commitment
Percentage of each Lender is set forth opposite the name of such Lender on Schedule
1 hereto or on the Assignment and Acceptance pursuant to which such Lender
becomes a party hereto, as applicable.


 


Company. Any corporation, limited liability
company, partnership or other business entity (or the adjectival form thereof,
where appropriate).


 


Competitor. Any Person engaged and competing with
the Borrower or the Manager in the refrigerated container leasing business; provided, however, that in no event shall
any insurance company, bank, bank holding company, savings institution or trust
company, fraternal benefit society, pension, retirement or profit sharing trust
or fund, or any collateralized bond obligation fund or similar fund (or any
trustee of any such fund) or any holder of any obligations of any such fund
(solely as a result of being such a holder) be deemed to be a Competitor.


 


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


 


Consolidated
Subsidiaries.
With respect to any Person, each Subsidiary of such Person that is required to
be consolidated with such Person 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 of the Manager and its Subsidiaries 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.


 


6

















 


Consolidated
Total Assets. The
sum of (a) all assets (“consolidated balance sheet assets”) of the Manager and
its Subsidiaries determined on a consolidated basis in accordance with GAAP,
plus (b) without duplication, all assets leased by the Manager 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 Manager and its Subsidiaries determined
on a consolidated basis in accordance with GAAP and classified as such on the
consolidated balance sheet of the Manager and its Subsidiaries and all other
Indebtedness of the Manager and its Subsidiaries, whether or not so classified
plus (b) without duplication, all liabilities leased by the Manager 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.


 


Containers. The marine and intermodal cargo
containers regarding which the Borrower or any Subsidiary is the lessor under a
Finance Lease in the conduct of its business, including, without limitation,
dry cargo containers, refrigerated containers, generator sets, gps units and
refrigeration units.


 


Container
Representations and Warranties. With respect to any Container, all of the following:


 


	
  (1)

  	
  Specifications.
  At the date of
  its manufacture, the Container conformed to any applicable industry standards
  (including without limitation any applicable rules or regulations promulgated
  by the ISO or CSC);

  
	
   

  	
   

  
	
  (2)

  	
  Rights
  to Leases. The
  rights with respect to each Lease included in the Related Assets for such
  Container either (x) are assignable without the consent of the related Lessee
  or any other Person other than consents that will have been obtained on or
  before the related transfer date, or (y) are subject to a one hundred percent
  (100%) participation interest in favor of the Administrative Agent, on behalf
  of the Lenders;

  
	
   

  	
   

  
	
  (3)

  	
  Lessee
  Acceptance.  With respect to each Container that is subject to a
  Lease on the Closing Date or Funding Date, as the case may be, the related
  Lessee has, to the best of Borrower’s knowledge, received and taken
  possession of such Container;

  
	
   

  	
   

  
	
  (4)

  	
  Lease
  Files. Each
  Lease is stored in Borrower’s offices located in Park Ridge, New Jersey and
  is subject to its customary security and safekeeping procedures;

  



 


7

















 


	
  (5)

  	
  Eligible
  Finance Lease. As of
  the date the Container was initially included in the Asset Base, such
  Container was subject to an Eligible Finance Lease for which the Borrower was
  the lessor;

  
	
   

  	
   

  
	
  (6)

  	
  Chattel
  Paper. With
  respect to each Lease, aside from any originally executed counterpart of each
  Lease in the possession of the Lessee, and except for Permitted Missing
  Leases, all other originally executed counterpart(s) of such Lease are in the
  possession of the Borrower;

  
	
   

  	
   

  
	
  (7)

  	
  Lessees.
  No Lessee is an
  Affiliate of the Borrower;

  
	
   

  	
   

  
	
  (8)

  	
  Registration.  Each Container’s registration mark
  (four letter prefix) has been registered in the name of the Borrower,
  Interpool, as its predecessor, or the related Lessee in the official register
  of the Bureau International des Containers (Paris);

  
	
   

  	
   

  
	
  (9)

  	
  Non-Cancelable
  and Assignable.  Except for Finance Leases with Lessees set forth on
  Schedule 1.1(x), the Lessee’s obligations under each Lease are “hell or high
  water” obligations that are, among other characteristics, absolute and not
  subject to any defenses, set-offs or counterclaims, each Finance Lease has no
  rescission, reduction or recoupment provision during the non-cancelable term
  of such Finance Lease except as to disputed amounts and that, upon making of
  a casualty payment, the obligation of the related Lessee to make Finance
  Lease payments thereunder will be reduced accordingly, and each Finance Lease
  is a net lease under which the Lessee is responsible for all taxes,
  maintenance and insurance and assumes all risk of casualty loss;

  
	
   

  	
   

  
	
  (10)

  	
  Compliance
  with Law. Each
  Lease in respect of such Container complied in all material respects at the
  time it was originated with all legal requirements of the jurisdiction in
  which they were originated;

  
	
   

  	
   

  
	
  (11)

  	
  Casualty
  Event. As of the date such Container was
  initially included in the Asset Base, such Container was not the subject of a
  Casualty Event;

  
	
   

  	
   

  
	
  (12)

  	
  Standard
  Container. Such
  Container is a Standard Container; and

  
	
   

  	
   

  
	
  (13)

  	
  Liens. Such Container is free and clear of all
  Liens other than those permitted under Section 9.2.

  



 


Contingent
Obligation. As to
any Person, means any obligation of such Person as a result of such Person
being a general partner of any other Person, unless the underlying obligation
is expressly made non-recourse as to such general partner, and any


 


8

















 


obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or
other obligations (“primary obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the lesser of (x) the stated or determinable amount of the
primary obligation in respect of which such 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 and (y) the stated amount of such
Contingent Obligation.


 


Contract
Payment. With
respect to a Lease, the minimum periodic contractual payment to be made by a
Lessee pursuant to the terms of such Lease.


 


Contribution
and Sale Agreement.
The Contribution and Sale Agreement, dated as of October 31, 2007, between
Carlisle and the Borrower, as such agreement may be amended, modified or
supplemented from time to time in accordance with its terms.


 


Control. The possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
a Person, whether through the ability to exercise voting power, by contract or
otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.


 


Control
Agreement. The
Account Control Agreement, dated as of October 31, 2007, by and among the
Borrower, the Administrative Agent and U.S. Bank, National Association, as
securities intermediary.


 


Conversion
Date. The date
which is the two-year anniversary of the Closing Date, as such date may be
extended from time to time in accordance with Section 16.12 hereof, or such
earlier date as all Aggregate Commitments shall have been terminated in
accordance with Section 2.4.


 


Cost
of Funds. With
respect to any Lender, the fixed per annum rate of interest as of the date of
any Loan determined by such Lender in good faith in accordance with such Lender’s
customary practices for loans in United States currency and based on such
Lender’s cost of obtaining funds of a comparable term and amount which
generally


 


9

















 


are available to such
Lender from sources as may be selected by such Lender in its sole and absolute
discretion.


 


Cost
of Funds Loan.
All or any portion of any Loan  bearing
interest calculated by reference to the Cost of Funds.


 


Credit
Agreement. This
Credit Agreement, dated as of October 31, 2007 among the Borrower, the Lenders
and the Administrative Agent, including the Schedules and Exhibits hereto, as
amended, supplemented or otherwise modified in accordance with the terms
hereof.


 


Credit
and Collection Policy. This term shall have the meaning set forth in Section 7.21.


 


Default. This term shall have the meaning set
forth in Section 13.1.


 


Defaulted
Finance Lease.
Either of (without duplication) (i) any Lease for which (A) a regularly
scheduled rental payment or other material payment owing thereunder is more
than one hundred twenty (120) days past due (measured from its contractual due
date), unless such rental payment is covered by default insurance and a full
recovery for such rental payment under such default insurance is obtained by
Borrower within sixty (60) days following the date such rental payment became
one hundred twenty (120) days past due, or (B) the related Lessee is in default
under any other provision of such Lease not dealt with in clause (A), including
the Lessee’s insolvency, and the Manager has repossessed the related Containers
or is otherwise exercising remedies in accordance with its normal procedures,
or (C) the Borrower has otherwise determined that the remaining amounts owing
by the Lessee under such Lease are expected to be uncollectible, or (D) both of
the following shall have occurred with respect to such Lease: (i) the Lessee 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
such Lessee thereunder within ninety (90) days subsequent to the commencement
of such bankruptcy or insolvency proceedings.


 


Defaulting
Lender. Any
Lender that (a) has failed to fund any portion of the Loans required to be
funded by it hereunder within one (1) Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid
by it hereunder within one (1) Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.


 


Determination
Date. The fifth
(5th) Business Day prior to a Payment Date.


 


Direct
Operating Expenses.
Assorted direct operating expenses and overhead expenses (as described in the
Intercreditor Agreement) identified or allocated to each container in the
Manager Fleet in accordance with the Intercreditor Agreement.


 


10

















 


Discount
Factor. With
respect to each Finance Lease, the higher of (i) the implicit interest rate
applicable to such Finance Lease, as such interest rate is determined by the
Borrower in accordance with GAAP applied on a consistent basis, and (ii) the
Lenders’ cost of funds (or, if such Finance Lease is the subject of an Interest
Rate Hedging Agreement, the fixed rate payable under such agreement) in
relation to such Finance Lease plus 100 basis points (1.00%).


 


Discounted
Net Present Value of Receivables. As of any date of determination, with respect to any
Eligible Container that is then subject to an Eligible Finance Lease, an amount
in Dollars equal to the present value of the remaining Contract Payments
becoming due under such Finance Lease after such date of determination,
discounted monthly at one-twelfth of the applicable Discount Factor; provided, however, that the Discounted Net
Present Value of Receivables of (A) any Finance Lease that is a Defaulted
Finance Lease, or (B) a Finance Lease that has been repurchased or is required
to be repurchased by the Seller shall, in each case, be equal to zero,


 


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.


 


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 (w) a Competitor, (x) the Borrower, (y) any
Affiliate of the Borrower or Subsidiary of the Borrower, or (z) a natural
person) approved by (i) the Administrative Agent (such approval not to be
unreasonably withheld or delayed), and (ii) unless a Default or an Event of
Default has occurred and is then continuing, the Borrower (such approval not to
be unreasonably withheld or delayed).


 


Eligible
Container. Each
Container which, when considered with all other Containers, shall comply with
each of the following requirements:


 


	
  (1)

  	
  Such Container shall
  comply with all of the Container Representations and Warranties;

  
	
   

  	
   

  
	
  (2)

  	
  The lease rights with
  respect to such Container are assignable without consent or for which
  consents have been obtained; and

  
	
   

  	
   

  
	
  (3)

  	
  Such Container shall
  have been designated by the Borrower as an “Eligible Container” hereunder and
  as a “Pledged Container” under the Security Agreement (it being understood
  that, for the

  



 


11

















 


purposes of this clause (3), a Container will be
deemed to have been designated by the Borrower as an “Eligible Container”
hereunder in the event that such Container is so designated in any applicable
Loan Request or Asset Base Report or is otherwise so designated on the books
and records of the Borrower).


 


Eligible
Finance Lease.
Any Finance Lease that as of any date of determination meets all of the
following characteristics:


 


	
  (a)

  	
  Valid Contract. Such
  Finance Lease is a legal, valid and binding full recourse payment obligation
  of the related Lessee enforceable in accordance with its terms (except as may
  be limited by applicable insolvency, bankruptcy, moratorium, reorganization,
  or other similar laws affecting enforceability of creditors’ rights generally
  and the availability of equitable remedies) and is in full force and effect
  and such Finance Lease has not been satisfied, subordinated or rescinded;

  
	
   

  	
   

  
	
  (b)

  	
  Absolute Obligations.
  Except for Finance Leases with Lessees set forth on Schedule 1.1(x), the
  Lessee’s obligations under each Lease are “hell or high water” obligations
  that are, among other characteristics, absolute and not subject to any
  defenses, set-offs or counterclaims, each Finance Lease has no rescission,
  reduction or recoupment provision during the non-cancelable term of such
  Finance Lease except as to disputed amounts and that, upon making of a
  casualty payment, the obligation of the related Lessee to make Finance Lease
  payments thereunder will be reduced accordingly, and each Finance Lease is a
  net lease under which the Lessee is responsible for all taxes, maintenance
  and insurance and assumes all risk of casualty loss;

  
	
   

  	
   

  
	
  (c)

  	
  Taxes; Maintenance;
  Insurance. Except for Permitted Exception Leases, such Finance Lease contains
  provisions requiring the related Lessee to pay all sales, use, excise,
  rental, property or similar taxes imposed on or with respect to the Container
  and to assume all risk of loss or malfunction of the related Container and
  such Finance Lease requires the related Lessee, at its own expense, to
  maintain the Container in good and workable order and to obtain and maintain
  liability insurance and physical damage insurance on the Container subject
  thereto (subject to Lessee’s right to self-insure in accordance with the
  Credit and Collection Policy);

  
	
   

  	
   

  
	
  (d)

  	
  No Violation. The
  pledge of Borrower’s right, title and interest in and to such Finance Lease
  and the related Containers will not violate the terms or provisions of such
  Finance Lease or any other agreement to which the Borrower is a party or by
  which it is bound;

  
	
   

  	
   

  
	
  (e)

  	
  Acceleration. Such
  Finance Lease provides for the Lessor’s right to accelerate all rental
  payments thereunder upon default by the Lessee;

  



 


12














 


	
  (f)

  	
  Casualty Event. Except
  for Permitted Exception Leases, such Finance Lease requires that in the event
  of an a Casualty Event, the related Lessee must take one of the following
  actions: (a) restore or repair the affected Container to good repair, condition
  and working order; or (b) make a lump sum payment in an amount that is not
  less than the then stipulated loss value of the affected Container as set
  forth in such Finance Lease;

  
	
   

  	
   

  
	
  (g)

  	
  Partial Pledges. Except
  as disclosed in writing by the Borrower to the Administrative Agent, no
  portion of such Finance Lease or the Containers subject to such Finance Lease
  has been pledged to a third party;

  
	
   

  	
   

  
	
  (h)

  	
  Good Title and First
  Lien. The Borrower has good and marketable title to such Finance Lease and
  the Collateral Agent shall have a first priority, perfected security interest
  in the Borrower’s rights in such Finance Lease;

  
	
   

  	
   

  
	
  (i)

  	
  Defaulted Leases. Such
  Finance Lease was not a Defaulted Finance Lease on the Funding Date for such
  Finance Lease; and

  
	
   

  	
   

  
	
  (j)

  	
  Insolvency. The Lessee
  under such Finance Lease was not subject to bankruptcy or other insolvency
  proceedings on the Funding Date for such Finance Lease.

  



 


Eligible Interest Rate Hedge Counterparty. Any of the following:


 


(A) any
bank which has both (x) a long-term unsecured debt rating of at least “A-” or
better from S&P and “A3” or better from Moody’s and (y) a short-term
unsecured debt rating of “A-2” or better from S&P are rated and “P-2” or
better from Moody’s; or


 


(B) any
bank or other financial institution which is otherwise acceptable to the
Majority Lenders.


 


Eligible
Investments.
Book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form, which evidence:


 


(a) direct
obligations of, and obligations fully guaranteed as to the full and timely
payment by, the United States of America;


 


(b) demand
deposits, time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the United States
of America or any State thereof and subject to supervision and examination by
Federal or State banking or depository institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein, the commercial paper or
other short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such depository
institution or trust company) thereof shall be rated “A-1+” by S&P and “Prime-1”
by Moody’s;


 


13

















 


(c) commercial
paper that, at the time of the investment or contractual commitment to invest
therein, is rated “A-1+” by S&P and “Prime-1” by Moody’s;


 


(d) bankers’
acceptances issued by any depository institution or trust company referred to
in clause (b) above;


 


(e) repurchase
obligations with respect to any security pursuant to a written agreement that
is a direct obligation of, or fully guaranteed as to the full and timely
payment by, the United States of America or any agency or instrumentality
thereof the obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with (i) a depository
institution or trust company (acting as principal) described in clause (b) or (ii)
a depository institution or trust company the deposits of which are insured by
the Federal Deposit Insurance Corporation and whose commercial paper or other
short-term unsecured debt obligations are rated “A-1+” by S&P and “Prime-1”
by Moody’s and long-term unsecured debt obligations are rated “AAA” by S&P
and “Aaa” by Moody’s;


 


(f) money
market mutual funds registered under the Investment Company Act having a
rating, at the time of such investment, from each of S&P and Moody’s in the
highest investment category granted thereby; and


 


(g) any
other investment as may be acceptable to the Administrative Agent (acting at
the direction of the Majority Lenders), as evidenced by the Administrative
Agent’s prior written consent to that effect.


 


Environmental
Law. Any
applicable local, state, federal, or other laws in the United States of
America, or any other laws relating to the environment or natural resources or
the regulation of releases or threatened releases of Hazardous Substances into ambient
air, water, or land, or otherwise relating to the manufacture, processing,
generation, distribution, use, treatment, storage, disposal, cleanup, transport
or handling of Hazardous Substances, and all rules, orders and regulations
currently promulgated thereunder.


 


Environmental
Claim. Any and
all administrative, regulatory or judicial actions, suits, orders, claims or
proceedings against the Borrower or any of its Subsidiaries under any
Environmental Law or any permit issued to the Borrower or any of its
Subsidiaries under any such Environmental Law (for purposes of this definition,
“Claims”), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.


 


Equipment
Report. An
Equipment Report signed by a responsible officer of the Borrower and in
substantially the form of Exhibit C hereto.


 


14

















 


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. Means
Seacastle, Carlisle or any Subsidiary of the Borrower.


 


ERISA
Event. Means (a) any
“reportable event”, as defined in Section 4043 of ERISA or the regulations
issued thereunder, with respect to a Plan (other than an event for which the
30-day notice period is waived); (b) the existence with respect to any Plan of
an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section
302 of ERISA, whether or not waived; (c) filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (e) the receipt by the Borrower or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 307 of ERISA; (g) the receipt by the
Borrower or any of its ERISA Affiliates of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; or (h) the occurrence
of a nonexempt “prohibited transaction” with respect to which the Borrower or
any Subsidiary of the Borrower is a “disqualified person” (within the meaning
of Section 4975 of the Code).


 


Event
of Default. This
term shall have the meaning set forth in Section 13.1.


 


Executive
Order. This term
shall have the meaning set forth in Section 7.20.


 


Fair
Market Value.
With respect to any asset (including a Container), shall mean the price at
which a willing buyer, not an Affiliate of the seller, and a willing seller who
does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by the board of directors or other governing body or,
pursuant to a specific delegation of authority by such board of directors or
governing body, a designated senior executive officer of the Borrower or its
Subsidiaries selling such asset.


