Exhibit
10.15


 


CREDIT AGREEMENT


 


Dated as of


 


May 18,
2010


 


by and among


 


CLI FUNDING IV LLC,


as Borrower


 


 


WELLS FARGO BANK,
NATIONAL ASSOCIATION

AND OTHER LENDERS FROM TIME TO TIME PARTY HERETO,


as Lenders


 


 


WELLS FARGO
SECURITIES, LLC,


as Administrative Agent


 

















 


TABLE OF
CONTENTS


 


	
  1.

  	
  DEFINITIONS AND RULES OF
  INTERPRETATION

  	
   

  	
  1

  
	
  1.1

  	
  Definitions

  	
   

  	
  1

  
	
  1.2

  	
  Rules of Interpretation

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  THE CREDIT FACILITY

  	
   

  	
  30

  
	
  2.1

  	
  Commitment to Lend

  	
   

  	
  30

  
	
  2.2

  	
  Commitment Fee

  	
   

  	
  31

  
	
  2.3

  	
  Reduction of Total Commitment

  	
   

  	
  31

  
	
  2.4

  	
  Revolving Credit Facility

  	
   

  	
  31

  
	
  2.5

  	
  Evidence of Credit Loans

  	
   

  	
  31

  
	
  2.6

  	
  Interest on Credit Loans

  	
   

  	
  31

  
	
  2.7

  	
  Requests for Credit Loans

  	
   

  	
  32

  
	
  2.8

  	
  Continuation of Type of Credit
  Loan

  	
   

  	
  32

  
	
  2.9

  	
  Funds for Credit Loan

  	
   

  	
  32

  
	
  2.10

  	
  Extension of Scheduled
  Termination Date

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  REPAYMENT OF THE CREDIT LOANS

  	
   

  	
  35

  
	
  3.1

  	
  Repayment of Credit Loans

  	
   

  	
  35

  
	
  3.2

  	
  Mandatory Prepayments of Credit
  Loans

  	
   

  	
  35

  
	
  3.3

  	
  Optional Repayments of Credit
  Loans

  	
   

  	
  35

  
	
  3.4

  	
  Application of Prepayments

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  TRUST ACCOUNT

  	
   

  	
  36

  
	
  4.1

  	
  Trust Account

  	
   

  	
  36

  
	
  4.2

  	
  Investments

  	
   

  	
  40

  
	
  4.3

  	
  Restricted Cash Account

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  CERTAIN GENERAL PROVISIONS

  	
   

  	
  41

  
	
  5.1

  	
  Funds for Payments

  	
   

  	
  41

  
	
  5.2

  	
  Computations

  	
   

  	
  44

  
	
  5.3

  	
  Inability to Determine LIBOR
  Rate

  	
   

  	
  44

  
	
  5.4

  	
  Illegality

  	
   

  	
  44

  
	
  5.5

  	
  Additional Costs, etc

  	
   

  	
  45

  
	
  5.6

  	
  Capital Adequacy

  	
   

  	
  46

  
	
  5.7

  	
  Certificate

  	
   

  	
  46

  
	
  5.8

  	
  Indemnity

  	
   

  	
  46

  
	
  5.9

  	
  Limitation on Increased Costs

  	
   

  	
  47

  
	
  5.10

  	
  Interest After Default

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  COLLATERAL SECURITY

  	
   

  	
  47

  
	
  6.1

  	
  Security of Borrower

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  47

  
	
  7.1

  	
  Corporate Authority

  	
   

  	
  48

  
	
  7.2

  	
  Governmental Approvals

  	
   

  	
  48

  



 

















 


	
  7.3

  	
  Title to Properties; Leases

  	
   

  	
  48

  
	
  7.4

  	
  Fiscal Year Financial
  Statements

  	
   

  	
  48

  
	
  7.5

  	
  Prior Activities of Borrower

  	
   

  	
  49

  
	
  7.6

  	
  Litigation

  	
   

  	
  49

  
	
  7.7

  	
  No Materially Adverse Contracts

  	
   

  	
  49

  
	
  7.8

  	
  Compliance with Other
  Instruments, Laws, etc

  	
   

  	
  49

  
	
  7.9

  	
  Tax Status

  	
   

  	
  49

  
	
  7.10

  	
  Investment Company Act

  	
   

  	
  50

  
	
  7.11

  	
  Perfection of Security Interest

  	
   

  	
  50

  
	
  7.12

  	
  Employee Benefit Plans

  	
   

  	
  50

  
	
  7.13

  	
  Place of Business

  	
   

  	
  51

  
	
  7.14

  	
  Subsidiaries

  	
   

  	
  51

  
	
  7.15

  	
  Bank Accounts

  	
   

  	
  51

  
	
  7.16

  	
  Disclosure

  	
   

  	
  51

  
	
  7.17

  	
  Foreign Assets Control
  Regulations, Etc

  	
   

  	
  52

  
	
  7.18

  	
  Margin Regulations

  	
   

  	
  52

  
	
  7.19

  	
  Solvency and Separateness

  	
   

  	
  52

  
	
  7.20

  	
  No Default

  	
   

  	
  53

  
	
  7.21

  	
  Ownership of the Borrower

  	
   

  	
  53

  
	
  7.22

  	
  Use of Proceeds

  	
   

  	
  53

  
	
  7.23

  	
  ERISA Lien

  	
   

  	
  53

  
	
  7.24

  	
  Tax Election of the Borrower

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  53

  
	
  8.1

  	
  Payment of Obligations

  	
   

  	
  53

  
	
  8.2

  	
  Maintenance of Office

  	
   

  	
  54

  
	
  8.3

  	
  Records and Accounts

  	
   

  	
  54

  
	
  8.4

  	
  Financial Statements,
  Certificates and Information

  	
   

  	
  54

  
	
  8.5

  	
  Notices

  	
   

  	
  55

  
	
  8.6

  	
  Legal Existence; Maintenance of
  Properties

  	
   

  	
  56

  
	
  8.7

  	
  Insurance

  	
   

  	
  56

  
	
  8.8

  	
  Taxes

  	
   

  	
  57

  
	
  8.9

  	
  Inspection of Properties and
  Books, etc.

  	
   

  	
  57

  
	
  8.10

  	
  Compliance with Laws,
  Contracts, Licenses, and Permits

  	
   

  	
  58

  
	
  8.11

  	
  Use of Proceeds

  	
   

  	
  58

  
	
  8.12

  	
  Employee Benefit Plans

  	
   

  	
  59

  
	
  8.13

  	
  Further Assurances

  	
   

  	
  59

  
	
  8.14

  	
  Non-Consolidation of the Borrower

  	
   

  	
  59

  
	
  8.15

  	
  Investment Company Act

  	
   

  	
  60

  
	
  8.16

  	
  Payments of Collateral

  	
   

  	
  60

  
	
  8.17

  	
  UNIDROIT Convention

  	
   

  	
  60

  
	
  8.18

  	
  Hedging Requirements

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  CERTAIN NEGATIVE COVENANTS

  	
   

  	
  60

  
	
  9.1

  	
  Restrictions on Indebtedness

  	
   

  	
  60

  
	
  9.2

  	
  Restrictions on Liens

  	
   

  	
  61

  
	
  9.3

  	
  Restrictions on Investments

  	
   

  	
  61

  
	
  9.4

  	
  Restricted Payments

  	
   

  	
  62

  



 


ii

















 


	
  9.5

  	
  Merger, Consolidation and
  Disposition of Assets

  	
   

  	
  62

  
	
  9.6

  	
  Sale and Leaseback

  	
   

  	
  63

  
	
  9.7

  	
  Compliance with Environmental
  Laws

  	
   

  	
  63

  
	
  9.8

  	
  Employee Benefit Plans

  	
   

  	
  63

  
	
  9.9

  	
  Business Activities

  	
   

  	
  64

  
	
  9.10

  	
  Fiscal Year

  	
   

  	
  64

  
	
  9.11

  	
  Transactions with Affiliates

  	
   

  	
  64

  
	
  9.12

  	
  OFAC

  	
   

  	
  64

  
	
  9.13

  	
  Other Agreements

  	
   

  	
  64

  
	
  9.14

  	
  Charter Documents

  	
   

  	
  64

  
	
  9.15

  	
  Capital Expenditures

  	
   

  	
  64

  
	
  9.16

  	
  Permitted Activities;
  Compliance with Organizational Documents

  	
   

  	
  65

  
	
  9.17

  	
  Subsidiaries

  	
   

  	
  65

  
	
  9.18

  	
  Amendment of Intercreditor
  Agreement

  	
   

  	
  65

  
	
  9.19

  	
  Depreciation Policy

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  MANAGEMENT OF BORROWER FLEET

  	
   

  	
  65

  
	
  10.1

  	
  Management of Containers and
  Leases

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  CLOSING CONDITIONS

  	
   

  	
  65

  
	
  11.1

  	
  Loan Documents, etc

  	
   

  	
  65

  
	
  11.2

  	
  Certified Copies of Governing
  Documents

  	
   

  	
  65

  
	
  11.3

  	
  Corporate or Other Action

  	
   

  	
  66

  
	
  11.4

  	
  Incumbency Certificate

  	
   

  	
  66

  
	
  11.5

  	
  Validity of Liens

  	
   

  	
  66

  
	
  11.6

  	
  Perfection Certificates and UCC
  Search Results

  	
   

  	
  66

  
	
  11.7

  	
  Financial Statements

  	
   

  	
  66

  
	
  11.8

  	
  Certificates of Insurance

  	
   

  	
  66

  
	
  11.9

  	
  Solvency Certificate

  	
   

  	
  66

  
	
  11.10

  	
  Opinion of Counsel

  	
   

  	
  66

  
	
  11.11

  	
  Payment of Fees

  	
   

  	
  67

  
	
  11.12

  	
  Representations True; No Event
  of Default

  	
   

  	
  67

  
	
  11.13

  	
  Indebtedness to be Paid

  	
   

  	
  67

  
	
  11.14

  	
  No Material Adverse Change

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  CONDITIONS TO ALL CREDIT LOANS

  	
   

  	
  67

  
	
  12.1

  	
  Representations True; No Event
  of Default

  	
   

  	
  67

  
	
  12.2

  	
  Borrowing Base Report

  	
   

  	
  67

  
	
  12.3

  	
  Conversion Date

  	
   

  	
  68

  
	
  12.4

  	
  Approval Guidelines

  	
   

  	
  68

  
	
  12.5

  	
  Direct Finance Leases

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  EVENTS OF DEFAULT;
  ACCELERATION; ETC.

  	
   

  	
  68

  
	
  13.1

  	
  Events of Default and
  Acceleration

  	
   

  	
  68

  
	
  13.2

  	
  Remedies

  	
   

  	
  71

  
	
  13.3

  	
  Distribution of Collateral
  Proceeds

  	
   

  	
  71

  



 


iii

















 


	
  14.

  	
  THE ADMINISTRATIVE AGENT

  	
   

  	
  72

  
	
  14.1

  	
  Authorization; Reliance by
  Administrative Agent

  	
   

  	
  72

  
	
  14.2

  	
  Delegation of Duties

  	
   

  	
  73

  
	
  14.3

  	
  Exculpatory Provisions

  	
   

  	
  73

  
	
  14.4

  	
  No Representations

  	
   

  	
  74

  
	
  14.5

  	
  Payments

  	
   

  	
  75

  
	
  14.6

  	
  Holders of Notes

  	
   

  	
  75

  
	
  14.7

  	
  Reimbursement by Lenders

  	
   

  	
  76

  
	
  14.8

  	
  Rights as Lender

  	
   

  	
  76

  
	
  14.9

  	
  Resignation of Administrative
  Agent

  	
   

  	
  76

  
	
  14.10

  	
  Notification of Defaults, Early
  Amortization Events and Events of Default

  	
   

  	
  77

  
	
  14.11

  	
  Duties in the Case of
  Enforcement

  	
   

  	
  77

  
	
  14.12

  	
  Administrative Agent May File
  Proofs of Claim

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  ASSIGNMENT

  	
   

  	
  78

  
	
  15.1

  	
  General Conditions

  	
   

  	
  78

  
	
  15.2

  	
  Assignments

  	
   

  	
  79

  
	
  15.3

  	
  Register

  	
   

  	
  79

  
	
  15.4

  	
  Participations

  	
   

  	
  80

  
	
  15.5

  	
  Certain Pledges

  	
   

  	
  80

  
	
  15.6

  	
  New Notes

  	
   

  	
  81

  
	
  15.7

  	
  Assignment by Borrower

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  PROVISIONS OF GENERAL
  APPLICATIONS

  	
   

  	
  81

  
	
  16.1

  	
  Setoff; Proration of Payments

  	
   

  	
  81

  
	
  16.2

  	
  Expenses

  	
   

  	
  82

  
	
  16.3

  	
  Indemnification

  	
   

  	
  82

  
	
  16.4

  	
  Treatment of Certain
  Confidential Information

  	
   

  	
  83

  
	
  16.5

  	
  Survival of Covenants, Etc

  	
   

  	
  85

  
	
  16.6

  	
  Notices

  	
   

  	
  85

  
	
  16.7

  	
  Governing Law; Submission to
  Jurisdiction; Waiver of Venue

  	
   

  	
  86

  
	
  16.8

  	
  Headings

  	
   

  	
  86

  
	
  16.9

  	
  Counterparts

  	
   

  	
  86

  
	
  16.10

  	
  Entire Agreement, Etc

  	
   

  	
  87

  
	
  16.11

  	
  Waiver of Jury Trial

  	
   

  	
  87

  
	
  16.12

  	
  Consents, Amendments, Waivers,
  Etc

  	
   

  	
  87

  
	
  16.13

  	
  Severability

  	
   

  	
  89

  
	
  16.14

  	
  Third Party Beneficiary

  	
   

  	
  89

  



 


iv

















 


	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of Borrowing
  Base Report

  
	
  Exhibit B

  	
  Form of Note

  
	
  Exhibit C

  	
  Form of Loan Request

  
	
  Exhibit D

  	
  Form of Compliance
  Certificate

  
	
  Exhibit E

  	
  Form of Assignment
  and Acceptance

  
	
  Exhibit F

  	
  Form of Guaranty

  
	
   

  	
   

  
	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule 1

  	
  Lenders and Commitments

  
	
  Schedule 7.15

  	
  Bank Accounts

  



 


v

















 


CREDIT
AGREEMENT


 


This Credit Agreement, dated
as of May 18, 2010 (as amended, modified or supplemented from time to time
in accordance with its terms, this “Credit Agreement”),
by and among CLI FUNDING IV LLC
(the “Borrower”), a Delaware limited
liability company having its principal place of business at One Maynard Drive,
Park Ridge, New Jersey 07656, WELLS
FARGO BANK, NATIONAL ASSOCIATION AND OTHER LENDERS FROM TIME TO TIME PARTY
HERETO (the “Lender” and
collectively, the “Lenders”), and WELLS FARGO SECURITIES, LLC (the “Administrative
Agent”).


 


W I T N E S S
E T H:


 


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


 


1.             DEFINITIONS AND
RULES OF INTERPRETATION.


 


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


 


Adequate Diversity Threshold.  The initial date on which at least ten
Eligible Lessees have been approved in accordance with the Approval Guidelines
for inclusion in a funding under this facility.


 


Adjusted LIBOR Rate.  For any Interest Period with respect to a
LIBOR Rate Loan, an interest rate per annum equal to (i) the LIBOR Rate
for such Interest Period, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate.


 


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


 


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


 


Administrative Agent’s
Office.  The Administrative Agent’s
Office located at 301 South College Street, MAC 010153-082, Charlotte, North
Carolina, 28288, or at such other location as the Administrative Agent may
designate from time to time.


 


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


 


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


 


Affiliate.  Any Person which, directly or indirectly,
controls, is controlled by or is under common control with another Person.  “Control” of a Person means the power,
directly or indirectly, (a) to vote ten percent (10%) or more of the
Capital Stock (on a fully diluted basis) of such Person having ordinary voting
power for the election of directors, managing members or


 

















 


general
partners (as applicable); or (b) to direct or cause the direction of the
management and policies of such Person (whether by contract or otherwise).


 


Aggregate Net Book Value.  As of any date of determination, an amount
equal to the sum of the then Net Book Values of all Eligible Containers and all
Eligible Generator Sets that are not then subject to a Direct Finance Lease.


 


Aggregate Net Present Value
of Direct Finance Lease Receivables.  As of any date of determination, the sum of
the then Net Present Value of Direct Finance Lease Receivables of all Eligible
Direct Finance Leases in the Borrower Fleet.


 


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


 


Applicable Margin.  For each Interest Period shall be the amount
as set forth in the Fee Letter.


 


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.