 


Federal
Bankruptcy Code.
Title 11, United States Code as in effect from time to time (and any successor
thereto).


 


15

















 


Fee
Letter. That
certain fee letter, dated as of October 31, 2007, by and among the Borrower and
the Lenders, as amended, supplemented or otherwise modified in accordance with
its terms.


 


Fees. Collectively, the Administrative Agent
Fee, the Commitment Fee and the fees detailed in the Fee Letter.


 


Finance
Lease. Any Lease
that (x) is classified as a “direct financing lease” pursuant to GAAP and (y) provides
the Lessee thereunder with the right or option to (i) purchase the Containers
subject thereto at the expiration of such lease or (ii) extend the term of such
lease for an additional period, and, in either such instance, such Lease
satisfies the criteria for classification as a capital lease pursuant to GAAP,
including statement of Financial Accounting Standards No. 13 as amended.


 


Finance
Lease Asset Base Payment Amount. With respect to any Payment Date, the excess, if
any, of (x) the Aggregate Note Principal Balance on such date (determined prior
to giving effect to any principal payments to be made on the Notes on such
Payment Date) over (y) the Asset Base measured on such Payment Date.


 


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


 


Foreign
Assets Control Regulations. This term shall have the meaning set forth in Section
7.20.


 


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.


 


Funding
Date. Each date
on which a Loan is made to the Borrower pursuant to the terms of this Credit
Agreement.


 


GAAP  or  Generally Accepted
Accounting Principles. Accounting principles which are consistent with the
principles promulgated or adopted from time to time by the Financial Accounting
Standards Board, its committees and its predecessors, including applicable
statements and interpretations issued by the American Institute of Certified
Public Accounting or its committees.


 


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.


 


Gross
Revenue. All
revenue (without reduction for expenses or costs), calculated on a cash basis
in accordance with GAAP, earned in connection with the ownership, use and/or
operation of the Containers including, but not limited to, rental, handling,
location revenue, damage protection and other rental-related charges arising


 


16

















 


from the leasing of such
Containers, and principal payments on Finance Leases, in each case allocated or
allocable to the Containers, including any Miscellaneous Borrower Proceeds,
Casualty Proceeds, Indemnification Proceeds, and Net Cash Sales Proceeds.


 


Guaranteed
Pension Plan. Any
employee pension benefit plan within the meaning of Section 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.


 


Guaranty. This term shall have the meaning set
forth in Section 11.6 hereof.


 


Guarantor. Carlisle, as guarantor under the
Guaranty.


 


Hazardous
Substances. Those
substances or materials that are prohibited, limited or regulated by any
Environmental Law.


 


Hedge
Termination Payment.
Any payment due under a Hedging Agreement as a result of the termination of
such Hedging Agreement for whatever reason.


 


Hedging
Agreement. Any
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate futures contract, interest rate option agreement,
interest rate exchange agreement, forward currency exchange agreement, forward
rate currency agreement, forward commodity contract, commodity swap, commodity
option or other similar agreement or arrangement to which the Borrower (or any
Subsidiary) at that time is a party, designed to protect the Borrower (or any
Subsidiary) against fluctuations in those interest rates, exchange rates,
forward rates or commodity prices that normally arise in connection with the
Borrower’s ordinary course of business or as otherwise required to be entered
into by the Borrower (or any Subsidiary) pursuant to, and in accordance with,
the terms of any Loan Document.


 


Indebtedness. As to any Person, without duplication,
means (i) all indebtedness (including principal, interest, fees and charges) of
such Person for borrowed money, (ii) all obligations of such Person in respect
of letters of credit, bankers’ acceptances, and bank guaranties issued for the
account of such Person, (iii) all indebtedness of the types described in clause
(i), (ii), (iv), (v) or (vi) of this definition secured by any Lien on any
property owned by such Person, whether or not such indebtedness has been
assumed by such Person (provided that, if the Person has not assumed or
otherwise become liable in respect of such indebtedness, such indebtedness
shall be deemed to be in an amount equal to the lesser of (A) the outstanding
amount of such Indebtedness and (B) the fair market value of the property to
which such Lien relates as determined in good faith by such Person), (iv) the
aggregate amount of all capitalized lease obligations of such Person, (v) all
Contingent Obligations of such Person, (vi) as of any date of determination,
all obligations under any interest rate hedging or under any similar type of
agreement to the extent of the amount due if such agreement were to be
terminated on such date of determination, and (vii) all obligations


 


17

















 


of such Person issued or
assumed as the deferred purchase price of property or services, all conditional
sale obligations and all obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are either (x) not overdue by 90 days or more
or (y) being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted).


 


Indemnification
Proceeds. For any
accounting period, all proceeds received by the Manager from Lessees pursuant
to the Leases, insurance or other sources, including amounts received from the
insurance specified in the Management Agreement, for indemnification of
liability and loss with respect to the Containers, excluding Casualty Proceeds,
Net Cash Sales Proceeds and Miscellaneous Borrower Proceeds, in each case
allocable to the Containers (as set forth in the Intercreditor Agreement).


 


Indemnitees. This term shall have the meaning set
forth in Section 16.3.


 


Independent
Accountant. Ernst
& Young LLP or any other “Big 4” or other nationally or regionally
recognized accounting firm that is reasonably acceptable to the Administrative
Agent (acting at the direction of the Majority Lenders) and that is independent
with respect to the Borrower and its Subsidiaries within the meaning of the
Securities Act of 1933, as amended, and the applicable published rules and
regulations thereunder.


 


Independent
Person. A natural
person who at the date of his appointment as a manager, director or officer
possesses the following qualifications: (a) has prior experience as an
independent director for a company, the corporate instruments of which require
the unanimous consent of all independent directors thereof before such
corporation could consent to the institution of bankruptcy or insolvency
proceedings against it or could file a petition seeking relief under any
applicable law; and (b) has at least three years of employment experience with
and is employed by one or more entities that provide, in the ordinary course of
their respective businesses, advisory, management or placement services to
issuers of securitization or structured finance instruments, agreements or
securities; provided always that
such individual at the date of his appointment as such manager, director or officer,
or at any time in the preceding five years, or during such person’s tenure
shall not be: (i) an employee, director, shareholder, manager, partner or
officer of Carlisle or an Affiliate thereof (other than such person’s service
as an independent director or manager of Carlisle or an Affiliate thereof); (ii)
a customer or supplier of Carlisle or an Affiliate thereof; (iii) a beneficial
owner at the time of such individual’s appointment as an independent manager,
or at any time thereafter while serving as an independent manager, of more than
2% of the voting securities of Carlisle or an Affiliate thereof; (iv) affiliated
with a significant customer, supplier or creditor of Carlisle or an Affiliate
thereof; (v) a party to any significant personal service contracts with
Carlisle or an Affiliate thereof; or (vi) a member of the immediate family of a
person described in (i) or (ii) above and provided further that an Independent
Person may serve in a similar capacity for other special purpose entities
formed by Carlisle or its Affiliates; provided however, a person elected by
Global Securitization Services, LLC or


 


18

















 


any other similar
professional service provider shall be an “Independent Person” regardless of whether
such person is, or is affiliated with or related to, a customer or supplier of
Carlisle. No resignation or removal of an Independent Person shall be effective
until a successor Independent Person has been elected to replace such
Independent Person.


 


ING. ING Bank N.V., a Naamloze Vennootschap, and its successors
and permitted assigns.


 


Initial
Lender. Each of
ING Bank N.V., DVB Bank N.V. and NIBC Bank N.V.


 


Intercreditor
Agreement. The
Second Amended and Restated Intercreditor Collateral Agreement, dated as of August
24, 2006, by and among Carlisle and one or more of its Affiliates and various
financial institutions named therein, as such agreement has been and may be
amended, modified, or supplemented from time to time in accordance with its
terms


 


Interest
Period. With
respect to all or any relevant portion of any Loan, (a) initially, the period
commencing on the Funding Date of such Loan and ending on the close of business
on the day preceding the immediately following Payment Date, and (b) thereafter,
each period commencing on a Payment Date and ending (i) for any Cost of Funds
Loan, the day immediately preceding the next succeeding Payment Date; and (ii) for
any LIBOR Rate Loan, the day preceding the one month anniversary of such
Payment Date; 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 Cost of Funds Loan would end on a day that is not a
Business Day, that Interest Period shall end on the next succeeding Business
Day;


 


(C) any Interest Period
(except for the initial Interest Period with respect to any Loan) 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


 


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


 


19

















 


Interest
Rate Hedging Agreement. A Hedging Agreement with one or more Eligible Interest Rate Hedge
Counterparties that protects the Borrower against fluctuations in interest
rates.


 


Interpool. Interpool Containers Limited, a company
organized under the laws of Barbados.


 


Investments. Any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extensions of credit (including by way of guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition for value of Capital Stock,
Indebtedness or other similar instruments issued by 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.


 


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


 


Lease. Any lease or contract (including,
without limitation, any supplement to a master lease agreement) for use or hire
of an Eligible Container by a Lessee with the Borrower, as lessor, but only to
the extent such lease or contract relates to an Eligible Container.


 


Lender
Affiliate. With
respect to any Lender, an Affiliate of such Lender.


 


Lenders. ING and the other lending institutions
listed on Schedule 1 hereto and any other Person who becomes an assignee
of any rights and obligations of a Lender pursuant to Section 15.


 


Lessee. Any obligor under a Lease.


 


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 Administrative Agent (acting at the direction
of the Majority Lenders).


 


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 Administrative Agent at which


 


20

















 


Dollar deposits for such
Interest Period are offered based on information presented on Page LIBOR01 of
the Reuters Service as of 11:00 a.m. London time on the second (2nd) LIBOR Business Day prior to the first day of such
Interest Period, divided by (ii) a number equal to 1.00 minus the
Mandatory Reserve Rate. If the rate described above does not appear on the Dow
Jones Market Service 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 (2nd) LIBOR Business Day prior to the first day of such
Interest Period as selected by the Administrative 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 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 Administrative Agent is unable to obtain
any such quotation as provided above, it will be considered that the LIBOR Rate
pursuant to a LIBOR Rate Loan cannot be determined.


 


LIBOR
Rate Loan. A Loan
bearing interest calculated by reference to the LIBOR Rate.


 


Lien. Any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance, lien
(statutory or other), charge, preference, priority or other security agreement
of any kind or nature whatsoever (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute (other than any unauthorized notice filing for
which there is not otherwise any underlying Lien or obligation), and any lease
having substantially the same effect as the foregoing).


 


Loan. Any loan made or to be made by the
Lenders to the Borrower pursuant to Section 2.1 hereof.


 


Loan
Documents. This
Credit Agreement, the Management Agreement, the Sale Agreement, any Hedging
Agreement, the Revolving Credit Notes, the Intercreditor Agreement, the
Guaranty, the Administrative Agent Fee Letter, the Fee Letter and the Security
Documents.


 


Loan
Request. This
term shall have the meaning set forth in Section 2.2.


 


Majority
Lenders. As of
any date of determination, any single Lender or multiple Lenders collectively
having more than fifty percent (50%) of the sum of the


 


21

















 


portion of the Aggregate
Commitments unfunded at such date plus the aggregate outstanding principal
amount of the Loans or, if the commitment of each Lender to make Loans has been
terminated pursuant to Section 13.2, any single or multiple Lenders
collectively holding in the aggregate more than fifty percent (50%) of the
outstanding principal amount of the Loans; provided that the Commitment
of, and the portion of the outstanding principal amount of the Loans held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Majority Lenders.


 


Management
Agreement. The
Management Agreement, dated as of the Closing Date, entered into by and between
the Manager and the Borrower, as such agreement shall be amended, supplemented,
or modified from time to time in accordance with its terms, which agreement
shall be in the form attached as Exhibit N hereto and otherwise in form and
substance satisfactory to the Administrative Agent and the Lenders.


 


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


 


Management
Fee Arrearage.
For any Payment Date, an amount equal to any unpaid Management Fee from all
prior Collection Periods.


 


Manager. Carlisle, as manager under the
Management Agreement.


 


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


 


Manager
Collection Account.
An account established and maintained pursuant to the Intercreditor Agreement
into which the Manager will direct (i) all payments from Lessees, (ii) all Net
Cash Sales Proceeds, (iii) all Casualty Proceeds and (iv) all other proceeds
and Gross Revenues related to the Containers including Miscellaneous Borrower
Proceeds and Indemnification Proceeds; provided, that during the Servicing
Transition Period the Manager may direct any such amounts to the DFL Collection
Account.


 


Manager
Default. The
occurrence of any of the events or conditions set forth in Section 10.01 of the
Management Agreement after giving effect to any expressly applicable notice and
grace periods contained in such Section.


 


Manager
Fleet. At any
time, the fleet of Containers managed by the Manager.


 


Mandatory
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 any applicable regulatory authority (including without
limitation any reserves required by (i) the regulations of the European Central
Bank or (ii) Regulation D of the Board of Governors of the Federal Reserve
System against “Eurocurrency Liabilities” (as that term is used in
Regulation D) (or any


 


22

















 


successor or similar
regulations relating to such reserve requirements), if such liabilities were
outstanding). The Mandatory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in the Mandatory Reserve Rate.


 


Margin
Stock. The term
shall have the meaning provided in Regulation U.


 


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


 


(a) a material adverse
effect on the business, financial condition or operations of the Borrower; or


 


(b) a material adverse
effect on the ability of the Borrower to perform any of its monetary
Obligations under any of the Loan Documents to which it is a party.


 


Maturity
Date. The earlier
to occur of (i) the date on which the principal balance of the Revolving Credit
Notes has been accelerated in accordance with Section 13.1 and (ii) October 31,
2019.


 


Maximum
Required Hedge Amount. As of any date of determination, an amount equal to the product of (a)
one hundred five percent (105%) and (b) the Aggregate Note Principal Balance as
of such date of determination.


 


Minimum
Required Hedge Amount. As of (i) the period from the date hereof through November 15, 2007,
zero and (ii) any date of determination thereafter, an amount equal to the
product of (a) seventy-five percent (75%) and (b) the Aggregate Note Principal
Balance as of such date of determination.


 


Miscellaneous
Borrower Proceeds.
The sum of amounts received by the Manager (i) from the manufacturers or
sellers of Containers for breach of sale warranties relating thereto, and (ii) in
payment or settlement of any claims, losses, disputes or Proceedings relating
to the Containers, including insurance proceeds from the insurance specified in
the Management Agreement for damage to the Containers; provided, however, Miscellaneous Borrower
Proceeds shall not include Net Cash Sales Proceeds, Casualty Proceeds or
Indemnification Proceeds.


 


Moody’s.  Moody’s
Investor Service, Inc., or any successor thereto.


 


Multiemployer
Plan. Any
multiemployer plan, as defined in Section 4001(a)(3) of ERISA with respect to
which the Borrower or any of its ERISA Affiliates shall have any liability.


 


Net
Cash Sales Proceeds.
The net cash proceeds received by a Person in respect of any sale or other
disposition of assets, net of all reasonable out-of-pocket fees, commissions
and other reasonable and customary direct expenses actually incurred and


 


23

















 


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.


 


Non-Defaulted
Finance Lease.
Any Lease which is not a Defaulted Finance Lease.


 


Non-Excluded
Taxes. Any taxes
other than:


 


	
   

  	
  (i)

  	
  income taxes, branch
  profits taxes, franchise taxes or any other tax imposed on the net income of
  a Lender or the Administrative Agent under the laws of the jurisdiction (or
  any political subdivision of taxing authority thereof or therein) in which
  such Lender or the Administrative Agent is organized or in which the principal
  office or funding office of such Lender or the Administrative Agent is
  located or in which it is otherwise conducting business, but excluding any
  such taxes which would not have been imposed but for such Lender’s or the
  Administrative Agent’s participation in the transactions under this
  Agreement;

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  any deduction,
  withholding or other imposition of taxes that arises as a result of a present
  or former connection between a Lender or the Administrative Agent and the
  relevant jurisdiction imposing such tax, including carrying on business in,
  having a branch, agency or permanent establishment in, or being resident in
  such jurisdiction but excluding any such connection which arises solely as a
  result of such Lender or the Administrative Agent having executed, performed
  its obligations under or received payment under any of the Loan Documents or
  otherwise solely by virtue of the Loan Documents.

  



 


Non-U.S.
Lender. This term
shall have the meaning set forth in Section 5.2.3.


 


Notes. The Revolving Credit Notes.


 


Obligations. All indebtedness, obligations and
liabilities of the Borrower to any of the Lenders, the Administrative Agent or
any Eligible Interest Rate Hedge Counterparty, 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 in respect of any Loan or any of the
Revolving Credit Notes.


 


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


 


24














 


Original
Equipment Cost.
With respect to any Container, an amount equal to the sum of (i) the
manufacturer’s or vendor’s, as applicable, invoice prices, (ii) reasonable
and customary out-of-pocket inspection, transport and initial positioning costs
that were necessary and directly related to putting such Container in initial
service and (iii) reasonable acquisition fees, which, in the case of
clauses (ii) and (iii) are capitalized, as determined in accordance
with GAAP, consistently applied.


 


Other
Taxes. This term
shall have the meaning set forth in Section 5.2.2(b).


 


Participant. This term shall have the meaning set
forth in Section 15.4 hereof.


 


Patriot
Act. This term
shall have the meaning set forth in Section 16.15.


 


Payment
Date. The 22nd day of each month
or, if such day is not a Business Day, the immediately succeeding Business Day.


 


PBGC. The Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any
successor thereto.


 


Permitted
Exception Lease.
A Lease between the Borrower, as lessor and Evergreen Marine Corp., as lessee.


 


Permitted
Missing Lease.
Each Lease listed on Schedule 1.1(y) attached hereto.


 


Periodic
Hedge Payment.
Any payment under a Hedging Agreement other than a Hedge Termination Payment.


 


Person. An individual, any partnership, a
corporation, a joint venture, a trust, an unincorporated organization, or a
government or any agency or political subdivision thereof.


 


Plan. Any employee pension plan (other than a
Multiemployer Plan) as defined in Section 3(35) of ERISA subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 307
of ERISA, and in respect of which the Borrower or any of its ERISA Affiliates
is an “employer” as defined in Section 3(5) of ERISA.


 


Pledge
Agreement. This term
shall have the meaning provided in Section 11.8.


 


Pledge
Agreement Collateral.
This term shall mean all of the “Collateral” as defined in the Pledge
Agreement.


 


Pledged
Container. This
term shall have the meaning set forth in the Security Agreement.


 


25

















 


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.


 


Receivable. With respect to any Lease as of any
date of determination, any expected future rental or other (e.g., purchase
option) payment with respect to such Lease which has not yet become due.


 


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


 


Refinance. In respect of any security or
Indebtedness, means to refinance, extend, renew, refund, repay, prepay, redeem,
defease or retire, 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.


 


Register. This term shall have the meaning set
forth in Section 15.3.


 


Regulation
T. Regulation T
of the Board of Governors of the Federal Reserve System as from to time in
effect and any successor to all or any portion thereof.


 


Regulation
U. Regulation U
of the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.


 


Regulation
X. Regulation X
of the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or any portion thereof.


 


Related
Assets. With
respect to any Container, all of the following: (i) all of the Borrower’s
right, title and interest in and to, but none of its obligations under, any
agreement between the Borrower and the manufacturer of each such Container
pursuant to which the Borrower acquired a Container from such manufacturer, and
all amendments, additions and supplements hereafter made with respect thereto, (ii) all
of the Borrower’s right, title and interest in and to any Lease which such
Container is subject to from time to time, (iii) all right, title and
interest of the Borrower in and to all payments, proceeds and other amounts in
respect of such Container (or any Lease to which such Container is subject)
which have accrued but have not been paid and (iv) all payments, proceeds
and income of the foregoing or related thereto.


 


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


 


26

















 


Restricted
Payment. In
relation to the Borrower, any (a) Distribution, (b) payment or
prepayment by the Borrower to the Borrower’s shareholders (or other equity
holders), (c) derivatives or other transactions with any financial
institution, commodities or stock exchange or clearinghouse (a “Derivatives
Counterparty”) obligating the Borrower to make payments to such Derivatives
Counterparty as a result of any change in market value of any Capital Stock of
the Borrower, or (d) payments of management, consulting or similar fees to
Affiliates of the Borrower.


 


Returns. This term shall have the meaning set
forth in Section 7.17.


 


Revolving
Credit Note. This
term shall have the meaning set forth in Section 2.3.


 


Revolving
Credit Note Record.
A Record with respect to a Revolving Credit Note.


 


Revolving
Credit Period.
The period commencing on the Closing Date and ending on the Conversion Date.


 


S&P. Standard & Poor’s Ratings
Services, a division of The McGraw-Hill Companies, Inc., or any successor
thereto.


 


Sale
Agreement. Either
of the CLIF II Sale Agreement or the Contribution and Sale Agreement, and,
collectively, the Sale Agreements.


 


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.


 


Scheduled
Principal Payment Amount. On any Payment Date, one of the following:


 


(4)                 for any Payment Date on or prior to the Conversion
Date, the sum of:


 


(A) the Finance Lease Asset Base Payment Amount,
if any; and


 


(B) if the Average Age of all of the Eligible
Containers exceeds eight and one-half (8.5) years, an amount equal to all funds
then on deposit in the Trust Account which are available to be applied to the
repayment of the unpaid principal balance of the Notes pursuant to priority (vi) of
the waterfall set forth in Section 2.5.2;


 


(5)                 for any Payment Date following the Conversion Date, an
amount equal to all funds then on deposit in the Trust Account which are
available to be applied to the repayment of the unpaid principal


 


27

















 


balance of the Notes pursuant to priority (vi) of
the waterfall set forth in Section 2.5.2; and


 


(6)                 on the Maturity Date, the then Aggregate Note
Principal Balance.


 


Seacastle. Seacastle, Inc., a corporation
organized under the laws of the Republic of the Marshall Islands.


 


Security
Agreement. This
term shall have the meaning set forth in Section 11.7.


 


Security
Documents. The
Security Agreement, the Pledge Agreement, the Control Agreement and other
instruments and documents, including, without limitation, UCC financing
statements (or documents of similar import) and filings made with the United
States Patent and Trademark Office and United States Copyright Office, required
to be executed or delivered pursuant to any Security Document.


 


Seller. CLIF II or Carlisle, and collectively,
the Sellers.


 


Senior
Designated Officer.
With respect to the Borrower, the Chief Executive Officer, the President, the
Chief Financial Officer or any Vice President of the Borrower.


 


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


 


Standard
Containers. All
of the following types of Containers: 20’x8’6”, 40’x8’6” and 40’x9’6” dry cargo
Containers and 20’x8’6”, 40’x8’6” and 40’x9’6” refrigerated Containers, provided that the number of 40’x8’6”
Containers shall not exceed 1,000 units and any amount of 40’x8’6” Containers
in excess thereof shall not be deemed Standard Containers.


 


State. Any state of the United States
of America.


 


Subsidiary. With respect to any Person, shall mean
and include any corporation, partnership, association, limited liability company,
joint venture or other entity more than 50% of whose Voting Stock is at the
time owned by such Person directly or indirectly through one or more
Subsidiaries of such Person.


 


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.


 


Term
Loan. Any Loan
for which the Conversion Date shall have occurred.


 


28

















 


Trading
With the Enemy Act.
This term shall have the meaning set forth in Section 7.20.


 


Trust
Account. The
account established pursuant to the provisions of Section 2.5.1 hereof.


 


Type. As to all or any portion of any Loan,
its nature as a Cost of Funds Loan or a LIBOR Rate Loan.


 


UCC. The Uniform Commercial Code as
in effect from time to time in the applicable jurisdiction.


 


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 to so vote exists by reason of the happening of a contingency.


 


Wholly-Owned
Subsidiary. As to
any Person, (i) any corporation 100% of whose Capital Stock (other than
director’s qualifying shares and/or other nominal amounts of shares required by
applicable law to be held by Persons other than such Person) is at the time owned
by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, limited liability company, association, joint venture or other
entity in which such Person and/or one or more Wholly-Owned Subsidiaries of
such Person owns 100% of the Capital Stock at such time (other than director’s
qualifying shares and/or other nominal amounts of interests required by
applicable law to be held by Persons other than such Person).


 


Withdrawal
Liability.
Liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.


 


1.2. Rules of Interpretation.


 


(a) 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.


 


(b) The
singular includes the plural and the plural includes the singular.


 


(c) A
reference to any law includes any amendment or modification to such law.


 


(d) A
reference to any Person includes its permitted successors and permitted
assigns.


 


29

















 


(e) 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.


 


(f) The words “include”,
“includes”, and “including” are not limiting.


 


(g) All terms not
specifically defined herein or by GAAP, which terms are defined in the UCC as
in effect in the State of New York, have the meanings assigned to them therein,
with the terms “instrument” and “chattel paper” being that
defined under Article 9 of the UCC.


 


(h) Reference to a
particular “§” or Section refers to that section of this Credit Agreement
unless otherwise indicated.


 


(i) 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.


 


(j) 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.”


 


(k) 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.


 


(l) This Credit
Agreement and the other Loan Documents are the result of negotiation among, and
have been reviewed by counsel to, among others, the Administrative Agent, the
Lenders 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 Administrative Agent or
any of the Lenders merely on account of the Administrative Agent’s or any
Lender’s involvement in the preparation of such documents.


 


1.3. Use
of Defined Terms.
Unless otherwise defined or the context otherwise requires, terms for which
meanings are provided in this Credit Agreement shall have such meanings when
used in each Schedule and in each other Loan Document, notice and other
communication delivered from time to time in connection with this Credit
Agreement or any other Loan Document.


 


1.4. Accounting
and Financial Determinations. Unless otherwise specified, all accounting terms
used herein or in any other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder (including computation
of the financial ratio(s) and covenant(s)


 


30

















 


contained in Section 10) shall be made,
and all financial statements required to be delivered hereunder or thereunder
shall be prepared in accordance with GAAP.


 


2. COMMITMENTS
OF LENDER.


 


2.1. Commitments
to Make Loans. So
long as no Event of Default has occurred and is continuing, subject to the
terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Loan”) to the Borrower from time to time, on
any Business Day during the Revolving Credit Period; provided, however,
that after giving effect to all amounts requested, the Aggregate Note Principal
Balance shall not exceed the lesser of (i) Aggregate Commitments and (ii) the
Asset Base, calculated (in the case of clause (ii)) after giving effect to the
addition of the Eligible Containers, if any, to be acquired with the proceeds
of such Loan. Loans shall be LIBOR Rate Loans or, under the circumstances set
forth in Section 5.4 or Section 5.5 hereof, a Cost of Funds Loan.


 


2.2. Requests
for Loan. The
Borrower shall give to the Administrative Agent written notice in the form of Exhibit D
hereto (or telephonic notice confirmed in a writing in the form of Exhibit D
hereto) of each Loan requested hereunder (a “Loan  Request”) no
later than 3:00 p.m. (New York time) three (3) LIBOR Business Days
prior to any proposed Funding Date. Each such Loan Request shall specify (i) the
principal amount of the Loan requested, (ii) the proposed Funding Date of
such Loan and (iii) the Interest Period for such Loan. The Administrative
Agent shall promptly notify each of the Lenders of such Loan Request. Each Loan
Request shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Loan requested from the Lenders on the proposed Funding
Date. Unless the Majority Lenders otherwise consent, during the Revolving
Credit Period there shall be no more than twelve (12) Funding Dates permitted
during any twelve-month period. Each Loan Request shall be in a minimum
aggregate amount of $1,000,000. The Borrower shall not be permitted to request
any Loan on or after the Conversion Date, on which date any unfunded portion of
the Commitments shall terminate, automatically and without notice or action of
any kind.


 


2.3. The
Revolving Credit Notes. The Loans shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit E hereto
(each a “Revolving Credit Note”), dated as of the Closing Date (or such
other date on which a Lender may become a party hereto in accordance with Section 15
hereof) and completed with appropriate insertions. One Revolving Credit Note
shall be payable to the order of each Lender in a principal amount equal to
such Lender’s Commitment to make Loans or, if less, the outstanding amount of
all Loans made by such Lender, plus interest and other amounts 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 Funding Date of any Loan or at
the time of receipt of any payment of principal on such Lender’s Revolving
Credit Note, an appropriate notation on such Lender’s Revolving


 


31

















 


Credit Note Record reflecting the making of such Loan
or the receipt of such payment (as the case may be). The outstanding amount of
the Loans set forth on such Lender’s Revolving Credit Note Record shall be prima
facie evidence absent manifest error of the principal amount thereof
owing and unpaid to such Lender, but the failure to record, or any error in so
recording, any such amount on such Lender’s Revolving Credit Note Record shall
not limit or otherwise affect the obligations of the Borrower hereunder or
under any Revolving Credit Note to make payments of principal of or interest on
any Revolving Credit Note when due.


 


2.4. Termination
or Reduction of Commitments; Increase in Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 3:00 p.m.
(New York time) three (3) Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and
(iii) the Borrower shall not terminate or reduce the Aggregate Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder,
the Aggregate Note Principal Balance would exceed the Aggregate Commitments.
The Administrative Agent shall promptly notify the Lenders of any such notice
of termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Commitment Percentage. All Fees accrued until the effective
date of any termination or reduction of the Aggregate Commitments shall be paid
on the effective date of such termination or reduction.


 


2.5. Bank
Accounts and Payments.


 


2.5.1. Trust
Account; Deposit of Collections.


 


(a) On or prior to
the Closing Date, the Borrower shall establish and maintain the Trust Account.
The Trust Account shall be established in the name of the Borrower for the
benefit of the Lenders with a bank or trust company acceptable to the
Administrative Agent and the Lenders. The Trust Account shall at all times be
under the “control” (as defined in the UCC) of the Administrative Agent for the
benefit of itself, the Lender and the Eligible Interest Rate Hedge
Counterparties.


 


(b) The Borrower
shall not establish any additional Trust Accounts without prior written notice
to, and the prior written consent of, the Administrative Agent, in each
instance.


 


(c) The Borrower
shall cause the Manager to deposit into the Trust Account, at the times and in
the amounts required pursuant to the terms of the


 


32

















 


Management Agreement, all Gross Revenue relating to
the Containers. The Borrower shall cause any Gross Revenue not deposited into a
Manager Collection Account, including any such amounts received by the Manager,
the Seller or any of their Affiliates, to be deposited into the Trust Account
within three (3) Business Days after receipt of such payment. So long as
no Manager Default shall have occurred and then be continuing, the Manager
shall be permitted to request the Administrative Agent to withdraw (to the
extent not previously withheld) from amounts on deposit in the Trust Account,
or otherwise net out, from amounts otherwise required to be deposited to the
Trust Account the amount of any Management Fee or Management Fee Arrearage that
would otherwise be due and payable on the immediately succeeding Payment Date.


 


2.5.2. Repayment
of Interest and Principal of Loans and Other Amounts.


 


(a) On each Payment
Date, the Borrower shall, subject to the provisions of Section 13.1
hereof, pay, in the following order of priority:


 


(i) To the Manager,
the Senior Management Fee, and so long as no Event of Default or Manager
Default has occurred and is continuing, to the Manager, the Junior Management
Fee and any Management Fee Arrearage, in each case to the extent not previously
withheld by, or distributed to, the Manager in accordance with the terms of the
Loan Documents;


 


(ii) So long as no
Event of Default or Manager Default has occurred and is continuing, to the
Manager, the amount of any unreimbursed Manager Advances;


 


(iii) To the
Lenders, on a pro rata basis
based on the amounts then owing pursuant to this clause (iii), all interest
payments then due and owing on the Notes;


 


(iv) To each
Eligible Interest Rate Hedge Counterparty, on a pro rata basis based on the amounts then owing pursuant to
this clause (iv), the amount of any scheduled payments (but not termination payments)
then due and payable pursuant to the terms of any Interest Rate Hedging
Agreement then in effect, together with any such amounts past due and any
interest thereon;


 


(v) To the
Administrative Agent, the Administrative Agent Fee then due and owing;


 


(vi) Each of the
following on a pro rata basis:


 


(A) To each Lender,
on a pro rata basis (calculated based on the then unpaid principal balance of
their respective


 


33

















 


Notes), an amount equal to the Scheduled Principal
Payment Amount for such Payment Date; and


 


(B) To each Eligible
Interest Rate Hedge Counterparty, on a pro
rata basis based on the amounts then owing pursuant to this clause
(vi)(B), the amount of any unpaid payments then due and payable (including
termination payments) pursuant to the terms of any Interest Rate Hedging
Agreement then in effect;


 


(vii) To each
Lender, on a pro rata basis based
on amounts then owing to each such lender pursuant to this clause (vii), all
taxes, increased costs, indemnification, expenses and any other amounts due and
owing to such Lender pursuant to the terms of the Loan Documents;


 


(viii) To the
Manager, the Management Fee and any Management Fee Arrearage, in each case to
the extent not previously withheld by, or distributed to, the Manager in
accordance with the terms of the Loan Documents or pursuant to clause (i) above;
and


 


(ix) To the Manager,
the amount of any unreimbursed Manager Advances, to the extent not previously
distributed to the Manager pursuant to clause (ii) above;


 


(b) For the sake of
clarity, on the Conversion Date all Loans shall become Term Loans which will
amortize over a period not to exceed ten (10) years.


 


(c) The unpaid
principal balance of, and all accrued interest and other amounts owing on, or
with respect to, the Revolving Credit Notes shall be payable in full on the
earlier to occur of (x) the Maturity Date and (y) the date on which
the Revolving Credit Notes and the other Obligations have been declared due and
payable in accordance with the provisions of Section 13.1 hereof.


 


2.6. Funding
by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed Funding Date that such
Lender will not make available to the Administrative Agent such Lender’s share
of such requested Loan, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Section 2.1,
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable requested Loan available to the Administrative Agent, then
the applicable Lender agrees to pay to the Administrative Agent forthwith on
demand such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to, but excluding, the date of payment to the Administrative
Agent, at, in the case of a


 


34

















 


payment to be made by such Lender, the greater of the
Administrative Agent’s Cost of Funds and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation. If such Lender pays its share of the applicable Loan to
the Administrative Agent, then the amount so paid shall constitute such Lender’s
portion of the requested Loan.


 


2.7. Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Administrative
Agent funds for any Loan to be made by such Lender as provided in the
provisions of this Credit Agreement, and such funds are not made available to
the Borrower by the Administrative Agent because the conditions to the
applicable Loan set forth in Sections 11 and 12 are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.


 


2.8. Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make
payments pursuant to this Credit Agreement are several and not joint. The
failure of any Lender to make any Loan or to make any payment under this Credit
Agreement on any date required hereunder shall not relieve any other Lender of
its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or to make
its payment under this Credit Agreement.


 


2.9. Revolving
Credit Facility. Prior to the Conversion Date, the credit facility evidenced by this
Credit Agreement is a revolving credit facility. Accordingly, the Borrower
will, subject to compliance with the terms of this Credit Agreement, have the
right during the Revolving Credit Period to reborrow any amounts repaid to the
Lenders in accordance with the terms of this Credit Agreement.


 


3.  [RESERVED].


 


4.  PROVISIONS
APPLICABLE TO ALL LOANS.


 


4.1. Interest
on Loans.


 


4.1.1. Interest
Rates. (a) Except
as otherwise provided in Section 5.10, the Loans shall bear interest
during each Interest Period relating to all or any portion of the Loans at the
following rates:


 


(i) To the extent
that all or any portion of a Loan bears interest during such Interest Period at
the Cost of Funds, such Loan or such portion shall bear interest during such
Interest Period at the rate per annum equal to the sum of (i) the
Applicable Margin and (ii) the Cost of Funds in effect from time to time.


 


35

















 


(ii) To the extent
that all or any portion of a Loan bears interest during such Interest Period
based on the LIBOR Rate, such Loan or such portion shall bear interest during
such Interest Period at a rate per annum equal to the sum of (i) the LIBOR
Rate and (ii) the Applicable Margin.


 


The Borrower promises to pay interest on the Loans or
any portion thereof outstanding during each Interest Period monthly in arrears
on each Payment Date in accordance with Section 2.5.2.


 


(b) In no event
shall the interest charged with respect to a Loan exceed the maximum amount
permitted by applicable law. If at any time the interest rate charged with
respect to a Loan exceeds the maximum rate permitted by applicable law, the
rate of interest to accrue pursuant to such Loan shall be limited to the
maximum rate permitted by applicable law.


 


4.1.2. Amounts. All Loans made by the Lenders shall be
in the amount of $1,000,000 or an integral multiple of $500,000 in excess
thereof. No Interest Period relating to a Loan or any portion thereof shall
extend beyond the Maturity Date.