 


Approval Guidelines.  The following guidelines applicable to the
approval of a Lessee for inclusion in a funding under this Credit Agreement:


 


(A)          For each of the first five (5) Lessees included in a
funding under this facility, each of the following shall be an Eligible Lessee:
(i) each Person, not addressed in clause (ii) below, that has been
approved by the Required Lenders (in their sole discretion) as an Eligible
Lessee, and (ii) so long as no Bankruptcy Event is continuing with respect
to such Person, each of the following Persons (except that CMA CGM must be
current on all rental payments), and (ii) the Credit Exposure related to
such Person and its Affiliates (calculated after giving effect to the Lease then
under consideration) shall not exceed the Dollar amount set forth opposite the
name of such Person under the column entitled “Maximum Allowed Exposure”:


 


	
  Name

  	
   

  	
  Maximum Allowed

  Exposure

  	
   

  
	
  APL

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  NYK

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  MSC

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Yangming

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  MOL

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Hamburg Sud

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Evergreen

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  K Line

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  HMM

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Hanjin

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  China Shipping

  	
   

  	
  $

  	
  20,000,000

  	
   

  



 


2

















 


	
  Name

  	
   

  	
  Maximum Allowed

  Exposure

  	
   

  
	
  COSCO

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  OOCL

  	
   

  	
  $

  	
  20,000,000 

  	
   

  
	
  Maersk

  	
   

  	
  $

  	
  20,000,000 

  	
   

  
	
  MISC

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Hapag Lloyd

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  Pacific International Lines

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  CCNI

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  UASC

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  Chiquita

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  Wan Hai

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  Crowley

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  ST Pan Ocean

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  CSAV

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  CMA-CGM

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  Zim

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  Sea Star

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  Sea Trade

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  United Africa Feeder

  	
   

  	
  $

  	
  3,000,000

  	
   

  



 


(B)           For each of the sixth through ninth, inclusive, Lessees
included in a funding under this facility, each of the following shall be an
Eligible Lessee: (i) each Person not addressed in clause (ii) below,
that has been approved by the Required Lenders (in their sole discretion) as an
Eligible Lessee, and (ii) so long as no Bankruptcy Event is continuing
with respect to such Person, each of the following Persons (except that CMA CGM
must be current on all rental payments), and (ii) the Credit Exposure
related to such Person and its Affiliates (calculated after giving effect to
the Lease then under consideration) shall not exceed the Dollar amount set
forth opposite the name of such Person under the column entitled “Maximum
Allowed Exposure”:


 


	
  Name

  	
   

  	
  Maximum Allowed

  Exposure

  	
   

  
	
  APL

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  NYK

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  MSC

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Yangming

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  MOL

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Hamburg Sud

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Evergreen

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  K Line

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  HMM

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Hanjin

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  China Shipping

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  COSCO

  	
   

  	
  $

  	
  30,000,000

  	
   

  



 


3

















 


	
  Name

  	
   

  	
  Maximum Allowed

  Exposure

  	
   

  
	
  OOCL

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Maersk

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  MISC

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Hapag Lloyd

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Pacific International Lines

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  CCNI

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  UASC

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Chiquita

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Wan Hai

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Crowley

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  ST Pan Ocean

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  CSAV

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  CMA-CGM

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Zim

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Sea Star

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  Sea Trade

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  United Africa Feeder

  	
   

  	
  $

  	
  3,000,000

  	
   

  



 


(C)           Once the Adequate Diversity Threshold is initially
obtained, any Person engaged in the shipping industry so long as (i) no
Bankruptcy Event is continuing with respect to such Person on the initial
Funding Date, (ii) with respect to CMA CGM, all rental payments are
current), and (iii) the inclusion in this facility of each Lease with such
Lessee complies with all of the applicable Concentration Limits.


 


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


 


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


 


Available Distribution
Amount.  This term is defined in Section 4.1(d) hereof.


 


Average Age.  As of any Determination Date, an amount equal
to the quotient of (a) the sum, for each vintage year (based on date of
original manufacture), of an amount equal to the product of (i) the number
of Containers in the Borrower Fleet (including any Container subject to a
Direct Finance Lease) included in such vintage year, multiplied by (ii) the
age of such Containers (measured from the date of manufacture thereof) divided
by (b) the aggregate number (measured in units) of all such Containers in
the Borrowing Fleet.


 


Balance Sheet Date.  December 31, 2009.


 


4














 


Bankruptcy Code.  The Bankruptcy Reform Act of 1978, as
amended.


 


Bankruptcy Event.  For any Person, any of the following events:


 


(a)           a case or other proceeding
shall be commenced, without the application or consent of such Person, in any
court, seeking the liquidation, reorganization, debt arrangement, dissolution,
winding up or composition or readjustment of debts of such Person, the
appointment of a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such Person or any substantial part of its assets,
or any similar action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition or adjustment
of debts, and such case or proceeding shall continue undismissed, or unstayed
and in effect, for a period of 60 days; or an order for relief in respect of
such Person shall be entered in an involuntary case under the federal
bankruptcy laws or other similar laws now or hereafter in effect; or


 


(b)           such Person shall commence a
voluntary case or other proceeding under any applicable bankruptcy, insolvency,
reorganization, debt arrangement, dissolution or other similar law now or
hereafter in effect, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestration or the like, for such Person or any substantial part of its
property, or shall make any general assignment for the benefit of creditors, or
shall fail to, or admit in writing its inability to, pay its debts generally as
they become due.


 


Base Rate.  The higher of (a) the variable annual
rate of interest so designated from time to time by Wells Fargo Bank, N.A. as
its “prime rate”, such rate being a reference rate and not necessarily
representing the lowest or best rate being charged to any customer, and (b) one-half
of one percent (0.5%) above the Federal Funds Effective Rate; provided, however, that in no event shall the Base Rate
exceed an interest rate per annum equal to one percent (1%) above the Federal Funds
Effective Rate then in effect.  For the
purposes of this definition, “Federal Funds Effective Rate” shall mean
for any day, the rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three (3) funds
brokers of recognized standing selected by the Administrative Agent.  Changes in the Base Rate resulting from any
publicly announced changes in the Administrative Agent’s “prime rate” shall
take place immediately without notice or demand of any kind.


 


Base Rate Loans.  Those Credit Loans bearing interest
calculated by reference to the Base Rate.


 


Borrower.  As defined in the preamble hereto.


 


Borrower Expenses.  For any Collection Period, overhead and all
other direct, out-of-pocket, reasonable costs and expenses of the Borrower
(other than Operating Expenses and any Management Fee) payable during such
Collection Period (including costs and expenses permitted to be paid to or by
the Manager in connection with the conduct of the Borrower’s


 


5

















 


business,
but excluding Operating Expenses and other costs and expenses required to be
paid by the Manager under the Management Agreement), in each case determined on
an accrual basis, including but not limited to the following:


 


1.             administration expenses
(including the Administrative Agent Fee);


 


2.             accounting and audit
expenses of the Issuer;


 


3.             premiums for liability,
casualty, fidelity, directors and officers and other insurance;


 


4.             directors’ fees and
expenses;


 


5.             legal fees and expenses;


 


6.             other professional fees; and


 


7.             taxes (including personal or
other property taxes and all sales, value added, use and similar taxes).


 


Notwithstanding the
foregoing, Borrower Expenses shall not include (1) depreciation or
amortization on the Containers or generator sets included in the Borrower Fleet
and (2) principal and interest payments on the Loans.


 


Borrower Fleet.  All of the Containers owned by the Borrower
from time to time.


 


Borrower Security Agreement.  The Security Agreement, dated or to be dated
on or prior to the Closing Date, between the Borrower and the Administrative
Agent and in form and substance satisfactory to the Administrative Agent.


 


Borrowing Base.  At the relevant time of reference thereto, an
amount, determined by the Administrative Agent by reference to the most recent
Borrowing Base Report delivered to the Lenders and the Administrative Agent
pursuant to Section 8.4(e), which is equal to the sum, without
duplication, of (i) 80% of the Aggregate Net Book Value, measured as of
the last day of the month immediately preceding such date of determination,
plus (ii) 80% of the Aggregate Net Present Value of Direct Finance Lease
Receivables, measured as of the last day of the month immediately preceding
such date of determination, plus (iii) the amount on deposit in the
Restricted Cash Account on such date of determination, after giving effect to
all deposits to and withdrawals from the Restricted Cash Account effected, or
to be effected, on such date of determination.


 


Notwithstanding the
foregoing, if the Borrower (or the Manager on behalf of the Borrower) notifies
the Administrative Agent that (i) payments owing by a Lessee under any
Lease related to a sale-leaseback transaction included in the calculation of
the Borrowing Base, or (ii) any credit reserve or security deposit in
excess of $300,000 delivered by a Lessee with respect to any Lease included in
the calculation of the Borrowing Base, has, in either case, been reduced or
diluted as a result of holdbacks, reserves, discounts or rebates granted by, or
on behalf of, the Borrower to the related Lessee, the Borrowing Base shall,
unless waived by the


 


6

















 


Administrative
Agent (acting at the direction of the Required Lenders in each instance),
automatically be reduced by the amount of such deduction or dilution.


 


Borrowing Base Deficiency.  The condition existing as of any date of
determination, if the then Aggregate Note Principal Balance would exceed the
Borrowing Base.  If such term is used in
a quantitative context, the amount of the Borrowing Base Deficiency shall be
equal to the amount of such excess.


 


Borrowing Base Report.  A Borrowing Base Report signed by the
Treasurer or the Vice President - Finance of the Borrower.


 


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


 


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.


 


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


 


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


 


Casualty Proceeds.  For any accounting period, all proceeds
received by the Borrower or the Manager on behalf of the owners of such related
Containers, from insurance or other sources, as a result of a Casualty Event.


 


CEU.  The abbreviation for “cost-equivalent unit”,
a fixed unit of measurement which is the agreed ratio of the cost of an
alternative type of container to the cost of a twenty-foot standard dry freight
marine shipping container.  The CEU for
each container type is 1.0 per 20’ standard dry freight, 1.60 per 40’ standard
dry freight, 1.70 per 40’ high cube dry freight, 8.00 per 20’ refrigerated
container, 10.0 per 40’ refrigerated high cube container, 40’ refrigerated
standard container, 40’ refrigerated AFAM container and 40’ refrigerated
Everfresh container, 5.0 per genset, and 2.0 per 45’ high cube dry freight.  Notwithstanding the foregoing, for the
purposes of calculating CEUs in clause (3) of the definition of Early
Amortization Event, the CEU of any Container of a particular type in the
Borrower Fleet shall equal the actual CEU value for such container type in the
Borrower Fleet as of the applicable determination date, calculated by dividing
the average cost for each container type in the Borrower Fleet by the average
cost for a 20’ Dry Container in the Borrower Fleet.


 


CEU Available Day.  With respect to any Container, this term shall
have the meaning assigned to the term “CEU Available Day” as defined in the
Management Agreement, as such


 


7

















 


agreement
may be amended, restated, modified or replaced in accordance with the terms of
this Credit Agreement.


 


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


 


CLI Guaranty.  The limited guaranty of CLI, substantially in
the form of Exhibit F hereto.


 


Closing Date.  May 18, 2010.


 


Code.  The Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.  Section references to
the Code are to the Code as in effect at the date of this Credit Agreement and
any subsequent provisions of the Code amendatory thereof, supplemental thereto
or substituted therefor.


 


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


 


Collection Period.  The period from the first day of the calendar
month immediately preceding the month in which such Payment Date occurs through
and including the last day of such calendar month.


 


Collections.  With respect to any Collection Period, Gross
Revenue allocated or allocable to the Containers and generator sets in the
Borrower Fleet pursuant to the provisions of the Management Agreement and the
Intercreditor Agreement.


 


Commitment.  With respect to each Lender, the amount set
forth on Schedule 1 hereto as the amount of such Lender’s commitment to make
Credit Loans to the Borrower, as the same may be reduced from time to time.


 


Commitment Fee.  This term shall have the meaning set forth in
Section 2.2 hereof.


 


Commitment Percentage.  With respect to each Lender, the percentage
set forth on Schedule 1 hereto as such Lender’s percentage of the Total
Commitments then in effect.


 


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


 


Concentration Limits.  With respect to one or more Containers in the
Borrower Fleet, each of the following limitations, all of which must be
complied with in order for such Container(s), which would otherwise qualify as
an Eligible Container or an Eligible Generator Set or which would otherwise be
subject to an Eligible Direct Finance Lease, to be included in the calculation
of the Borrowing Base:


 


(a)           Maximum Average Age.  After giving effect to the inclusion of such
Container, the Average Age of the Containers included in the calculation of the
Borrowing Base shall be less than eight (8) years;


 


8

















 


(b)           Maximum Concentration of
Containers Leased to a Single Lessee.  From and after the date the Adequate
Diversity Threshold is satisfied, the sum of the Net Book Values or Net Present
Value of Direct Finance Lease Receivables, as the case may be, of all Eligible
Containers, Eligible Generator Sets and Eligible Direct Finance Leases then on
lease to any single Lessee and its Affiliates shall not exceed an amount equal
to the product of (A) twenty percent (20%) and (B) an amount equal to
the sum of (x) the Aggregate Net Book Value and (y) the Aggregate Net
Present Value of Direct Finance Lease Receivables;


 


(c)           Maximum Concentration of
Containers Leased to the Three Largest Lessees.  From and after the date the Adequate
Diversity Threshold is satisfied, the sum of the Net Book Values or Net Present
Value of Direct Finance Lease Receivables, as the case may be, of all Eligible
Containers, Eligible Generator Sets and Eligible Direct Finance Leases then on
lease to any three Lessees and their respective Affiliates shall not exceed an
amount equal to the product of (A) fifty percent (50%) and (B) an
amount equal to the sum of (x) the Aggregate Net Book Value and (y) the
Aggregate Net Present Value of Direct Finance Lease Receivables.


 


(d)           Maximum Concentration of
Non-Monthly Rental Payments.  The
sum of the Net Book Values and the Net Present Value of Direct Finance Lease Receivables, as the case may be, of
all Eligible Containers, Eligible Generator Sets and Eligible Direct
Finance Leases subject
to Lease Agreements for which rentals are billed and payable less frequently
than monthly shall not exceed an amount equal to the product of (A) ten percent (10%) and (B)  an amount
equal to the sum of (x) the Aggregate Net Book Value and (y) the
Aggregate Net Present Value of Direct Finance Lease Receivables;


 


(e)           Maximum Concentration of Generator Sets.  From and after the
date the Adequate Diversity Threshold is satisfied, the sum of the Net Book
Values and the Net Present Value of
Direct Finance Lease Receivables, as the case may be, of all Eligible Generator
Sets owned by the Borrower shall not exceed the product of (A) five percent (5%) and (B) an amount equal
to the sum of (x) the Aggregate Net Book Value and (y) the Aggregate
Net Present Value of Direct Finance Lease Receivables;


 


(f)            Maximum Concentration of
Direct Finance Leases.  The
sum of the Net Present Value of Direct Finance Lease Receivables of all
Eligible Containers subject to Direct Finance Leases shall not exceed the
product of (A) fifty percent (50%) and (B) an amount equal to the sum
of (x) the Aggregate Net Book Value and (y) the Aggregate Net Present
Value of Direct Finance Lease Receivables; and


 


(g)           Maximum Concentration of Containers Subject to
Sale-Leaseback Transactions.  The sum of the Net Book Values and the Net Present
Value of Direct Finance Lease
Receivables, as the case may be, of all Eligible Containers, Eligible
Generator Sets and Eligible Direct Finance Leases that
are subject to a sale-leaseback transaction with the related Lessee shall not
exceed the product of (A) twenty-five
percent (25%) and (B) an amount equal to the sum of (x) the


 


9

















 


Aggregate Net Book Value and (y) the Aggregate Net Present Value
of Direct Finance Lease Receivables.


 


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


 


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


 


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


 


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


 


Container Representations
and Warranties.  This term
shall have the meaning set forth in the Contribution and Sale Agreement.


 


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


 


Contract Payments.  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 May 18, 2010, between the
Seller and the Borrower, as such agreement may be amended, modified or
supplemented from time to time in accordance with its terms.


 


10

















 


Control Agreement.  Each of the following: (x) the
Securities Account Control Agreement, dated on or about the Closing Date, among
the Borrower, the Administrative Agent and U.S. Bank National Association, with
respect to the Trust Account, and (y) the Securities Account Control
Agreement, dated on or about the Closing Date, among the Borrower, the
Administrative Agent and U.S. Bank National Association, with respect to the
Restricted Cash Account.


 


Conversion Date.  The date of occurrence of a Conversion Event.


 


Conversion Event.  The earlier to occur of (i) Scheduled
Termination Date and (ii) the date on which an Early Amortization Event
initially occurs; provided, however, that if the occurrence of an
Early Amortization Event is waived in writing by the Administrative Agent
(acting at the direction of the Required Lenders) or is otherwise cured
pursuant to the definition of Early Amortization Event, such Early Amortization
Event shall cease to exist (it being agreed that any such waiver shall extend
to only the specific Early Amortization Event referenced therein).  Upon any waiver or cure of an Early Amortization
Event, the Commitment of each Lender shall be reinstated automatically and
shall continue until it expires or otherwise terminates in accordance with the
terms of this Credit Agreement.