 


4.2. Mandatory Repayments of the
Loans.


 


4.2.1. Repayments
or Acquisitions in Connection with the Asset Base Deficiency. On each Payment Date, the Borrower shall
either (i) repay the Loans or (ii) acquire additional Eligible
Finance Leases under the Sale Agreements, in each case to the extent necessary
to cure any then existing Asset Base Deficiency (after taking into
consideration any payment of principal (including the Scheduled Principal
Payment Amount) made by the Borrower to the Lenders on such Payment Date). Any
such repayment or acquisition pursuant to the provisions of this Section 4.2.1
shall not be subject to the provisions of Section 4.3 hereof.


 


4.2.2. Application
of Payments. All
payments made pursuant to Section 4.2.1 or Section 4.3, shall be
applied pro rata among the Loans.


 


4.3. Optional
Prepayment of Loans. The Borrower shall have the right at any time to prepay one or more of
the Loans on or before the Maturity Date, as a whole, or in part, upon delivery
of written notice to the Administrative Agent not later than 1:00 p.m.
(New York City time) on the Business Day prior to such prepayment, without
premium or penalty, provided that (a) each partial prepayment shall
be in the principal amount of $1,000,000 or multiples of $500,000 in excess
thereof and (b) in the event that any LIBOR Rate Loan is prepaid at any
time other than the end of an Interest Period applicable thereto (a “Breakage
Prepayment”), the Borrower shall pay, upon demand, to each Lender an amount
equal to such Lender’s Breakage Cost. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of
such Lender’s Commitment Percentage of such prepayment. Any prepayment


 


36














 


of principal of a Loan shall include all interest
accrued to the date of prepayment. Each such prepayment shall be applied to the
Loans of the Lenders in accordance with its respective Commitment Percentages.


 


4.4. Payments
by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which any payment
is due to the Administrative Agent for the account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender, in immediately
available funds with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Administrative Agent’s Cost of
Funds and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation. A notice of the
Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this Section 4.4 shall be conclusive, absent manifest error.


 


4.5. Sharing
of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Loans made by it resulting in such Lender’s receiving
payment of a proportion of the aggregate amount of such Loans or and accrued
interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase
(for cash at face value) participations in the Loans of the other Lenders, or
make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:


 


(i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and


 


(ii) the provisions
of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Credit Agreement or (y) any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to the Borrower or any of its Affiliates
(as to which the provisions of this Section shall apply).


 


37

















 


The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


 


4.6. Funding
Source.
Nothing herein shall be deemed to obligate any Lender to obtain the funds for
any Loan in any particular place or manner or to constitute a representation by
any Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.


 


5. CERTAIN
GENERAL PROVISIONS.


 


5.1. Fees.


 


5.1.1. Commitment
Fee. The
Borrower agrees to pay on each Payment Date during the Revolving Credit Period
to the Administrative Agent, for the accounts of the Lenders in accordance with
their respective Commitment Percentages, a commitment fee (the “Commitment Fee”)
calculated at the rate of three-tenths of one percent (0.30%) per annum on the
average daily amount during the related Collection Period by which the
Aggregate Commitment in respect of the Loans exceeds the Aggregate Note
Principal Balance. The Commitment Fee shall be payable in arrears on each
Payment Date for the immediately preceding Collection Period commencing on the
first such date following the date hereof, with a final payment on the
expiration or termination of the Revolving Credit Period.


 


5.1.2. Other
Fees. The
Borrower shall pay to the Administrative Agent and the Lenders the fees in the
amounts and at the times specified in the Administrative Agent Fee Letter and
the Fee Letter, respectively. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever. The Borrower shall also pay
to the Administrative Agent and the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.


 


5.2. Funds for Payments.


 


5.2.1. Payments
to Administrative Agent. All payments of principal, interest, 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 Administrative Agent in Dollars, for the
accounts of the Lenders and the Administrative Agent, at the Administrative
Agent’s Office or at such other place that the Administrative Agent may from
time to time designate, in each case at or about 1:00 p.m. (New York time
or other local time at the place of payment) and in immediately available
funds.


 


38

















 


5.2.2. No Offset, etc.


 


(a) Subject
to Section 5.2.3, 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
(including interest, penalties and additions to tax), levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, 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 unless the
Borrower is compelled by law to make such deduction or withholding. If any
Non-Excluded Taxes are 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 Administrative Agent, for the account of the Lenders or the
Administrative Agent (as the case may be), 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
Administrative Agent to receive the same net amount which the Lenders or the
Administrative Agent would have received on such due date had no such
Non-Excluded Taxes been imposed upon the Borrower. The Borrower will deliver
promptly to the Administrative Agent certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect to payments made
by the Borrower under such other Loan Document.


 


(b) In
addition, the Borrower agrees to pay to the relevant Governmental Authority in
accordance with applicable law any current or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies (including,
without limitation, mortgage recording taxes, transfer taxes and similar fees)
imposed by the United States or any taxing authority thereof or therein that
arise from any payment made hereunder (“Other Taxes”).


 


(c) Subject
to Section 5.2.3, the Borrower agrees to indemnify the Lenders and the
Administrative Agent for the full amount of Non-Excluded Taxes (including
additional amounts with respect thereto) and Other Taxes, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto (other than amounts arising from the gross negligence or willful misconduct
of the Lenders or the Administrative Agent, as the case may be), provided that
the Lenders or the Administrative Agent, as the case may be, shall have
provided the Borrower with evidence, reasonably satisfactory to the Borrower,
of payment of Non-Excluded Taxes or Other Taxes, as the case may be.


 


(d) Any
Lender or the Administrative Agent that becomes entitled to the payment of
additional amounts pursuant to Section 5.2.2(a) or indemnification
pursuant to Section 5.2.2(c), such Person shall use reasonable efforts
(consistent with applicable law) to file any document reasonably requested by
the Borrower or, with respect to a Lender, to change the jurisdiction of its
applicable lending


 


39

















 


office if the making of
such a filing or change of office, as the case may be, would avoid the need for
or reduce the amount of any payment of such additional amounts that may
thereafter accrue and would not, in the good faith determination of such Lender
or the Administrative Agent, as applicable, be disadvantageous to it.


 


(e) If
a Lender or the Administrative Agent receives any refund or credit with respect
to taxes for which the Borrower has paid any additional amounts pursuant to Section 5.2.2(a),
then such Lender or the Administrative Agent, as applicable, shall promptly pay
to the Borrower the portion of the sum of such refund or credit and any
interest received with respect thereto as it determines, in its reasonable,
good faith judgment, will leave it, after such payment, in no better or worse
financial position than it would have been absent the imposition of such taxes
and the payment of such additional amounts pursuant to Section 5.2.2(a); provided,
however, that (i) the Borrower agrees to promptly return any amount
paid to the Borrower pursuant to this Section 5.2.2(e) upon notice
from such Lender or the Administrative Agent, as applicable, that such refund
or any portion thereof is required to be repaid to the relevant taxing
authority, (ii) nothing in this Section 5.2.2(e) shall require a
Lender to disclose any confidential information to the Borrower (including,
without limitation, its tax returns), and (iii) no Lender shall be
required to pay any amounts pursuant to this Section 5.2.2(e) at any
time which a Default or Event of Default exists (provided, that, upon the
waiver or cure of any such Default or Event of Default, all such amounts that
would otherwise be required to be paid pursuant to this Section 5.2.2(e) but
for the effect of this clause (iii) shall be promptly so paid).


 


(f) If
the Borrower determines in good faith that a reasonable basis exists for
contesting any Non-Excluded Taxes for which additional amounts have been paid
pursuant to Section 5.2.2(a), the relevant Lender or Administrative Agent
(to the extent such Person reasonably determines in good faith that it will not
suffer any adverse effect as a result thereof) shall cooperate with the
Borrower in challenging such Non-Excluded Taxes, at the Borrower’s expense, if
so requested by the Borrower in writing.


 


5.2.3. Non-U.S. Lenders. Each Lender and the Administrative Agent that is not
a U.S. Person as defined in Section 7701(a)(30) of the Code for U.S.
federal income tax purposes (a “Non-U.S.  Lender”) hereby agrees
that it shall, prior to the date of the first payment by the Borrower hereunder
to be made to such Lender or the Administrative Agent or for such Lender’s or
the Administrative Agent’s account (and thereafter when required to the extent
it is legally entitled to do so), deliver to the Borrower and the
Administrative Agent, as applicable, such certificates, documents or other
evidence, as and when required by the Code, including (a) two (2) duly
completed copies of Internal Revenue Service Form W-8BEN or Form W-8ECI
and any other certificate or statement of exemption req uired by the Code, or
any subsequent versions thereof or successors thereto, properly completed and
duly executed by such Lender or


 


40

















 


the Administrative Agent
establishing that with respect to payments of principal, interest or fees
hereunder it is (i) not subject to United States federal withholding tax
under the Code because such payment is effectively connected with the conduct
by such Lender or Administrative Agent of a trade or business in the United
States or (ii) totally exempt from United States federal withholding tax
under a provision of an applicable tax treaty or (b) in the case of a
Non-U.S. Lender that is not legally entitled to deliver the forms specified in clause
(a) and that is not a “bank” for purposes of Section 881(c)(3)(A) of
the Code, a certificate in form and substance reasonably satisfactory to the
Administrative Agent (acting at the direction of the Majority Lenders) and the
Borrower and to the effect that (i) such Non-U.S. Lender is not a “bank”
for purposes of Section 881(c)(3)(A) of the Code, is not subject to
regulatory or other legal requirements as a bank in any jurisdiction, and has
not been treated as a bank for purposes of any tax, securities law or other
filing or submission made to any governmental authority, any application made
to a rating agency or qualification for any exemption from any tax, securities
law or other legal requirements, (ii) is not a ten (10) percent
shareholder for purposes of Section 881(c)(3)(B) of the Code and (iii) is
not a controlled foreign corporation receiving interest from a related person
for purposes of Section 881(c)(3)(C) of the Code, together with a
properly completed Internal Revenue Service Form W-8BEN; provided,
that a Lender that delivers the forms and certificate provided in clause (b) above
must also deliver to the Borrower two accurate, complete and signed copies of
either Internal Revenue Service Form W-8BEN or W-8ECI, or, in each case,
an applicable successor form, establishing a complete exemption from
withholding of U.S. federal income tax imposed on the payment of any fees to
such Lender. Each Lender agrees that it shall, promptly upon a change of its
lending office or the selection of any additional lending office, to the extent
the forms previously delivered by it pursuant to this section are no longer
effective, and promptly upon the Borrower’s or the Administrative Agent’s
reasonable request after the occurrence of any other event (including the
passage of time) requiring the delivery of a Form W-8BEN or Form W-8ECI
in addition to or in replacement of the forms previously delivered, deliver to
the Borrower and the Administrative Agent, as applicable, if and to the extent
it is properly entitled to do so, a properly completed and executed Form W-8BEN
or Form W-8ECI, as applicable (or any successor forms thereto). For any
period with respect to which such Lender or Administrative Agent has failed to
provide the Borrower with the appropriate, complete and accurate form or other
relevant document pursuant to this Section 5.2.3 establishing a complete
exemption from U.S. federal withholding tax (unless such failure is due to a
change in treaty, law, or regulation occurring subsequent to the date on which
a form originally was required to be provided), such Lender or Administrative
Agent shall not be entitled to any “gross-up” of taxes or indemnification under
Section 5.2.2 with respect to Non-Excluded Taxes or Other Taxes imposed by
the United States; provided, however, that should such a Lender
or Administrative Agent, which is otherwise exempt from a withholding tax,
become subject to Non-Excluded Taxes or Other Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such


 


41

















 


Lender or Administrative Agent shall reasonably
request, at such Lender’s or Administrative Agent’s expense, to assist such
Lender or Administrative Agent to recover such Non-Excluded Taxes or Other
Taxes.


 


5.3. Computations.
All computations
of interest on the Loans and of Fees shall be based on a 360-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. The outstanding amount of any Revolving Credit Note as
reflected on its Record from time to time shall, absent manifest error, be
considered correct and binding on the Borrower unless within five (5) Business
Days after receipt of any notice by the Administrative Agent or any of the
Lenders of such outstanding amount, the Administrative Agent or such Lender
shall notify the Borrower to the contrary.


 


5.4. Inability
to Determine LIBOR Rate. In the event, prior to the commencement of any
Interest Period relating to any LIBOR Rate Loan, any Lender shall determine
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 such Lender of making or maintaining their LIBOR
Rate Loans during such period, such Lender shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower) to the
Borrower and the Administrative Agent. In such event (i) any Loan Request
with respect to LIBOR Rate Loans shall be automatically withdrawn and shall be
deemed a request for Cost of Funds Loans, (ii) each LIBOR Rate Loan will
automatically, on the last day of the then current Interest Period relating
thereto, become a Cost of Funds Loan, and (iii) the obligations of the
Lenders to make LIBOR Rate Loans shall be suspended until the Administrative
Agent determines that the circumstances giving rise to such suspension no
longer exist, whereupon the Administrative Agent shall so notify the Borrower
and the Lenders and each Cost of Funds Loan shall automatically convert to a
LIBOR Rate Loan on the last day of the then current Interest Period.


 


5.5. 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 shall forthwith be suspended and (b) such Lender’s Loans then
outstanding as LIBOR Rate Loans, if any, shall be converted automatically to
Cost of Funds Loans on the last day of each Interest Period applicable to such
LIBOR Rate Loans or within such earlier


 


42

















 


period as may be required by law. The Borrower hereby
agrees promptly to pay the Administrative 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 Section 5.5, 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.


 


5.6. 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 Administrative
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 Administrative Agent any other conditions or requirements with
respect to this Credit Agreement, the other Loan Documents, the LIBOR Rate
Loans, such Lender’s Commitment to make LIBOR Rate Loans, or any class of loans
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


 


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


 


(e) to require such
Lender or the Administrative Agent to make any payment or to forego any
interest or other sum payable hereunder in respect of any LIBOR Rate Loans, the
amount of which payment or foregone interest or


 


43

















 


other sum is calculated by reference to the gross
amount of any sum receivable or deemed received by such Lender or the
Administrative 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 Administrative Agent at
any time and from time to time and as often as the occasion therefor may arise,
pay to such Lender or the Administrative Agent such additional amounts as will
be sufficient to compensate such Lender or the Administrative Agent for such
additional cost, reduction, payment or foregone interest or other sum (other
than taxes which shall be treated exclusively pursuant to Section 5.2.2).


 


The failure or delay on
the part of any Lender to demand compensation for any increased costs shall not
constitute a waiver of such Lender’s right to demand such compensation; provided, that the Borrower shall not be
under any obligation to compensate any Lender under this Section 5.6 for
any increased costs with respect to any period prior to the date that is 120
days prior to such request if such Lender knew of the circumstances giving rise
to such increased costs and of the fact that such circumstances would result in
a claim for increased compensation by reason of such increased costs.


 


5.7. Capital
Adequacy.  If
after the date hereof any Lender or the Administrative 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 banks or bank 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
Administrative Agent or any corporation controlling such Lender or the
Administrative 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 Administrative Agent’s commitment with respect to any
Loans to a level below that which such Lender or the Administrative Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s or the Administrative 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 the Administrative
Agent (as the case may be) to be material, then such Lender or the
Administrative 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
Cost of Funds or LIBOR Rate, the Borrower agrees to pay such Lender or the
Administrative Agent (as the case may be) for the amount of such reduction in
the return on capital as and when such reduction is determined upon
presentation by such Lender or the Administrative Agent (as the case may be) of
a certificate in accordance with Section 5.8 hereof. Such Lender or the
Administrative Agent (as the case may be) shall allocate such cost increases
among its customers in good faith and on an equitable basis.


 


44

















 


The failure or delay on
the part of any Lender to demand compensation for any reduction in amounts
received or receivable or reduction in return on capital shall not constitute a
waiver of such Lender’s right to demand such compensation; provided, that the Borrower shall not be
under any obligation to compensate any Lender under this Section 5.7 for
any reductions with respect to any period prior to the date that is 120 days
prior to such request if such Lender knew of the circumstances giving rise to
such reductions and of the fact that such circumstances would result in a claim
for increased compensation by reason of such reductions.


 


5.8. Certificate.
A certificate setting
forth any additional amounts payable pursuant to Sections 5.6 or 5.7 and a
brief explanation of such amounts which are due, submitted by any Lender or the
Administrative Agent to the Borrower, shall be conclusive, absent manifest
error, that such amounts are due and owing.


 


5.9. Indemnity.
The Borrower
agrees to indemnify each Lender and to hold each Lender harmless from and
against any loss, cost or expense (including 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 lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans, (b) default by
the Borrower in making a borrowing after the Borrower has given (or is deemed
to have given) a Loan Request relating thereto in accordance with Section 2.2,
or (c) the making of any payment of a LIBOR Rate Loan 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 Loans.


 


5.10. Interest
After Default.
Overdue principal and (to the extent permitted by applicable law) overdue
interest on the Loans and all other overdue amounts payable hereunder or under
any of the other Loan Documents shall bear interest compounded monthly and
payable on demand at a rate per annum equal to two percent (2%) above the then
applicable rate of interest under this Credit Agreement or the other Loan
Documents until such amount shall be paid in full (after as well as before
judgment).


 


6.  COLLATERAL SECURITY.


 


6.1. Security
of Borrower. Subject
to the Security Documents, the Obligations are and shall continue to be secured
by a perfected first priority security interest (subject only to Liens
permitted hereunder which are entitled to priority under applicable law) in the
Collateral specified in the Security Documents, whether now owned or hereafter
acquired, pursuant to the terms of the Security Documents to which the Borrower
is a party.


 


45

















 


7.  REPRESENTATIONS AND
WARRANTIES.


 


In order to induce the
Lenders to enter into this Credit Agreement and to make the Loans as provided
for herein, Borrower makes the following representations, warranties and
agreements with the Administrative Agent and Lenders, all of which shall
survive the execution and delivery of this Credit Agreement and the making of
the Loans (with the occurrence of the Closing Date and each Funding Date on or
after the Closing Date being deemed to constitute a representation and warranty
that the matters specified in this Section 7 are true and correct in all
material respects on and as of the Closing Date and on and as of such Funding
Date unless stated to relate to a specific earlier date in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date):


 


7.1. Company
Status.
Borrower (i) is a duly organized and validly existing Company in good
standing (or its equivalent) under the laws of the jurisdiction of its
organization except where the failure to be so duly organized, validly existing
and in good standing, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect, (ii) has the
Company power and authority to own its property and assets and to transact the
business in which it is presently engaged, except where the failure to have
such power and authority, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect and (iii) is duly
qualified and is authorized to do business and is in good standing (or its
equivalent) in all jurisdictions where it is required to be so qualified (or
its equivalent) and where the failure to be so qualified, either individually
or in the aggregate, would reasonably be expected to have a Material Adverse
Effect.


 


7.2.  Company Power and Authority. Borrower has the Company power and
authority to execute, deliver and carry out the terms and provisions of the
Loan Documents to which it is a party and has taken all necessary Company
action to authorize the execution, delivery and performance of the Loan
Documents to which it is a party. Borrower has duly executed and delivered each
Loan Document to which it is a party and each such Loan Document constitutes
the legal, valid and binding obligation of the Borrower enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws generally affecting creditors’ rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).


 


7.3. No
Violation.
Neither the execution, delivery or performance by the Borrower of the Loan
Documents to which it is a party, nor compliance by the Borrower with the terms
and provisions thereof, nor the consummation of the transactions contemplated
herein or therein, (i) will contravene any material provision of any
applicable law, statute, rule or regulation, or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will


 


46

















 


conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or (other than pursuant to the Security Documents)
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the Borrower pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other agreement, contract or instrument to which the Borrower
is a party or by which it or any of its material property or assets are bound
or to which it may be subject, or (iii) will violate any provision of the
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of limited liability company, limited liability company
agreement or equivalent organizational document, as the case may be, of the
Borrower.


 


7.4. Litigation. There are no actions, suits,
proceedings or investigations pending or, to the knowledge of the Borrower,
threatened in writing (i) with respect to any Loan Document or (ii) with
respect to any other matter, as to which there is a reasonable possibility of
an adverse determination and that, if adversely determined, either individually
or in the aggregate, would reasonably be expected to have a Material Adverse
Effect.


 


7.5. Margin
Regulations.
No part of any Loan (or the proceeds thereof) will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Loan will violate or be inconsistent
with the provisions of Regulation T, Regulation U or Regulation X.


 


7.6. Governmental
Approvals.
Except as may have been obtained or made on or prior to the Closing Date (and
which remain in full force and effect on the Closing Date), no order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by, any domestic or foreign governmental or
public body or authority, or any subdivision thereof, is required to authorize,
in respect of the Borrower, or is required to be obtained by the Borrower in
connection with (i) the execution, delivery and performance by the
Borrower of any Loan Document or (ii) the legality, validity, binding
effect or enforceability of any Loan Document with respect to the Borrower, in
each case, except for (A) the filing of any Security Documents and (B) such
the failure of which to make or obtain, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect.


 


7.7. Investment
Company Act.
Borrower is not an “investment company” or a company “controlled” by an “investment
company,” within the meaning of the Investment Company Act of 1940, as amended.


 


7.8.
[Reserved]


 


47

















 


7.9.
True and Complete Disclosure. All factual information (taken as a whole) furnished
by or on behalf of the Borrower in writing to the Administrative Agent or any
Lender (including, without limitation, all information contained in the Loan
Documents) for purposes of or in connection with this Credit Agreement is, and
all other such factual information (taken as a whole) hereafter furnished by,
or on behalf of, the Borrower in writing to the Administrative Agent or any
Lender in connection with this Credit Agreement will be, true and accurate in
all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary
to make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such information
was provided; provided, however, that to the extent that any such information
was based upon or constitutes a forecast or projection, Borrower represents
only that it acted in good faith and utilized assumptions believed by the
management of the Borrower to be reasonable at the time made in the preparation
of such information (it being understood by the Administrative Agent and the
Lenders that any financial information as it relates to future events is not to
be viewed as fact and that actual results during the period or periods covered
thereby may differ from the projected results set forth therein).


 


7.10. Financial
Condition; Financial Statements. (a) On and as of the Closing Date, on a pro
forma basis after giving effect to all Indebtedness (including the
Loans) incurred, and to be incurred, and Liens created, and to be created, by
Borrower in connection therewith, with respect the Borrower and its
Subsidiaries (on a consolidated basis) (x) the sum of the assets, at a
fair valuation, of the Borrower and its Subsidiaries (on a consolidated basis)
will exceed its or their debts, (y) they have not incurred nor intended
to, nor believes that they will, incur debts beyond their ability to pay such debts
as such debts mature and (z) they will not have unreasonably small capital
with which to conduct their business in the manner such business is now
conducted. For purposes of this Section 7.10(a), “debt” means any
liability on a claim, and “claim” means (i) right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (ii) right to an equitable remedy for breach of performance
if such breach gives rise to a payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.


 


(b) The consolidated
balance sheets of Carlisle and its Consolidated Subsidiaries as of December 31,
2006 and the fiscal quarter ended June 30, 2007 and the related
consolidated statements of income and cash flows of Carlisle for the twelve
months and fiscal quarter ended on such dates, in each case furnished to the
Administrative Agent and Lenders prior to the Closing Date, present fairly


 


48














 


in all material respects the consolidated financial
position of Carlisle and its Subsidiaries at the date of said balance sheets
and the consolidated results of their operations for the respective periods
covered thereby. All of the foregoing financial statements have been prepared
in accordance with GAAP consistently applied (except, in the case of the
aforementioned quarterly financial statements, for normal year-end audit
adjustments and the absence of footnotes).


 


(c) During the
period from June 30, 2007 through the Closing Date, there has been no
change in the business, financial condition or operations of the Borrower
(other than the incurrence of Indebtedness under the Loan Documents and the
consummation of the transactions contemplated hereby and thereby) that would
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.


 


7.11. Security
Interests. On
and after the Closing Date, each of the Security Documents creates as security
in the principal domicile of the Borrower for the Obligations covered thereby,
a valid and enforceable security interest in and Lien on all of the Collateral
subject thereto, without prejudice to any statutory priority rights, superior
to and prior to the rights of all third Persons, and subject to no other Liens
except Liens permitted hereunder. The Borrower has filed or caused to be filed
all UCC financing statements in the appropriate offices therefor (or has
authenticated and delivered to the Administrative Agent UCC financing statements
suitable for filing in such offices) and has taken all of the actions necessary
in the United States to create perfected security interests in the Collateral
which the Security Documents require the Borrower to create perfected security
interests.


 


7.12. Compliance
with ERISA.
Borrower and each of its ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in any liability of the Borrower or any
of its ERISA Affiliates in excess of $250,000. The present value of all benefit
liabilities under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the
last annual valuation date applicable thereto, exceed by more than $250,000 the
fair market value of the assets of such Plan, and the present value of all
benefit liabilities of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the last annual valuation date applicable thereto, exceed by more than
$250,000 the fair market value of the assets of all such underfunded Plans.


 


7.13. Subsidiaries. On and as of the Closing Date, the
Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule
7.13.


 


49

















 


7.14. Compliance
with Statutes; Agreements, etc. Borrower and each of its Subsidiaries is in
compliance with (i) all applicable statutes, regulations, rules and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business (including the
origination of Finance Leases) and the ownership of its property (excluding
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls, which matters are covered under Section 7.15)
and (ii) all contracts and agreements to which it is a party, except, in
each case, such non-compliances as would not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.


 


7.15. Environmental
Matters.
Except as would not reasonably be expected to result in, either individually or
in the aggregate, a Material Adverse Effect: (i) the Borrower and each of
its Subsidiaries has complied with all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws and neither
the Borrower nor any Subsidiary is liable for any penalties, fines or
forfeitures for failure to comply with any of the foregoing; (ii) there
are no pending Environmental Claims or, to the knowledge of any Senior
Designated Officer of the Borrower, Environmental Claims threatened in writing
against the Borrower or any of its Subsidiaries or any property (real or
personal) owned, leased or operated by the Borrower or any of its Subsidiaries
(including, to the knowledge of any Senior Designated Officer of the Borrower,
any such claim arising out of the ownership, lease or operation by the Borrower
or any of its Subsidiaries of any property (real or personal) formerly owned,
leased or operated by the Borrower or any of its Subsidiaries but no longer
owned, leased or operated by the Borrower or any of its Subsidiaries); and (iii) to
the knowledge of any Senior Designated Officer of the Borrower, there are no
facts, circumstances, conditions or occurrences on or arising from any property
(real or personal) owned, leased or operated by the Borrower or any of its
Subsidiaries (including any property (real or personal) formerly owned, leased
or operated by the Borrower or any of its Subsidiaries but no longer owned,
leased or operated by the Borrower or any of its Subsidiaries) or relating to
the past or present operations of the Borrower or any of its Subsidiaries that
could reasonably be expected to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such property (real or
personal).


 


7.16. Labor
Relations. As
of the Closing Date, there are no strikes, lockouts or slowdowns against the
Borrower or any of its Subsidiaries pending, or to the knowledge of the
Borrower, threatened. The hours worked by and payments made to employees of the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable federal, state or local law dealing with
such matters, except for such violations that would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.


 


50

















 


7.17. Tax
Returns and Payments. Borrower and each Subsidiary has timely filed (including applicable
extensions) with the appropriate taxing authority, all federal and other
material returns, statements, forms and reports for taxes (the “Returns”)
required to be filed by or with respect to the income, properties or operations
of the Borrower and each Subsidiary. The Returns accurately reflect in all
material respects all liability for taxes of the Borrower and each Subsidiary
for the periods covered thereby. The Borrower and each Subsidiary has paid all
material taxes payable by them other than those contested in good faith and for
which adequate reserves have been established in accordance with GAAP.


 


7.18. Scheduled
Existing Indebtedness. Schedule 7.18 sets forth all material Indebtedness of
the Borrower and each Subsidiary as of the Closing Date and the incurrence of
any Loans on such date (exclusive of Indebtedness pursuant to this Credit
Agreement and the other Loan Documents, in each case showing the aggregate
principal amount thereof (and the aggregate amount of any undrawn commitments
with respect thereto) and the name of the respective borrower and any other
entity which directly or indirectly guarantees such debt.


 


7.19. Insurance. Schedule 7.19 sets forth a summary of
all insurance maintained by the Borrower and each Subsidiary on and as of the
Closing Date, with the amounts insured (and any deductibles) set forth therein.


 


7.20. Foreign
Assets Control Regulations, etc. None of the requesting or borrowing of any Loan or the
use of the proceeds of such 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)). Furthermore, neither
the Borrower nor any of its Affiliates (a) is or will become a “blocked
person” as described in the Executive Order, the Trading With the Enemy Act or
the Foreign Assets Control Regulations or (b) engages or will engage in
any dealings or transactions, or be otherwise associated, with any such “blocked
person”.


 


7.21. Credit
and Collection Policy. The credit and collection policy used by the Manager
as in effect on the Closing Date is attached as Exhibit F hereto
(the “Credit and Collection Policy”).


 


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7.22. Solvency
and Separateness.


 


7.22.1. The capital of the Borrower is adequate
for the business and undertakings of the Borrower;


 


7.22.2. Other than with respect to the
transactions contemplated hereby and by the other Loan Documents, the Borrower
is not engaged in any business transactions with any of the Seller or the
Manager;


 


7.22.3. At all times, at least two (2) members
of the board of managers of the Borrower comply with the definition of
Independent Person;


 


7.22.4. The Borrower’s funds and assets are not,
and will not be, commingled with those of the Seller or the Manager, except as
permitted by the Management Agreement and the Intercreditor Agreement;


 


7.22.5. The limited liability company agreement
of the Borrower requires it to maintain (A) correct and complete books and
records of account, and (B) minutes of the meetings and other proceedings
of its members;


 


7.22.6. The Borrower has not engaged in any
business activities, except as permitted by the present and express terms of
the Loan Documents and Section 2.3 of the limited liability company
agreement;


 


7.22.7. The Borrower is not insolvent under the
insolvency law and will not be rendered insolvent by the transactions
contemplated by the Loan Documents and after giving effect to such
transactions, the Borrower will not be left with an unreasonably small amount
of capital with which to engage in its business nor will the Borrower have
intended to incur, or believe that it has incurred, debts beyond its ability to
pay such debts as they mature. The Borrower does not contemplate the
commencement of insolvency, bankruptcy, liquidation, or consolidation
proceedings or the appointment of a receiver, liquidator, trustee, or similar
official in respect of the Borrower or any of its assets; and


 


7.22.8. The Borrower is not liable for any
unbonded or uninsured final nonappealable judgments or liabilities which in
aggregate exceed $250,000.


 


7.23. No
Default. No
Event of Default or Manager Default has occurred and is continuing and no event
has occurred that with the passage of time would become an Event of Default or
Manager Default.


 


7.24. Ownership
of the Borrower. On the Closing Date, all of the Capital Stock of the Borrower is owned
by Carlisle.


 


7.25. Use
of Proceeds. The
Borrower shall use the proceeds from the Loan as follows: (i) to acquire
the Collateral pursuant to the terms of the Sale Agreements, and (ii) for
other general business purposes.


 


52

















 


7.26. ERISA
Lien. As of
the Closing Date, the Borrower has not received notice that any Lien arising
under ERISA has been filed against the assets of the Borrower.


 


7.27. Tax
Election of the Borrower. None of the Borrower, any of its members or any other
Person has elected, or agreed to elect, to treat the Borrower as an association
taxable as a corporation for United States federal income tax purposes.


 


8. AFFIRMATIVE
COVENANTS.


 


Borrower hereby covenants
and agrees that as of the Closing Date and thereafter for so long as this
Credit Agreement is in effect and until the Loans and Notes, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:


 


8.1. Information
Covenants.
Borrower will furnish, or will cause to be furnished, to the Administrative
Agent for distribution to each Lender:


 


(a) Quarterly
Financial Statements. Within ninety (90) days after the close of the first
three fiscal quarters in each fiscal year of each of Seacastle and Carlisle,
the (i) consolidated balance sheets of each of Carlisle and Seacastle and
their respective Consolidated Subsidiaries and (ii) the stand-alone
balance sheets of each of the Borrower and Carlisle as at the end of such
fiscal quarter, in the case of each of (i) and (ii) along with the
related statements of income for such fiscal quarter and for the elapsed
portion of the fiscal year ended with the last day of such fiscal quarter and
the related statements of cash flows for the elapsed portion of the fiscal year
ended with the last day of such fiscal quarter, all of which shall be certified
by the chief financial officer or other Authorized Officer of each of
Seacastle, Carlisle and the Borrower that they fairly present in all material
respects in accordance with GAAP the financial condition of each of Seacastle,
Carlisle and the Borrower as of the dates indicated and the results of their
operations and/or changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments and the absence of footnotes.


 


(b) Annual
Financial Statements. No later than the earlier of (A) one hundred
twenty (120) days after the end of each fiscal year of each of Seacastle and
Carlisle, or, if applicable, (B) ten (10) days following Seacastle’s
or Carlisle’s filing of its annual audited financial statements with the U.S.
Securities and Exchange Commission, the consolidated balance sheet of each of
Seacastle and Carlisle and their respective Consolidated Subsidiaries and the
related consolidated statements of income and statement of cash flows for such
fiscal year and, with respect to each fiscal year commencing after the
completion of the first full fiscal year following the Closing Date, setting
forth consolidated comparative figures for the preceding fiscal year (or, if
shorter since inception), together with a certification by an Independent
Accountant reasonably acceptable


 


53

















 


to the Administrative Agent (acting at the direction
of the Majority Lenders) to the effect that such statements fairly present in
all material respects the consolidated financial condition of each of Carlisle
and Seacastle and their respective Consolidated Subsidiaries as of the dates
indicated and the results of their operations and changes in financial position
for the periods indicated in conformity with GAAP applied on a basis consistent
with prior years except as disclosed therein (which report shall be without a “going
concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit); provided,
however, that any such “going concern” qualification that is
specifically related to the status of the loans evidenced by this Credit
Agreement shall not cause a breach under the provisions of this clause (b).


 


There has been furnished
to the Administrative Agent and each Lender a pro forma stand-alone balance
sheet of Carlisle as at the Balance Sheet Date, and after giving effect to the
proposed initial acquisition of the Containers under the Contribution and Sale
Agreement. Such pro forma consolidated balance sheet was prepared in good faith
based upon assumptions believed to be reasonable at such time.


 


(c) Officer’s
Certificates. At the time of the delivery of the financial statements
provided for in Sections 8.1(a) and (b), a certificate of the chief
financial officer or other Authorized Officer of the Borrower to the effect
that no Default or Event of Default exists or, if any Default or Event of
Default does exist, specifying the nature and extent thereof, and which
certificate shall set forth in reasonable detail the calculations required to
establish whether the Borrower and its Subsidiaries were in compliance with the
provisions of Section 10 hereof as at the end of such fiscal quarter or
fiscal year, as the case may be.


 


(d) Notice of
Default, Event of Default or Litigation. Promptly, and in any event within
five (5) Business Days after any Senior Designated Officer of the Borrower
or any of the Borrower’s Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or an Event of Default,
which notice shall specify the nature and period of existence thereof and what
action the Borrower or such Subsidiary proposes to take with respect thereto, (ii) any
litigation or proceeding pending or, to the knowledge of Senior Designated
Officer of the Borrower, threatened in writing against the Borrower or any
Subsidiary which, either individually or in the aggregate, would reasonably be
expected to have, a Material Adverse Effect, or (iii) any governmental
investigation pending or, to the knowledge of Senior Designated Officer of the
Borrower, threatened in writing against the Borrower or any Subsidiary which,
either individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.


 


(e) Management
Letters. At the request of the Administrative Agent (acting at the
direction of the Majority Lenders), a copy of any “management letter” submitted
to the Borrower or any Subsidiary by its independent


 


54

















 


accountants in connection with any annual, interim or
special audit made by them of the financial statements of the Borrower or any
Subsidiary and management’s responses thereto.


 


(f) Container
Performance Reports and Pledged Container Lists. (i) On each
Determination Date, an Asset Base Report, substantially in the form of Exhibit A
hereto, (ii) within one hundred twenty (120) days after the end of each
fiscal year, an Equipment Report, substantially in the form of Exhibit C
hereto, setting forth (A) the number, type, identities of Lessees,
remaining lease tenors and per diem amounts with respect to Containers then
included in the Asset Base and (B) the aggregate Original Equipment Cost
of all Containers then included in the Asset Base, and (iii) at the
request of the Administrative Agent, but in any case no more than once per
calendar quarter, an updated summary listing of all Pledged Containers as of
the last day of the preceding calendar quarter.


 


(g) Reports.
Except as otherwise set forth in Section 8.1(b) above, within five (5) Business
Days following transmission thereof, copies of any public filings and
registrations (if any) with, and reports to, the U.S. Securities and Exchange
Commission by Seacastle, Carlisle, the Borrower or any Subsidiary thereof.