 


Credit Agreement.  This Credit Agreement, including the Schedules
and Exhibits hereto.


 


Credit Exposure.  For purposes of applying the Approval
Guidelines to any Person as of any date of determination, an amount equal to
the product of (x) the sum of the Net Book Values or Net Present Value of
Direct Finance Lease Receivables, as applicable, of all Containers in the
Borrower Fleet then on lease to such Person and its Affiliates and (y) 0.80.


 


Credit Loan Request.  This term shall have the meaning set forth in
Section 2.7.


 


Credit Loans.  Credit loans made or to be made by the
Lenders to the Borrower pursuant to Section 2.


 


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


 


Default Interest.  The incremental interest payable by the
Borrower in accordance with the provisions of Section 5.10.


 


Defaulted Finance Lease.  As of any date of determination, any Direct
Finance Lease for which (A) any regularly scheduled rental payment or
other material payment (or portion thereof) owing pursuant to the terms of such
Direct Finance Lease is more than one hundred twenty (120) days delinquent
(measured from its contractual due date) or (B) the Manager has
repossessed all or a portion of the Containers that are subject to such Direct
Finance Lease, or (C) the Manager has otherwise determined that all or any
regularly scheduled rental payments or end of term payments owing pursuant to
the terms of such Direct Finance Lease are wholly or partially uncollectible,
or the related Lessee is the subject of a Bankruptcy Event.


 


Defaulted Lease.  Any Defaulted Finance Lease or Defaulted
Operating Lease.


 


11

















 


Defaulted Operating Lease.  As of any date of determination, any Lease
(other than a Direct Finance Lease) for which (A) any regularly scheduled
rental payment or other material payment (or portion thereof) owing pursuant to
the terms of such Lease is more than one hundred twenty (120) days delinquent
(measured from its contractual due date) or (B) the Manager has
repossessed all or a portion of the Containers that are subject to such Lease,
or (C) the Manager has otherwise determined that all or any regularly
scheduled rental payments or end of term payments owing pursuant to the terms
of such Lease are wholly or partially uncollectible, or (D) the related
Lessee is the subject of a Bankruptcy Event.


 


Depreciation Policy.  One of the following: (i) the following
depreciation methods:  (a) all
Eligible Containers that are refrigerated Containers are to be depreciated over
a fifteen year useful life on a straight-line basis to a residual value of no
more than 10% of Original Cost of such Container, (b) all Eligible
Generator Sets are to be depreciated over a twelve year useful life on a
straight-line basis to a residual value of no more than 10% of Original Cost of
such generator set, (c) all Eligible Containers that are not refrigerated
Containers are to be depreciated over a twelve and a half year useful life on a
straight line basis to a residual value of no more than 37% of Original Cost of
such Container, or (ii) such other subsequent depreciation policy that
conforms with GAAP that is utilized by the Borrower, or if the context so
requires, the Seller subsequent to the Closing Date, provided that, any such depreciation policy shall be at least as
conservative as the depreciation policy set forth in clause (i) above
(e.g., use of depreciation policy would result in (a) a higher annual
amount of depreciation or (b) a lower estimated residual value).


 


Determination Date.  The third (3rd) Business Day prior to any Payment Date.


 


Direct Finance Lease
Receivables.  All rights
of the Borrower to contractual rental payments owing by a Lessee in respect of
a Direct Finance Leases.


 


Direct Finance Lease Rate.  With respect to any Direct Finance Lease, the
implicit interest rate applicable to such Direct Finance Lease, as such
interest rate is determined by the Company in accordance with GAAP applied on a
consistent basis.


 


Direct Finance Leases.  A Lease that satisfies the criteria for
classification as a capital lease pursuant to GAAP, including under Financial
Accounting Standards Board Statement No. 13, as amended.


 


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.


 


Early Amortization Event.   The
occurrence or existence of any one of the following conditions or events as of
any date of determination:


 


12

















 


(1)           An Event of Default shall
have occurred and then be continuing;


 


(2)           A Borrowing Base Deficiency
exists on any Payment Date (calculated after giving effect to all principal
payments actually received by the Lenders on such day);


 


(3)           As of the last day of any
calendar month, the weighted average NOI for the Containers in the Borrower
Fleet for such calendar month and the three (3) immediately preceding
calendar months, is less than fifty cents (US$0.50) per day per CEU;


 


(4)           As of the last day of any
calendar month, the Average Age of all of the Containers in the Borrower Fleet
(as reported on the immediately succeeding Determination Date) shall exceed
eight and one-half (8.5) years;


 


(5)           Any environmental law,
convention or regulation is adopted which prohibits or limits in any material
respect the usage of the Containers in the Borrower Fleet and is reasonably
likely to materially and adversely affect the revenue-generating activities or
operations of the Borrower;


 


(6)           Either (i) the Borrower
shall fail to have identified (or the Required Lenders have not approved, in
accordance with the Approval Guidelines) at least three (3) Eligible
Lessees within forty-five (45) days of the Closing Date, (ii) the Funding
Date with respect to at least three (3) Eligible Lessees shall not have
occurred within ninety (90) days of the Closing Date, or (iii) the Funding
Date with respect to at least ten (10) Eligible Lessees shall not have
occurred on or before the one year anniversary of the Closing Date; or


 


(7)           The occurrence of any event
or condition designated as an Early Amortization Event in Section 2.11
hereof.


 


If an Early Amortization
Event occurs, such Early Amortization Event shall continue until the earliest
of (i) the Business Day on which the Required Lenders waive such Early
Amortization Event in writing, or (ii) with respect to the Early
Amortization Events described in clauses (2) or (4) above, the day on
which such Early Amortization Event is cured by the Borrower, or (iii) with
respect to the Early Amortization Event described in clause (3) above,
once such condition is no longer in existence and does not reoccur in any of
the two (2) immediately succeeding months.


 


Eligible Assignee.  Any of (a) a Lender, (b) an
Affiliate of a Lender, (c) an Approved Fund and (d) any other Person
(other than (x) the Borrower, (y) any Affiliate of the Borrower or
Subsidiary of the Borrower, or (z) a natural person) approved by (i) the
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.  As of any date of determination (or, in the
case of clause (i), as of the date specified therein), any Container which (a) is
subject to a first priority fully perfected


 


13

















 


security
interest in favor of the Administrative Agent for the benefit of the Secured
Parties, (b) is subject to no other Liens other than Permitted Liens, (c) is
in a serviceable condition in the normal course of business, subject to
ordinary wear and tear and ordinary maintenance and repair, and substantially
conform to the standard specifications used by the Manager for that category of
container and applicable industry standards including, without limitation, The
Customs Convention on Containers, The International Convention for Safe
Containers and the International Organization for Standardization, (d) is
not subject to a Defaulted Operating Lease or, if subject to a Defaulted
Operating Lease, the Borrower (or the Manager, on behalf of the Borrower) has
recovered possession of such Container, (e) has a then Net Book Value
greater than zero, (f) has not suffered an Event of Loss, (g) is not
then on lease to a Sanctioned Person or, to the best knowledge of the Borrower
or the Manager, is not subleased to a Sanctioned Person or located, operated or
used in a Sanctioned Country unless it is used pursuant to a license granted by
OFAC, (h) satisfies each of the applicable Concentration Limits and
applicable Container Representations and Warranties, (i) is on lease to an
Eligible Lessee and (j) has not been contracted for sale by the Borrower
to a purchaser in accordance pursuant to a sale agreement or other agreement
for the disposition thereof.


 


Eligible Direct Finance
Lease.  As of any date of
determination (or, in the case of clause (f), as of the date specified herein),
a Direct Finance Lease that complies with all of the following:  (a) the related Lessee is an Eligible
Lessee and is not an Affiliate of the Borrower or a Sanctioned Person; (b) such
Direct Finance Lease is not a Defaulted Finance Lease; (c) such Direct
Finance Lease and the related receivables are subject to no other Liens other
than Permitted Liens, (d) such Direct Finance Lease is subject to a first
priority fully perfected security interest in favor of the Administrative Agent
for the benefit of the Secured Parties, (e) is subject to no other Liens other
than Permitted Liens, (f) such Direct Finance Lease is on lease to an
Eligible Lessee on the Funding Date for such Direct Finance Lease, and (g) such
Direct Finance Lease satisfies each of the applicable Concentration Limits and
applicable Container Representations and Warranties.


 


Eligible Generator Set.  As of any date of determination (or, in the
case of clause (i), as of the date specified herein) a generator set used in
conjunction with a refrigerated container to which the Borrower has good title
or is the lessor under a Direct Finance Lease and, in either such case, is held
for sale or lease and which (a) is subject to a first priority fully
perfected security interest in favor of the Administrative Agent for the
benefit of the Secured Parties, (b) is subject to no other Liens other
than Permitted Liens, (c) is in a serviceable condition in the normal
course of business, subject to ordinary wear and tear and ordinary maintenance
and repair, (d) is not subject to a Defaulted Operating Lease or, if subject
to a Defaulted Operating Lease, the Borrower (or the Manager, on behalf of the
Borrower) has recovered possession of such generator set, (e) has a then
Net Book Value greater than zero, (f) has not suffered an Event of Loss, (g) is
not then on lease to a Sanctioned Person or, to the best knowledge of the
Borrower or the Manager, is not subleased to a Sanctioned Person or located,
operated or used in a Sanctioned Country unless it is used pursuant to a
license granted by OFAC, (h) satisfies each of the applicable
Concentration Limits and applicable Container Representations and Warranties, (i) is
on lease to an Eligible Lessee on the Funding Date for such generator set and (j) has
not been contracted for sale by the Borrower to a purchaser in accordance
pursuant to a sale agreement or other agreement for the disposition thereof.


 


14














 


Eligible Interest Rate Hedge
Counterparty.  One of the
following: (a) any Lender or any Affiliate of a Lender, (b) any bank
that has a short-term unsecured debt rating of at least “A-1” by Standard &
Poor’s and “P-1” by Moody’s (or their equivalent) and a long-term unsecured
debt rating of at least “A+” by Standard & Poor’s and “A2” by Moody’s
(or their equivalent) or (c) any other Person acceptable to the Required
Lenders.


 


Eligible Investments.  One or more of the following:


 


(i)            direct obligations
of, and obligations fully guaranteed as to the timely payment of principal and
interest by, the United States of America or obligations of any agency or
instrumentality thereof when such obligations are backed by the full faith and
credit of the United States of America;


 


(ii)           certificates of
deposit, demand deposits and bankers’ acceptances (that shall each have an
original maturity of not more than 365 days) of any depository institution or
trust company, provided that the long-term unsecured senior debt obligations of
such depository institution or trust company at the date of acquisition thereof
have been rated at least “Aa3” by Moody’s and “AA-” by Standard &
Poor’s, or the short-term unsecured senior debt obligations of such depository
institution or trust company are rated by each Rating Agency in its highest
rating category;


 


(iii)          commercial paper
(having original maturities of not more than 270 days) of any corporation
(other than the Borrower or CLI), incorporated under the laws of the United
States of America or any state thereof which on the date of acquisition has
been rated by each Rating Agency in the highest short-term unsecured commercial
paper rating category;


 


(iv)          any money market
fund that has been rated by each Rating Agency, in its highest rating category
(including any designations of “plus” or “minus”) or that invests solely in
Eligible Investments;


 


(v)           eurodollar deposits
(which shall each have an original maturity of not more than 365 days) of any
depository institution or trust company, provided that the long-term unsecured
senior debt obligations of such depository institution or trust company at the
date of acquisition thereof have been rated “AA-” by Standard & Poor’s
or “Aa3” by Moody’s, or the short-term unsecured senior debt obligations of
such depository institution or trust company are rated by each Rating Agency in
its highest rating category; and


 


(vi)          other obligations or
securities that are acceptable to the Required Lenders as an Eligible
Investment hereunder.


 


Eligible Lessee.  Any Lessee approved in accordance with the
Approval Guidelines for inclusion in a funding under this Credit Agreement and
the other Loan Documents.


 


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


 


15

















 


Environmental Laws.  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.


 


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


 


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


 


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


 


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


 


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


 


Event of Loss.  With respect to any Container or generator
set, the occurrence or existence of any of the following:


 


(b)           total loss or destruction thereof;


 


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


 


(d)           thirty (30) days after damage rendering such Container or
generator set, as the case may be, unfit for normal use and, in the judgment of
the Borrower or the Manager, beyond repair at reasonable cost;


 


(e)           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


 


(f)            if such Container or generator set is subject to a Lease,
such Container or generator set shall be deemed to have to have suffered a
Casualty Loss (or similar term) under the terms of such Lease.


 


16

















 


Existing Scheduled
Termination Date.  This term
shall have the meaning set forth in Section 2.10(a) hereof.


 


Fee Letter.  That certain letter agreement, dated May 18,
2010, among the Borrower, the Administrative Agent and the Lenders.


 


Fees.  The fees to be paid to the Lenders and the
Administrative Agent pursuant to the terms of the Fee Letter.


 


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


 


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.  The date on which any Credit Loan is made or
is to be made pursuant to the terms hereof.


 


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


 


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


 


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


 


Gross Revenue.  All revenue (without reduction for expenses
or costs), calculated on an accrual 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 from the leasing of such
Containers,


 


17

















 


and
principal payments on Direct 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 §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.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(h)           every obligation of such Person (i) to purchase,
redeem, retire or otherwise acquire for value any shares of Capital Stock
issued by such Person or any rights measured by the value of such Capital Stock
(an “equity related purchase obligation”), and (ii) under any forward
contract, futures contract, swap, option or other financing


 


18

















 


agreement or arrangement, the value of which
is dependent upon movements in interest rates, currency exchange rates,
commodities or other indices (a “derivative contract”),


 


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


 


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


 


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


 


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
(during


 


19

















 


the
Servicing Transition Period, as set forth in the Management Agreement, and at
any time following the end of the Servicing Transition Period, as set forth in
the Intercreditor Agreement).


 


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 CLI or an Affiliate thereof (other than such person’s service as an
independent director or manager of CLI or an Affiliate thereof); (ii) a
customer or supplier of CLI 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 CLI or an Affiliate thereof; (iv) affiliated
with a significant customer, supplier or creditor of CLI or an Affiliate
thereof; (v) a party to any significant personal service contracts with
CLI 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 CLI or its Affiliates; provided however, a person elected by
Global Securitization Services, LLC or 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 CLI.  No resignation or removal of an Independent
Person shall be effective until a successor Independent Person has been elected
to replace such Independent Person.


 


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


 


Initial Lender. Wells Fargo
Bank, National Association.


 


In-Service Date.  With respect to any Container, means the
earlier of (x) the first on-hire date of such Container or (y) six-months
following the date of acceptance of such Container from the manufacturer
thereof.


 


Insolvency Law.  The Bankruptcy Code or similar bankruptcy,
insolvency, reorganization or creditors’ rights law in any state or other
foreign jurisdiction.


 


Intercreditor Agreement. The Second
Amended and Restated Intercreditor Collateral Agreement dated as of October 26,
2001, and amended and restated as of August 24, 2006 (as the same may be
amended, amended and restated or otherwise modified and in effect from time to
time), among the Administrative Agent, CLIF, the Trustee, U.S. Bank National
Association,


 


20

















 


as
collateral agent, and the Borrower and in form and substance satisfactory to
the Administrative Agent.


 


Interest Period.  With respect to all or any relevant portion
of any Credit Loan, (a) initially, the period commencing on the Closing
Date and ending on (but excluding) the Payment Date occurring in August 2010,
and (b) thereafter, each period commencing on a Payment Date and ending on
(but excluding) (i) for any Base Rate Loan, the next succeeding Payment
Date; and (ii) for any LIBOR Rate Loan, the 1 month anniversary of such
Payment Date, as selected by the Borrower; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:


 


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


 


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


 


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


 


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


 


Interest Rate Hedge
Agreement.  An interest
rate swap or cap agreement between the Borrower and an Interest Rate Hedge
Provider named therein, including any schedules and confirmations prepared and
delivered in connection therewith, each as reasonably acceptable to the
Required Lender, pursuant to which (i) the Borrower will receive payments
from or make payments to the Interest Rate Hedge Provider based on the LIBOR
Rate and (ii) recourse by the Interest Rate Hedge Provider to the Borrower
is limited to the Collateral which pursuant to the terms of this Credit
Agreement is available for such purpose.


 


Interest Rate Hedge Provider.  Any Eligible Interest Rate Hedge Counterparty
to an Interest Rate Hedge Agreement with the Borrower.  An Eligible Interest Rate Hedge Counterparty
that has entered into an Interest Rate Hedge Agreement but thereafter ceases to
meet the criteria set forth in the definition of Eligible Interest Rate Hedge
Counterparty shall continue to be an Interest Rate Hedge Provider until it is
terminated or replaced under the applicable Interest Rate Hedge Agreement and
all amounts owed to such Interest Rate Hedge Provider are paid in full.