 


(h) Other
Information. From time to time, such other information or documents
(financial or otherwise) in the form utilized by the Borrower in its own
operations with respect to the Borrower as the Administrative Agent or any
Lender may reasonably request and which is reasonably available to the
Borrower.


 


8.2. Books,
Records and Inspections. Borrower shall permit the Administrative Agent, any
Initial Lender or any of its designated representatives:


 


8.2.1. if no Default or Event of Default then
exists, once per year at the expense of the Borrower, and otherwise at the
expense of the Lenders and at such reasonable times and intervals as the
Administrative Agent or any Lender may reasonably request in writing, to visit
and inspect any of the properties of the Borrower, to examine the books of
account of the Borrower (and to make copies thereof and extracts therefrom),
and to discuss the affairs, finances and accounts of the Borrower with, and to
be advised as to the same by, the Borrower and its officers, and to conduct
examinations and verifications (whether by internal commercial finance
examiners or independent auditors) of all components included in the Asset
Base; and


 


8.2.2. if a Default or Event of Default then
exists, at the expense of the Borrower at all such times and as often as the
Administrative Agent or any Initial Lender requests, to visit and inspect any
of the properties of the Borrower, to examine the books of account of the
Borrower (and to make copies thereof and extracts therefrom), and to discuss
the affairs, finances and accounts of the


 


55

















 


Borrower 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 Asset Base.


 


8.3. 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 Administrative 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.


 


8.4. Payment
of Taxes.
Borrower will, and will cause each of its Subsidiaries to, pay and discharge
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any properties belonging to it, in each
case on a timely basis, and all lawful claims which, if unpaid, could
reasonably be expected to become a lien or charge upon any properties of the
Borrower or any Subsidiary not otherwise permitted hereunder Section 9.2; provided
that neither the Borrower nor any Subsidiary shall be required to pay any such
tax, assessment, charge, levy or claim which is immaterial or is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves with respect thereto in accordance with GAAP.


 


8.5. Existence;
Franchises.
Except as otherwise permitted by Section 9.5, Borrower will do, and will
cause each of its Subsidiaries to do, or cause to be done, all things necessary
to preserve and keep in full force and effect its limited liability company
existence and its rights, franchises, authorities to do business, licenses,
permits, certifications, accreditations and patents; provided, however,
that nothing in this Section 8.5 shall (x) prevent the withdrawal by
the Borrower or any Subsidiary of its qualification as a foreign Company in any
jurisdiction where such withdrawal would not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or (y) require
the preservation of any such right, franchise, authorities to do business,
license, permit, certification, accreditation or patent to the extent that the
lapse thereof, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.


 


8.6. Compliance
with Statutes; etc. Borrower will, and will cause each of its Subsidiaries to, comply
with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property,
except for such instances of noncompliance as, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


8.7. End
of Fiscal Years; Fiscal Quarters. Borrower will cause (i) each of its fiscal
years to end on December 31 of each calendar year and (ii) each


 


56

















 


of its fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.


 


8.8. Further
Assurances.
Borrower will, and will cause each of its Subsidiaries to, at its own expense,
make, execute, endorse, acknowledge, file and/or deliver to the Lenders from
time to time such vouchers, invoices, schedules, confirmatory assignments,
confirmatory conveyances, financing statements, transfer endorsements,
confirmatory powers of attorney, certificates, reports and other assurances or
confirmatory instruments and take such further steps relating to the Collateral
covered by any of the Security Documents as the Lenders may reasonably require
pursuant to this Section 8.8.


 


8.9. Performance
of Obligations.
The Borrower will, and will cause each of its Subsidiaries to, perform all of
its obligations under the terms of each mortgage, deed of trust, indenture,
loan agreement or credit agreement and each other agreement, contract or
instrument by which it is bound, except such non-performances as, either individually
or in the aggregate, would not reasonably be expected to cause a Material
Adverse Effect.


 


8.10. Maintenance
of Containers. The
Borrower will or will cause its Subsidiaries to:


 


(i) keep, or cause
to be kept, its Eligible Containers in good repair and working order in a
manner consistent with past practices, and make, or cause to be made, all
needful and proper repairs, replacements, additions and improvements thereto as
are necessary for the conduct of its business, and in order to maintain the Eligible
Containers in accordance with manufacturer’s instructions and in as good an
operating condition as when originally delivered, reasonable wear and tear and
causes beyond the Borrower’s control excepted; provided,
any alteration to an Eligible Container which is not made pursuant to the
requirements of the applicable Lease or otherwise made in the ordinary course
of business shall require the prior written consent of the Administrative
Agent, such consent not to be unreasonably withheld or delayed;


 


(ii) at all times
use the Eligible Containers, and require the related Lessee to use the Eligible
Containers, in accordance with good operating practices and shall at all times
comply with all loading limitations, handling procedures and operating
instructions prescribed by the manufacturer which, with respect to Eligible
Containers include but are not limited to the latest applicable regulations and
recommendations of the International Organization of Standardization as well as
any applicable local regulations;


 


57

















 


(iii) not knowingly
use (or knowingly permit the Lessees to use) the Eligible Containers for
storage of transportation of contraband in violation of applicable United
States law; and


 


(iv) with respect to
Eligible Containers, comply with the International Convention for Safe
Containers (CSC) in all material respects including, without limitation,
plating, maintenance, examination, re-examination and marking with
re-examination dates of such Eligible Container, such examination, or
re-examination, shall be performed in accordance with the rules and
regulations for the Safety Approval of Cargo Containers of the United States
Department of Transportation.


 


8.11. Insurance.
The Borrower
shall cause the Manger to comply with the provisions of Section 6.08
(Insurance) of the Management Agreement. The Administrative Agent reserves the
right (but shall not have the obligation) to obtain (i) at Borrower’s
expense, insurance with respect to any or all of the risks insured by the
Manager on behalf of the Borrower if the Manager shall fail to obtain such
coverage in the specified amounts, and (ii) at the Lenders’ expense,
additional insurance on its own behalf with respect to any or all of such risks
(or any other risk). However, the Administrative Agent and the Lenders will
notify the Borrower prior to obtaining any such insurance.


 


8.12. Interest
Rate Hedging Agreements. The Borrower will maintain one or more Interest Rate
Hedging Agreements that will obligate the Borrower or the applicable Eligible
Interest Rate Hedge Counterparty to make a Periodic Hedge Payment on each
Payment Date. Any Hedge Payments (including Hedge Termination Payments) shall
be deposited by the Borrower directly into the Trust Account and shall be
distributed in accordance with Section 2.5.2. The Borrower shall maintain
Interest Rate Hedging Agreements with respect to a notional principal amount
that is at least the Minimum Required Hedge Amount and not more than the
Maximum Required Hedge Amount. If the actual notional principal amount of the
Interest Rate Hedging Agreements is less than the Minimum Required Hedge Amount
or more than the Maximum Required Hedge Amount, the Borrower shall have up to
five (5) Business Days (or such longer period as the Administrative Agent
may in its sole discretion permit) to (x) to negotiate voluntary
terminations of Interest Rate Hedging Agreements with one or more of the
counterparties to such agreements and/or to enter into offsetting Interest Rate
Hedging Agreements, to the extent necessary to reduce the notional principal
amount of the Interest Rate Hedging Agreements below the Maximum Required Hedge
Amount or (y) enter into Interest Rate Hedging Agreements to the extent
necessary to increase the notional principal amount of the Interest Rate
Hedging Agreements above the Minimum Required Hedge Amount as the circumstances
require.


 


58

















 


8.13. UNIDROIT
Convention. The
Borrower will comply with the terms and provisions of the UNIDROIT Convention
on International Interests in Mobile Equipment or any other internationally
recognized system for recording interests in or liens against shipping
containers at the time that such convention is adopted.


 


8.14. Compliance
with Credit and Collection Policy. The Borrower will comply in all material respects with
the Credit and Collection Policy in regard to the origination of (other than
those Finance Leases originated by Interpool), and amendments and modifications
to, Finance Leases.


 


8.15. Non-Consolidation
of the Borrower.


 


(i) The Borrower
shall be operated in such a manner to minimize the likelihood that it would be
substantively consolidated with the trust estate of any other Person in the
event of the bankruptcy or insolvency of the Borrower or such other Person.
Without limiting the foregoing the Borrower shall (1) conduct its business
in its own name, (2) maintain its books and records separate from those of
any other Person, (3) maintain its bank accounts separate from those of
any other Person, (4) maintain separate financial statements, showing its
assets and liabilities separate and apart from those of any other Person, (5) pay
its own liabilities and expenses only out of its own funds, (6) enter into
a transaction with an Affiliate only if such transaction is intrinsically fair,
commercially reasonable and on the same terms as would be available in an arm’s
length transaction with a Person or entity that is not an Affiliate, (7) allocate
fairly and reasonably any overhead expenses that are shared with an Affiliate, (8) hold
itself out as a separate entity and maintain adequate capital in light of its
contemplated business operations and (9) observe all other appropriate
organizational formalities.


 


(ii) Notwithstanding
any provision of law which otherwise empowers the Borrower, the Borrower shall
not (1) hold itself out as being liable for the debts of any other Person,
(2) act other than in its limited liability company name and through its
duly authorized officers or agents, (3) engage in any joint activity or
transaction of any kind with or for the benefit of any affiliate including any
loan to or from or guarantee of the indebtedness of any Affiliate, except
payment of lawful distributions to its stockholders, (4) the Management
Agreement and the Intercreditor Agreement, commingle its funds or other assets
with those of any other person, (5) create, incur, assume, guarantee or in
any manner become liable in respect of any indebtedness (except pursuant to
this Credit Agreement) other than trade payables and expense accruals incurred
in the ordinary course of its business or (6) take any other action that
would be inconsistent with maintaining the separate legal identity of the
Borrower or engage in any other activity not contemplated by this Credit
Agreement and related documents.


 


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9. NEGATIVE COVENANTS.


 


Borrower hereby covenants
and agrees that as of the Closing Date and thereafter for so long as this
Credit Agreement is in effect and until all Commitments have been terminated,
and the Loans and Revolving Credit Notes, together with interest, Fees and all
other Obligations incurred hereunder, are paid in full:


 


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


 


(i) Indebtedness to
the Lenders and the Administrative Agent arising under any of the Loan
Documents;


 


(ii) Indebtedness
under Interest Rate Hedging Agreements in accordance with Section 8.12;
and


 


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


 


9.2. Restrictions on Liens. The Borrower will not (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 may create or incur or suffer to be created or incurred or to
exist:


 


(A) Liens to secure
taxes, assessments and other government charges in respect of obligations not
overdue or that are being contested in good faith by appropriate proceedings
that are not reasonably likely to result in any civil or criminal penalty to
the Administrative Agent or any Lender and for the payment of which adequate
reserves are maintained in accordance with GAAP;


 


(B) Liens of
carriers, warehousemen, mechanics and materialmen, and other like Liens on
properties, in existence less than 60 days after the Borrower or the Manager
has knowledge


 


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thereof or that are being contested in good faith by
appropriate proceedings that are not reasonably likely to result in any civil
or criminal penalty to the Administrative Agent or the Lender and for the
payment of which adequate reserves are maintained in accordance with GAAP;


 


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


 


(D) Liens consisting
of interests of lessees of the Containers or arising from precautionary UCC
financing statement filings regarding leases entered into in the ordinary
course;


 


(E) Liens in favor
of banks on items in collection (and the documents related thereto) arising in
the ordinary course of business of the Borrower under Article IV of the
UCC.


 


9.3. Restrictions on Investments. The Borrower will not make or permit to
exist or to remain outstanding any Investment except Investments in:


 


(i) Eligible
Investments with respect to funds on deposit in the Trust Account;


 


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


 


(iii) Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with Lessees arising in the ordinary course
of business;


 


9.4. Restricted Payments. The Borrower will not make any Restricted Payments if
a Default or an Event of Default is then continuing or would result from such
payment; provided, that the Borrower may make payments to its Affiliates with
respect to services rendered or products delivered to the extent not prohibited
by Section 9.11.


 


9.5. Merger, Consolidation and
Disposition of Assets.


 


9.5.1.
Mergers and Acquisitions. The Borrower will not 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 Containers in the ordinary course
of business consistent with past practices shall not be prohibited).


 


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9.5.2.
Disposition of Assets.


 


(a) The Borrower
will not become a party to or agree to or effect any sale, transfer,
conveyance, lease or other disposition of assets, other than pursuant to Section 9.5.2
or (a) the sale of Investments permitted pursuant to Section 9.3
hereof, (b) leases of assets in the ordinary course of business consistent
with past practices, (c) in connection with a substitution pursuant to
either Sale Agreement, (d) sales of Containers to Persons that are not
Sanctioned Persons for Net Cash Sales Proceeds of not less than the sum of the
then Discounted Net Present Value of Receivables of the Containers and/or
Leases to be sold, regardless of whether such sales are considered to have been
made in the ordinary course of business, (e) so long as a Default or Event
of Default is not then continuing or would result from such sale of Containers
and/or Leases, sales of Containers and/or Leases, in the ordinary course of
business (including any such sales resulting from the sell/repair decision of
the Manager) to Persons that are not Sanctioned Persons regardless of the
amount of Net Cash Sales Proceeds realized therefrom, (f) in connection
with a sale to a Lessee or its designee pursuant to the terms of a Finance
Lease, and (g) sales of obsolete or irreparably damaged Containers to
Persons that are not Sanctioned Persons.


 


(b) The Borrower
will not become a party to or agree to or effect any sale, transfer,
conveyance, lease or other disposition of all or substantially of the
Containers subject to a Finance Lease unless, immediately after giving effect
to such transaction, no Asset Base Deficiency would then exist.


 


9.6. Sale and Leaseback. The Borrower will not enter into any arrangement,
directly or indirectly, whereby the Borrower shall sell or transfer any
property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower intends to use for substantially the
same purpose as the property being sold or transferred.


 


9.7. Compliance with Environmental Laws. The Borrower will not (a) use any
Container for the handling, processing, storage or disposal of Hazardous
Substances in any material respect, (b) otherwise use any Container in any
manner that would violate in any material respect any Environmental Law or
bring such Container (with respect to each clause (a) or (b) of this
Section), in violation of any Environmental Law in any material respect.


 


9.8. Employee Benefit Plans. The Borrower shall not, and shall not permit any of
its ERISA Affiliates to, do any of the following to the extent such act or
failure to act would result individually or in the aggregate, after taking into
account all other such acts or failures to act under this Section 9.8, in
a Material Adverse Effect:


 


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


 


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


 


(iii) 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 ERISA
Affiliates pursuant to Section 302(f) or Section 4068 of ERISA;
or


 


(iv) amend any
Guaranteed Pension Plan resulting in an increase in current liability for the
Plan year such that the Borrower or ERISA Affiliate is required to post a
security pursuant to Section 307 of ERISA;


 


(v) permit or take
any action which would result in the aggregate benefit liabilities (with the
meaning of Section 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


 


(vi) 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 change the general nature of
their primary businesses conducted by them on the Closing Date.


 


9.10. Fiscal Year. The Borrower will not change the date of the end of
its fiscal year from that set forth in Section 8.7.


 


9.11. Transactions with Affiliates. Except as expressly permitted under Sections
9.1, 9.2, 9.3, 9.4 and 9.5, the Borrower will not 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 any of the transactions between the
Borrower and Carlisle contemplated by the Loan Documents.


 


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9.12.
Other Agreements.


 


(i) The Borrower
will not after the Closing Date enter into, or become a party to, any
agreements or instruments other than (i) the Loan Documents or any other
agreement(s) contemplated hereby or thereby or related hereto or thereto, (ii) any
agreement(s) for disposition of the Containers and Leases permitted by the
terms of this Credit Agreement, and (iii) any agreement(s) for the
sale or re-lease of a Container made in accordance with the provisions of the
Management Agreement.


 


(ii) The Borrower
will not amend, modify or waive any provision of any Loan Documents or give any
approval or consent or permission provided for therein, except in accordance
with the express terms of such Loan Document.


 


9.13. Charter Documents. The Borrower will not amend or modify its
organizational documents.


 


9.14. Capital Expenditures. The Borrower will not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (both realty and
personalty), except for (a) acquisition of additional Containers from
either Seller in accordance with the terms of the applicable Sale Agreement or (b) capital
improvements to the Containers made in the ordinary course of its business and
in accordance with the terms of the Management Agreement.


 


9.15. Permitted Activities; Compliance with Organizational
Documents. The
Borrower will not engage in any activity or enter into any transaction except
as permitted under its organizational documents as in effect on the date on
which this Credit Agreement is executed. The Borrower will observe all company,
organizational and managerial procedures required by its organizational
documents and applicable law.


 


9.16. Subsidiaries. The Borrower shall not create any Subsidiaries.


 


9.17. Amendment of Intercreditor Agreement. The Borrower shall not, without the
consent of the Administrative Agent, consent to any amendment, modification or
revision to the Intercreditor Agreement except for any supplement thereto
needed to designate an additional “Managed Equipment Owner” or “Managed
Equipment Lender”, as each such term is defined in the Intercreditor Agreement.


 


9.18. OFAC. The Borrower shall not lease, or consent to the
sublease of, a Container to a “prohibited person” or an entity organized in a “prohibited
jurisdiction”. If the Borrower obtains knowledge that a Container is subleased
to a “prohibited person” or located or used in a “prohibited jurisdiction”
(other than by the United States government, or pursuant to a license issued by
the Office of Foreign Assets Control), then the Borrower shall, within ten (10) Business
Days after obtaining knowledge thereof, remove such Container from the Asset
Base for so long as such condition continues.


 


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10. FINANCIAL
COVENANTS.


 


The Borrower covenants
and agrees that, at all times subsequent to the Closing Date and for so long as
any Loan or Revolving Credit Note is outstanding or any Lender has any
obligation to make any Loans:


 


10.1. Minimum
Tangible Net Worth. As of the last day of each fiscal quarter of the Guarantor, commencing
with the fiscal quarter ending September 30, 2007, the Consolidated
Tangible Net Worth of Carlisle shall be not less than Two Hundred Million
Dollars ($200,000,000).


 


11. CLOSING
CONDITIONS.


 


The
obligation of each Lender to make a Loan hereunder on the Closing Date, is
subject, at the time of the making of such Loans to the satisfaction of the
following conditions (or the written waiver of such conditions by the
Administrative Agent (acting at the direction of the Majority Lenders)):


 


11.1. Execution
of Agreement; Notes. On or prior to the Closing Date, (i) this Credit Agreement and
the other Loan Documents shall have been executed and delivered and shall be in
full force and effect and (ii) there shall have been delivered to the
Administrative Agent for the account of each Lender which has requested the
same the appropriate Note, in each case executed by the Borrower and in the
amount, maturity and as otherwise provided herein.


 


11.2. Officer’s
Certificate.
On the Closing Date, the Administrative Agent shall have received a certificate
from the Borrower, dated the Closing Date and signed by an Authorized Officer
of the Borrower, certifying that all of the applicable conditions set forth in Section 12.2
(other than such conditions to the extent that such conditions are expressly
subject to the satisfaction of the Administrative Agent and/or the Majority
Lenders), have been satisfied on such date.


 


11.3. Opinions
of Counsel.
On the Closing Date, the Administrative Agent shall have received from Sidley
Austin LLP, counsel to the Borrower, an opinion addressed to the Administrative
Agent and each of the Lenders and dated the Closing Date substantially in the
form of Exhibit H, which opinion shall (x) cover the enforceability
of the Loan Documents and the creation and perfection of the security interests
and/or liens granted pursuant to the relevant Security Documents and such other
matters incident to the transactions contemplated herein as the Administrative
Agent may reasonably request and (y) be in form and substance reasonably
satisfactory to the Administrative Agent (acting at the direction of the
Majority Lenders).


 


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11.4. Company
Documents; Proceedings.


 


(a) On the Closing
Date, the Administrative Agent shall have received from Borrower a certificate,
dated the Closing Date, signed by the chairman, a vice-chairman, the president,
any vice-president or any other Authorized Officer of the Borrower, and
attested to by the secretary, any assistant secretary or other senior officer
of the Borrower, in the form of Exhibit I with appropriate
insertions, together with copies of the certificate of formation, by-laws or
equivalent organizational documents of the Borrower and the resolutions of the
Borrower referred to in such certificate, and all of the foregoing shall be
reasonably satisfactory to the Majority Lenders.


 


(b) On the Closing
Date, all instruments and agreements in connection with the transactions
contemplated by this Credit Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Majority Lenders, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates,
bring-down certificates and any other records of Company proceedings and
governmental approvals, if any, which the Administrative Agent (acting at the
direction of the Majority Lenders) reasonably may have requested in connection
therewith, such documents and papers, where appropriate, to be certified by
proper Company or governmental authorities.


 


11.5. Approvals. On or prior to the Closing Date, (i) all
necessary governmental (domestic and foreign), regulatory and material third
party approvals and/or consents in connection with this Credit Agreement and
the other Loan Documents shall have been obtained and remain in full force and
effect and evidence thereof shall have been provided to the Administrative
Agent; except for any such approval or consent the failure to obtain would not
reasonably be expected to have a Material Adverse Effect, and (ii) all
applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of the transactions contemplated by this
Credit Agreement and the other Loan Documents, the making of the Loans or
otherwise referred to herein or therein. Additionally, on the Closing Date,
there shall not exist any judgment, order, injunction or other restraint issued
or filed or a hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon, or materially
delaying, or making economically unfeasible, the consummation of the making of
the Loans or the other transactions contemplated by the Loan Documents or
otherwise referred to herein or therein.


 


11.6. Guaranty
by Carlisle.
On the Closing Date, Carlisle shall have duly executed and delivered to the
Administrative Agent the guaranty in the form of Exhibit L hereof
(as amended, modified, restated and/or supplemented from time to time, the “Guaranty”),
which Guaranty shall be in full force and effect,.


 


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11.7.  Security Agreement. On the Closing Date, Borrower shall have duly
authorized, executed and delivered the security agreement in the form of Exhibit J
hereto (as amended, modified, restated and/or supplemented from time to time,
the “Security Agreement”), which Security Agreement shall be in full
force and effect, covering all of the Borrower’s present and future collateral
referred to therein, together with:


 


(i) proper financing
statements (Form UCC-1 or the equivalent) authenticated for filing under
the UCC or other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Majority Lenders desirable, to
perfect the security interests purported to be created by the Security
Agreement;


 


(ii) certified
copies of Requests for Information or Copies (Form UCC-11), or equivalent
reports, each of a recent date, listing all effective financing statements that
name the Borrower as debtor and that are filed in the jurisdictions referred to
in clause (i) above, together with copies of such other financing
statements that name the Borrower as debtor (none of which shall cover any of
the Collateral, except to the extent evidencing Liens permitted hereunder or in
respect of which the Administrative Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall be
required by local law fully executed (where required) for filing);


 


(iii) evidence of
the completion of (or adequate provision for) all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in the
reasonable opinion of the Majority Lenders desirable, to perfect the security
interests intended to be created by the Security Agreement; and


 


(iv) evidence that
all other actions necessary or, in the reasonable opinion of the Majority
Lenders desirable, to create, maintain, effect, perfect, preserve, maintain and
protect the security interests purported to be created by the Security
Agreement have been taken and the Security Agreement shall be in full force and
effect.


 


11.8. Pledge
Agreement. On
the Closing Date, Carlisle shall have duly authorized, executed and delivered
the pledge agreement in the form of Exhibit K (as amended, modified,
restated and/or supplemented from time to time, the “Pledge Agreement”), which
Pledge Agreement shall be in full force and effect, and shall have delivered to
the Administrative Agent, as pledgee thereunder, all of the Pledge Agreement
Collateral, if any, referred to therein and then owned by Carlisle, (x) endorsed
in blank in the case of promissory notes constituting Pledge Agreement
Collateral and (y) together with executed and undated transfer powers in
the case of certificated Capital Stock constituting Pledge Agreement
Collateral, together with:


 


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(i) proper financing
statements (Form UCC-1 or the equivalent) authenticated for filing under
the UCC or other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Majority Lenders desirable, to
perfect the security interests purported to be created by the Pledge Agreement;


 


(ii) certified
copies of Requests for Information or Copies (Form UCC-11), or equivalent
reports, each of a recent date, listing all effective financing statements that
name Carlisle as debtor and that are filed in the jurisdictions referred to in
clause (i) above, together with copies of such other financing statements
that name Carlisle as debtor (none of which shall cover any of the Pledge
Agreement Collateral, except to the extent evidencing Liens permitted hereunder
or in respect of which the Administrative Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall be
required by local law fully executed (where required) for filing);


 


(iii) evidence of
the completion of (or adequate provision for) all other recordings and filings
of, or with respect to, the Pledge Agreement as may be necessary or, in the
reasonable opinion of the Majority Lenders desirable, to perfect the security
interests intended to be created by the Pledge Agreement; and


 


(iv) evidence that
all other actions necessary or, in the reasonable opinion of the Majority
Lenders desirable, to create, maintain, effect, perfect, preserve, maintain and
protect the security interests purported to be created by the Pledge Agreement
have been taken.


 


11.9. Insurance
Certificates; etc. On the Closing Date, the Administrative Agent shall have received
evidence of insurance complying with the requirements of Section 8.11 for
the business and properties of the Borrower, in scope, form and substance
reasonably satisfactory to the Majority Lenders and naming the Administrative
Agent as an additional insured and/or loss payee, and stating that such
insurance shall not be canceled or materially revised without at least 30 days’
prior written notice by the respective insurer to the Administrative Agent.


 


11.10. Audited
and Unaudited Financial Statements. Prior to the Closing Date, the Administrative Agent
and each of the lenders have received: (i) the financial statements of
Carlisle and its consolidated Subsidiaries (and its respective predecessors) as
of December 31, 2006 and the consolidated balance sheet of Carlisle and
its consolidated Subsidiaries (and its respective predecessors), and the
related consolidated statements of income and statement of cash flows as of June 30,
2007, together with a certification by an Independent Accountant reasonably
acceptable to the Administrative Agent (acting at the


 


68

















 


direction of the Majority Lenders), to the effect that
such statements fairly present in all material respects the consolidated
financial condition of Carlisle and its consolidated Subsidiaries (and its
respective predecessors) as of the dates indicated and the results of their
consolidated operations and changes in financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years except as disclosed therein (which report shall be without a “going
concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit), and (ii) the balance sheet of
Carlisle and its consolidated Subsidiaries as of June 30, 2007 and the
related consolidated statements of income for such fiscal quarter and the
related consolidated statements of cash flows for the elapsed portion of the
fiscal year ended with the last day of such fiscal quarter, all of which shall
be certified by the chief financial officer or other Authorized Officer of
Carlisle that they fairly present in all material respects in accordance with
GAAP the consolidated financial condition of Carlisle and its consolidated
Subsidiaries as of the dates indicated and the consolidated results of their
operations and/or changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments and the absence of footnotes.


 


11.11. Payment
of Fees. On
the Closing Date, all costs, fees and expenses, and all other compensation due
to the Administrative Agent and the Lenders (including, without limitation,
reasonable and documented legal fees and expenses) shall have been paid to the
extent then due.


 


11.12. Intercreditor
Agreement. On
the Closing Date, the Collateral Agent shall have joined as a party to the
Intercreditor Agreement and shall have delivered a fully executed version of
such joinder agreement to the Administrative Agent.


 


12. CONDITIONS
PRECEDENT TO ALL LOANS.


 


The obligation of each
Lender to make Loans (including Loans made on the Closing Date) is subject, at
the time of each such Loan (except as hereinafter indicated), to the
satisfaction of the following conditions:


 


12.1. Closing
Date. The
Closing Date shall have occurred and the Revolving Credit Period shall not have
expired or been terminated.


 


12.2. No
Default; Representations and Warranties. At the time of each such Loan and immediately after
giving effect thereto (i) there shall exist no Event of Default and (ii) all
representations and warranties contained herein and in each other Loan Document
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on the date of such
Loan (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 in all material respects only as of such specified date).


 


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12.3. Loan
Request. Prior
to the making of each Loan, the Administrative Agent shall have received a Loan
Request meeting the requirements of Section 2.2 and showing in reasonable
detail that the Aggregate Note Principal Balance (calculated after giving
effect to the requested Loan) shall not exceed (i) the Asset Base
(calculated as of the last day of the most recent month for which internal
financial statements are available and after giving effect to the addition of
the Eligible Containers to be acquired with the proceeds of the Loan and the
Finance Leases to be granted in respect thereof) and (ii) the Aggregate
Commitments (calculated as of the last day of the most recent month for which
internal financial statements are available and after giving effect to the
addition of the Eligible Containers to be acquired with the proceeds of the
Loan).


 


12.4. Certification. The Borrower shall have delivered to
the Administrative Agent a certificate of the Borrower, signed on the Borrower’s
behalf by its Authorized Officer, as to the matters set out in Sections 12.2
and 12.3. Each request for a Loan, and acceptance by the Borrower of the
proceeds of any Loan, shall constitute a certification required by this Section 12.4
that on the date of such Loan (both immediately before and after giving effect
thereto) the statements made in Sections 12.2 and 12.3 are true and correct.


 


12.5. Amendments
to Management Agreement. The Borrower shall not have amended the Management
Agreement unless the Borrower shall have received the prior written consent of
the Administrative Agent to such amendment.


 


12.6. Execution
of the CLIF II Sale Agreement. If all or a portion of the proceeds of such Loan will
be used to acquire a Finance Lease from CLIF II, the Borrower shall have
executed and delivered the CLIF II Sale Agreement in form and substance
reasonably satisfactory to the Administrative Agent.


 


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 the then unpaid principal of the Loans when the same shall
become due and payable, within three (3) Business Days of the date the
same shall become due and payable, whether at the Maturity Date or any
accelerated date of maturity or at any other date fixed for payment (other than
as set forth in Section 4.2.1, which failure to pay is dealt with in Section 13.1(m) hereof);


 


(b) the Borrower
shall fail to pay (i) on any Payment Date any interest on the Loans or any
Fees then due and payable, or (ii) other sums due hereunder or under any
of the other Loan Documents, within five (5) Business Days of the date the
same shall become due and payable, whether at the stated date of


 


70

















 


maturity or any accelerated date of maturity or at any
other date fixed for payment (other than as set forth in Section 4.2.1,
which failure to pay is dealt with in Section 13.1(m) hereof);


 


(c) the Borrower
shall fail to comply (i) with any of its covenants contained in Section 9
or Section 10, which failure continues for a period of fifteen (15) days
after the earliest of (x) any Senior Designated Officer of the Borrower
first acquiring knowledge thereof, (y) the Administrative Agent’s giving
written notice thereof to the Borrower, or (z) any Lender giving written
notice thereof to the Borrower and the Administrative Agent, or (ii) within
ten (10) days after the delivery dates required therein, with any of its
covenants contained in Sections 8.1 or 8.2; provided,
that the cure periods set forth herein shall only apply to the extent any such
failure to comply is capable of being cured;


 


(d) the Borrower
shall default in the observation or performance of any other covenant (not
otherwise covered by Section 13.1) of the Borrower set forth in this
Credit Agreement or other Loan Document, which continues for a period of thirty
(30) days after the earliest of (x) any Senior Designated Officer of the
Borrower, first acquiring knowledge thereof, (y) the Administrative Agent’s
giving written notice thereof to the Borrower, or (z) any Lender giving
written notice thereof to the Borrower and the Administrative Agent.


 


(e) any
representation or warranty of the Borrower or the Seller (other than, in the
case of the Seller, the Container Representations and Warranties) made in any
other Loan Document shall prove to be incorrect in any material respect as of
the time when the same shall have been made which continues and if capable of
cure, the continuance of such condition for a period of thirty (30) days after
the earliest of (i) any Senior Designated Officer of the Borrower or the
Seller, as the case may be, first acquiring knowledge thereof, (ii) the
Administrative Agent’s giving written notice thereof to the Borrower or the
Seller, as the case may be, or (iii) any Lender giving written notice
thereof to the Borrower or the Seller, as the case may be, and the
Administrative Agent;


 


(f) All of the
following: (A) a Manager Default shall have occurred and be continuing, (B) the
Majority Lenders have notified the Manager of their intent to locate a
successor Manager in accordance with the terms of the Loan Documents and (C) no
successor Manager shall have assumed the duties of the Manager pursuant to a
successor management agreement in accordance with the terms of the Management
Agreement and the other Loan Documents within the earlier of (i) sixty
(60) days from the date on which the Majority Lenders shall notify the Manager
of their intent to locate a successor Manager in accordance with the terms of
the Loan Documents and at any time during such sixty (60) day period a Asset
Base Deficiency shall exist or (ii) ninety (90) days from the date which
the Majority Lenders shall notify the Manager of their intent to locate a successor
Manager in accordance with the terms of the Loan Documents;


 


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(g) the Borrower
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 of any substantial part of
the assets of the Borrower or shall commence any case or other proceeding
relating to the Borrower 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 and the Borrower 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 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 any Insolvency Law as now or hereafter constituted;


 


(i) there shall
remain in force, undischarged, unsatisfied and unstayed, for more than thirty
(30) consecutive days, any final judgment against the Borrower not covered by
insurance that, with other outstanding final judgments, undischarged, against
the Borrower not covered by insurance exceeds in the aggregate $250,000;


 


(j) if any of the
Loan Documents shall be cancelled, terminated, revoked or rescinded or if the
Administrative Agent’s security interests, mortgages or liens in 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 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 which would result in a Material Adverse
Effect, 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 by any ERISA Affiliate exceeding


 


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$250,000, or any of the following occurs with respect
to a Guaranteed Pension Plan: (i) a “reportable event” as defined in Section 4043
of ERISA or the regulations issued thereunder (other than an event for which
the 30 day notice period is waived), or a failure to make a required
installment or other payment (within the meaning of Section 302(f)(1) of
ERISA), provided, that the Administrative Agent determines in its reasonable
discretion that such event could be expected to result in (i) a Material
Adverse Effect on the Borrower; (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) Carlisle shall
at any time (i) own less than all of the Capital Stock of the Borrower
unless waived by the Majority Lenders or (ii) fail to have sole control of
the Borrower and, legally and beneficially, own less than a majority of 51% of
Capital Stock of the Borrower unless waived by the Majority Lenders;


 


(m) the Aggregate
Note Principal Balance exceeds the Asset Base on any Payment Date and the
Borrower does not remedy such situation (by payment of the amount set forth in Section 3.2
or otherwise) within forty-five (45) days; or


 


(n) one or more
judgments or decrees shall be entered against the Guarantor involving a
liability (to the extent not paid when due or covered by a reputable and
solvent insurance company (with any portion of any judgment or decree not so
covered to be included in any determination hereunder)) equal to or in excess
of Ten Million Dollars ($10,000,000) for all such judgments and decrees and all
such judgments or decrees shall either be final and non-appealable or shall not
have been vacated, discharged or stayed or bonded pending appeal for any period
of thirty (30) consecutive days;


 


then, and in any such event, so long as the same may
be continuing, the Administrative Agent may, and upon the request of the
Majority 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 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 Sections 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 Administrative Agent or any Lender.


 


13.2. Termination
of Commitments. If
an Event of Default specified in Section 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 Loans
to the Borrower. If any other Event of Default shall have occurred and be
continuing, the Administrative Agent may, and upon the request of the Majority
Lenders shall, by notice to the Borrower,


 


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terminate the unused portion of the Commitments
hereunder, and upon such notice being given such unused portion of the
Commitments hereunder shall terminate immediately and each of the Lenders shall
be relieved of all further obligations to make Loans. No termination of the
Commitments hereunder shall relieve the Borrower of any of the Obligations.


 


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 Administrative Agent (acting at the direction of the
Majority Lenders) shall have accelerated the maturity of the Loans pursuant to Section 13.1,
each Lender, if owed any amount with respect to the Loans may, with the consent
of the Majority 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 Administrative Agent or the holder of any Note is intended to be exclusive
of any other remedy and each and every remedy shall 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 Default or Event of Default, the Administrative 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 Administrative
Agent for, or in respect of, all reasonable costs, expenses, disbursements and
losses which shall have been incurred or sustained by the Administrative Agent
in connection with the collection of such monies by the Administrative Agent,
for the exercise, protection or enforcement by the Administrative Agent of all
or any of the rights, remedies, powers and privileges of the Administrative
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 Administrative Agent against any taxes or liens which by law shall have,
or may have, priority over the rights of the Administrative Agent to such
monies;


 


(b) Second, pari passu to (1) the payment in full
of all of the Obligations owed to any Lender and the Administration Agent and (2) the


 


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payment in full of all of the Obligations owed to any
Eligible Interest Rate Hedge Counterparty;


 


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


 


(d) Fourth, the
excess, if any, shall be returned to the Borrower or to such other Persons as
are entitled thereto.