 


Investments.  All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties (or other commitments as


 


21

















 


described
under Indebtedness), or obligations of, any Person.  In determining the aggregate amount of
Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the principal
amount of the obligations guaranteed and still outstanding; (b) there
shall be deducted in respect of each such Investment any amount received as a
return of capital (but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (c) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise; and (d) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.


 


Lease or Lease Agreement.  Each and every installment sales agreement,
equipment lease or rental agreement (including progress payment authorizations)
to which a Container or generator set is subject (to the extent related to such
Container or generator set) and shall include (i) all rental payments to
be made by the Lessee thereunder, (ii) all rights of the lessor
thereunder, and (iii) any and all amendments, renewals or extensions
thereof.


 


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


 


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


 


Lessee.  Each Person (and, if applicable, any
guarantor of such Person) that leases a Container in the Borrower Fleet
pursuant to a Lease Agreement.


 


LIBOR Business Day.  Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London.


 


LIBOR Rate.  For any Interest Period with respect to a
LIBOR Rate Loan, the rate of interest equal to the rate determined by the
Administrative Agent at which Dollar deposits for such Interest Period are
offered based on information presented on Reuters Screen LIBOR01 Page as
of 11:00 a.m. London time on the second LIBOR Business Day prior to the
first day of such Interest Period.  If
the rate described above does not appear on the Reuters Screen LIBOR01 Page on
any applicable interest determination date, the LIBOR Rate shall be the rate
(rounded upward, if necessary, to the nearest one hundred-thousandth of a
percentage point), determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to such LIBOR Rate Loan which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the second LIBOR Business Day prior to the
first day of such Interest Period as selected by the Administrative Agent.  The principal London office of each of the
four major London banks will be requested to provide a


 


22

















 


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 LIBOR Rate pursuant to a LIBOR Rate Loan cannot be
determined.  As used herein, “Reuters
Screen LIBOR01 Page” means the display page currently so designated on the
Reuters Monitor Money Rates Service (or such other page as may replace
such page on such service for the purpose of displaying the rates at which
dollar deposits are offered by leading banks in the London interbank deposit
market), as reported by Bloomberg Financial Markets Commodities News (or by
another source selected by the Administrative Agent and notified by the
Administrative Agent to the Manager).


 


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


 


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


 


Loan.  Any Credit Loan.


 


Loan Documents.  This Credit Agreement, the Notes, the
Security Documents, the Fee Letter, the Management Agreement, the Contribution
and Sale Agreement, the CLI Guaranty, any Interest Rate Hedge Agreement(s) and
the Intercreditor Agreement.


 


Management Agreement.  The Management Agreement, dated as of May 18,
2010, 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.


 


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.  The Person performing the duties of the
Manager under the Management Agreement, initially, CLI.


 


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


 


23

















 


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 Sale Proceeds, (iii) all Casualty
Proceeds and (iv) all other proceeds and Gross Revenues related to the
Containers including Miscellaneous Borrower Proceeds and Indemnification
Proceeds.


 


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.  The fleet of containers owned and/or managed
by the Manager, including the Containers.


 


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


 


Manager Termination Notice.  A written notice to be provided to the
Manager pursuant to Section 10.02 of the Management Agreement.


 


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


 


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


 


(b)           a material adverse effect on the ability of the Borrower
to perform its obligations under the Loan Documents;


 


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


 


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


 


Maturity Date.  The Payment Date occurring in the month in
which the fifth annual anniversary of the Conversion Date occurs.


 


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 Investors Services, Inc.


 


24














 


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


 


Net Book Value.  With respect to any date of determination for
any Eligible Container or any Eligible Generator Set, an amount equal to the
excess of:


 


(a)           the Original Cost of such Eligible Container or Eligible
Generator Set (as applicable), over


 


(b)           accumulated depreciation on such Eligible Container or
Eligible Generator Set (as applicable) from the original acquisition date of
such Eligible Container or Eligible Generator Set (as applicable) by the Seller
or one of its Affiliates to such date of determination, measured utilizing the
Depreciation Policy.


 


Net Cash Sale 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 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.


 


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


 


NOI.  For any period, Gross Revenue for the
Containers and generator sets in the Borrower Fleet for such period minus an
amount equal to the sum of (i) the Management Fee paid for such period and
(ii) the Borrower Expenses paid for such period.


 


Non-Extending Lender.  This term shall have the meaning set forth in
Section 2.10(b) hereof.


 


Note.  A promissory note executed by the Borrower
substantially in the form of Exhibit B hereof.


 


Notice Date.  This term shall have the meaning set forth in
Section 2.10(b) hereof.


 


Obligations.  All indebtedness, obligations and liabilities
of any of the Borrower to any of the Lenders and the Administrative Agent,
individually or collectively, existing on the date of this Credit Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or any
Interest Rate Hedge Agreement or in respect of any of the Credit Loans made or
any of the Notes or other instruments at any time evidencing any thereof.


 


25

















 


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


 


Operating
Expenses.  All direct and indirect
expenses and costs, calculated on an accrual basis, paid by the Manager in
connection with the service rendered for the Containers, or the relevant
portion of such expenses and costs (determined in accordance with the
Intercreditor Agreement), incurred in connection with the ownership, use or
operation of the Managed Containers (where applicable), such as: (i) agency
costs and expenses; (ii) depot fees, handling, and storage costs and
expenses; (iii) survey, depot audit, maintenance and repair expenses
(including the actual or estimated cost of repairs to be made pursuant to those
damage protection plans referenced in (z) below); (iv) repositioning
expense; (v) the cost of inspecting, marking and remarking such
Containers, (vi) third-party fees for bankruptcy recovery; (vii) audit
fees related to the annual review by the Manager’s Independent Accountant of
the Gross Revenue, Operating Expenses and management fees for the Containers
(but excluding the accounting fees for the audit or accounting work referenced
in Section 9.02 of the Management Agreement); (viii) expenses,
liabilities, claims and costs (including without limitation reasonable
attorneys’ fees) incurred in connection with enforcing rights under the Leases
of such Containers or repossessing such Containers, including the amount of any
cash reserves maintained by the Manager in connection with proceedings
contesting Permitted Liens; (ix) insurance expense; (x) taxes,
levies, duties, charges, assessments, fees, penalties, deductions or
withholdings assessed, charged or imposed upon or against such Containers,
including but not limited to ad valorem, gross receipts and other property
taxes imposed against such Containers or against the revenues generated by such
Containers including any interest or penalties or penalties thereon, but
excluding for the avoidance of doubt any income or franchise or net profits or
similar taxes or any interest or penalties or additions related thereto imposed
on the Manager in respect of its services; (xi) expenses, liabilities, claims
and costs (including without limitation reasonable attorneys’ fees) incurred by
the Manager or made against the Manager by any third party arising directly or
indirectly (whether wholly or in part) out of the state, condition, operation,
use, storage, possession, repair, maintenance or transportation of such
Containers; (xii) expenses and costs (including without limitation reasonable
attorneys’ fees) of pursuing claims against manufacturers or sellers of such
Containers on behalf of the Borrower; and (xiii) non-recoverable sales taxes
and value-added taxes on such expenses and costs.  Notwithstanding the foregoing, Operating
Expenses shall in no event include (w) the Management Fee; (x) any
Borrower Expenses, (y) any general or administrative expenses of the
Manager; or (z) any depreciation or amortization expense with respect to
the Containers or generator sets in the Borrower Fleet.


 


Original 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 5.1.4 hereof.


 


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


 


26

















 


Payment Date.  The 18th day of each
month, commencing on August 18, 2010, or, if such day is not a Business
Day, the next succeeding Business Day; provided, that
solely with respect to any provisions in the Loan Documents addressing the
preparation and delivery of Manager Reports on Payment Dates, the term “Payment
Date” shall mean the 18th day of each month, commencing on June 18,
2010.


 


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


 


Perfection Certificate.  The perfection certificate as defined in the
Security Agreement.


 


Permitted Liens.  Liens permitted by Section 9.2.


 


Permitted Payment Date
Withdrawals.  On (i) any
Payment Date, an amount required to pay all accrued and unpaid interest (other
than Default Interest) payable on such Payment Date, and (ii) the Maturity
Date, an amount necessary to pay the then unpaid principal balance of all
Credit Loans.


 


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


 


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


 


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


 


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


 


Required Lenders.  As of any date of determination, Lenders
holding more than fifty percent (50%) of the Total Commitments (or, if the
Conversion Date shall have occurred, the Aggregate Note Principal Balance) on
such date.


 


Restricted Cash Account.  The bank account designated as such that has
been established by the Borrower in accordance with the provisions of Section 4.3
hereof.


 


Restricted Cash Amount.  As of any date of determination, the amount
then on deposit in the Restricted Cash Account.


 


Restricted Cash Target
Balance.  For any Payment Date the
amount required to be deposited or maintained in the Restricted Cash Account,
which shall be equal to the product of (i) on the Closing Date, zero (0);
on the first Payment Date following the Closing Date, one (1); on the second
Payment Date following the Closing Date, two (2); and thereafter, three (3), (ii) one-twelfth
(1/12), (iii) the LIBOR Rate in effect on such Payment Date plus the
Applicable


 


27

















 


Margin,
and (iv) the then Aggregate Note Principal Balance (calculated after
giving effect to all principal payments actually paid on such Payment Date).


 


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, (d) payments of management,
consulting or similar fees to Affiliates of the Borrower (other than the
Management Fee), or (e) payment of Subordinated Debt.


 


Sanctioned Country: A country subject
to a sanctions program identified on the list maintained by OFAC and available
at http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise
published from time to time


 


Sanctioned Person.  Means (i) an agency of the government
of, (ii) an organization directly or indirectly controlled by, (iii) a
natural person resident in a country that is subject to a sanctions program
identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise
published from time to time as such program may be applicable to such agency,
organization or person, or (iv) 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.  Each of the following: (i) for
each Payment Date occurring on or after the Conversion Date (other than the
Maturity Date), an amount equal to the product of (i) two-thirds of one
percent (0.66666667%) and (ii) the Aggregate Note Principal Balance on the
Conversion Date, and (ii) for the Maturity Date, an amount equal to the
then Aggregate Note Principal Balance, in each case, as such amounts may be
adjusted from time to time pursuant to the provisions of Section 3.4
hereof.


 


Scheduled Termination Date.  May 17, 2011 (as such date may be
extended from time to time in accordance with the provisions of Section 2.10
hereof).


 


Secured Party.  Each of the Administrative Agent, each Lender
and each Interest Rate Hedge Counterparty.


 


Security Documents.  The Borrower Security Agreement, each Control
Agreement and all other instruments and documents, including without limitation
Uniform Commercial Code financing statements, pursuant to which security is
granted to the Administrative Agent and the Intercreditor Agreement.


 


Seller.  CLI.


 


Senior Executive Officer.  Any of the president, chief financial offer,
treasurer or controller of the Borrower, Seller or Manager, as the case may be.


 


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


 


28

















 


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


 


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.


 


Total Commitment.  The sum of the Commitments of the Lenders, as
in effect from time to time, but in no event to exceed Two Hundred Million
Dollars ($200,000,000).


 


Trust Account.  The bank account designated as such that has
been established by the Borrower in accordance with the provisions of Section 4.1
hereof.


 


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


 


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


 


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


 


Warranty Purchase Amount.  This term shall have the meaning set forth in
the Contribution and Sale Agreement.


 


1.2          Rules of
Interpretation.


 


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


 


1.2.2.       The singular includes the plural and the
plural includes the singular.


 


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


 


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


 


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


 


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


 


29

















 


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


 


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


 


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


 


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


 


1.2.11.     For purposes of calculations regarding the
Borrowing Base or the Concentration Limits, an individual Container or
generator set shall be included in the calculation of either the Aggregate Net
Book Value or the Aggregate Net Present Value of Direct Finance Lease
Receivables but not both.


 


1.2.12.     This Credit Agreement and the other Loan
Documents are the result of negotiation among, and have been reviewed by
counsel to, among others, the Administrative Agent and the Borrower and are the
product of discussions and negotiations among all parties.  Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the
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.


 


2.             THE CREDIT FACILITY.


 


2.1          Commitment to Lend.  Subject to the terms and conditions set forth
in this Credit Agreement (including, without limitation, Section 2.11
hereof), each of the Lenders severally agrees to lend to the Borrower, and the
Borrower may borrow, repay, and reborrow from time to time from the Closing
Date to (but not including) the Conversion Date upon notice by the Borrower to
the Administrative Agent given in accordance with Section 2.7, such sums
as are requested by the Borrower, provided that the sum of the unpaid principal
amount of all Credit Loans (after giving effect to all amounts requested) shall
not at any time exceed the lesser of (i) the Total Commitment at such time
and (ii) the Borrowing Base at such time. 
The Credit Loans shall be made pro rata in
accordance with each Lender’s Commitment Percentage.  Each request for a Credit Loan hereunder
shall constitute a representation and warranty by the Borrower that the
conditions set forth in Section 11 and Section 12, in the case of the
initial Credit Loans to be made on the Closing Date, and Section 12, in
the case of all Credit Loans, have been satisfied on the date of such request.


 


30

















 


2.2          Commitment Fee.  The Borrower agrees to pay 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 per annum of five-eighths of one
percent (0.625%) of the average daily amount during each period or portion
thereof from the Closing Date to the Conversion Date by which the Total
Commitment exceeds the average Aggregate Note Principal Balance during the
immediately preceding Interest Period. 
The Commitment Fee shall be payable in arrears on each Payment Date for
the immediately preceding Interest Period commencing on the first such date
following the date hereof, with a final payment on the Conversion Date or any
earlier date on which the Commitments shall terminate or have been terminated.


 


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


 


2.4          Revolving Credit
Facility.  The credit
facility evidenced by this Credit Agreement is a revolving credit
facility.  Accordingly, the principal
balance of any Credit Loan that has been repaid by the Borrower may, subject to
the terms and conditions of this Credit Agreement, be re-borrowed to (but
excluding) the Conversion Date.


 


2.5          Evidence of Credit
Loans.  The Credit Loans made by each
Lender shall be evidenced by one or more accounts or Records maintained by such
Lender and by the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit Loans
made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and Records maintained by any Lender and the accounts and Records of
the Administrative Agent in respect of such matters, the accounts and Records
of the Administrative Agent shall control in the absence of manifest error.
Upon the request of any Lender made through the Administrative Agent, the
Borrower shall execute and deliver to such Lender (through the Administrative
Agent) a Note, which shall evidence such Lender’s Credit Loans in addition to
such accounts or records. Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.


 


2.6          Interest on Credit
Loans.  (a)  Except as otherwise
provided in Section 5.10,


 


31

















 


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


 


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


 


The Borrower promises to pay
interest on each Credit Loan in arrears on each Payment Date.


 


(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 Credit Loan exceeds the maximum rate
permitted by applicable law, the rate of interest to accrue pursuant to such
Credit Loan shall be limited to the maximum rate permitted by applicable law.


 


2.7          Requests for Credit
Loans.  The Borrower shall give to the
Administrative Agent written notice in the form of Exhibit C hereto
(or telephonic notice confirmed in a writing in the form of Exhibit C
hereto) of each Credit Loan requested hereunder (a “Credit Loan
Request”) by 11:00 a.m. (New York time) no less than three (3) LIBOR
Business Days prior to the requested Funding Date.  Promptly upon receipt of any such notice, the
Administrative Agent shall notify each of the Lenders thereof. The Credit Loan
Request shall be irrevocable and binding on the Borrower upon delivery thereof
and shall obligate the Borrower to accept the Credit Loan requested from the
Lenders on the related Funding Date.


 


2.8          Continuation of Type
of Credit Loan.  Any Credit
Loan of any Type may, upon the expiration of an Interest Period with respect
thereto, be continued as a Credit Loan of the same Type; provided that no LIBOR
Rate Loan may be continued as such when any Event of Default has occurred and
is continuing, but shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto ending during the
continuance of any Default or Event of Default of which officers of the
Administrative Agent active upon the Borrower’s account have actual
knowledge.  The Administrative Agent
shall notify the Lenders promptly when any such automatic conversion
contemplated by this Section 2.6 is scheduled to occur.


 


2.9          Funds for Credit Loan.


 


2.9.1.       Funding Procedures.  Not later than 2:00 p.m. (New York time)
on the proposed Funding Date of any Credit Loan, and provided that each of the
Lenders have been given notice of the Credit Loan Request, each of the Lenders
will make available to the Administrative Agent, at the Administrative Agent’s
Office, in immediately available funds, the amount of such Lender’s Commitment
Percentage of the amount of the requested Credit Loans.  Upon receipt from each Lender of such amount,
and upon receipt of the documents required by Sections 11 and/or 12, as the
case may be,


 


32

















 


and
the satisfaction of the other conditions set forth therein, to the extent
applicable, the Administrative Agent will make available to the Borrower the
aggregate amount of such Credit Loans made available to the Administrative
Agent by the Lenders.  The failure or
refusal of any Lender to make available to the Administrative Agent at the
aforesaid time and place on any Funding Date the amount of its Commitment
Percentage of the requested Credit Loans shall not relieve any other Lender
from its several obligation hereunder to make available to the Administrative
Agent the amount of such other Lender’s Commitment Percentage of any requested
Credit Loans.


 


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


 


2.10        Extension of Scheduled Termination Date.  
(a)  Requests for Extension. 
The Borrower may, by notice to the Administrative Agent (who shall
promptly notify all of the Lenders) and each Interest Rate Hedge Provider not
earlier than 45 days and not later than 35 days prior to the Scheduled
Termination Date then in effect hereunder (the “Existing
Scheduled Termination Date”), request that each Lender extend such
Lender’s Scheduled Termination Date in respect of this revolving credit
facility for an additional 364 days from the Existing Scheduled Termination
Date.


 


(b)           Lender Elections to Extend.  Each Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not
earlier than 30 days prior to the Existing Scheduled Termination Date and not
later than the date (the “Notice Date”)
that is 20 days prior to the Existing Scheduled Termination Date, advise the
Administrative Agent whether or not such Lender agrees to such extension (and
each


 


33

















 


Lender that determines not to so extend its
Scheduled Termination Date (a “Non-Extending
Lender”) shall notify the Administrative Agent of such fact promptly
after such determination (but in any event no later than the Notice Date) and
any Lender that does not so advise the Administrative Agent on or before the
Notice Date shall be deemed to be a Non-Extending Lender.  The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.


 


(c)           Notification by Administrative Agent.  The Administrative Agent shall notify the
Borrower and each Interest Rate Hedge Provider of each Lender’s determination
under this Section 2.10 no later than the date 15 days prior to the
Existing Scheduled Termination Date (or, if such date is not a Business Day, on
the next preceding Business Day).


 


(d)           Additional Commitment Lenders.  The Borrower shall have the right to replace
each Non-Extending Lender with, and add as “Lenders” under this Credit
Agreement in place thereof, one or more Eligible Assignees (each, an “Additional Commitment Lender”) as provided
in Section 15.2; provided that each of such Additional Commitment
Lenders shall enter into an Assignment and Acceptance pursuant to which such
Additional Commitment Lender shall, effective as of the Existing Scheduled
Termination Date, undertake a Commitment (and, if any such Additional
Commitment Lender is already a Lender, its Commitment shall be in addition to
any other Commitment of such Lender hereunder on such date).


 


(e)           Minimum Extension Requirement.  If (and only if) the total of the Commitments
of the Lenders that have agreed so to extend their Existing Scheduled
Termination Date (each, an “Extending Lender”)
and the additional Commitments of the Additional Commitment Lenders shall be
equal to the aggregate amount of the Commitments in effect immediately prior to
the Existing Scheduled Termination Date, then, effective as of the Existing
Scheduled Termination Date, the Scheduled Termination Date in respect of the
revolving credit facility of each Extending Lender and of each Additional
Commitment Lender shall be extended to the date falling 364 days after the
Existing Scheduled Termination Date (except that, if such date is not a
Business Day, such Scheduled Termination Date as so extended shall be the next
preceding Business Day) and each Additional Commitment Lender shall thereupon
become a “Lender” for all purposes of this Credit Agreement.


 


(f)            Conditions to Effectiveness of Extensions.  As a condition precedent to such extension,
the Borrower shall deliver to the Administrative Agent and each Interest Rate
Hedge Provider a certificate of the Borrower dated as of the Existing Scheduled
Termination Date (in sufficient copies for each Extending Lender and each
Additional Commitment Lender) signed by a Responsible Officer of the Borrower (i) certifying
and attaching the resolutions adopted by the Borrower approving or consenting
to such extension and (ii) certifying that, before and after giving effect
to such extension, (A) the representations and warranties contained in Article 7
and the other Loan Documents are true and correct on and as of the Existing
Scheduled Termination Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes


 


34

















 


of this Section 2.10, the
representations and warranties contained in Section 7.4.2 shall be deemed
to refer to the most recent statements furnished pursuant to Section 8.4,
and (B) no Default, Event of Default or Early Amortization Event
exists.  In addition, on the Existing
Scheduled Termination Date of each Non-Extending Lender, the Borrower shall
prepay the Credit Loans outstanding on such date to such Non-Extending Lender
and pay any additional amounts owing, including any amounts owing under any
Interest Rate Hedge Agreement.


 


3.             REPAYMENT OF THE
CREDIT LOANS.


 


3.1          Repayment of Credit
Loans.  On each Payment Date occurring
on or after the Conversion Date (other than the Maturity Date), the unpaid
principal balance of all Credit Loans outstanding shall be payable on each
Payment Date in an amount equal to the Scheduled Principal Payment Amount.  The Aggregate Note Principal Balance, and all
accrued interest and other amounts owing on, or with respect to, the Credit
Loans shall be payable in full on the earlier to occur of (a) the Maturity
Date and (b) the date on which the Credit Loans and the other Obligations
have been declared due and payable in accordance with the provisions of Section 13.1
hereof.


 


3.2          Mandatory Prepayments
of Credit Loans.  If the
Borrowing Base Report delivered on any Determination Date indicates that a
Borrowing Base Deficiency exists, then the Borrower shall pay on the
immediately succeeding Payment Date the amount of such Borrowing Base
Deficiency in accordance with Section 4.1 hereof.  Each prepayment of Credit Loans shall be
allocated among the Lenders, in proportion, as nearly as practicable, to the
respective principal amount of each Lender’s unpaid Credit Loan, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.  In
connection with any prepayment under this Section 3.2, the Borrower will,
simultaneously with such prepayment, pay to each Interest Rate Hedge Provider
all amounts, including any termination payments, then owing under their
respective Interest Rate Hedge Agreements as a consequence of such prepayment.


 


3.3          Optional Repayments
of Credit Loans.  The
Borrower shall have the right, at its election, to repay the outstanding amount
of the Credit Loans, in whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any LIBOR Rate Loans pursuant to this Section 3.3 may be made only on a
Payment Date unless accompanied by all amounts owing pursuant to Section 5.8
hereof.  The Borrower shall give the
Administrative Agent and each Interest Rate Hedge Provider, no later than 11:00 a.m.
(New York time) at least one (1) Business Day’s prior written notice of
any proposed prepayment pursuant to this Section 3.3 of Base Rate Loans,
and three (3) LIBOR Business Days notice of any proposed prepayment
pursuant to this Section 3.3 of LIBOR Rate Loans, in each case specifying
the proposed date of prepayment of Credit Loans and the principal amount to be
prepaid.  Each such partial prepayment of
the Credit Loans shall be in an integral multiple of $500,000, and shall be
applied, in the absence of instruction by the Borrower, first to the principal
balance of all unpaid Base Rate Loans and then to the principal balance of all
unpaid LIBOR Rate Loans.  Each partial
prepayment shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Lender’s
aggregate unpaid Credit Loans, with adjustments to the extent practicable to
equalize any prior


 


35

















 


repayments not exactly in
proportion.  In connection with any
prepayment under this Section 3.3, the Borrower will, simultaneously with
such prepayment, pay to each Interest Rate Hedge Provider all amounts,
including any termination payments, then owing under their respective Interest
Rate Hedge Agreements as a consequence of such prepayment.


 


3.4          Application of
Prepayments.  Any
prepayment of the principal of a Credit Loan shall include all interest accrued
to the date of prepayment.  Each such
prepayment shall be applied to reduce all remaining Scheduled Principal Payment
Amounts (including the Scheduled Principal Payment Amount due on the Maturity
Date) on a pro rata basis and to reduce the unpaid
principal balances of the Credit Loans of each Lender in accordance with such
Lender’s Commitment Percentage of the aggregate prepayment amount.  Each prepayment of principal received by a
Lender pursuant to this Section 3 shall be applied, in the absence of
contrary instruction by the Borrower, first to the principal of Base Rate
Loans, and then to the principal of LIBOR Rate Loans.  The Administrative Agent will promptly notify
each Lender of its receipt of any notice of prepayment, and of the amount of such
Lender’s prepayment.


 


4.             TRUST ACCOUNT.


 


4.1          Trust Account.


 


(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 Administrative Agent (on behalf of the Secured Parties),
with a bank or trust company acceptable to the Administrative Agent and the
Required 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 the
Secured Parties


 


(b)           The Borrower shall not establish any additional bank
accounts (other than the Trust Account and the Restricted Cash Account) 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 Management Agreement and the Intercreditor Agreement, all Gross Revenue
relating to the Containers in the Borrower Fleet.  The Borrower shall cause any Gross Revenue
and other amounts related to the Collateral not deposited into a Manager
Collection Account (as defined in the Management Agreement), 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
Early Amortization Event or 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.


 


36














 


(d)           On each Payment Date, the
Borrower, based on the Manager Report, shall distribute funds in an amount
equal to the sum (without duplication) of (i) all of the Collections
received during the related Collection Period, less an amount up to the
Management Fee and Management Fee Arrearage deducted in accordance with the
Credit Agreement and the other Loan Documents, (ii) all amounts received
by the Borrower during the related Collection Period pursuant to any Interest
Rate Hedge Agreement, (iii) any Warranty Purchase Amounts received by the
Borrower during the related Collection Period, (iv) the amount of all
Manager Advances for use on such Payment Date, (v) any earnings on
Eligible Investments in the Trust Account, to the extent that such earnings
were credited to such account during the related Collection Period, (vi) any
amounts transferred from the Restricted Cash Account, and (vii) other
payments required by the Loan Documents to be deposited therein (the sum of the
amounts described in clauses (i) through (vii), the “Available Distribution Amount”).  Such Available Distribution Amount shall be
distributed to the following Persons in the following order of priority, with
no payment being made toward any item unless and until all prior items have
been fully satisfied:


 


(I)            On each Payment Date on
which no Early Amortization Event or an Event of Default shall have occurred
and then be continuing, in the following order of priority:


 


(1)                                  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 Management Agreement and the other Loan Documents;


 


(2)                                  To the Manager,
in reimbursement of any unreimbursed Manager Advances in accordance with the
terms of the Management Agreement and the other Loan Documents;


 


(3)                                  To the
Borrower, an amount equal to Borrower Expenses then due and payable; provided,
however that the amount payable pursuant to this clause (3) in any twelve
month period shall not exceed Two Hundred Fifty Thousand Dollars ($250,000);


 


(4)                                  On a pro rata and pari passu basis based on the amounts then owing pursuant to
this clause (4):


 


(A)                              to the Lenders, on a pro rata basis, all interest payments (other than Default
Interest) then due and owing with respect to the Credit Loans, and


 


(B)                                to each Interest Rate Hedge
Provider, on a pro rata basis based on the
amounts then owing to all Interest Rate Hedge Providers pursuant to this clause
(4)(B), the amount of any scheduled payments (but not termination payments)
then due and payable pursuant to the terms of any Interest Rate Hedge Agreement
then in effect, together with any such amounts past due and any interest


 


37

















 


thereon (other than payments resulting from the Interest Rate Hedge
Provider being in default thereunder);


 


(5)                                  To the Lenders,
on a pro rata basis, all
Commitment Fees then due and payable;


 


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


 


(7)                                  To the
Restricted Cash Account, an amount such that the total amount of cash and
Eligible Investments on deposit therein is equal to the Restricted Cash Target
Balance for such Payment Date;


 


(8)                                  Each of the
following on a pro rata and pari passu basis:


 


(A)                              To each Lender, on a pro rata basis (calculated based on the then unpaid
principal balance of their respective unpaid Credit Loans), an amount equal to
the sum of (i) any principal prepayment required pursuant to Section 3.2
hereof, and (ii) if the Conversion Date shall have occurred, the Scheduled
Principal Payment Amount for such date; and


 


(B)                                To each Interest Rate Hedge
Provider, on a pro rata basis
based on the amounts then owing to all Interest Rate Hedge Providers pursuant
to this clause (8), the amount of any unpaid payments then due and payable
(including termination payments) pursuant to the terms of any Interest Rate
Hedge Agreement then in effect;


 


(9)                                  To each Lender,
on a pro rata basis based on
amounts then owing to each such Lender pursuant to this clause (9), all Default
Interest, taxes, increased costs, indemnification, expenses and any other
amounts due and owing to such Lender pursuant to the terms of the Loan
Documents;


 


(10)                            To the Manager,
the amount of any unpaid indemnity payments or other amounts owing to the
Manager pursuant to the terms of the Management Agreement; and


 


(11)                            To the
Borrower, any remaining Available Distribution Amount.


 


(II)           On each Payment Date on
which an Early Amortization Event or an Event of Default shall have occurred
and then be continuing, in the following order of priority:


 


(1)                                  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 Management Agreement and the other Loan Documents;


 


38

















 


(2)                                  To the Manager,
in reimbursement of any unreimbursed Manager Advances in accordance with the
terms of the Management Agreement and the other Loan Documents;


 


(3)                                  To the
Borrower, an amount equal to Borrower Expenses then due and payable; provided,
however that the amount payable pursuant to this clause (3) in any twelve
month period shall not exceed Two Hundred Fifty Thousand Dollars ($250,000);


 


(4)                                  On a pro rata and pari passu basis based on amounts then owing pursuant to
this clause (4):


 


(A)                              to the Lenders, on a pro rata basis, all interest payments (other than Default
Interest) then due and owing with respect to the unpaid Credit Loans; and


 


(B)                                to each Interest Rate Hedge
Provider, on a pro rata basis based on the
amounts then owing pursuant to this clause (4)(B), the amount of any scheduled
payments (but not termination payments) then due and payable to all Interest
Rate Hedge Providers pursuant to the terms of any Interest Rate Hedge Agreement
then in effect, together with any such amounts past due (other than payments
resulting from the Interest Rate Hedge Provider being in default thereunder);


 


(5)                                  To the Lender,
on a pro rata basis, all
Commitment Fees then due and payable;


 


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


 


(7)                                  Each of the
following on a pro rata basis,
all remaining Available Distribution Amount:


 


(A)                              To each Lender, on a pro rata basis (calculated based on the
then unpaid principal balance of their respective unpaid Credit Loans), the
unpaid principal balance of all Credit Loans until the Aggregate Note Principal
Balance has been reduced to zero; and


 


(B)                                To each Interest Rate Hedge
Provider, on a pro rata basis,
the amount of any unpaid payments then due and payable (including termination
payments) pursuant to the terms of any Interest Rate Hedge Agreement then in
effect;


 


(8)                                  To each Lender,
on a pro rata basis based on
amounts then owing to each such lender pursuant to this clause (8), all Default
Interest, taxes, increased costs, indemnification, expenses and any other
amounts due and owing to such Lender pursuant to the terms of the Loan
Documents;


 


39

















 


(9)                                  To the Manager,
the amount of any unpaid indemnity payments or other amounts owing to the
Manger pursuant to the terms of the Management Agreement; and


 


(10)                            To the
Borrower, any remaining Available Distribution Amount.


 


4.2          Investments


 


(a)           Funds which may at any time
be held in the Trust Account or the Restricted Cash Account may be invested and
reinvested by, or on behalf of, the Borrower in one or more Eligible
Investments.


 


(b)           Each investment made
pursuant to this Section 4.2 on any date shall mature not later than the
Business Day immediately preceding the Payment Date next succeeding the day
such investment is made, except that any investment made on the day preceding a
Payment Date shall mature on such Payment Date.


 


(c)           Subject to the other
provisions hereof, the Administrative Agent, on behalf of the Secured Parties,
shall have sole “control” (as defined in the UCC) over the Trust Account and
the Restricted Cash Account and any financial asset credited thereto.


 


(d)           All monies on deposit in the
Trust Account and the Restricted Cash Account, together with any deposits or
securities in which such moneys may be invested or reinvested, and any gains
from such investments, shall constitute Collateral.


 


4.3          Restricted Cash Account.


 


(a)           On or prior to the Closing
Date, the Borrower shall establish and maintain the Restricted Cash
Account.  The Restricted Cash Account
shall be established in the name of the Borrower, for the benefit of the
Administrative Agent (on behalf of the Secured Parties), with a bank or trust
company acceptable to the Administrative Agent and the Required Lenders. The
Restricted Cash Account shall at all times be under the “control” (as defined
in the UCC) of the Administrative Agent for the benefit of the Secured Parties.


 


(b)           On or before the Closing
Date, the Borrower will deposit, or cause to be deposited, into the Restricted
Cash Account a sufficient amount of funds such that, after giving effect to
such deposit, the amount of funds on deposit therein shall be equal to the
Restricted Cash Target Balance in effect on the Closing Date, and thereafter
amounts shall be deposited in the Restricted Cash Account in accordance with Section 4.1.  Any and all moneys on deposit in the
Restricted Cash Account shall be invested in Eligible Investments in accordance
with Section 4.2 and shall be distributed in accordance with this Section 4.3.


 


(c)           On each Payment Date, the
Administrative Agent shall, in accordance with the Manager Report or, absent a
Manager Report, pursuant to written instructions from the Required Lenders,
withdraw from the Restricted Cash Account and remit directly to each Lender its
pro rata share of an amount equal to the
excess, if any, of (A)


 


40

















 


the Permitted Payment Date Withdrawals over (B) the
amounts then on deposit in the Trust Account (determined after giving effect to
all other deposits to the Trust Account) available to make such payments.  Such amounts may only be used to pay amounts
specified in the definition of “Permitted Payment Date Withdrawals”.


 


(d)           On each Payment Date, the
Administrative Agent shall, in accordance with the Manager Report, or absent a
Manager Report, pursuant to written instructions from the Required Lenders,
withdraw from the Restricted Cash Account and deposit in the Trust Account for
distribution in accordance with Section 4.1 of this Credit Agreement, the
excess, if any, of (A) amounts then on deposit in the Restricted Cash
Account (after giving effect to any withdrawals therefrom on such Payment Date)
over (B) the Restricted Cash Target Balance.  On the Maturity Date, any remaining funds in
the Restricted Cash Account shall be deposited in the Trust Account and
distributed in accordance with Section 4.1 of this Credit Agreement.


 


5.             CERTAIN
GENERAL PROVISIONS.


 


5.1          Funds
for Payments.


 


5.1.1.       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 respective 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 11:00 a.m. (New York time or other local time at the
place of payment) and in immediately available funds.


 


5.1.2.       No Offset, etc.  All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without recoupment, setoff
or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, restrictions
or conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein with
respect to such payments (but excluding any tax imposed on or measured by the
net income, net profits or net worth of any Lender or the Administrative Agent
and any franchise taxes imposed on any Lender or the Administrative Agent in
each case as a result of a present or former connection between such Lender or
Agent and such jurisdiction or any political subdivision or taxing authority
thereof or therein (other than solely as a result of entering into this Credit
Agreement or any of the other Loan Documents or performing any obligations,
receiving payments or enforcing any rights hereunder or thereunder) or as a
result of any Lender or the Administrative Agent not being a U.S. Person)
unless the Borrower is compelled by law to make such deduction or
withholding.  If any such obligation is
imposed upon the Borrower with respect to any amount payable by it hereunder or
under any of the other Loan Documents, the Borrower will pay to the
Administrative Agent, for the account of the Lenders or (as the case may be)
the Administrative Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Lenders or the


 


41

















 


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 obligation been imposed
upon the Borrower.  The Borrower will
deliver promptly to the Administrative Agent certificates or other valid
vouchers reasonably available to it for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.


 


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


 


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


 


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


 


5.1.3.       Tax Forms.  Each Lender (which term, for purposes of this
Section 5.1.3, shall include the Administrative Agent if the
Administrative Agent is acting as a Lender) that is not a U.S. Person agrees to
deliver to the Borrower and the Administrative Agent on or prior to the Closing
Date, or in the case of a Lender that is an assignee or transferee of an
interest under the terms of Section 15 of this Credit Agreement (unless
such Lender was already a Lender hereunder immediately prior to such assignment
or transfer), on or prior to the date of such assignment or transfer to such
Lender, an accurate, complete and executed form or certification as may be
required in order to establish such Lender’s entitlement as of such date to a
complete exemption from U.S. withholding tax with respect to payments by the
Borrower hereunder and under any of the other Loan Documents and any other
forms or certifications that the Borrower may reasonably request from time to
time.  In addition, each Lender that is
not a U.S. Person agrees that from time to time, when a lapse in time or change
in circumstances renders the previous form or certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the Administrative
Agent a new accurate, complete and


 


42

















 


executed
form or certification as may be required in order to confirm or establish such
Lender’s entitlement as of such date to a continued complete exemption from
U.S. withholding tax with respect to payments by the Borrower hereunder and
under any of the other Loan Documents.


 


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


 


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


 


43

















 


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


 


5.2          Computations.  All computations of interest on LIBOR Rate Loans
shall be based on a 360-day year and paid for the actual number of days
elapsed.  All computations of interest on
Base Rate Loans and all other fees calculated hereunder shall be based on a
365-day year and paid for the actual number of days elapsed.  Except as otherwise provided in the
definition of the term “Interest Period” with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension at the rate otherwise applicable pursuant to Section 2.6.  The outstanding amount of the Credit Loans as
reflected on the Records from time to time shall be considered correct and
binding on the Borrower absent manifest error unless within fifteen (15)
Business Days after receipt of any notice from the Administrative Agent or any
of the Lenders of such outstanding amount, the Borrower shall notify the
Administrative Agent or such Lender to the contrary.


 


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


 


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


 


44

















 


such Lender’s Credit Loans
then outstanding as LIBOR Rate Loans, if any, shall be converted automatically
to Base Rate Loans on the last day of each Interest Period applicable to such
LIBOR Rate Loans or within such earlier period as may be required by law.  The Borrower hereby agrees promptly to pay
the 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 5.4, including any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its LIBOR Rate
Loans hereunder.


 


5.5          Additional
Costs, etc.  If any
present or future applicable law, which expression, as used herein, includes
statutes, rules and regulations thereunder and interpretations thereof by
any competent court or by any governmental or other regulatory body or official
charged with the administration or the interpretation thereof and requests,
directives, instructions and notices at any time or from time to time hereafter
made upon or otherwise issued to any Lender or the 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 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,


 


45

















 


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.


 


5.6          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 such Lenders or such Lender’s 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
Credit 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 (as the case may be)
the Administrative Agent 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 Base Rate or LIBOR Rate, the Borrower agrees to pay the
Administrative Agent for the account of each Lender entitled thereto for the
amount of such reduction in the return on capital as and when such reduction is
determined upon presentation by such Lender or (as the case may be) the
Administrative Agent of a certificate in accordance with Section 5.7.  Neither the Administrative Agent nor any
Lender shall be entitled to assert any claim under this Section 5.6 in
respect of taxes.  Each of the Lenders
and the Administrative Agent agrees that, in the event any of the circumstances
of the type described in this Section 5.6, it shall allocate such cost
increases among its customers in good faith and on a non-discriminatory basis.


 


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


 


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


 


46

















 


or conversion after the
Borrower has given (or is deemed to have given) a Credit Loan Request in
accordance with Section 2.5 or (c) the making of any payment of a
LIBOR Rate Loan or the making of any conversion of any such Credit Loan to a
Base Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto, including interest or fees payable by such Lender
to lenders of funds obtained by it in order to maintain any such Credit Loans.


 


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


 


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


 


6.             COLLATERAL
SECURITY.


 


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


 


7.             REPRESENTATIONS
AND WARRANTIES.


 


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


 


47

















 


7.1          Corporate
Authority.


 


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


 


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


 


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


 


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


 


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


 


7.4          Fiscal
Year Financial Statements.


 


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


 


48














 


7.4.2.       Financial Statements.  There has been furnished to the
Administrative Agent and each Lender a consolidated balance sheet of CLI and
its Subsidiaries as of December 31, 2009, and a consolidated statement of
income and cash flows of CLI and its Subsidiaries for the fiscal year then
ended, audited and certified by Ernst & Young, LLP or other
independent certified public accountants of national standing reasonably
satisfactory to the Administrative Agent. 
Such balance sheets and statements of income and cash flows have been
prepared in accordance with GAAP and fairly present in all material respects
the financial condition of CLI as at the close of business on the date thereof
and the results of operations for the fiscal period then ended, subject to year-end
audit adjustments and the absence of footnotes with respect to the quarterly
financial statements.  There are no
contingent liabilities of CLI as of such dates involving material amounts,
known to the officers of CLI, which were not disclosed in such balance sheets
and the notes related thereto, subject to year-end audit adjustments and the
absence of footnotes with respect to quarterly financial statements.


 


7.5          Prior
Activities of Borrower.  The
Borrower is not now, and has not been, a party to any contract or agreement
(whether written or oral) other than the Loan Documents, and has not engaged in
any activity or incurred any obligations or liabilities except pursuant to the
terms of the Loan Documents.


 


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


 


7.7          No
Materially Adverse Contracts.  The Borrower is not
subject to any Governing Document or other legal restriction, or any judgment,
decree, order, law, statute, rule or regulation that has or is expected in
the future to have a Material Adverse Effect.


 


7.8          Compliance
with Other Instruments, Laws, etc.  The Borrower is not in violation of any
provision of its Governing Documents, or any agreement or instrument to which
it may be subject or by which it or any of its properties may be bound or any
decree, order, judgment, statute, license, rule or regulation, in any of
the foregoing cases in a manner that could have a Material Adverse Effect.


 


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


 


49

















 


amount of reserves
established by the Borrower and each of its Subsidiaries to cover the
Borrower’s or such Subsidiary’s material sales or use tax obligations in each
jurisdiction where the Borrower or such Subsidiary is required to pay such
taxes is adequate for the payment of all of such obligations.


 


7.10        Investment
Company Act.  The
Borrower is not an “investment company”, or an “affiliated company” or a
“principal underwriter” of an “investment company”, as such terms are defined
in the Investment Company Act of 1940.


 


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


 


7.12        Employee
Benefit Plans.


 


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


 


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


 


(c)           Guaranteed Pension Plans.  Each contribution required to be made to a
Guaranteed Pension Plan, whether required to be made to avoid the incurrence of
an accumulated funding deficiency or the notice or lien provisions of §302(f) of
ERISA, has been timely made.  No waiver
of an accumulated funding deficiency or extension of amortization periods has
been received with respect to any Guaranteed Pension Plan, and neither the
Borrower nor any ERISA Affiliate is obligated to or has posted security in
connection with an amendment to a Guaranteed Pension Plan pursuant to §307 of
ERISA or §401(a)(29) of the Code.  No
liability to the PBGC (other than required insurance premiums, all of which
have been paid) has been incurred by the Borrower or any ERISA Affiliate with
respect to any Guaranteed Pension Plan and there has not been any ERISA
Reportable Event (other than an ERISA Reportable Event as to which the
requirement of


 


50

















 


30 days notice has been waived), or any other
event or condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within twelve months of
the date of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of §4001 of ERISA did not exceed
the aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.


 


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


 


7.13        Place
of Business.  The
Borrower’s only “place of business” (within the meaning of 9-307 of the UCC) is
located at c/o Container Leasing International, LLC, One Maynard Drive, Park
Ridge, New Jersey 07656.


 


7.14        Subsidiaries.  As of the date hereof, the Borrower has no
Subsidiaries and is not party to any joint ventures or partnerships between the
Borrower and any other Person.


 


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


 


7.16        Disclosure.  The Borrower has disclosed to the
Administrative Agent and the Lenders all agreements, instruments and corporate
or other restrictions to which it or CLI is subject, and all other matters
known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.  No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf
of the Borrower to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Credit
Agreement or delivered hereunder or under any other Loan Document (in each case
as modified or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.


 


51

















 


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


 


(b)           The Borrower is a “U.S.
Person” with the meaning of the laws, rules and regulations promulgated,
imposed or monitored by OFAC, and none of the Borrower, any Subsidiary of the
Borrower or any Affiliate of the Borrower (i) is a Sanctioned Person, (ii) has
any of its assets in Sanctioned Countries, or (iii) derives any of its
operating income from investments in, or transactions with Sanctioned Persons
or Sanctioned Countries.  The proceeds of
any Credit Loan will not be used and have not been used to fund any operations
in, finance any investments or activities in or make any payments to, a
Sanctioned Person.


 


7.18        Margin
Regulations.  The
Borrower does not own any “margin security”, as that term is defined in
Regulation U of the Federal Reserve Board, and the proceeds of each Credit Loan
will be used only for the purposes contemplated hereunder. None of such
proceeds will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause of the Credit Loans under
this Credit Agreement to be considered a “purpose credit” within the meaning of
Regulations T, U, and X.  The Borrower
will not take or permit any agent acting on its behalf to take any action which
might cause this Credit Agreement or any document or instrument delivered
pursuant hereto to violate any regulation of the Federal Reserve Board.


 


7.19        Solvency
and Separateness.


 


(i)            The capital of
the Borrower is adequate for the business and undertakings of the Borrower;


 


(ii)           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;


 


(iii)          At all times,
at least two (2) members of the Board of Managers of the Borrower comply
with the definition of Independent Person;


 


(iv)          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;


 


52

















 


(v)           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;


 


(vi)          The Borrower
has not engaged in any business activities, except as permitted by the present
and express terms of the Loan Documents;


 


(vii)         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


 


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


 


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


 


7.21        Ownership
of the Borrower.  All of the
Capital Stock of the Borrower is owned by CLI.


 


7.22        Use of
Proceeds.  The
Borrower shall use the proceeds from the Credit Loan as follows: (i) to
acquire the Collateral on the Closing Date pursuant to the terms of the
Contribution and Sale Agreement, and (ii) for other general business
purposes.


 


7.23        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.


 


7.24        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.


 


The Borrower covenants and
agrees that, so long as any Credit Loan or Note is outstanding or any Lender
has any obligation to make any Credit Loans:


 


8.1          Payment
of Obligations.  Pay and
discharge as the same shall become due and payable, all of its obligations and
liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Borrower; (b) all lawful claims which, if


 


53

















 


unpaid, would by law become
a Lien upon its property; and (c) all Indebtedness, as and when due and
payable.


 


8.2          Maintenance
of Office.  The
Borrower will maintain its chief executive office in Park Ridge, New Jersey, or
at such other place in the United States of America as the Borrower shall
designate upon written notice to the 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.


 


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


 


8.4          Financial
Statements, Certificates and Information.  The Borrower will deliver to the
Administrative Agent and each Secured Party:


 


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


 


(b)           as soon as practicable, but
in any event not later than sixty (60) days after the end of each of the fiscal
quarters of the Borrower and CLI, copies of the unaudited consolidated balance
sheet of (i) the Borrower and (ii) CLI and its Subsidiaries, in each
case as at the end of such quarter, and the related consolidated statement of
income and consolidated statement of cash flow for the portion of the
Borrower’s or CLI’s, as the case may be, fiscal year then elapsed, all in
reasonable detail and prepared in accordance with GAAP, together with a
certification by the principal financial or accounting officer of the Borrower
or CLI, as the case may be, that the information contained in such financial
statements fairly presents in all material respects the financial position of
the Borrower or CLI and its Subsidiaries, as the case may be, on the date
thereof (subject to


 


54

















 


normal year-end adjustments made in accordance
with GAAP and the absence of footnotes);


 


(c)           simultaneously with the
delivery of the financial statements referred to in subsections (a) and (b) above,
a statement certified by the principal financial or accounting officer of the
Borrower in substantially the form of Exhibit D hereto (a “Compliance Certificate”);


 


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


 


(e)           (i) on each
Determination Date and (ii) at least five (5) Business Days prior to
the date of any removal or sale of any assets from the Borrowing Base, a
Borrowing Base Report setting forth the Borrowing Base as at the end of such
calendar month, sale date or other date so requested by the Administrative
Agent.  On each Determination Date, the
Borrower shall notify the Administrative Agent of any holdbacks, reserves,
discounts or rebates granted by, or on behalf of, the Borrower with respect to
Leases related to a sale-leaseback transaction included in the calculation of
the Borrowing Base, or security deposits in excess of Three Hundred Thousand
Dollars ($300,000), related to any Lease included in the calculation of the
Borrowing Base.


 


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


 


8.5          Notices.


 


8.5.1.       Defaults.  The Borrower will, within three (3) days
of the occurrence thereof, notify the Administrative Agent and each Interest
Rate Hedge Provider in writing of the occurrence of any Default, Event of
Default, or Early Amortization Event, together with a reasonably detailed
description thereof, and the actions the Borrower proposes to take with respect
thereto.  If any Person shall give any
notice or take any other enforcement action in respect of a claimed default
(whether or not constituting an Event of Default) under this Credit Agreement
or any other note, evidence of indebtedness, indenture or other obligation to
which or with respect to which the Borrower is a party or obligor, whether as
principal, guarantor, surety or otherwise, the Borrower shall forthwith give
written notice thereof to the Administrative Agent, and each of the Secured
Parties and each Interest Rate Hedge Provider, describing the notice or action
and the nature of the claimed default. 
The Borrower will promptly (but in any event within five (5) Business
Days, provide written notice to each Interest Rate Hedge Provider of each
waiver of any Early Amortization Event or Event of Default.


 


8.5.2.       Environmental Events.  The Borrower will provide notice to the
Administrative Agent within ten (10) days (a) of any violation of any
Environmental Law that the Borrower reports in writing or is reportable by the
Borrower (to the extent that such violation is known or knowable to the
Borrower after reasonable investigation and


 


55

















 


diligence)
in writing (or for which any written report supplemental to any oral report is
made) to any Governmental Authority and (b) upon becoming aware thereof,
of any inquiry, proceeding, investigation, or other action, including a notice
from any agency or any Governmental Authority of a potential environmental
liability that would have a Material Adverse Effect.


 


8.5.3.       Notification of Claim against Collateral.  The Borrower will,
within three (3) days of becoming aware thereof, notify the Administrative
Agent in writing of any Lien upon any of the Collateral if the aggregate value
of the affected Collateral is $100,000 or more.


 


8.5.4.       Notice of Litigation and Judgments.  The Borrower will
give notice to the Administrative Agent and each of the Secured Parties in
writing within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings
affecting the Borrower or to which the Borrower is or becomes a party involving
an uninsured claim against the Borrower that could reasonably be expected to
have a Material Adverse Effect on the Borrower and stating the nature and
status of such litigation or proceedings. 
The Borrower will give notice to the Administrative Agent and each of
the Secured Parties, in writing, in form and detail satisfactory to the
Administrative Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Borrower in an amount in excess of
$250,000.


 


8.5.5.       Notices Concerning Tax Treatment.  In the event the
Borrower determines to take any action inconsistent with its intention to not
treat the Credit Loans as a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4), it will promptly notify the
Administrative Agent in writing thereof and will provide the Administrative
Agent with a duly completed copy of IRS Form 8886 or any successor form.


 


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


 


8.7          Insurance.  The Borrower will, and will cause each of the
Lessees, except as otherwise permitted under the Management Agreement, to
maintain with financially sound and


 


56

















 


reputable insurers insurance
with respect to its properties and business against such casualties and
contingencies as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic areas and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent.


 


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


 


8.9          Inspection
of Properties and Books, etc.


 


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


 


(a)           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, its and their officers, and to conduct
examinations and verifications (whether by internal commercial finance
examiners or independent auditors) of all components included in the Borrowing
Base; and


 


(b)           if a Default or Event of
Default then exists, at the expense of the Borrower at all such times and as
often as the Administrative Agent or any 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 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 Borrowing Base.


 


8.9.2.       Commercial Finance Examinations.  Once during each
calendar year (provided that the Administrative Agent and the Lenders shall use
commercially reasonable efforts to schedule such examination simultaneously
with the commercial


 


57

















 


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


 


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


 


8.11        Use of
Proceeds.


 


8.11.1.     General.  The Borrower will use the proceeds of the
Credit Loans solely to (i) acquire from the Seller on the Closing Date the
Collateral in accordance with the terms of the Contribution and Sale Agreement,
and (ii) for other general business purposes.


 


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


 


8.11.3.     Ineligible Securities.  No portion of the proceeds of any Credit
Loans is to be used for the purpose of knowingly purchasing, or providing
credit support


 


58

















 


for
the purchase of, during the underwriting or placement period or within thirty
(30) days thereafter, any Ineligible Securities underwritten or privately
placed by a Financial Affiliate.


 


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


 


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


 


8.14        Non-Consolidation
of the Borrower.


 


(a)           The Borrower shall be
operated in such a manner that it shall not 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.


 


(b)           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) other than as
permitted in 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


 


59

















 


Borrower or engage in any other activity not
contemplated by this Credit Agreement and related documents.


 


8.15        Investment
Company Act.  The Borrower
will conduct its operations, and will cause the Manager to conduct the
Borrower’s operations, in a manner which will not subject it to registration as
an “investment company” under the Investment Company Act of 1940, as amended.


 


8.16        Payments
of Collateral.  If the
Borrower shall receive from any Person any payments with respect to the
Collateral (to the extent such Collateral has not been released from the Lien
of the Security Documents), the Borrower shall receive such payment in trust
for the Administrative Agent and the Lender, and subject to the security
interest in favor of the Administrative Agent and shall immediately deposit
such payment in the Trust Account.


 


8.17        UNIDROIT
Convention.  The
Borrower shall comply with the terms and provisions of the UNIDROIT Convention
or any other internationally recognized system for recording interests in or
liens against shipping containers at the time that such convention is adopted
by the container leasing industry.


 


8.18        Hedging
Requirements.  Upon the earliest
to occur of (x) the date on which 
Credit Loans representing an aggregate amount of more than $50,000,000
have been drawn down by the Borrower hereunder, (y) the date that is three
months after the initial Funding Date and (z) the date on which an Event
of Default, Early Amortization Event or Manager Default has occurred, then the
Borrower shall enter into and maintain one or more Interest Rate Hedge
Agreements having an average aggregate notional balance of not less than an
amount equal to fifty percent (50%) of the Aggregate Note Principal Balance, as
determined on any Determination Date (after giving effect to all payments to be
made on the related Payment Date).  The
Borrower will not allow the aggregate notional balance of the Interest Rate
Hedge Agreements to exceed one hundred five percent (105%) of the then
Aggregate Note Principal Balance as determined on each Determination Date
(after giving effect to all payments to be made on the related Payment
Date).  All payments made by an Interest
Rate Hedge Provider shall be deposited directly into the Trust Account in
accordance with Section 4.1 hereof.


 


9.             CERTAIN
NEGATIVE COVENANTS.


 


The Borrower covenants and
agrees that, so long as any Credit Loan or Note is outstanding or any Lender
has any obligation or commitment to make any Credit Loan:


 


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:


 


(a)           Indebtedness arising under
any of the Loan Documents;


 


(b)           Indebtedness under Interest
Rate Hedge Agreements in accordance with Section 8.18; and


 


60














 


(c)           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:


 


(i)            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;


 


(ii)           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 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;


 


(iii)          Liens in favor of the Administrative Agent, for the
benefit of the Secured Parties, under the Loan Documents;


 


(iv)          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;


 


(v)           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 Uniform Commercial Code.


 


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


 


(a)           Eligible Investments with
respect to funds on deposit in the Trust Account or the Restricted Cash
Account;


 


61

















 


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


 


(c)           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, an Event of Default or Early Amortization Event 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.


 


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 (i) the sale of Investments permitted
pursuant to Section 9.3 hereof, (ii) leases of assets in the ordinary
course of business consistent with past practices, (iii) in connection
with a substitution pursuant to the Contribution and Sale Agreement, (iv) sales
of Containers to Persons that are not Sanctioned Persons for Net Cash Sales
Proceeds of not less than the sum of the then Net Book Values or Net Present
Value of Direct Finance Lease Receivables, as the case may be, 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, (v) so
long as an Early Amortization Event 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, (vi) in connection with a sale to a Lessee or its designee
pursuant to the terms of a Direct Finance Lease, (vii) sales of obsolete
or irreparably damaged Containers to Persons that are not Sanctioned Persons,
or (viii) if  an Early Amortization
Event shall have occurred and be continuing, sales of Containers to
unaffiliated third parties (that are not Sanctioned Persons) in bonafide arm’s
length transactions within the normal course of business for Net Cash Sales
Proceeds not less than the sum of the Net Book Value or Net Present Value of
Direct Finance Lease Receivables, as the case may be, of such Containers
(including any such sales resulting from the sell/repair decision of the
Manager), so long as (i) the sum of the Net Book Values or Net Present
Value of Direct Finance Lease Receivables, as the case may be, of all such
Containers shall not exceed an amount equal to (A) during any calendar
year, an amount equal to ten percent (10)%, and (B) on a cumulative basis,
an amount equal to


 


62

















 


twenty-five percent (25%), applied in each
case to the Borrowing Base in effect on the date on which such Early
Amortization Event initially occurred.


 


(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 all, of the Containers subject to a Direct
Finance Lease unless, immediately after giving effect to such transaction, no
Borrowing 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 or generator set in any manner that would violate in any
material respect any Environmental Law or bring such Container or generator
set, as the case may be (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.  Neither the
Borrower nor any ERISA Affiliate will:


 


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


 


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


 


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


 


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


 


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


 


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


 


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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 7.4.1.


 


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 CLI
contemplated by the Loan Documents.


 


9.12        OFAC.  The Borrower shall not (i) lease, or
consent to the sublease of, a Container to a Sanctioned
Person or (ii) derive any of its assets or operating income from
investments in or transactions with any such Sanctioned Person.  If the
Borrower obtains knowledge that a Container is subleased to a Sanctioned
Person or located or used in a Sanctioned
Country (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 Borrowing Base for
so long as such condition continues.


 


9.13        Other
Agreements.


 


(a)           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.


 


(b)           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.


 


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


 


9.15        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 the Seller in accordance with the terms of the
Contribution and 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.


 


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9.16        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.


 


9.17        Subsidiaries.  The Borrower shall not create any
Subsidiaries.


 


9.18        Amendment
of Intercreditor Agreement.  The Borrower shall not 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.


 


9.19        Depreciation
Policy.  The Borrower will not amend or
modify the depreciation policy in effect on the Closing Date with respect to
the Containers and generator sets included in the Borrowing Base, except if the
resulting depreciation policy shall be at least as conservative as the
depreciation policy in effect on the Closing Date (e.g., use of such
depreciation policy would result in (a) a higher annual amount of
depreciation or (b) a lower estimated residual value) and is otherwise in
accordance with GAAP.


 


10.          MANAGEMENT
OF BORROWER FLEET.


 


10.1        Management
of Containers and Leases.  The
Containers and Leases included in, or related to, the Borrower Fleet shall
initially be managed by the Manager pursuant to the terms of the Management
Agreement.


 


11.          CLOSING
CONDITIONS.


 


The obligations of the
Lenders to make the Credit Loans shall be subject to the satisfaction of the
following conditions precedent:


 


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


 


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


 


11.2        Certified
Copies of Governing Documents.  The Administrative Agent shall have received
from each of the Borrower, the Seller and the Manager a copy, certified by a
duly


 


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authorized officer of such
Person to be true and complete on the Closing Date, of each of its Governing
Documents as in effect on such date of certification.


 


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


 


11.4        Incumbency
Certificate.  The
Administrative Agent shall have received from each of the Borrower, the Seller
and the Manager an incumbency certificate, dated as of the Closing Date, signed
by a duly authorized officer of such Person, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to
sign, in the name and on behalf of such Person each of the Loan Documents to
which it is or is to become a party; (b) to make Credit Loan Requests; and
(c) to give notices and to take other action on its behalf under the Loan
Documents.


 


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


 


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


 


11.7        Financial
Statements.  The
Administrative Agent shall have received the financial statements described in Section 7.4.2,
in form and substance reasonably satisfactory to the Administrative Agent and
each Lender.


 


11.8        Certificates
of Insurance.  The
Administrative Agent shall have received a certificate of insurance from an
independent insurance broker dated as of the Closing Date, identifying
insurers, types of insurance, insurance limits, and policy terms, and otherwise
describing the insurance obtained in accordance with the provisions of the
Security Agreement.


 


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


 


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


 


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


 


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


 


11.11      Payment
of Fees.  The Borrower shall have paid
to the Lenders or the Administrative Agent, as appropriate, the Fees and shall
have paid all reasonable outstanding legal and other professional fees pursuant
to Section 16.2.


 


11.12      Representations
True; No Event of Default.  Each
of the representations and warranties of any of the Borrower and its Affiliates
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Credit Loan, with the same effect
as if made at and as of that time (except to the extent of changes resulting
from transactions contemplated or not prohibited by this Credit Agreement and
the other Loan Documents and no Default, Event of Default or Early Amortization
Event shall have occurred and be continuing or would result from the making of
such Credit Loan.  The Administrative
Agent shall have received a certificate of the Borrower signed by an authorized
officer of the Borrower to such effect.


 


11.13      Indebtedness
to be Paid.  The
Administrative Agent and each Lender shall have received satisfactory evidence
that all loans outstanding under, and all other amounts due in respect of, the
Collateral shall have been repaid in full (or satisfactory arrangements made
for such repayment) and the commitments thereunder shall have been permanently
terminated.


 


11.14      No
Material Adverse Change. 
There shall not have been a Material Adverse Effect with respect to CLI
and its Subsidiaries since December 31, 2009.


 


12.          CONDITIONS
TO ALL CREDIT LOANS


 


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


 


12.2        Borrowing
Base Report.  The
Administrative Agent shall have received the most recent Borrowing Base Report
required to be delivered to the Administrative Agent in accordance with Section 8.4(e) and
a Borrowing Base Report dated as of the Funding Date (and


 


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giving effect to the
transactions to occur on such Funding Date) of such Credit Loan indicated that
no Borrower Base Deficiency.


 


12.3        Conversion
Date.  The Conversion Date shall not
have occurred.


 


12.4        Approval
Guidelines.  The Lessee
for each Lease Agreement to be funded with the proceeds of such Credit Loan
shall be classified as an Eligible Lessee on the proposed Funding Date in
accordance with the Approval Guidelines.


 


12.5        Direct
Finance Leases.  With
respect to the extension of any Credit Loan for which one or more Direct
Finance Leases will be pledged as Collateral, the Borrower shall have delivered
to the Administrative Agent (A) a copy of each such Direct Finance Lease
and (B) evidence satisfactory to the Administrative Agent that all of the
requirements set forth in Section 7.08(c) of the Management Agreement
have been satisfied with respect to each such Direct Finance Lease.


 


13.          EVENTS
OF DEFAULT; ACCELERATION; ETC.


 


13.1        Events
of Default and Acceleration.  If any of the following events or conditions
(“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 Credit Loans when 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; provided however, that any
failure to make Scheduled Principal Payment Amounts on any Payment Date other
than the Maturity Date or to pay any prepayment required pursuant to Section 3.2
are addressed in Section 13.1(b) and Section 13.1(m) respectively;


 


(b)           (x) the Borrower shall
fail to pay (i) on any Payment Date any interest on the Credit Loans or
any fees then due and payable,  or (ii) other
sums due hereunder or under any of the other Loan Documents and not otherwise
addressed in this Section 13.1 within ten (10) 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 or (y) the
Borrower shall fail to pay on any Payment Date (other than the Maturity Date),
the Scheduled Principal Payment Amount then owing and such condition continues
unremedied for one hundred twenty (120) days;


 


(c)           the Borrower shall fail to
comply (i) with any of its covenants contained in Section 9 (with the
exception of Section 9.7), or (ii) within ten (10) days after
the delivery dates required therein, with any of its covenants contained in
Sections 8.4 or 8.7;


 


(d)           the Borrower shall default
in the observation or performance of any other covenant (not otherwise covered
by the 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 Executive Officer of the Borrower, first
acquiring knowledge thereof, (y) the Administrative Agent’s giving written
notice thereof to the


 


68

















 


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 Executive 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)            a Manager Default shall have
occurred and be continuing, and the continuance of such condition for a period
of sixty (60) days after the earliest of (i) any Senior Executive Officer
of the Borrower or the Manager, as the case may be, first acquiring knowledge
thereof, (ii) the Administrative Agent’s giving written notice thereof to
the Borrower or the Manager, as the case may be, or (iii) any Lender
giving written notice thereof to the Borrower or the Manager, as the case may
be, and the Administrative Agent;


 


(g)           the Borrower or, so long as
the CLI Guaranty remains in effect, CLI 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 or, so long as
the CLI Guaranty remains in effect, CLI under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against the Borrower or, so long as the CLI Guaranty remains
in effect, CLI and the Borrower or, so long as the CLI Guaranty remains in
effect, CLI shall indicate its approval thereof, consent thereto or
acquiescence therein or such petition or application shall not have been
dismissed within sixty (60) days following the filing thereof;


 


(h)           a decree or order is entered
appointing any such trustee, custodian, liquidator or receiver or adjudicating
the Borrower or, so long as the CLI Guaranty remains in effect, CLI 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, so long as
the CLI Guaranty remains in effect, CLI 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


 


69

















 


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 and such cessation shall not be cured within five (5) Business
Days, 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 in an aggregate amount exceeding $250,000, or the
Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to
Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $250,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of §302(f)(1) of
ERISA), provided, that the Administrative Agent determines in its reasonable
discretion that such event (A) could be expected to result in liability of
the Borrower to the PBGC or such Guaranteed Pension Plan in an aggregate amount
exceeding $250,000 and (B) could constitute grounds for the termination of
such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan;
or (ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the
PBGC of proceedings to terminate such Guaranteed Pension Plan;


 


(l)            CLI shall at any time (i) own
less than all of the Capital Stock of the Borrower 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;


 


(m)          the Aggregate Note Principal
Balance exceeds the Borrowing Base at such time and the Borrower does not
remedy such situation (by payment of the amount set forth in Section 3.2
or otherwise) within ninety (90) days;


 


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


 


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(o)           CLI repudiates its
obligations under the CLI Guaranty or the CLI Guaranty is determined to be
unenforceable; or


 


(p)           so long as the CLI Guaranty
remains in effect, the occurrence of any of the events or conditions set forth
in any of clauses (8), (10), (13) or (15) of Section 10.01 of the
Management Agreement;


 


then,
and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall,
by notice in writing to the Borrower terminate the Commitments and/or 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 of the type 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.  The
Borrower shall promptly (but in no event within five (5) Business Days)
provide to each Interest Rate Hedge Provider a copy of each notice and/or
declaration received by the Borrower pursuant to the provisions of this Section 13.1.


 


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


 


13.3        Distribution
of Collateral Proceeds.  In
the event that, following the occurrence or during the continuance of any 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


 


71

















 


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; and


 


(b)           Second, as set forth in part
(II) of Section 4.1(d).


 


14.          THE
ADMINISTRATIVE AGENT.


 


14.1        Authorization;
Reliance by Administrative Agent.


 


(a)           Each of the Lenders hereby
irrevocably appoints Wells Fargo Securities, LLC to act on its behalf as the
Administrative Agent under this Credit Agreement and 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 Article are solely
for the benefit of the Administrative Agent and the Lenders, and the Borrower
shall not have rights as a third party beneficiary of, nor otherwise have any
incremental obligations on account of, any of such provisions.


 


(b)           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 Credit 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 Credit 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.


 


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


 


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(d)           As an independent contractor
empowered by the Lenders to exercise certain rights and perform certain duties
and responsibilities hereunder and under the other Loan Documents, the
Administrative Agent is nevertheless a “representative” of the Lenders, as that
term is defined in Article 1 of the Uniform Commercial Code, for purposes
of actions for the benefit of the Lenders and the Administrative Agent with
respect to all collateral security and guaranties contemplated by the Loan
Documents.  Such actions include the
designation of the Administrative Agent as “secured party”, “mortgagee” or the
like on all financing statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment, perfection, priority or
enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Lenders and the Administrative Agent.


 


14.2        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, and all
reasonable fees and expenses of any such Persons shall be paid by the Borrower.
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 their respective
Related Parties. The exculpatory provisions of this Article 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 their respective activities in
connection with the syndication of the credit facilities provided for herein.


 


14.3        Exculpatory
Provisions.  The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting
the generality of the foregoing, the 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 Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents), provided
that the 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 Required Lenders (or such other number or percentage
of the


 


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Lenders as shall be
necessary), or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Section 16.12 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,
Early Amortization Event or Event of Default unless and until notice describing
such Default, Early Amortization Event or an 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, Early Amortization Event 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, (v) the value of any Collateral or (vi) 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.


 


14.4        No
Representations.


 


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


 


14.4.2.     Closing Documentation, etc.  For purposes of determining compliance with
the conditions set forth in Sections 11 or 12, each Lender that has executed
this Credit Agreement shall be deemed to have consented to, approved or
accepted, or to be satisfied with, each document and matter either sent, or
made available, by the Administrative Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender, unless an officer of
the Administrative Agent active upon the Borrower’s account shall have received
notice from such Lender prior to the Closing Date or Funding Date, as
applicable, specifying such Lender’s objection thereto and such objection shall
not have been withdrawn by notice to the Administrative Agent to such effect on
or prior to the Closing Date or Funding Date, as applicable.


 


14.4.3.     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


 


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other
Loan Document or any related agreement or any document furnished hereunder or
thereunder.


 


14.5        Payments.


 


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


 


14.5.2.     Distribution by Administrative Agent.  If in the opinion
of the Administrative Agent the distribution of any amount received by it in
such capacity hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been adjudicated
by a court of competent jurisdiction.  If
a court of competent jurisdiction shall adjudge that any amount received and
distributed by the Administrative Agent is to be repaid, each Person to whom
any such distribution shall have been made shall either repay to the
Administrative Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such Persons as shall
be determined by such court.


 


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


 


14.6        Holders
of Notes.  The
Administrative Agent may deem and treat the payee of any Note as the absolute
owner or purchaser thereof for all purposes hereof until it shall have


 


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been furnished in writing
with a different name by such payee or by a subsequent holder, assignee or
transferee.


 


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


 


14.8        Rights
as 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 other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


 


14.9        Resignation
of Administrative Agent.  The
Administrative Agent may at any time by giving thirty (30) days prior written
notice of its resignation to the Lenders and each Interest Rate Hedge Provider
and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right to appoint a successor, which (i) shall be a
bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States and (ii) unless a Default or Event of
Default shall have occurred and be continuing, shall be reasonably acceptable
to the Borrower. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders, appoint a successor
Agent which shall be a financial institution having a rating of not less than
“A” or its equivalent by S&P.  If the
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 Agent shall continue
to hold such collateral security until such time as a successor Administrative
Agent is appointed) and (2) all 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
Required Lenders appoint a successor Administrative Agent as provided for above
in this paragraph. Upon the acceptance of a successor’s


 


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appointment as Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring (or retired) 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
paragraph). 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 (or retired)
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 16.3 shall
continue in effect for the benefit of such retiring (or retired) 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 (or
retired) Administrative Agent was acting as Administrative Agent.


 


14.10      Notification
of Defaults, Early Amortization Events and Events of Default.  Each Lender hereby agrees that, upon
obtaining knowledge of the existence of any Default, Early Amortization Event
or Event of Default, it shall promptly notify the Administrative Agent thereof.  The Administrative Agent hereby agrees that
upon receipt of any notice under this Section 14.10, the Administrative
Agent shall promptly notify the other Lenders of the existence of such Default,
Early Amortization Event or Event of Default.


 


14.11      Duties
in the Case of Enforcement.  In case one of more Events of Default have
occurred and shall be continuing, and whether or not acceleration of the
Obligations shall have occurred, the Administrative Agent shall, if (a) so
requested by the Required Lenders and (b) the Lenders have provided to the
Administrative Agent such additional indemnities and assurances against
expenses and liabilities as the Administrative Agent may reasonably request,
proceed to enforce the provisions of the Security Documents authorizing the
sale or other disposition of all or any part of the Collateral and exercise all
or any such other legal and equitable and other rights or remedies as it may
have in respect of such Collateral.  The
Required Lenders may direct the Administrative Agent in writing as to the
method and the extent of any such sale or other disposition, the Lenders hereby
agreeing to indemnify and hold the Administrative Agent, harmless from all
liabilities incurred in respect of all actions taken or omitted in accordance
with such directions, provided that the Administrative Agent need not comply
with any such direction to the extent that the Administrative Agent reasonably
believes the Administrative Agent’s compliance with such direction to be
unlawful or commercially unreasonable in any applicable jurisdiction.


 


14.12      Administrative
Agent May File Proofs of Claim.


 


(a)           In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial, administrative or like
proceeding or any assignment for the benefit of creditors relative to the
Borrower, the Administrative Agent (irrespective of whether the principal of
any Credit 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, under any such assignment or otherwise:


 


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(i)            to file and prove a claim for the whole amount of
the principal and interest owing and unpaid in respect of the Credit 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 the terms of this
Credit Agreement and the other Loan Documents) allowed in such proceeding or
under any such assignment; and


 


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


 


(b)           Any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such proceeding or under any such assignment is hereby authorized by each Lender
to make such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to
the Lenders, nevertheless 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 4.1, 5.1, 16.2 and 16.3.


 


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


 


15.          ASSIGNMENT.


 


15.1        General
Conditions.  The
provisions of this Credit Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender. 
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 15.5
(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.


 


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


 


(a)           except in the cases of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Credit 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 5.1.2, 5.1.4, 5.4, 5.5, 5.6, and 5.8 with
respect to facts and circumstances occurring prior to the effective date of
such assignment and (ii) 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.


 


15.3        Register.  The Administrative 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 (the “Register”) for the recordation of
the names


 


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and addresses of the
Lenders, and the Commitments of, and principal amounts of the Credit Loans
owing to, each Lender pursuant to the terms hereof from time to time.  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, (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, and (d) so long as no Default or
Event of Default has occurred and is then continuing, the approval of the
Borrower (not to be unreasonably withheld or delayed) shall be required in
connection with the sale of a participant interest to a Person other than (i) another
Lender, (ii) an Affiliate of such Lender or (iii) an Approved Fund; provided, however that this clause (d) shall not be
applicable to participations sold by a Lender if the participation interest
sold does not exceed 50% of the Commitment of such Lender on the date of the
sale of such participation interest.


 


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 5.1.2, 5.1.4, 5.4, 5.5, 5.6 and 5.8 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to
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 Foreign 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.


 


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 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 an Approved Fund, to any lender or any trustee
for, or any other


 


80

















 


representative of, holders
of obligations owed or securities issued by such Approved Fund as security for
such obligations or securities or any institutional custodian for such Approved
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 (if any) 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).  If requested, 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;
Proration of Payments.  The
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 or other sums credited by or
due from any of the Lenders to the Borrower and any securities or other
property of the Borrower in the possession of such Lender may, to the extent
permitted by applicable law, be applied to or set off by such Lender against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Lender.  ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT
TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.


 


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Each of the Lenders agree
with each other Lender that (a) if an amount to be set off is to be
applied to that portion of Obligation of the Borrower to such Lender, other
than the Obligation evidenced by the Credit Loan held by such Lender, such
amount shall be applied ratably to such other indebtedness and to the
indebtedness evidenced by all such Credit Loans 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 Credit Loans 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,
and shall retain and apply to the payment of the Credit Loans held by such
Lender any amount in excess of its ratable portion of the payments received by
all of the Lenders with respect to the Credit Loan owed to all of the Lenders,
such Lender will make such disposition and arrangements with the other Lenders
with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Lender receiving in respect of the Credit
Loan held by it, its proportionate payment as contemplated by this Credit
Agreement; provided, that if all or any part of such excess payment is
thereafter recovered from such Lender, such disposition and arrangements shall
be rescinded and the amount restored to the extent of such recovery, but
without interest.


 


16.2        Expenses.  The Borrower agrees to pay (a) the
reasonable costs of the 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 as
provided in the Fee Letter, 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
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 Secured
Party, and each Related Party of


 


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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 Credit
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 Affiliate 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 an
Affiliate (including reasonable counsel fees and disbursements) incurred in
connection with defense thereof by, the Administrative Agent or any Secured
Party 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 Secured Parties and the 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 Secured Parties 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 Secured Parties and the Administrative Agent using their
reasonable good faith judgment), the Secured Parties 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 non-public information


 


83

















 


supplied
to it by the Borrower pursuant to this Credit Agreement that is identified by
such Person as being confidential at the time the same is delivered to the
Lenders or the Administrative Agent, provided that nothing herein shall limit
the disclosure of any such information (a) after such information shall
have become public other than through a violation of this 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, so long as such
information is disclosed to such Persons on a confidential basis and such
Persons are made aware of the applicability thereto of the provisions of this Section 16.4.1,
(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, so long as such information is disclosed to such Persons
on a confidential basis and such Persons are made aware of the applicability
thereto of the provisions of this Section 16.4.1, (h) to any actual
or prospective assignee of, or participant in, a Credit Loan and/or Commitment
or any actual or prospective counterparty (or its advisors) to any swap or
derivative transactions referenced to credit or other risks or events arising
under this Credit Agreement or any other Loan Document so long as such assignee
or counterparty, as the case may be, agrees to be bound by the provisions of Section 16.4
or (i) with the prior written consent of the Borrower.  Notwithstanding anything herein to the
contrary: (i) each party hereto (and each employee, representative or
other agent of such party) may disclose to any and all Persons, beginning
immediately upon commencement of discussions regarding the transactions
contemplated hereby, and without limitation of any kind, any information with
respect to the “tax treatment” and “tax structure” (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to such party (or such employee, representative
or other agent of such party) relating to such tax treatment and tax structure;
provided that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of the
transaction as well as other information, this sentence shall only apply to
such portions of the document or similar item that relate to the tax treatment
or tax structure of the Loans, Letters of Credit and transactions contemplated
hereby; and (ii) any Lender may disclose confidential information, without
notice to the Borrower, to governmental regulatory authorities in connection
with any regulatory examination of such Lender or in accordance with such
Lender’s regulatory compliance policy.


 


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 non-public information by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) or pursuant to
legal process.


 


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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 any interest in any of the Credit Loans and shall apply to all
information delivered to such Person either before or after the date of this
Credit Agreement.


 


16.5        Survival
of Covenants, Etc.  All
covenants, agreements, representations and warranties made herein, in 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 of the Credit Loans as herein contemplated, and shall
continue in full force and effect so long as any amount due under this Credit
Agreement or any of the other Loan Documents remains outstanding or any Lender
has any obligation to make any Credit 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 or such Subsidiary hereunder that the matters set forth therein
are true and correct in all material respects as of the time delivered.


 


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


 


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


 


(b)           if to the Administrative
Agent, at 301 South College Street, NC0174, Charlotte, NC 28202-600, or such
other address for notice 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 confirmation of transmission of such facsimile and (ii) if
sent by registered or certified first-class


 


85

















 


mail, postage prepaid, on
the fifth Business Day following the mailing thereof.  Any notice or other communication to be made
hereunder, even if otherwise required to be in writing under other provisions
of this Credit Agreement 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, 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.


 


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


 


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


 


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


 


86

















 


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.  THE
BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT AGREEMENT 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, THE BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.  THE BORROWER (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE ADMINISTRATIVE
AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR 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, 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 Required 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 or forgive the principal amount of any Credit
Loan, or reduce the rate of interest on the Notes (other than interest accruing


 


87

















 


pursuant
to Section 5.10 following the effective date of any waiver by the Required
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 (it being understood
that any amendments or waivers that have the effect of waiving or eliminating
any Default or Event of Default shall not constitute an increase in any
Lender’s Commitment);


 


(iii)          postpone or extend the Maturity Date or any other
regularly scheduled dates for payments of principal of, or interest on, the
Credit 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 Credit Loans and other Obligations shall require only the approval of the
Required Lenders); and


 


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


 


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


 


(c)           without the written consent
of the Administrative Agent, amend or waive Section 14, the amount or time
of payment of the Fees payable for the Administrative Agent’s account or any
other provision applicable to the Administrative Agent;


 


(d)           without the written consent
of each Interest Rate Hedge Provider (A) directly and adversely effected
thereby, (i) amend, modify or waive any rights expressly granted to it
under this Credit Agreement or the other Loan Documents (including, without
limitation, the right to receive notices, to be secured by the Collateral, have
certain payment priorities in the “waterfall” order of payments set out in Section 4.1
and to consent to certain amendments); (ii) impair the Collateral or
permit any Liens to be imposed on the Collateral, except as expressly permitted
pursuant to the terms of this Credit Agreement and the other Loan Documents; or
(iii) waive an Event of Default if, at the time of such waiver, an
Interest Rate Hedge Agreement has been previously terminated and the Interest
Rate Hedge Provider is owed any payments on account thereof; or (B) with
respect to any other provision not addressed in clause (A), be effective if such
amendment, modification or waiver could reasonably be expected to have a
material adverse effect on such Interest Rate Hedge Provider.


 


88

















 


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.  The
Required Lenders shall take such actions, including executing and filing
appropriate releases in connection with a sale, transfer or other disposition
(including by lease) of Collateral permitted by the terms of this Credit
Agreement.


 


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


 


16.14      Third
Party Beneficiary.  Each
Interest Rate Hedge Provider is an express third party beneficiary hereof
entitled to rely on and enforce the rights expressly granted to it in any
representation, warranty, covenant and agreement hereunder as if such Interest
Rate Hedge Provider was a party hereto; provided, however,
that the exercise of any remedy with respect to the Collateral must be enforced
through the Administrative Agent and only if such exercise of remedies is
otherwise permitted pursuant to the terms of this Credit Agreement and the
other Security Documents.


 


[Remainder of Page Intentionally Blank]


 


89

















 


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


 


	
   

  	
  CLI
  FUNDING IV LLC, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David F. Doorley

  
	
   

  	
  Name:

  	
  David F. Doorley

  
	
   

  	
  Title:

  	
  Treasurer

  



 


Credit
Agreement


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jerri A. Kallam

  
	
   

  	
  Name:

  	
  Jerri A. Kallam

  
	
   

  	
  Title:

  	
  Director

  



 


Credit
Agreement


 

















 


	
   

  	
  WELLS
  FARGO SECURITIES, LLC

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jessica Gray

  
	
   

  	
  Name:

  	
  Jessica Gray

  
	
   

  	
  Title:

  	
  Managing Director

  



 


Credit
Agreement


 

















 


Schedule 1


 


Lenders and Commitments


 


	
  Lenders

  	
   

  	
  Commitment

  	
   

  	
  Commitment

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  200,000,000

  	
   

  	
  100.000

  	
  %

  
							



 

















 


Schedule 7.15


 


Bank Accounts


 


The Borrower has no bank
accounts other than the accounts created under the Transaction Documents for
the benefit of the Collateral Agent (on behalf of the Secured Parties).


 


94