 


13.5. Quiet
Enjoyment.
The security interest granted to the Administrative Agent in the Collateral by
the Borrower is subject to the right to the quiet enjoyment of the related
Containers (a) so long as no Event of Default has occurred and is
continuing, of the Borrower, and (b) so long as a Lessee is not in default
under the Lease therefor, of such Lessee. As long as the Borrower and/or a
Lessee (as the case may be) has the right of quiet enjoyment, the Lenders and
the Administrative Agent shall not take or cause to be taken any action
contrary to such right of quiet enjoyment of, and the continuing possession,
use and operation of, the Containers.


 


14. ADMINISTRATIVE
AGENT AND COLLATERAL AGENT.


 


14.1. Appointment
and Authority. Each
of the Lenders hereby irrevocably appoints ING Bank N.V. to act on its behalf
as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Section are solely for the
benefit of the Administrative Agent, and the Lenders, and none of the Borrower
shall have rights as a third party beneficiary of any of such provisions.


 


14.2. Rights
as a Lender. The
Person serving as the Administrative 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 Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative 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 of its Affiliates as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


14.3. Exculpatory
Provisions. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the


 


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other Loan Documents. Without limiting the generality
of the foregoing, the Administrative 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 Administrative Agent is required to exercise as
directed in writing by the Majority 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 Administrative Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative 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 Administrative Agent or any of its
Affiliates in any capacity.


 


The Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Majority Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 16.12 and 13.2) or (ii) in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default or Event of Default unless and
until notice describing such Default or Event of Default is given to the
Administrative Agent by the Borrower or a Lender.


 


The Administrative 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 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 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 or (v) the satisfaction of any condition set forth in Sections 11
or 12 or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.


 


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14.4. Reliance
by Administrative Agent. The Administrative 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 Administrative 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 Loan that by its terms must be fulfilled to the satisfaction of
a Lender, the Administrative Agent may presume that such condition is
satisfactory to such Lender unless the Administrative Agent shall have received
notice to the contrary from such Lender prior to the making of such Loan. The
Administrative 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.


 


14.5. Delegation
of Duties. The
Administrative 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 Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through its respective Related
Parties. The exculpatory provisions of this Section 14 shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to its respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.


 


14.6. Resignation
of Administrative Agent. The Administrative Agent may at any time give notice
of its resignation to the Lenders and the Borrower. Upon receipt of any such
notice of resignation, the Majority Lenders shall have the right, with the
consent of the Borrower, to appoint a successor. If no such successor shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative 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 Administrative 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 Administrative Agent on behalf of the Lenders under any of the Loan
Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is
appointed) and (2) all


 


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payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by
or to each Lender directly, until such time as the Majority Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the retiring Administrative 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 Section). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor. After the retiring Administrative Agent’s resignation hereunder
and under the other Loan Documents, the provisions of this Section and Section 16.3
shall continue in effect for the benefit of such retiring Administrative 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 Administrative
Agent was acting as Administrative Agent.


 


In the event that (i) the
Administrative Agent, whether in its capacity as the Administrative Agent or a
Lender, does not consent (or fails to respond) to a proposed amendment,
modification or waiver to any provision of this Credit Agreement or any other
Loan Document requested by the Borrower and (ii) such proposed amendment,
modification or waiver has been approved by the Majority Lenders, the Borrower
may, upon (x) delivery of written notice thereof to the Administrative
Agent, and (y) receipt by the Administrative Agent of the amount
calculated in accordance with Section 16.13 hereof in connection with a
transfer of the Loans by the Administrative Agent, require that the
Administrative Agent promptly resign from such position, such resignation, and
the appointment of a successor Administrative Agent to be consummated in
accordance with the first paragraph of this Section 14.6.


 


14.7. Non-Reliance
on Administrative Agent and Other Lenders.  Each Lender acknowledges that it has, independently
and without reliance upon the Administrative 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 Administrative 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.


 


14.8.  Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization,


 


78

















 


arrangement, adjustment, composition or other judicial
proceeding relative to the Borrower, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise:


 


(a) to file and
prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans 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 Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel) and all other amounts due the Lenders and the Administrative Agent
under Sections 5.1 and 16.3 allowed in such judicial proceeding; and


 


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


 


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make
such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to
the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 5.1 and 16.3.


 


Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent
to or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of
the claim of any Lender in any such proceeding.


 


14.9.  Collateral Matters. The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion,


 


(a) to release any
Lien on any property granted to or held by the Administrative Agent under any
Loan Document (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than contingent indemnification
obligations), (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii) subject
to Section 16.12, if approved, authorized or ratified in writing by the
Majority Lenders;


 


(b) to subordinate
any Lien on any property granted to or held by the Administrative Agent under
any Loan Document to the holder of any Lien on such property that is permitted
by Section 9.2; and


 


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(c) to take the
actions with respect to the Collateral and the Guaranty as are set forth in the
Security Documents and the Guaranty, respectively.


 


The Lenders hereby agree
that the Security Documents may be enforced only by the action of the
Administrative Agent, in each case, acting upon the instructions of the
Majority Lenders, and that no Lender shall have any right individually to seek
to enforce or to enforce the Security Documents to realize upon the security to
be granted hereby, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent for the benefit of the Lender upon
the terms of this Credit Agreement and the Security Documents.


 


Upon request by the
Administrative Agent at any time, the Majority Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property.


 


14.10. Collateral
Agent. All of
the provisions of this Article 14 applicable to the Administrative Agent
shall be equally applicable to the Collateral Agent.


 


14.11. Delivery
of Documents. The
Administrative Agent and the Collateral Agent, as applicable, shall promptly
forward to a Person the original or a copy of any document which is delivered
to the Administrative Agent and the Collateral Agent, as applicable, for such
Person by any other Person.


 


15.
SUCCESSORS AND ASSIGNS.


 


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
Administrative 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 Section 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 Section 15.7 (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
Administrative 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


 


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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 Administrative Agent) shall not be less
than $5,000,000 unless each of the Administrative 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 Administrative Agent (such consent not
to be unreasonably withheld or delayed) unless the Person that 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 Administrative 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 Administrative Agent an Administrative Questionnaire.


 


Subject to acceptance and recording thereof by the
Administrative Agent pursuant to Section 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) Sections 5.2, 5.5, 5.6, 5.7 and 5.9 with respect to facts and
circumstances occurring prior to the effective date of such assignment and (ii) Section 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.


 


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15.3. Register. The Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at the Administrative 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 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 Administrative 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 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 Administrative 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
consent of the Participant, agree to any amendment, modification or waiver of
the type described in Section 16.12(a) or Section 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
Sections 5.2, 5.5, 5.6, 5.7 and 5.9 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Sections 15.2. To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 16.1 as though it were a Lender, provided such
Participant agrees to be subject to Section 16.1 as though it were a
Lender.


 


A Participant that would be a Non-U.S. Lender if it
were a Lender shall not be entitled to the benefits of Section 5.1.2
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 Section 5.1.3
as though it were a Lender.


 


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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
Administrative 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
Administrative 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.
Borrower hereby
grants to the Administrative Agent and each of the Lenders a continuing lien,
security interest and right of setoff as security for all liabilities and
Obligations to the Administrative Agent and each Lender, whether now existing
or hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control
of the Administrative 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


 


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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 be applied to or set off by the
Administrative Agent 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 Revolving Credit Notes held by 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, 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 Revolving Credit Notes held by 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, any amount in excess of its ratable portion of the payments
received by all of the Lenders with respect to the Revolving Credit Notes held
by all of the Lenders, such Lender will make arrangements with the
Administrative Agent and the other Lenders with respect to such excess in
accordance with the provisions of Section 4.5.


 


16.2. Expenses. The Borrower agrees to pay (a) the
reasonable costs of the Administrative 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 Administrative Agent’s Special Counsel or any local
counsel to the Administrative 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 Administrative Agent or any of its
affiliates incurred by the Administrative Agent or such affiliate in connection
with the preparation, administration or interpretation of the Loan Documents
and other instruments mentioned herein, including all commercial finance
examination charges, (d) all reasonable out-of-pocket expenses (including
without limitation reasonable attorneys’ fees and costs, which attorneys may be
employees of any Lender or the Administrative Agent, and reasonable consulting,
accounting, appraisal, commercial finance examination, investment banking and


 


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similar professional fees and charges) incurred by any
Lender or the Administrative Agent in connection with (i) the enforcement
of or preservation of rights under any of the Loan Documents against the
Borrower 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
Administrative Agent’s relationship with the Borrower in connection herewith
and (e) all reasonable fees, expenses and disbursements of the
Administrative Agent incurred in connection with UCC searches, UCC filings or
mortgage recordings relating to the Loan Documents. The covenants contained in
this Section 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 Administrative Agent, its affiliates, its sub-agents, each
Lender, 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 of the proceeds of any of the Loans, (b) the reversal or
withdrawal of any provisional credits granted by the Administrative 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
Administrative 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 Section 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


 


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Administrative 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 Administrative 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 Administrative Agent using their reasonable good
faith judgment), the Lenders and the Administrative Agent shall make reasonable
efforts to use common counsel in connection with such litigation and the
preparation therefor. If, and to the extent that the obligations of the
Borrower under this Section 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 Section 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 Administrative 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 information supplied to
it by, or on behalf of, the Borrower pursuant to this Credit Agreement, 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 Section 16.4, or becomes available to any of the Lenders or the
Administrative 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
Administrative Agent, (d) to bank examiners or any other regulatory
authority having jurisdiction over any Lender or the Administrative Agent, or
to auditors or accountants, (e) to the Administrative Agent, any Lender or
any Financial Affiliate, (f) in connection with any litigation to which
any one or more of the Lenders, the Administrative 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 Administrative Agent, (h) to
any actual or prospective assignee or participant 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, participant or counterparty, as
the case may be, agrees to be bound by the provisions of this Section 16.4
or (i) with the prior written consent of the Borrower. Each of the
Administrative Agent, the Lenders and the Financial Affiliates agrees not to
use any information supplied to it by, or on behalf, of the Borrower pursuant
to this Credit Agreement for any purpose or in any manner other that evaluating
the performance of the Borrower and its Subsidiaries hereunder and enforcing
the


 


86

















 


rights, remedies and obligations hereunder and under
the other Loan Documents. Without the prior written consent of the Borrower,
none of the Administrative Agent, any Lender or any Financial Affiliate shall
be permitted to refer to the Borrower in connection with any advertising,
promotion or marketing undertaken by the Administrative Agent, such Lenders or
such Financial Affiliate.


 


16.4.2. Prior
Notification. Unless
specifically prohibited by applicable law or court order, each of the Lenders
and the Administrative Agent shall, prior to disclosure thereof, notify the
Borrower of any request for disclosure of any such 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 Administrative Agent be obligated or required to return any
materials furnished to it or any Financial Affiliate by the Borrower. The
obligations of each Lender under this Section 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, or purchaser of any
participation in, any interest in any of the Loans from any Lender.


 


16.5. Survival
of Covenants, etc. All covenants, agreements, representations and warranties made herein,
in the Revolving Credit Notes, in any of the other Loan Documents or in any
documents or other papers delivered by or on behalf of the Borrower pursuant
hereto shall be deemed to have been relied upon by the Lenders and the
Administrative Agent, notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making by the Lenders of any Loans
as herein contemplated, and shall continue in full force and effect so long as
any amount due under this Credit Agreement or the Revolving Credit Notes or any
of the other Loan Documents remains outstanding or any Lender has any obligation
to make any Loans 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 Administrative Agent at any time
by or on behalf of the Borrower pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and
warranties by the Borrower hereunder.


 


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 Revolving Credit Notes 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:


 


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


 


(b) if to the
Administrative Agent, at ING Bank N.V., Bijlmerplein 888, Amsterdam, The
Netherlands, Fax: +31 20 565 8201, Attention:
[                      ],
or such other address for notices as the Administrative Agent shall last have
furnished in writing to the Person giving the notice; and


 


(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 sending of such facsimile and (ii) if sent by registered or
certified first-class mail, postage prepaid, on the sixth Business Day
following the mailing thereof. Any notice or other communication to be made
hereunder or under the Revolving Credit Notes, even if otherwise required to be
in writing under other provisions of this Credit Agreement or the Revolving
Credit Notes, 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 or the Revolving Credit Notes 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 or the
Revolving Credit Notes.


 


16.7. Governing
Law. 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 LAW BUT OTHERWISE EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS
IN ANY SUCH SUIT BEING MADE UPON


 


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THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 16.6.
THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT.


 


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 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 or PDF file 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 Section 16.12.


 


16.11. Waiver
of Jury Trial. EACH
OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE REVOLVING CREDIT 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 ADMINISTRATIVE 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, 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. Borrower (a) certifies that


 


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no representative, agent or attorney of any Lender or
the Administrative Agent has represented, expressly or otherwise, that the
Administrative Agent would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that the Administrative Agent and
the Lenders have been induced to enter into this Credit Agreement and 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 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 Majority Lenders. Notwithstanding the
foregoing, no amendment, modification or waiver shall:


 


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


 


(i) reduce, delay or
forgive the principal amount of any Loans or reduce the rate of interest on the
Loans or the priority thereof or the amount of any Fees (other than interest on
the Revolving Credit Notes accruing pursuant to Section 5.10 following the
effective date of any waiver by the Majority Lenders of the Event of Default
relating thereto);


 


(ii) increase the
amount of such Lender’s Commitment or extend the expiration date of such Lender’s
Commitment;


 


(iii) postpone or
extend the Conversion Date, the Maturity Date or any other regularly scheduled
dates for payments of principal of, or interest on, the Loans 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 Section 5.10,
and  (B) any
vote to rescind any acceleration made pursuant to Section 13.1 of amounts
owing with respect to the Loans and other Obligations, shall require only the
approval of the Majority Lenders); and


 


(iv) other than any
transaction permitted by the terms of this Credit Agreement, release any of the
Collateral  (excluding, if the
Borrower or any Subsidiary of the Borrower becomes a debtor under the Federal
Bankruptcy Code or other applicable insolvency laws, the release of “cash
collateral”, as defined in Section 363(a) of the federal


 


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Bankruptcy Code or any analogous provision of any
applicable insolvency law pursuant to a cash collateral stipulation with the
debtor approved by the Majority Lenders);


 


(b) without the
written consent of all of the Lenders, amend or waive this Section 16.12
or the definition of “Majority Lenders”;


 


(c) without the
written consent of the Administrative Agent, amend or waive Section 14 or
any other provision applicable to the Administrative Agent; or


 


(d) without the
consent of any affected counterparty (other than the Borrower or any of its
Affiliates) to any Hedging Agreement, reduce, delay, forgive or change the
relative priority of any amounts owing to such Person in accordance with the
terms hereof.


 


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
Administrative 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.


 


16.13. Replacement
of Lenders.


 


(a) In the event (i) any
Lender delivers a certificate requesting compensation pursuant to Section 5.6
or 5.7, (ii) any Lender delivers a notice described in Section 5.4 or
5.5, (iii) the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority on account of any Lender pursuant to Section 5.2.2
or (iv) any Lender does not consent (or fails to respond) to a proposed
amendment, modification or waiver to any provision of this Credit Agreement or
any other Loan Document requested by the Borrower, the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section 15.2),
all of its interests, rights and obligations under this Credit Agreement to an
assignee that shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that:


 


(i) the Borrower
shall have paid to the Administrative Agent the assignment fee specified in Section 15.2;


 


(ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any amounts under


 


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Section 5.9) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);


 


(iii) in the case of
any such assignment resulting from a claim for compensation under Section 5.6
or 5.7 or payments required to be made pursuant to Section 5.2.2, such
assignment will result in a reduction in such compensation or payments
thereafter; and


 


(iv) such assignment
does not conflict with applicable laws.


 


In connection with any
such replacement, if the replaced Lender does not execute and deliver to the
Administrative Agent a duly completed Assignment and Acceptance reflecting such
replacement within five Business Days of the date on which the replacement
Lender executes and delivers such Assignment and Acceptance to the replaced
Lender, then such replaced Lender shall be deemed to have executed and
delivered such Assignment and Acceptance. A Lender shall not be required to
make any such assignment or delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.


 


(b) If (i) any
Lender shall request compensation under Section 5.6 or 5.7, (ii) any
Lender delivers a notice described in Section 5.4 or 5.5, or (iii) the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority on account of any Lender pursuant to Section 5.2.2,
then such Lender shall use reasonable efforts (which shall not require such
Lender to incur an unreimbursed loss or unreimbursed cost or expense or
otherwise take any action inconsistent with its internal policies or legal or
regulatory restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested
in writing by the Borrower or (y) to assign its rights and delegate and
transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce its claims for
compensation under Section 5.6 or 5.7, enable it to withdraw its notice
pursuant to Section 5.4 or 5.5, or would reduce amounts payable pursuant
to Section 5.2.2, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such filing or assignment, delegation and transfer.


 


16.14. 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.


 


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16.15. USA Patriot Act. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Improvement and Reauthorization
Act of 2005 (H.R. 3199) (the “Patriot Act”), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the Patriot Act.


 


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left blank]


 

















 


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


 


	
   

  	
  CLI FUNDING III LIC, as
  Borrower

  
	
   

  	
  By:

  	
  /s/ Lisa D. Leach

  
	
   

  	
   

  	
  Name:

  	
  Lisa D. Leach

  
	
   

  	
   

  	
  Title:

  	
  VP,
  General Counsel

  



 


 


Credit Agreement


 

















 


	
   

  	
  ING BANK N. V., as
  Administrative Agent and as Collateral Agent

  
	
   

  	
  By:

  	
  /s/
  M. Bekker

  
	
   

  	
   

  	
  Name:

  	
  M.
  Bekker

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter E. Nijman

  
	
   

  	
   

  	
  Name:

  	
  Peter
  E. Nijman

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


 


Credit Agreement


 

















 


	
   

  	
  ING BANK N.V., as
  Lender

  
	
   

  	
  By:

  	
  /s/
  M. Bekker

  
	
   

  	
   

  	
  Name:

  	
  M.
  Bekker

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter E. Nijman

  
	
   

  	
   

  	
  Name:

  	
  Peter
  E. Nijman

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  DVB BANK N.V., as
  Lender

  
	
   

  	
  By:

  	
  /s/
  J. Blaak

  
	
   

  	
   

  	
  Name:

  	
  J.
  Blaak

  
	
   

  	
   

  	
  Title:

  	
  S.V.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Versnel

  
	
   

  	
   

  	
  Name:

  	
  Versnel

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  NIBC BANK N.V., as
  Lender

  
	
   

  	
  By:

  	
  /s/
  Scott Klarquist

  
	
   

  	
   

  	
  Name:

  	
  Scott
  Klarquist

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact