CAI RAIL INC.

---

EXHIBIT 99.1

Dated as of July 25, 2014

by and among

CAI RAIL INC.

(as “Borrower”)

(as “Guarantor”)

THE LENDERS LISTED ON SCHEDULE 1 HERETO

MUFG UNION BANK, N.A.

as Administrative Agent (the “Administrative Agent”),

Sole Lead Arranger and Sole Bookrunner

 

ING Bank, branch of ING-Diba AG

(as "Syndication Agent")

And

The Huntington National Bank

(as "Documentation Agent")

---

			PAGE
1	DEFINITIONS AND RULES OF INTERPRETATION		1
	1.1.	Definitions	1
	1.2.	Rules of Interpretation.	31
	1.3.	Accounting Terms.	32
	1.4.	Rounding.	32
2	THE SENIOR CREDIT FACILITY.		33
	2.1.	Commitment to Lend.	33
	2.2.	Commitment Fee	33
	2.3.	Reduction of Total Commitment	33
	2.4.	Evidence of Debt	34
	2.5.	Interest	34
	2.6.	Requests for Revolving Credit Loans	35
	2.7.	Conversion Options	35
	2.8.	Funds for Revolving Credit Loans	36
	2.9.	Change in Borrowing Base	37
	2.10.	Swing Line Loans	37
	2.11.	Delinquent Lenders	40
	2.12.	Payments Generally	41
	2.13.	Sharing of Payments by Lenders	41
	2.14.	Increase in Commitments	42
3	REPAYMENT OF THE LOANS		43
	3.1.	Maturity	43
	3.2.	Mandatory Repayments of Revolving Credit Loans	44
	3.3.	Optional Repayments of Revolving Credit Loans and Swing Line Loans.	44
4	LETTERS OF CREDIT		44
	4.1.	Letter of Credit Commitments	45
	4.2.	Reimbursement Obligation of the Borrower	48
	4.3.	Letter of Credit Payments	49
	4.4.	Obligations Absolute	51
	4.5.	Role of Issuer	51
	4.6.	Letter of Credit Fees	52
	4.7.	Cash Collateral	52
	4.8.	Conflict with Issuer Documents	52
	4.9.	Letters of Credit Issued for Subsidiaries	52
	4.10.	Replacement of L/C Issuer	52
5	CERTAIN GENERAL PROVISIONS		53
	5.1.	Fees	53

	5.2.	Funds for Payments	53
	5.3.	Computations	55
	5.4.	Inability to Determine Eurodollar Rate	55
	5.5.	Illegality	56
	5.6.	Additional Costs, etc	56
	5.7.	Capital Adequacy	57
	5.8.	Certificate; Delay	58
	5.9.	Indemnity	58
	5.10.	Interest After Default	58
	5.11.	Survival	59
6	COLLATERAL SECURITY AND GUARANTIES		60
	6.1.	Collateral Security and the Guarantors	60
	6.2.	Guaranties by CAI and Domestic Subsidiaries of Borrower	60
	6.3.	Release of Railcars and Leases	60
7	REPRESENTATIONS AND WARRANTIES		60
	7.1.	Corporate Authority	60
	7.2.	Governmental or Third Party Approvals	60
	7.3.	Title to Properties; Leases	60
	7.4.	Financial Statements and Projections	60
	7.5.	No Material Adverse Changes; No Disallowed Restricted Payments	61
	7.6.	Franchises, Patents, Copyrights, etc	61
	7.7.	Litigation	61
	7.8.	No Materially Adverse Contracts, etc	62
	7.9.	Compliance with Other Instruments, Laws, etc	62
	7.10.	Tax Status	62
	7.11.	No Event of Default	62
	7.12.	Investment Company Act	62
	7.13.	Absence of Financing Statements, etc	62
	7.14.	Perfection of Security Interest	62
	7.15.	Certain Transactions	63
	7.16.	Employee Benefit Plans	63
	7.17.	Use of Proceeds	64
	7.18.	Environmental Compliance	64
	7.19.	Subsidiaries, etc	65
	7.20.	Collection Accounts	65
	7.21.	Disclosure	65
	7.22.	Registration of Security Interest	65
	7.23.	Solvency	65
	7.24.	Insurance	65
	7.25.	Sanctions Laws	66
	7.26.	Taxpayer Identification Number	66
	7.27.	Updates to Certain Schedules	66
	7.28.	OFAC	66

	7.29.	USA Patriot Act	66
8	AFFIRMATIVE COVENANTS		67
	8.1.	Punctual Payment	67
	8.2.	Maintenance of Office	67
	8.3.	Records and Accounts	67
	8.4.	Financial Statements, Certificates and Information	67
	8.5.	Notices	70
	8.6.	Legal Existence; Maintenance of Properties	71
	8.7.	Insurance	71
	8.8.	Taxes	72
	8.9.	Inspection of Properties and Books, etc	72
	8.10.	Compliance with Laws, Contracts, Licenses, and Permits	73
	8.11.	Employee Benefit Plans	73
	8.12.	Use of Proceeds	73
	8.13.	Collection Accounts	73
	8.14.	Marking of Railcars	74
	8.15.	Registration of Railcars; Administrative Agent’s Lien	74
	8.16.	New Guarantors	74
	8.17.	Maintenance; Possession; Compliance with Laws	74
	8.18.	Intellectual Property; Operations Support Systems	75
	8.19.	Modification	76
	8.20.	Further Assurances	77
	8.21.	“Know your Customer” Information	77
9	CERTAIN NEGATIVE COVENANTS		77
	9.1.	Restrictions on Indebtedness	78
	9.2.	Restrictions on Liens	79
	9.3.	Restrictions on Investments	82
	9.4.	Restricted Payments	83
	9.5.	Merger, Acquisitions and Consolidation; Disposition of Assets	83
	9.6.	Sale and Leaseback	84
	9.7.	Compliance with Environmental Laws	84
	9.8.	Employee Benefit Plans. No Loan Party or any ERISA Affiliate will:	84
	9.9.	Business Activities	85
	9.10.	Fiscal Year	85
	9.11.	Transactions with Affiliates	85
	9.12.	Negative Pledge Regarding Capital Stock of the Borrower	85
	9.13.	Commingling of Assets	86
	9.14.	No Change to Depreciation Policy	86
	9.15.	Sanctions	86
10	FINANCIAL COVENANTS		86
	10.1.	Maximum Consolidated Funded Debt to Consolidated Tangible Net Worth	86
	10.2.	Minimum Fixed Charge Coverage Ratio	86

11	CLOSING CONDITIONS		87
	11.1.	Loan Documents etc	87
	11.2.	Certified Copies of Governing Documents	87
	11.3.	Corporate or Other Action	87
	11.4.	Incumbency Certificate	87
	11.5.	Validity of Liens	87
	11.6.	Asset List; Perfection Certificates and UCC Search Results	87
	11.7.	Certificates of Insurance	88
	11.8.	Borrowing Base Report	88
	11.9.	Financial Condition	88
	11.10.	Opinions of Counsel	88
	11.11.	Payment of Fees	88
	11.12.	No Material Adverse Change	88
12	CONDITIONS TO ALL BORROWINGS		88
	12.1.	Representations True; No Event of Default	89
	12.2.	No Legal Impediment	89
	12.3.	Governmental Regulations	89
	12.4.	Proceedings and Documents	89
	12.5.	Borrowing Base Report	89
	12.6.	Borrowing Base Compliance	89
	12.7.	List of Additional Railcars; Update of Security Documents	89
13	EVENTS OF DEFAULT; ACCELERATION; ETC		90
	13.1.	Events of Default and Acceleration	90
	13.2.	Termination of Commitments	93
	13.3.	Remedies	93
	13.4.	Distribution of Collateral Proceeds	93
14	THE ADMINISTRATIVE AGENT		94
	14.1.	Authorization	94
	14.2.	Employees and Administrative Agents	95
	14.3.	No Liability	96
	14.4.	No Representations	96
	14.5.	Payments	98
	14.6.	Holders of Revolving Credit Notes	98
	14.7.	Indemnity	98
	14.8.	Administrative Agent as Lender, etc	98
	14.9.	Resignation	99
	14.10.	Notification of Defaults and Events of Default	100
	14.11.	Duties in the Case of Enforcement	100
	14.12.	Administrative Agent May File Proofs of Claim	100
	14.13.	Collateral and Guaranty Matters	101
	14.14.	Withholding Tax	101
	14.15.	Intercreditor and Collateral Agency Arrangements	102

15	ASSIGNMENT AND PARTICIPATION		102
	15.1.	Conditions to Assignment	102
16	PROVISIONS OF GENERAL APPLICATIONS		106
	16.1.	Setoff	106
	16.2.	Expenses	106
	16.3.	Indemnification	107
	16.4.	Treatment of Certain Confidential Information	108
	16.5.	Survival of Covenants, Etc	109
	16.6.	Notices	109
	16.7.	Governing Law	111
	16.8.	Headings	111
	16.9.	Counterparts	111
	16.10.	Entire Agreement, Etc	111
	16.11.	Waiver of Jury Trial	112
	16.12.	Consents, Amendments, Waivers, Etc	112
	16.13.	Severability	114
	16.14.	USA PATRIOT Act Notice	114
	16.15.	Ratification of Original Agreement	114
	16.16.	No Advisory or Fiduciary Responsibility	114
	16.17.	FATCA	115
	16.18.	Titles	115
17	GUARANTY		115
	17.1.	Guaranty	115
	17.2.	Rights of Lenders	115
	17.3.	Certain Waivers	116
	17.4.	Obligations Independent	116
	17.5.	Subrogation	116
	17.6.	Termination; Reinstatement	116
	17.7.	Subordination	117
	17.8.	Stay of Acceleration	117
	17.9.	Condition of Borrower	117
18	ACKNOWLEDGEMENT		117

---

		Exhibits
Exhibit A		Form of Borrowing Base Report
Exhibit B		Form of Revolving Credit Note
Exhibit C		Form of Loan Request
Exhibit D		Form of Compliance Certificate
Exhibit E		Form of Assignment and Assumption
Exhibit F		Swing Line Loan Notice
Exhibit G		Form of Guaranty
Exhibit H		CAI Rail Guaranty
		Schedules
Schedule 1		Lenders and Commitments
Schedule 2		List of Permitted Mexican Lessees
Schedule 7.3		Title to Properties; Leases
Schedule 7.7		Litigation
Schedule 7.15		Certain Transactions
Schedule 7.19		Subsidiaries
Schedule 7.20		Bank Accounts
Schedule 7.24		Insurance Maintained by Borrower on Restatement Date
Schedule 9.1		Existing Indebtedness
Schedule 9.2		Existing Liens
Schedule 9.3		Existing Investments
Schedule 16.6.1		Certain Addresses for Notices

---

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of July 25, 2014, by and among CAI RAIL INC., a Delaware corporation having its principal place of business at ▇▇▇▇▇▇▇ Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Borrower”), CAI INTERNATIONAL, INC., a Delaware corporation and successor by merger to Container Applications International, Inc., a Nevada corporation, having its principal place of business at ▇▇▇▇▇▇▇ Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“CAI” or the “Guarantor”), the lending institutions from time to time listed on Schedule 1 hereto (the “Lenders”) and MUFG UNION BANK, N.A., as administrative agent for itself and the other Lenders (in such capacity, the “Administrative Agent”), and acting as sole lead arranger and as sole bookrunner.

RECITALS

WHEREAS, the Borrower, the Guarantor, the Administrative Agent and various financial institutions have previously entered into a revolving credit agreement, dated as of June 7, 2012 (as amended and modified through the date hereof, the “Original Agreement”), which provides for revolving credit loans and other credit extensions to the Borrower with the maximum principal amount outstanding at any one time not to exceed the sum of the Commitments then in effect;

WHEREAS, the Borrower, the Guarantor, the Administrative Agent and the existing and additional lenders have agreed, subject to occurrence of certain events and the satisfaction of certain conditions, to (i) increase the Total Commitments to Two Hundred Fifty Million Dollars ($250,000,000), (ii) adjust certain of the economic terms applicable to the Loans and (iii) make certain amendments to the Original Agreement and, for ease of reference, to restate the Original Agreement in its entirety on the terms set forth herein;

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

AAR.  The Association of American Railroads and any successor association or associations.

Account Control Agreement.  An account control agreement, in form and substance satisfactory to the Administrative Agent, by and among (i) the Borrower or relevant Guarantor, (ii) the relevant financial institution maintaining a Collection Account on behalf of the Borrower or relevant Guarantor, (iii) the Administrative Agent for the benefit of the Secured Parties and (iv) any other parties thereto (if any).

Accounts Receivable.  All accounts (as defined in the Uniform Commercial Code) and rights of the Borrower or any of its Subsidiaries to payment for goods sold, leased or otherwise marketed in the ordinary course of business and all rights of the Borrower or any of its Subsidiaries to payment for services rendered in the ordinary course of business and all sums of money or other proceeds due thereon pursuant to transactions with account debtors, except for that portion of the sum of money or other proceeds due thereon that relate to sales, use or property taxes in conjunction with such transactions, recorded on books of account in accordance with GAAP.

---

Accumulated Depreciation.  With respect to any Railcar as of the date of determination, an amount equal to the aggregate amount of depreciation expense recorded with respect to such Railcar since the date of original acquisition by the Borrower, according to the Borrower’s depreciation policy as determined in accordance with GAAP and as depreciation policy may be modified in accordance with Section 9.14.

Additional Lender.  See §2.14(c).

Administrative Agent’s Office.  The Administrative Agent’s office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, MC ▇-▇▇▇-▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇  ▇▇▇▇▇, or at such other location as the Administrative Agent may designate from time to time.

Administrative Agent.  MUFG Union Bank, N.A., acting as administrative agent for the Lenders, and each other Person appointed as the successor Administrative Agent in accordance with §14.9.

Administrative Agent’s Special Counsel.  Dentons US LLP or such other counsel as may be approved by the Administrative Agent.

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

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

Agent Parties.  See §16.6.3.

Aggregate Asset Value.  As of any date of determination, an amount equal to the sum of the then Aggregate Net Book Value and the then Aggregate Finance Lease Value.

Aggregate Finance Lease Value.  As of any date of determination, an amount equal to the then Finance Lease Values of all Eligible Direct Finance Leases.

Aggregate Indebtedness.  As of any date of determination, an amount equal to the sum of (i) the then outstanding principal amount of all Revolving Credit Loans, (ii) the then Maximum Drawing Amount and all Unpaid Reimbursement Obligations, and (iii) the then outstanding principal amount of all Swing Line Loans.

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 Railcars.

Anti-Money Laundering Laws.  All laws, rules, and regulations of any jurisdiction relevant to any Lender, the Borrower, the Borrower’s Subsidiaries or any Guarantor concerning or relating to anti-money laundering.

Applicable Margin.  The percentages per annum set forth in ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ or Level V in the chart immediately below, as applicable based upon the ratio of Consolidated Funded Debt to Consolidated Tangible Net Worth as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to §8.4(d):

---

Level	Ratio of Consolidated Funded Debt to Consolidated Tangible Net Worth	Eurodollar Rate Loans	Base Rate Loans	Commitment Fee	Letter of Credit Fees
I	> 3.00x	2.00%	1.00%	0.30%	2.00%
II	≤ 3.00x and > 2.50x	1.75%	0.75%	0.25%	1.75%
III	≤ 2.50x and > 2.00x	1.50%	0.50%	0.20%	1.50%
IV	≤ 2.00x and > 1.50x	1.25%	0.25%	0.20%	1.25%
V	≤ 1.50x	1.00%	0.00%	0.15%	1.00%

Any increase or decrease in the Applicable Margin resulting from a change in the ratio of Consolidated Funded Debt to Consolidated Tangible Net Worth shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to §8.4(d); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such §, then, upon the request of the Required Lenders, Level I shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.

Notwithstanding the foregoing to the contrary, in the event either the Borrower or the Administrative Agent determines, in good faith, that the calculation of the ratio of Consolidated Funded Debt to Consolidated Tangible Net Worth on which the Applicable Margin for any particular period was determined is inaccurate and, as a consequence thereof, the Applicable Margin was lower or higher than it should have been, (i) the Borrower shall promptly deliver (but in any event within ten (10) Business Days after the Borrower discovers such inaccuracy or the Borrower is notified by the Administrative Agent of such inaccuracy, as the case may be) to the Administrative Agent correct financial statements for such period (and if such financial statements are not accurately restated and delivered within thirty (30) days after the first discovery of such inaccuracy by the Borrower or such notice, as the case may be, and the Applicable Margin was lower than it should have been, then Level I shall apply retroactively for such period until such time as the correct financial statements are delivered and, upon the delivery of such corrected financial statements, thereafter the corrected Level shall apply for such period), (ii) the Administrative Agent shall determine and notify the Borrower of the amount of interest that would have been due in respect of outstanding Obligations, if any, during such period had the Applicable Margin been calculated based on the correct ratio of Consolidated Funded Debt to Consolidated Tangible Net Worth (or, to the extent applicable, the Level I Applicable Margin if such corrected financial statements were not delivered as provided herein) and (iii) the Borrower shall promptly pay to the Administrative Agent the difference, if any, between that amount and the amount actually paid in respect of such period.  The foregoing notwithstanding shall in no way limit the rights of the Administrative Agent or the Lenders to exercise their rights to impose the rate of interest applicable during an Event of Default as provided herein.

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.

Arranger.  MUFG Union Bank, N.A. in its capacity as sole lead arranger.

---

Assignee Group.  Two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

Assignment and Assumption.  An assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by §15.1.1), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.

Auto-Extension Letter of Credit.  See §4.1.6.

Balance Sheet Date.  December 31, 2013.

Base Rate.  For any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%, and (b) the Reference Rate.

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

Borrower.  As defined in the preamble hereto.

Borrower Materials.  See §8.4.

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 pursuant to §8.4(f) which is equal to the sum of (A) the product of (x) eighty percent (80.00%) and (y) the then Aggregate Net Book Value plus (B) the product of (x) eighty five percent (85%) and (y) the then Aggregate Finance Lease Value, minus the sum of (C) the Excess Permitted Mexican Lessee Amount and (D) the Excess of Unassignable Leases Amount.  For purposes of calculating the amount of the Borrowing Base a specific Railcar and any related lease agreement of such Railcar then in effect shall be included in either the Aggregate Net Book Value or Aggregate Finance Lease Value but not both.

Borrowing Base Deficiency.  The condition that will exist on any day if the Aggregate Indebtedness exceeds the Borrowing Base; if used in a quantitative context, the term shall mean the amount of such excess.

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

Business Day.  Any day on which banking institutions in San Francisco, California, are open for the transaction of banking business and, in the case of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.

CAI.  See Introductory Paragraph.

Capital Assets.  Fixed assets, both tangible (such as land, buildings, fixtures, machinery and equipment) and intangible (such as patents, copyrights, trademarks, franchises and good will); provided that Capital Assets shall not include any item customarily charged directly to expense or depreciated over a useful life of twelve (12) months or less in accordance with GAAP.

---

Capital Expenditures.  Amounts paid or Indebtedness incurred by any Loan Party or any of its Subsidiaries in connection with (i) the purchase or lease by any Loan Party or any of its Subsidiaries of Capital Assets that would be required to be capitalized and shown on the balance sheet of such Person in accordance with GAAP or (ii) the lease of any assets by any Loan Party or any of its Subsidiaries as lessee under any Synthetic Lease to the extent that such assets would have been Capital Assets had the Synthetic Lease been treated for accounting purposes as a Capitalized Lease.

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

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

Cash Collateralize.  To pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Exposure, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in each case in an amount equal to 105% of the related exposure pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable).  Cash Collateral shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Management Agreement.  Any agreement to provide cash management services to the Borrower or any Domestic Subsidiary of the Borrower, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

CERCLA.  See §7.18.1.

Change in Law.  The occurrence, after the Restatement Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith, (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlement, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities pursuant to Basel III, and (z) the implementation or application of, or compliance with, CRD IV or CRR, or any law or regulation that implements or applies CRD IV or CRR shall, in each case, be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented, but, in the case of any such requests, guidelines or directives enacted, adopted, issued or implemented on or before the Restatement Date, only to the extent such requests, guidelines, directives, implementing rules or regulations or changes thereto become effective, or are issued, after the Restatement Date.  As used herein, “CRD IV” means Directive 2013/36/EU of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directive 2006/48/EC and 2006/49/EC, and “CRR” means regulation (EU) no. 575/2013 of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending regulation (EU) No. 648/2012.

---

Change of Control.  An event or series of events by which:

 

(a)      any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than the Equity Investors becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of thirty percent (30%) or more of the equity securities of CAI entitled to vote for members of the board of directors or equivalent governing body of CAI on a fully-diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right);

(b)      during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of CAI cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors);

(c)      any Person or two or more Persons acting in concert, other than one or more of the Equity Investors, shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of CAI, or control over the equity securities of CAI entitled to vote for members of the board of directors or equivalent governing body of CAI on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) representing thirty percent (30%) or more of the combined voting power of such securities;

 

---

CAI Rail Guaranty.  A guaranty, substantially in the form of Exhibit H attached hereto, issued by the Borrower in respect of the obligations of CAI and various Subsidiaries of CAI under the Senior Revolving Credit Agreement.

Code.  The Internal Revenue Code of 1986.

Collateral.  All assets of the Borrower and each Guarantor that is a Domestic Subsidiary of the Borrower that is subject to the Liens created by the Security Documents.  For the avoidance of doubt, Collateral shall include, without limitation, all Eligible Railcars and all products and proceeds of the foregoing.

Collection Account.  Either (i) any bank account (including any deposit account or securities account) which is subject to an Account Control Agreement (or such other agreement(s) required under applicable law required) in favor of the Administrative Agent, for the benefit of the Secured Parties, which agreement creates for the benefit of the Administrative Agent, on behalf of the Secured Parties, a first priority perfected security interest in and Lien upon such bank account and the cash and other amounts held therein; or (ii) upon the establishment of an intercreditor agreement in accordance with the provisions of §14.15 hereof, any bank account (including any deposit account or securities account) that is subject to a first priority perfected security interest in favor of a collateral agent, for the benefit of the lenders to the Borrower and/or its Domestic Subsidiaries or lenders’ representatives (including the Administrative Agent), that are party to such intercreditor agreement from time to time.

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

Commitment Fee.  See §2.2.

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

Commodity Exchange Act.  The Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statement.

Compliance Certificate.  See §8.4(d).

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

 

Consolidated EBITDA.  With respect to any fiscal period, an amount equal to the sum of (a) Consolidated Net Income (or Deficit) of CAI and its Subsidiaries for such fiscal period, plus (b) in each case to the extent deducted in the calculation of such Person’s Consolidated Net Income and without duplication, (i) depreciation and amortization for such period, plus (ii) income tax expense for such period, plus (iii) Consolidated Total Interest Expense paid or accrued during such period, plus (iv) other noncash charges for such period, plus (c) principal payments received by CAI or any of its Subsidiaries during such period with respect to Direct Finance Leases, all as determined in accordance with GAAP.

---

Consolidated EBITDAR.  With respect to any fiscal period of CAI and its Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA for such fiscal period plus (b) consolidated rental expense on Rental Obligations for such fiscal period as determined in accordance with GAAP.

Consolidated Funded Debt.  At any time of determination, with respect to CAI and its Subsidiaries, the sum, without duplication, of (a) the aggregate amount of Indebtedness of CAI and its Subsidiaries, on a consolidated basis, relating to (i) the borrowing of money or the obtaining of credit, including the issuance of notes or bonds, (ii) the deferred purchase price of assets (other than trade payables (including trade payables to manufacturers) incurred in the ordinary course of business), (iii) Capitalized Leases, (iv) Rental Obligations, and (v) the maximum drawing amount of all letters of credit outstanding plus (b) Indebtedness of the type referred to in clause (a) of another Person guaranteed by CAI or any of its Subsidiaries, in all cases determined in accordance with GAAP.

Consolidated Net Income (or Deficit).  The consolidated net income (or deficit) of CAI and its Subsidiaries, after deduction of all expenses, taxes, and other proper charges, determined in accordance with GAAP, after eliminating therefrom all non-recurring non-cash gains or losses and any unrealized adjustments, whether positive or negative, resulting from Interest Rate Protection Agreements or Swap Contracts in respect of currency hedging entered into in the ordinary course of business.

Consolidated Operating Cash Flow.  With respect to any fiscal period of CAI and its Subsidiaries, an amount equal to (i) Consolidated EBITDAR for such fiscal period minus (ii) cash income taxes paid or payable in such fiscal period minus (iii) Restricted Payments made in cash during such fiscal period, all as determined in accordance with GAAP.

Consolidated Tangible Net Worth.  As of any date of determination, at all times in accordance with GAAP, for CAI and its Subsidiaries on a consolidated basis, Shareholders’ Equity of CAI and its Subsidiaries on such date minus the Intangible Assets of CAI and its Subsidiaries on such date; provided that the calculation of Consolidated Tangible Net Worth shall exclude any unrealized adjustments, whether positive or negative, resulting from Interest Rate Protection Agreements or Swap Contracts in respect of currency hedging entered into in the ordinary course of business.

Consolidated Total Debt Service.  With respect to CAI and its Subsidiaries and for any Reference Period, the sum, without duplication, of (a) any and all repayments or prepayments of principal, during such period in respect of Indebtedness that become due and payable or that are to become due and payable during such period pursuant to any agreement or instrument to which CAI or any of its Subsidiaries is a party relating to (i) the borrowing of money or the obtaining of credit, including the issuance of notes or bonds, (ii) the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business), (iii) in respect of any Synthetic Leases or any Capitalized Leases, (iv) in respect of any reimbursement obligations in respect of letters of credit due and payable during such period, and (v) Indebtedness of the type referred to above of another Person guaranteed by CAI or any of its Subsidiaries, plus (b) Consolidated Total Interest Expense paid or payable in cash during such Reference Period, plus (c) consolidated rental expense on Rental Obligations for such period as determined in accordance with GAAP.

Consolidated Total Interest Expense.  For any period, the aggregate amount of interest required to be paid or accrued by CAI or any of its Subsidiaries during such period on all Indebtedness of CAI or such Subsidiary outstanding during all or any part of such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of any Capitalized Lease or any Synthetic Lease, and including commitment fees, agency fees, facility fees, balance deficiency fees and similar fees or expenses in connection with the borrowing of money, all as determined in accordance with GAAP.

---

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

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

Credit Agreement or Agreement.  This Amended and Restated Revolving Credit Agreement, including the Schedules and Exhibits hereto as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time.

Debtor Relief Laws.  The Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default.  See §13.1.

 

Delinquent Lender.  Subject to §2.11.2, any Lender that, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Revolving Credit Loans or participations in respect of Letters of Credit or Swing Line Loans, within three (3) Business Days of the date required to be funded by it hereunder, and such failure shall continue for two (2) Business Days, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations, and such failure shall continue for two (2) Business Days, or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state, federal or national regulatory authority acting in such a capacity; provided that a Lender shall not be a Delinquent Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Delinquent Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Delinquent Lender (subject to Section 2.11.2) upon delivery of written notice of such determination to the Borrower, each L/C Issuer, each Swingline Lender and each Lender.

---

Designated Jurisdiction.  Any country or territory to the extent that such country or territory itself is the subject of any Sanction.

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 Borrower or the relevant Guarantor, as the case may be, in accordance with GAAP applied on a consistent basis.

Direct Finance Lease.  A lease classified as a direct finance or direct financing lease in accordance with GAAP.

Distribution.  With respect to any Person, (a) the declaration or payment of any dividend on or in respect of any shares of any class of Capital Stock of such Person, other than dividends payable solely in shares of common stock of such Person; (b) the purchase, redemption, defeasance, retirement or other acquisition of any shares of any class of Capital Stock of such 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); (c) the return of capital by such Person to its shareholders as such; or (d) any other distribution on or in respect of any shares of any class of Capital Stock of such Person.

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

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

Domestic Subsidiary.  Any Subsidiary of the Borrower that is organized under the laws of any political subdivision of the United States.

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

Eligible Assignee.  (a) A Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or the Borrower’s Affiliates or Subsidiaries or any competitor of the Borrower or Borrower’s Affiliates.

 

Eligible Direct Finance Lease.  A Direct Finance Lease owned by the Borrower or any Guarantor that is a Domestic Subsidiary of the Borrower pursuant to which the Borrower or such Guarantor as lessor leases one or more Railcars that complies with all of the following:

(a)     the related Lessee is not the Borrower, an Affiliate of the Borrower, a Sanctioned Person or a Sanctioned Entity;

(b)     if an event of default under such lease shall have occurred and then be continuing, the Borrower shall have determined in accordance with its standard business practice that the amounts payable by such Lessee under such lease are collectible from such Lessee;

---

(c)     such Direct Finance Lease, the Railcars subject to such Direct Finance Lease and the proceeds of each of the foregoing are subject to a first priority fully perfected security interest in favor of the Administrative Agent, for the benefit of the Secured Parties;

(d)    such Direct Finance Lease, the Railcars subject to such Direct Finance Lease and the proceeds of each of the foregoing are subject to no other Liens other than those Permitted Liens that are permitted pursuant to §§9.2.1 (ii), (v), (ix) or (xi); and

(e)     the Railcars subject to such Direct Finance Lease comply with the provisions set forth in clauses (c), (d), (e), (f), (g), (h), (j), (k) and (l) of the definition of “Eligible Railcar”; provided however, that if a Direct Finance Lease includes Railcars that do not comply with the provisions of any clause (c), (d), (e), (f), (g), (h), (j), (k) and (l) of the definition of “Eligible Railcar” (collectively, the “Collateral Quality Conditions”), such Direct Finance Lease shall be an Eligible Direct Finance Lease only to the extent that it includes Railcars that satisfy the Collateral Quality Conditions.

Eligible Railcar.  Any Railcar owned by the Borrower or any Guarantor that is a Domestic Subsidiary of the Borrower:

(a)     which is subject to a first priority fully perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to (i) the filings described in §7.22, and (ii) the taking of all other steps necessary or reasonably requested by Administrative Agent in order to provide the Administrative Agent, on behalf of the Secured Parties, with a first priority perfected security interest in such Railcar under applicable law;

(b)     which is subject to no other Liens except those Permitted Liens that are permitted pursuant to §§9.2.1(ii), (v), (ix) or (xi);

(c)     which is in a serviceable condition in the normal course of business and which complies with the provisions of §§8.14 and 8.17 hereof;

(d)    which has not suffered an Event of Loss;

(e)     which is not the subject of a finance or trade credit arrangement between the Borrower as obligor and a third party obligee but is owned by the Borrower or such Guarantor outright;

(f)      in the case of any Railcar that is an intermodal car or auto rack, the Net Book Value or Finance Lease Value, as the case may be, of which, when added to the sum of the Net Book Values or Finance Lease Values, as the case may be, of all Eligible Railcars and Eligible Direct Finance Leases that are, or relate to, intermodal cars or auto racks, does not either (x) cause the sum of the Net Book Values or Finance Lease Values, as the case may be, of all intermodal cars to exceed an amount equal to twenty percent (20%) of the Aggregate Asset Value or (y) cause the sum of the Net Book Values or Finance Lease Values, as the case may be, of all auto racks to exceed an amount equal to twenty percent (20%) of the Aggregate Asset Value;

---

(g)     which, if such Railcar is then on lease, is (A) (i) on lease to a Lessee incorporated or organized under the laws of a jurisdiction located within the United States or Canada, and with a principal place of business in the United States or Canada or (ii) on lease to a Person that was classified as a Permitted Mexican Lessee on the date on which such lease was originated or acquired and (B) such Lease and the proceeds thereof is subject to a first priority fully perfected security interest in favor of the Administrative Agent, for the benefit of the Secured Parties;

(h)    with respect to which the Borrower or any Guarantor that is a Domestic Subsidiary of the Borrower has good title;

(i)      which is not then subject to an Eligible Direct Finance Lease;

(j)      which, if then subject to a lease, the related Lessee is not the Borrower, an Affiliate of the Borrower, a Sanctioned Person or a Sanctioned Entity;

 

(k)     which, in the case of any Railcar that is a tank railcar, is not designated for, or permitted pursuant to the terms of the related lease to transport, hazardous or flammable substances including shale oil; and

(l)      which is located in the United States, Canada or Mexico.

 

If a Person is prospectively removed from the list of Permitted Mexican Lessees in accordance with the provisions of this Agreement, such reclassification will not, in and of itself, cause any Railcars on lease to such Person on the date of such reclassification to no longer be classified as an Eligible Railcar for purposes of calculating the Borrowing Base.

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

Environmental Laws.  See §7.18.1.

EPA.  See §7.18.2.

Equipment.  Transportation equipment, including containers, rail cars and other revenue-generating assets involved in the lines of business permitted pursuant to §9.10.

Equity Investors.  ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, members of his immediate family and trusts established for the benefit of ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and members of his immediate family, senior executives of the Loan Parties, and members of the Board of Directors of the Loan Parties.

ERISA.  The Employee Retirement Income Security Act of 1974, as amended.

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

 

ERISA Event.  (a) An ERISA Reportable Event with respect to a Guaranteed Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Guaranteed Pension Plan subject to §4063 of ERISA during a plan year in which it was a substantial employer (as defined in §4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under §4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of an Employee Benefit Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Guaranteed Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under §4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Guaranteed Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under §4007 of ERISA, upon any Loan Party or any ERISA Affiliate.

---

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 as to which the requirement of notice has not been waived.

Eurodollar Base Rate.  See definition of Eurodollar Rate.

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

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

Eurodollar Rate.

Eurodollar Rate	=	Eurodollar Base Rate
		1.00 - Eurodollar Reserve Percentage

Where,

Eurodollar Base Rate.  For such Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “Eurodollar Base Rate” shall be, for any Interest Period, the rate per annum reasonably determined by the Administrative Agent as the rate of interest at which Dollar deposits in the approximate amount of the Eurodollar Rate Loan comprising part of such borrowing would be offered to the Administrative Agent in the London interbank market at approximately 12:00 noon, London time, on the date that is two (2) Business Days prior to the beginning of such Interest Period.

 

Eurodollar Reserve Percentage.  For any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Federal Reserve Board (or any successor) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “eurocurrency liabilities”).  The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

---

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

Event of Default.  See §13.1.

Event of Loss.  With respect to any Railcar, the occurrence of any of the following events:

 

Excess of Unassignable Leases Amount.  As of any date of determination, an amount equal to the excess of (x) the sum of the then Net Book Values of all Eligible Railcars plus the Finance Lease Values of all Eligible Direct Finance Leases, in either case, that are then subject to a lease agreement that either (i) prohibits a collateral assignment of such lease agreement to the Administrative Agent, on behalf of the Secured Parties, or (ii) requires the consent of the related Lessee or other Persons to any such collateral assignment and, in either case, such prohibition has not been waived or consent to such collateral assignment has not been obtained, over (y) an amount equal to the product of (A) twenty percent (20%) and (B) an amount equal to the sum of the then Net Book Values of all Eligible Railcars plus the then Finance Lease Values of all Eligible Direct Finance Leases.

 

Excess Permitted Mexican Lessee Amount.  As of any date of determination, an amount equal to the excess of (x) the sum of the then Net Book Values or Finance Lease Values, as the case may be, of all Eligible Direct Finance Leases and all Eligible Railcars that are then subject to a lease agreement, for which the lessee is a Permitted Mexican Lessee, over (y) an amount equal to the product of (A) ten percent (10%) and (B) an amount equal to the sum of the then Aggregate Asset Value.

 

Excluded Intercompany Obligations.  Payments owing by the Borrower to CAI arising in the ordinary course of business that represent either (a) payments of net operating income that are distributable to third party owners of Railcars and the associated leases, or (b) reimbursement of ordinary and necessary operating expenses of the Borrower previously paid by CAI on behalf of the Borrower.

---

Excluded Subsidiary.  Any Subsidiary of CAI that (a) is not a Loan Party and is not required to become a Loan Party under §8.16, (b) does not participate in any cash management or other arrangements under which any of its revenues, collections or payables are commingled with any assets of CAI, Borrower or any Securitization Entity or under which CAI provides cash management or other services supporting the collection of its revenues or payment of its expenses unless such services are provided on an arms-length basis and CAI is reimbursed for the market cost of such services, (c) has no Indebtedness or other obligations that are guaranteed or secured by any assets of any Loan Party and (d) has provided to the Administrative Agent evidence of the foregoing satisfactory to the Administrative Agent.

Excluded Swap Obligation.  With respect to the Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of the Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of the Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guaranty of the Guarantor or the grant of such security interest becomes effective with respect to such related Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which the Guaranty or security interest is or becomes illegal.

FATCA.  This term shall mean:

 

 

Fair Market Value.  With respect to any Railcar, the opinion of an appraiser acceptable by the Administrative Agent and the Borrower as set forth in a desk top appraisal (i.e., an appraisal without a physical inspection of such Railcar), of the underlying economic value of such Railcar, in an open, unrestricted, stable market environment with a reasonable balance of supply and demand, and with full consideration of such Railcar’s “highest and best use,” such Railcar model’s historical trend of values and such appraiser’s projection of value trends, presuming an arm’s-length, cash transaction between willing, able and knowledgeable parties, acting prudently, with an absence of duress and with a reasonable period of time available for marketing.

 

Federal Funds Rate.  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 on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Union Bank on such day on such transactions as determined by the Administrative Agent.

---

Fee Letter.  The fee letter, dated as of the Restatement Date, among the Borrower, the Administrative Agent and the Arranger, as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time.

Finance Lease Value.  As of any date of determination, with respect to any Eligible Direct Finance Lease, an amount in dollars equal to the net present value of the remaining contractual rental payments that will become payable by the related lessee 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 if an event of default by the related Lessee is then continuing, the Finance Lease Value shall be reduced by the amount of any bad debt expense or charge recorded by the Borrower with respect to such Direct Finance Lease.

Fronting Exposure.  At any time there is a Delinquent Lender, (a) with respect to the L/C Issuer, such Delinquent Lender’s Commitment Percentage of the outstanding L/C Exposure other than L/C Exposure as to which such Delinquent Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Delinquent Lender’s Commitment Percentage of Swing Line Loans other than Swing Line Loans as to which such Delinquent Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

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

GAAP or generally accepted accounting principles.  (a) When used in §10, whether directly or indirectly through reference to a capitalized term used therein, means (i) principles that are consistent with the principles promulgated or adopted by the Financial Accounting 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 practices of each of the Borrower and CAI 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 each of the Borrower and CAI 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, its by-laws and all shareholder agreements, voting trusts and similar arrangements applicable to any of its Capital Stock.

---

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

 

Guaranteed Obligations.  See §17.1.

Guaranteed Pension Plan.  Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by the any Loan Party 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.

Guarantors.  Collectively, each of (a) CAI with respect to its Guaranty under Article XVII, and (b) each direct or indirect Domestic Subsidiary of the Borrower which is required to become a Guarantor pursuant to §8.16 hereof.

Guaranty.  Collectively, (i) (x) the guaranty made by CAI under Article XVII and (y) any guaranty, substantially in the form of Exhibit G hereto, from time to time delivered in connection with this Agreement (including §8.16 hereof) or any other Loan Document, pursuant to which any other guarantor guarantees to the Secured Parties (or the Administrative Agent for the benefit of the Secured Parties) the payment and performance of the Obligations of the Borrower (collectively, the “Borrower Guaranties”), and (ii) any other guaranty from time to time delivered in connection with this Agreement or any other Loan Document, in each case, as the same may be amended, restated or otherwise supplemented from time to time.

Hazardous Substances.  See §7.18.2.

Honor Date.  See §4.2.

Increase Effective Date.  See §2.14(d).

Indemnitee.  See §16.3.

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:

---

provided, however, that, for the avoidance of doubt, any trade payables owing to manufacturers incurred in the ordinary course of business that is not delinquent shall not be deemed Indebtedness for the purposes of this definition.

 

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 rental 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 unrecovered capital or principal investment of the purchaser (other than the Borrower or any of its wholly-owned Subsidiaries) thereof, excluding amounts representative of yield or interest earned on such investment, (iv) any Synthetic Lease shall be the stipulated loss value, termination value or other equivalent amount, (v) any derivative contract shall be the maximum amount of any termination 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, and (vii) any guaranty or other contingent liability referred to in clause (k) 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.

---

Intangible Assets.  Assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs

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

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

---

Interest Rate Protection Agreement.  Any agreement entered into between the Borrower, on one hand, and the Administrative Agent, any Lender or their respective Affiliates, on the other, providing for an interest rate swap, cap, collar, or other interest rate hedging mechanism with respect to interest payable on Indebtedness evidenced by this Credit Agreement.

Investments.  All expenditures made and all liabilities incurred (contingently or otherwise) for the acquisition of stock (other than stock in a Guarantor other than CAI) or Indebtedness of, or for loans, advances, capital contributions or transfers of property to, or in respect of any guaranties (or other commitments as described under Indebtedness), or obligations of, any Person.  In determining the aggregate amount of Investments outstanding at any particular time:  (a) the amount of any Investment represented by a guaranty shall be taken at not less than the principal amount of the obligations guaranteed and still outstanding; (b) there shall not be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment; (c) 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); (d) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (b) may be deducted when paid; and (e) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof.

IP Rights.  Collectively, all trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights.

Issuer Documents.  With respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower or in favor the L/C Issuer and relating to such Letter of Credit.

L/C Advance.  With respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Commitment Percentage.

L/C Borrowing.  An extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Loan.

L/C Exposure.  At any time, the sum of (a) the aggregate Maximum Drawing Amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all Unpaid Reimbursement Obligations at such time.  The L/C Exposure of any Revolving Credit Lender at any time shall be its Commitment Percentage of the total L/C Exposure at such time.

---

L/C Issuer.  Union Bank, in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.  No Lender shall be required to act as a L/C Issuer without its prior written consent.

Lender Affiliate.  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.

Lenders.  Union Bank and the other lending institutions listed on Schedule 1 hereto as Revolving Credit Lenders and any other Person who becomes an assignee of any rights and obligations of a Lender pursuant to §15, and, as the context requires, includes the Swing Line Lender and the L/C Issuer.

Lessee.  The obligor under a lease agreement with respect to a Railcar under which the Borrower or a Guarantor that is a Domestic Subsidiary of the Borrower is the lessor (including, any lease agreement to which the Borrower or such Guarantor is a successor-in-interest to the party specified as lessor in such lease agreement).

Letter of Credit.  See §4.1.1.

Letter of Credit Application.  See §4.1.1.

Letter of Credit Expiration Date.  The day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

Letter of Credit Fee.  See §4.6.

Letter of Credit Participation.  See §4.1.4.

Letter of Credit Sublimit.  An amount equal to Twenty Million Dollars ($20,000,000).  The Letter of Credit Sublimit is part of, and not in addition to, the Total Commitment.

Lien.  Any mortgage, deed of trust, security interest, pledge, hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien (statutory, judgment or otherwise), charge 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, the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction).

Loan.  An extension of funds made to the Borrower by the Lenders pursuant to the terms of this Credit Agreement; this term shall include both Revolving Credit Loans and Swing Line Loans.

Loan Documents.  This Credit Agreement, the Revolving Credit Notes, the Letter of Credit Applications, the Letters of Credit, each Issuer Document, any Guaranty, the Fee Letter, the Security Documents and all other documents, instruments, agreements and certificates now or hereafter in connection with any of the foregoing or the transaction contemplated hereby.

Loan Parties.  The Borrower and the Guarantors.

---

Loan Request.  See §2.6.

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

Material Subsidiary.  A Subsidiary of CAI which (x) owns assets in excess of 10.00% of the book value of the total assets of CAI and its Subsidiaries or (y) has revenues in excess of 10.00% of the total revenues of CAI and its Subsidiaries.

Maturity Date.  July 25, 2019.

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

Modification.  As defined in §8.19.2.

▇▇▇▇▇’▇.  ▇▇▇▇▇’▇ Investors Services, Inc.

Multiemployer Plan.  Any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

Multiple Employer Plan.  An employee benefit plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

Net Book Value.  With respect to any Eligible Railcar, as the case may be, as of the date of determination, an amount equal to the Original Cost of such Eligible Railcar less the Accumulated Depreciation of such Eligible Railcar as of the last day of the month immediately preceding such date of determination.

Non-Extension Notice Date.  See §4.1.6.

---

Non-Severable Modification.  Any modification or improvement to a Railcar not required pursuant to §8.19.1 that is not readily removable without impairing the value, utility or useful life of such Railcar immediately prior to such modification, other than in a de minimis nature.

Obligations.  All indebtedness, obligations and liabilities of the Borrower and its Subsidiaries to any of the Lenders, the Swing Line Lender, the L/C Issuer 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 Protection Agreement, or any Cash Management Agreement entered into with any Lender or the Administrative Agent (or Affiliates thereof) or any of the Revolving Credit Loans or Swing Line Loans made or Reimbursement Obligations incurred or any of the Revolving Credit Notes, Letter of Credit Applications, Letters of Credit or other instruments at any time evidencing any of the foregoing; provided, however, that with respect to the Guarantor, the term “Obligations” shall exclude an Excluded Swap Obligation.

OFAC.  The Office of Foreign Assets Control of the United States Department of the Treasury.

Original Agreement.  This term shall have the meaning set forth in the Recitals.

Original Cost.  With respect to any Railcar, (x) the basic purchase price therefore expressed in Dollars as invoiced by the supplier or seller of such Railcar to the Borrower plus (y) any related shipping, inspection, titling, and positioning costs and charges as invoiced, plus any other taxes or charges relating to the acquisition of such Railcar, as determined in accordance with GAAP and the Borrower’s policies.  Notwithstanding the foregoing the amount set forth in clause (y) for any Railcar shall not exceed five percent (5%) of the amount in clause (x) for such Railcar.

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

Participant.  See §15.1.4.

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

Pension Plan.  Any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

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

Permitted Acquisitions.  Any acquisition by any Loan Party or Subsidiary thereof, whether by purchase, merger or otherwise, of all or substantially all of the assets of, the Capital Stock of, or a business line or unit or a division of, any Person; provided that:

(i)         immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

---

(ii)        all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable approvals of Governmental Authorities;

 

(iii)       such acquisition shall be consensual and shall have been approved by the board of directors of such Person;

(iv)      in the case of the acquisition of Capital Stock, the issuer of such Capital Stock shall become a Subsidiary of a Loan Party immediately after consummation of the applicable transaction, and such Loan Party shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary (or as of such later date as the Administrative Agent shall consent), the actions required to be taken, if any, under §8.16 or the Borrower shall include a certification in the certificate referenced in clause (vii) below that such new Subsidiary does not need to become a Guarantor in order to maintain compliance with §8.16;

 

(v)        on a pro forma basis after giving effect to such acquisition, each Loan Party is in compliance with the financial covenants contained in §10 applicable to such Loan Party for the period immediately prior to the making of such acquisition and during the twelve (12) month period immediately following the making of such acquisition;

(vi)       any Person or assets or division as acquired in accordance herewith shall be in the same business or lines of business permitted pursuant to §9.10 and activities related thereto;

 

(vii)      the Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, from the Responsible Officer of the Borrower certifying that the conditions set forth in clauses (i) through (vi) above are satisfied (which certificate shall attach supporting projections, information and calculations with respect to the requirements set forth in clause (v) above (all based on fair and reasonable projections of the financial performance of the Loan Parties and Subsidiaries thereof)); and

(viii)     immediately prior to, and after giving pro forma effect thereto, the Total Leverage Ratio is equal to or less than 3.50:1.00.

 

Permitted Liens.  Liens permitted by §9.2.

Permitted Lease.  As defined in §8.17(c).

Permitted Mexican Lessee.  Any Lessee organized or incorporated under the laws of Mexico that is set forth on Schedule 2 attached hereto, as such schedule may be amended or modified from time to time as follows: (x) by the Borrower with the prior written consent of Administrative Agent and the Required Lenders (which such consent shall not be unreasonably withheld) or (y) at the request of the Administrative Agent (acting at the direction of the Required Lenders) to remove a Person on a prospective basis.  A request of the type set forth in clause (y) may be made only once in any calendar year.

 

Permitted Securitization.  Any secured lending facility entered into by a Securitization Entity after the Restatement Date solely for the purpose of purchasing or financing assets of CAI or any of its Subsidiaries (including the Borrower), provided that (i) any Indebtedness incurred in connection with such facility is non-recourse to CAI and all of its Subsidiaries (other than the Securitization Entity) and their respective assets, (ii) such Securitization Entity engages in no business and incurs no Indebtedness or other liabilities or obligations other than those related to or incidental to such facility, (iii) other than the initial Investment in such Securitization Entity, CAI and its Subsidiaries (including the Borrower) are not required to make additional Investments in such Securitization Entity, (iv) CAI and its Subsidiaries do not have any material contract, agreement, arrangement or understanding with such Securitization Entity other than on terms no less favorable (in the aggregate) to such Person (as determined in good faith by such Person’s Chief Financial Officer) than those that might be obtained at that time from Persons that are not Affiliates of CAI, and (v) CAI and its Subsidiaries (including the Borrower) have no obligation to maintain such Securitization Entity’s financial condition or cause such Securitization Entity to achieve certain levels of operating results other than any obligation of such Person as an equipment manager with respect to such Securitization Entity.

---

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

Platform.  See §8.4.

Railcars.  The railcars owned or leased by the Borrower or any of the Guarantors that are Domestic Subsidiaries of the Borrower and employed by the Borrower or any of the Guarantors that are Domestic Subsidiaries of the Borrower in the conduct of their business, including, without limitation, boxcars, gondolas, covered hoppers, open top hoppers, auto racks, flatcars, intermodal cars and other general purpose railcars, and excluding all tank cars designated for the transportation of hazardous cargo.

RCRA.  See §7.18.1.

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

Recipient.  See §5.2.2.

Reference Period.  As of any date of determination with respect to any Person, the period of four (4) consecutive fiscal quarters of such Person and its Subsidiaries ending on such date, or if such date is not a fiscal quarter end date, the period of four (4) consecutive fiscal quarters most recently ended (in each case treated as a single accounting period).

Reference Rate.  The Reference Rate shall mean the per annum rate of interest announced by the Administrative Agent from time to time at its corporate headquarters as its “Reference Rate.”  The Reference Rate is an index rate determined by the Administrative Agent from time to time as a means of pricing certain extensions of credit and is neither directly tied to any external rate of interest or index nor necessarily the lowest rate of interest charged by the Administrative Agent at any given time.  Any change in the Reference Rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change.

Register.  See §15.1.3.

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

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

---

Rental Obligations.  All present or future obligations of any Loan Party or any of its Subsidiaries under any rental agreements or leases of real or personal property, other than (a) obligations that can be terminated by the giving of notice without liability to CAI or such Subsidiary in excess of the liability for rent due as of the date on which such notice is given and under which no penalty or premium is paid as a result of any such termination, (b) obligations under rental agreements relating to equipment other than Equipment having an aggregate value of, in the case of CAI, less than Five Million Dollars ($5,000,000) for all such agreements or, in the case of the Borrower and its Subsidiaries, less than Two and One-Half Million Dollars ($2,500,000) for all such agreements, (c) obligations in respect of any Capitalized Leases, (d) any obligations incurred in a lease transaction where the obligation of CAI or its Subsidiary to pay rent thereunder is limited to a pass-through of net rental amounts received by CAI or its Subsidiaries from a sublessee of container equipment under such transaction (“net sublease rentals”), so that if there are no net sublease rental amounts received by CAI or its Subsidiaries from a sublessee then CAI or its Subsidiaries would have no obligation to make any rental payment under or in connection with such transaction, shall not constitute a Rental Obligation hereunder; and (e) obligations under the lease of commercial office properties in the conduct of the business of any Loan Party or any of its Subsidiaries shall not be deemed a Rental Obligation hereunder.  For purposes of this Credit Agreement, the aggregate amount of Rental Obligations of CAI and its Subsidiaries shall, as at any date of determination, be an amount equal to the net present value, calculated at a discount rate of nine percent (9.00%) per annum, of the future Rental Obligations of such Person.

Required Lenders.  As of any date, (i) if there shall only be one Lender, then the “Required Lenders” shall mean such Lender, and (ii) if there shall be more than one Lender, then the “Required Lenders” shall mean two (2) or more Lenders holding, in aggregate, Revolving Credit Exposures and unused Commitments representing more than fifty percent (50%) of the sum of the total Revolving Credit Exposures and unused Commitments, in each case, at such time; provided that the Commitment of, the portion of the Revolving Exposures held or deemed held by, any Delinquent Lender shall be excluded for purposes of making a determination of Required Lenders.

Required Modification.  As defined in §8.19.1.

Responsible Officer.  The chief executive officer, president or chief financial officer of the Borrower.  Any document delivered hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.

Restatement Date.  The date on which all of the conditions set forth in §11 have been satisfied; which date shall be July 25, 2014.

Restricted Payment.  In relation to CAI and its Subsidiaries, any Distribution to (i) CAI’s or any Subsidiary’s shareholders (or other equity holders), in each case, other than to the Borrower, or (ii) any Affiliate of the Borrower or any Subsidiary or any Affiliate of Borrower’s or such Subsidiary’s shareholders (or other equity holders), in each case, other than to the Borrower.

Revolving Credit Exposure.  With respect to any Revolving Credit Lender at any time, the sum of the outstanding principal amount of such Revolving Credit Lender’s Revolving Credit Loans and its L/C Exposure and Swing Line Exposure at such time.

---

Revolving Credit Lender.  Each Lender with a Commitment or, following termination of the Commitments, which has Revolving Credit Loans outstanding or participations in an outstanding Letter of Credit or Swing Line Loan and any other Person who becomes an assignee of rights and obligations of a Revolving Credit Lender.

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

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

Revolving Credit Notes.  See §2.4.

RUG.  The Registro Único de Garantías Mobiliarias.

Sanctions.  Any international economic or trade sanctions (including all Sanctions Laws) enacted, administered, imposed or enforced by the United States Government, including without limitation, OFAC, or the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

Sanctioned Entities.  Any of the following: (i) an agency or instrumentality of the government of a country subject to Sanctions, (ii) an entity majority-owned, directly or indirectly, by a Sanctioned Entity or (iii) a natural person that is subject to sanctions or is resident in a country that is subject to Sanctions.

Sanctioned Person.  Any of the following on the Restatement Effective Date or in the future: (i) a Person or vessel named on (A) the list of Specially Designated Nationals or Blocked Persons maintained and updated from time to time by OFAC available at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇.▇▇▇▇, or as otherwise published from time to time (the “U.S. Sanctions List”) or (B) the sanctions list administered and updated from time to time by the European Union, the United Nations and all other applicable sanctions lists (the “EU/UN Sanctions List”), or (ii) any entity majority-owned, directly or indirectly, by such Person, or (iii) without duplication of the clauses (i) and (ii) any Person organized under the laws of any of Cuba, Iran, Myanmar, Sudan, South Sudan, Syria or North Korea.

Sanctions Laws.  Any of the following: (1) U.S. sanctions laws including the Trading With The Enemy Act, the International Emergency, Economic Powers Act, the Iran Sanctions Act of 1996, as amended, the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, the National Defense Authorization Act of 2012 (including the Iran Freedom Counter-Proliferation Act), the Iran Threat Reduction and Syria Human Rights Act of 2012, the OFAC Sanctions Programs (including the U.S. Sanctions List) and (2) any other relevant sanctions authority.

▇▇▇▇.  See §7.18.1.

Secured Parties.  Collectively, the Administrative Agent, the Lenders, the Swing Line Lender, any other holder from time to time of Obligations, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to §14, and the other Persons (including any Person (other than the Borrower) that is party to an Interest Rate Protection Agreement) the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Security Documents.

---

Securitization Entity.  A special purpose bankruptcy-remote corporation, partnership, trust, limited liability company or other business entity that is owned directly or indirectly at least seventy-five percent (75%) by CAI (or such lower percentage as may be requested by CAI and agreed to by the Required Lenders), for the sole and exclusive purpose of purchasing or financing assets of CAI or any of its Subsidiaries.

Security Agreement.  The Security Agreement, dated or to be dated as of the Restatement Date, between the Borrower, each Guarantor that is a Domestic Subsidiary of Borrower and the Administrative Agent, and in form and substance satisfactory to the Lenders and the Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time.

Security Documents.  The Security Agreement, all Account Control Agreements, all filings with the STB, the Registrar General of Canada or RUG and all other agreements, instruments, filings, records, registrations and documents, including without limitation, Uniform Commercial Code financing statements (or the equivalent thereof in any applicable foreign jurisdiction) and the Perfection Certificates, (a) required to be executed or delivered pursuant to any Loan Document or §§8.13, 8.15 or 8.16 or (b) that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

Senior Revolving Credit Facility.  That certain Third Amended and Restated Revolving Credit Agreement, dated as of March 15, 2013 (as amended restated and otherwise expanded from time to time (including without limitation, increases in maximum Indebtedness that may be borrowed thereunder) among CAI and Container Applications Limited, as borrowers, Bank of America, N.A. and the other lending institutions from time to time party thereto, and Bank of America N.A. as administrative agent (the “BofA Revolving Credit Agreement”); and (ii) any revolving credit facility that may be entered into from time to time as a replacement for the BofA Revolving Credit Agreement (a “Replacement Revolving Credit Agreement”) as such Replacement Revolving Credit Agreement may be amended, restated and otherwise expanded (including without limitation, increases in maximum Indebtedness that may be borrowed thereunder).

Severable Modification.  Any modification or improvement to a Railcar not required pursuant to §8.19.1 that is readily removable without impairing the value, utility or useful life of the Eligible Railcar immediately prior to such modification.

Shareholders’ Equity.  As of any date of determination, consolidated shareholders’ equity of CAI and its Subsidiaries as of that date determined in accordance with GAAP.

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

Solvent.  With respect to any Person on a particular date, that on such date (a) the fair value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged.  In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

---

Staff Loan Program.  A program administered by CAI pursuant to which CAI makes loans to employees; provided, that the aggregate principal amount of loans outstanding at any time under such program shall not exceed $1,500,000, and that no more than an aggregate of $100,000 of which may be unsecured.

STB.  The Surface Transportation Board of the United States Department of Transportation or any successor agency thereto.

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.

Supermajority Lenders.  As of any date, (i) if there shall only be one Lender, then the “Supermajority Lenders” shall mean such Lender, and (ii) if there shall be more than one Lender, then the “Supermajority Lenders” shall mean two (2) or more Lenders holding, in aggregate, Revolving Credit Exposures and unused Commitments representing more than sixty percent (60%) of the sum of the total Revolving Credit Exposures and unused Commitments, in each case, at such time; provided that the Commitment of, or the portion of the Revolving Credit Exposures held or deemed held by, any Delinquent Lender shall be excluded for purposes of making a determination of Supermajority Lenders.

Swap Contract.  (a) Any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Swap Obligation.  With respect to the Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

Swing Line.  The revolving credit facility made available by the Swing Line Lender pursuant to §2.10.

Swing Line Borrowing.  A borrowing of a Swing Line Loan pursuant to §2.10.

---

Swing Line Exposure.  At any time, the aggregate principal amount of all Swing Line Loans outstanding at such time.  The Swing Line Exposure of any Revolving Lender at any time shall be its Commitment Percentage of the total Swing Line Exposure at such time.

Swing Line Lender.  Union Bank, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.  No Lender shall be required to act as a Swing Line Lender without its prior written consent.

Swing Line Loan.  See §2.10.1.

Swing Line Loan Notice.  A notice of a Swing Line Borrowing pursuant to §2.10.2, which, if in writing, shall be substantially in the form of Exhibit F.

Swing Line Sublimit.  An amount equal to Twenty Million Dollars ($20,000,000).  The Swing Line Sublimit is part of, and not in addition to, the Total Commitment.

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.  The Total Commitment on the Restatement Date is Two Hundred Fifty Million Dollars ($250,000,000); the amount of the Total Commitment may be increased subsequent to the Restatement Date in accordance with the provisions of §2.14.

Total Leverage Ratio.  As at any date of determination, the ratio of (a) Consolidated Funded Debt as at such date to (b) Consolidated Tangible Net Worth for the Reference Period most recently ended; provided that in the event any Permitted Acquisition shall have been completed during such Reference Period, the Total Leverage Ratio shall be computed giving pro forma effect to such Permitted Acquisition as if it had been completed at the beginning of such Reference Period, using the actual results (as approved by the Administrative Agent) of the Person, assets or business unit being so acquired.

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

Union Bank.  MUFG Union Bank, N.A., in its individual capacity.

 

Undisclosed Administration.  In relation to a Lender or its direct or indirect parent company means the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or its direct or indirect parent company is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

 

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

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.

---

 

---

1.4.      Rounding.  Any financial ratios required to be maintained pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

---

(b)     On the Restatement Date, the aggregate amount of the unpaid Revolving Credit Loans outstanding under the Original Agreement as of such date shall be reallocated among the Lenders, such that after giving effect to such reallocation, the Revolving Credit Loans owed to each Lender shall be equal to its Commitment Percentage of the aggregate Revolving Credit Loans as reflected on Schedule 1.

 

---

(b)     In addition to the accounts and records referred to in subsection (a) above, each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

(a)      Each Revolving Credit Loan which is a Base Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at the rate per annum equal to the Base Rate (but in no event shall be the Base Rate be less than zero) plus the Applicable Margin with respect to Base Rate Loans as in effect from time to time; provided, however, in the event that the interest rate per annum applicable to Base Rate Loans is less than the Eurodollar Rate then applicable for an Interest Period of one month plus the Applicable Margin with respect to Eurodollar Rate Loans in effect at such time, each Revolving Credit Loan which is a Base Rate Loan shall bear interest at the rate per annum equal to the Eurodollar Rate then applicable for an Interest Period of one month plus the Applicable Margin with respect to Eurodollar Rate Loans in effect at such time.

(b)     Each Revolving Credit Loan which is a Eurodollar Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto at the rate per annum equal to the Eurodollar Rate (but in no event shall the Eurodollar Rate be less than zero) determined for such Interest Period plus the Applicable Margin with respect to Eurodollar Rate Loans as in effect from time to time.

---

(c)     Each Swing Line Loan shall bear interest from the applicable Drawdown Date thereof at the rate per annum equal to the Base Rate (but in no event shall be the Base Rate be less than zero) plus the Applicable Margin with respect to Base Rate Loans as in effect from time to time; provided, however, that in the event the interest rate per annum applicable to Swing Line Loans is less than the Eurodollar Rate then applicable for an Interest Period of one month plus the Applicable Margin with respect to Eurodollar Rate Loans in effect at such time, each Swing Line Loan shall bear interest at the rate per annum equal to the Eurodollar Rate then applicable for an Interest Period of one month plus the Applicable Margin with respect to Eurodollar Rate Loans in effect at such time.

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

2.7.1.   Conversion to Different Type of Loan.  The Borrower may elect from time to time to convert any outstanding Revolving Credit Loan to a Revolving Credit Loan of another Type, provided that (a) with respect to any such conversion of a Eurodollar Rate Loan to a Base Rate Loan, Borrower shall give the Administrative Agent at least three (3) Business Days prior written notice of such election; (b) with respect to any such conversion of a Base Rate Loan to a Eurodollar Rate Loan, Borrower shall give the Administrative Agent at least four (4) Eurodollar Business Days prior written notice of such election; (c) with respect to any such conversion of a Eurodollar Rate Loan into a Base Rate Loan, such conversion shall only be made on the last day of the Interest Period with respect thereto and (d) no Revolving Credit Loan may be converted into a Eurodollar Rate Loan when any Default or Event of Default has occurred and is continuing.  On the date on which such conversion is being made each Lender shall take such action as is necessary to transfer its Commitment Percentage, as the case may be, of such Revolving Credit Loans to its Domestic Lending Office or its Eurodollar Lending Office, as the case may be.  All or any part of outstanding Revolving Credit Loans of any Type may be converted into a Revolving Credit Loan of another Type as provided herein, provided that any partial conversion shall be in an aggregate principal amount of at least $500,000, in the case of conversion to Base Rate Loans, and One Million Dollars ($1,000,000) in the case of conversion to Eurodollar Rate Loans.  Each Conversion Request relating to the conversion of a Revolving Credit Loan to a Eurodollar Rate Loan shall be irrevocable by Borrower.  Promptly upon receipt of any such notice, the Administrative Agent shall notify each of the Lenders thereof.

---

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

2.7.3.   Eurodollar Rate Loans.  Any conversion to or from Eurodollar Rate Loans shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of all Eurodollar Rate Loans having the same Interest Period shall not be less than One Million Dollars ($1,000,000).  No more than ten (10) Eurodollar Rate Loans having different Interest Periods may be outstanding at any time.

2.8.1.   Funding Procedures.  Not later than 1:00 p.m., Pacific time, on the proposed Drawdown Date of any Revolving Credit Loans, 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 Revolving Credit Loans.  Upon receipt from each Lender of such amount, and upon receipt of the documents required by §§11 and 12 and the satisfaction of the other conditions set forth therein, to the extent applicable, the Administrative Agent will make available to the Borrower the aggregate amount of such Revolving Credit Loans made available to the Administrative Agent by the Lenders.

2.8.2.   Advances by Administrative Agent.  (a)  The Administrative Agent may, unless notified to the contrary by any Lender prior to a Drawdown Date, assume that such Lender has made available to the Administrative Agent on such Drawdown Date the amount of such Lender’s Commitment Percentage of the Revolving Credit Loans to be made on such Drawdown Date, and the Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Revolving Credit Loan available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Revolving Credit Loan to the Administrative Agent, then the amount so paid shall constitute such Lender’s share of such Revolving Credit Loan.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

---

(b)    Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(c)     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under §§2.8.2(a) and (b) shall be conclusive, absent manifest error.

2.8.3.   Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to §14.7 are several and not joint.  The failure of any Lender to make any Revolving Credit Loan, to fund any such participation or to make any payment under §14.7 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Credit Loans, to purchase its participation or to make its payment under §14.7.

---

2.10.1. The Swing Line.  Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this §2.10, may in its sole discretion make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day from the Restatement Date until the Maturity Date in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans of the Revolving Credit Lender acting as the Swing Line Lender, when aggregated with such Lender’s Commitment Percentage of the outstanding amount of Revolving Credit Loans plus such Lender’s Commitment Percentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swing Line Loan, (a) the sum of the outstanding amount of the Revolving Credit Loans plus the Maximum Drawing Amount and all Unpaid Reimbursement Obligations plus the outstanding amount of Swing Line Loans (after giving effect to all amounts requested) shall not at any time exceed the lesser of (A) the Total Commitment at such time and (B) the Borrowing Base at such time, and (b) the aggregate outstanding amount of the Revolving Credit Loans of any Lender, plus such Lender’s Commitment Percentage of the outstanding amount of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, plus such Lender’s Commitment Percentage of the outstanding amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided, further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this §2.10, prepay under §3.3, and reborrow under this §2.10.

2.10.2. Borrowing Procedure.  Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable written request to the Swing Line Lender and the Administrative Agent.  Each such Swing Line Loan Notice must be appropriately completed and signed by a Responsible Officer of Borrower and received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m., Pacific time, on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Promptly after receipt by the Swing Line Lender of a Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m., Pacific time, on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of §2.10.1, or (B) that one or more of the applicable conditions specified in §§11 and 12 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m., Pacific time, on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.

2.10.3. Refinancing of Swing Line Loans.  (a)  The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Revolving Credit Loan which is a Base Rate Loan in an amount equal to such Revolving Credit Lender’s Commitment Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Loan Request for purposes hereof) and in accordance with the requirements of §§2.1 and 2.6, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Total Commitments and the conditions set forth in §12.  The Swing Line Lender shall furnish to the Borrower with a copy of the applicable Loan Request promptly after delivering such notice to the Administrative Agent.  Each Revolving Credit Lender shall make an amount equal to its Commitment Percentage of the amount specified in such Loan Request available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m., Pacific time, on the day specified in such Loan Request, whereupon, subject to §2.10.3(b), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.

---

(b)     If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Loan in accordance with §2.10.3(a), the request for Base Rate Loan submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to §2.10.3(a) shall be deemed payment in respect of such participation.

(c)     If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this §2.10.3 by the time specified in §2.10.3(a), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing.  If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan or funded participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Swing Line Lender submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c) shall be conclusive absent manifest error.

(d)     Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this §2.10.3 shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this §2.10.3 is subject to the conditions set forth in §12.  No such funding or risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

---

2.10.4. Repayment of Participations.  (a)  At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Credit Lender its Commitment Percentage of such payment in the same funds as those received by the Swing Line Lender.

(b)     If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender in connection with any bankruptcy or insolvency proceeding or otherwise (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Commitment Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Revolving Credit Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

2.10.5. Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this §2.10 to refinance such Lender’s Commitment Percentage of any Swing Line Loan, interest in respect of such Commitment Percentage shall be solely for the account of the Swing Line Lender.

2.10.6. Payments Directly to Swing Line Lender.  The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

 

 

2.11.1.  Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Delinquent Lender, then, until such time as that Lender is no longer a Delinquent Lender, to the extent permitted by applicable Law:

(a)     Waivers and Amendments.  That Delinquent Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in §16.12.

(b)     Reallocation of Payments.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Delinquent Lender (whether voluntary or mandatory, at maturity, pursuant to §13 or otherwise, and including any amounts made available to the Administrative Agent by that Delinquent Lender pursuant to §16.1), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Delinquent Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Delinquent Lender to the L/C Issuer or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Delinquent Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Delinquent Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Delinquent Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or Swing Line Lender against that Delinquent Lender as a result of that Delinquent Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Delinquent Lender as a result of that Delinquent Lender’s breach of its obligations under this Agreement; and eighth, to that Delinquent Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Delinquent Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in §12 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Delinquent Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Delinquent Lender.  Any payments, prepayments or other amounts paid or payable to a Delinquent Lender that are applied (or held) to pay amounts owed by a Delinquent Lender or to post Cash Collateral pursuant to this §2.11.1(b) shall be deemed paid to and redirected by that Delinquent Lender, and each Lender irrevocably consents hereto.

---

(c)     Certain Fees.  That Delinquent Lender (x) shall not be entitled to receive any Commitment Fee for any period during which that Lender is a Delinquent Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Delinquent Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in §4.6.

(d)     Reallocation of Commitment Percentages to Reduce Fronting Exposure.  During any period in which there is a Delinquent Lender, for purposes of computing the amount of the obligation of each non-Delinquent Lender to acquire, refinance or fund participations in Swing Line Loans or Letters of Credit pursuant to §§2.10 and 4, the “Commitment Percentage” of each non-Delinquent Lender shall be computed without giving effect to the Commitment of that Delinquent Lender; provided, that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Delinquent Lender, no Default or Event of Default exists; and (ii) the aggregate obligation of each non-Delinquent Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment of that non-Delinquent Lender minus (2) the aggregate outstanding amount of the Revolving Credit Loans of that Lender.

2.11.2. Delinquent Lender Cure.  If the Borrower, the Administrative Agent, Swing Line Lender and the L/C Issuer agree in writing in their sole discretion that a Delinquent Lender should no longer be deemed to be a Delinquent Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Commitment Percentages (without giving effect to §2.11.1(d)), whereupon that Lender will cease to be a Delinquent Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Delinquent Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Delinquent Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Delinquent Lender.

---

(a)     Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable extension of credit set forth in Article 11 and/or 12 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest, within two Business Days of the date on which the determination was made that such conditions were not satisfied or waived.

(b)     Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. In the event that it becomes unlawful for any Lender to fund a Loan in any particular place or manner, the provisions of §5.5 shall apply.

(c)     Insufficient Funds.  If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, Unpaid Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and Unpaid Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Unpaid Reimbursement Obligations then due to such parties.

---

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

(b)    the provisions of this Section 2.13 shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Delinquent Lender) or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Borrowings to any assignee or participant, other than to the Borrower or any Subsidiary of the Borrower (as to which the provisions of this Section 2.13 shall apply).

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

 

(a)     Request for Increase.  Provided there exists no Default, the Borrower may from time to time request an increase in the Total Commitment by an amount (for all such requests) not exceeding Seventy Five Million Dollars ($75,000,000) from and after the Restatement Date; provided that (i) any such request for an increase from (x) an Additional Lender shall be in a minimum amount of $20,000,000, and (y) an existing Lender shall be in an amount mutually acceptable to Borrower and such existing Lender, and (ii) any incremental commitments of the Lenders in connection with such increase shall be on terms and pursuant to documentation consistent with the terms and documentation applicable to the existing Revolving Credit Loans, except with respect to any upfront or similar fees that may be agreed to among the Borrower and any Additional Lender providing any additional commitments.  The Borrower may, at its option, request such increase from any Lenders or from Additional Lenders.  At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each relevant Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to such Lender).

(b)     Lender Elections to Increase.  Any Lender which the Borrower requests to provide such increase shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, the amount by which such Lender is willing to increase its Commitment.  Any relevant Lender not responding within such time period shall be deemed to have declined to increase its Commitment.

---

(c)     Notification by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the Borrower and each relevant Lender of the applicable Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld), the Borrower may, at its option, also invite additional Eligible Assignees that are not a Lender hereunder (such additional Lenders, an “Additional Lender”) to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.  Any requested increase in the Total Commitments need not be achieved in full in order for such requested increase to take effect with respect to the Commitments of any such Lenders who agree to such increase.

(d)     Effective Date and Allocations.  If the Total Commitments are increased in accordance with this Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Borrower, the Lenders and any Additional Lender of the final allocation of such increase and the Increase Effective Date.  The parties hereto authorize the Administrative Agent to amend Schedule 1 hereto as of each Increase Effective Date to reflect any increase in the Aggregate Commitments pursuant to this Section 2.14.

(e)     Conditions to Effectiveness of Increase.  As a condition precedent to such increase, the Borrower shall:

(f)      Conflicting Provisions.  This Section 2.14 shall supersede any provisions in Section 2.13 or 16.12 to the contrary.

---

(b)     The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m., Pacific time, on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

---

4.1.1. Commitment to Issue Letters of Credit.  (a)  Subject to the terms and conditions hereof, upon the execution and delivery by the Borrower of a letter of credit application on the L/C Issuer’s customary form (a “Letter of Credit Application”), the L/C Issuer on behalf of the Revolving Credit Lenders and in reliance upon the agreement of the Revolving Credit Lenders set forth in this §4 and upon the representations and warranties of the Borrower contained herein, agrees, in its individual capacity, to issue, extend and renew for the account of the Borrower one or more standby letters of credit (individually, a “Letter of Credit”), in such form as may be requested from time to time by the Borrower, and agreed to by the L/C Issuer; provided, however, that, after giving effect to such request, (i) the sum of the aggregate Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not exceed the Letter of Credit Sublimit at any time, (ii) the sum of the outstanding principal amount of the Revolving Credit Loans plus the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, plus the outstanding amount of Swing Line Loans shall not exceed the lesser of (x) the Total Commitment at such time and (y) the Borrowing Base at such time.  Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the issuance or amendment so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit issued for the account of the Borrower or such Subsidiary that have expired or that have been drawn upon and reimbursed.

(b)     The L/C Issuer shall not issue any Letter of Credit, if:

 (i)          Subject to §4.1.6, the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or

(ii)         the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.

(c)     The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

 

(i)          any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the date hereof and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;

---

(ii)         the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;

(iii)        such Letter of Credit is to be denominated in a currency other than Dollars;

(iv)        such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or

(v)        a default of any Revolving Credit Lender’s obligations to fund under §4.1.4. exists or any Revolving Credit Lender is at such time a Delinquent Lender hereunder, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to §2.11.1(d)) with respect to such Delinquent Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Exposure as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

(d)      The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

(e)     The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(f)      The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in §14 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in §14 included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

4.1.2. Procedures for the Issuance and Amendment of Letters of Credit.  (a) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of Letter of Credit Application, appropriately completed and signed by a Responsible Officer of Borrower.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m., Pacific time, at least three (3) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require.  Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.

---

(b)    Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent, Borrower or any Guarantor, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in §§11 or 12 shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or such Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Commitment Percentage times the amount of such Letter of Credit.

(c)      Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

4.1.3. Applicability of the ISP and Uniform Customs.  Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the “International Standby Practices 1998” (ISP) published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.

4.1.4. Reimbursement Obligations of Lenders.  Each Revolving Credit Lender severally agrees that it shall be absolutely and unconditionally liable, without regard to the occurrence of any Default or Event of Default or any other condition precedent or circumstance whatsoever, including (A) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever or (B) any other occurrence, event or condition, whether or not similar to any of the foregoing, to the extent of such Revolving Credit Lender’s Commitment Percentage, to reimburse the L/C Issuer through the Administrative Agent on demand for the amount of each draft paid by the L/C Issuer under each Letter of Credit to the extent that such amount is not reimbursed by the Borrower pursuant to §4.2 (such agreement for a Lender being called herein the “Letter of Credit Participation” of such Lender).

---

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

4.1.6. Auto-Extension Letters of Credit.  If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that (i) any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than one (1) Business Day before the date (the “Non-Extension Notice Date”) in each such twelve-month period as agreed upon at the time such Letter of Credit is issued and (ii) any extension of a Auto-Extension Letter of Credit shall not extend the expiry date of such Letter of Credit to a date later than the Letter of Credit Expiration Date.  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of §4.1.1(b) or (c) or otherwise), or (B) it has received notice (in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender, the Borrower or any Guarantor that one or more of the applicable conditions specified in §12 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

---

Each such payment shall be made to the L/C Issuer at the Administrative Agent’s Office in immediately available funds.  Interest on any and all amounts remaining unpaid by the Borrower under this §4.2 at any time from the date such amounts become due and payable (whether as stated in this §4.2, by acceleration or otherwise) until payment in full (whether before or after judgment) shall be payable to the Administrative Agent, for the benefit of the Lenders and the L/C Issuer, on demand at the rate specified in §5.10 for overdue principal on the Revolving Credit Loans.

(b)     With respect to any Unpaid Reimbursement Obligation that is not fully refinanced by Base Rate Loans because the conditions set forth in §12 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unpaid Reimbursement Obligation that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate set forth in §5.10.1.  In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to §4.3(a) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this §4.

---

(c)     Until each Revolving Credit Lender funds its Commitment Percentage of the Revolving Credit Loans or participations as set forth in this §4.3 to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Commitment Percentage of such amount shall be solely for the account of the L/C Issuer.

(d)    If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this §4.3 by the time specified in §4.3, the applicable L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

(e)     At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance in respect of such payment in accordance with §4.3, if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Commitment Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.  If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to §4.3 is required to be returned in connection with any bankruptcy or insolvency proceeding or otherwise (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Commitment Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

---

 

---

---

	CAI INTERNATIONAL, INC.
	By:	/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
	Title:	President and Chief Executive Officer
	CAI RAIL INC.
	By:	/s/ ▇▇▇▇▇▇▇ ▇. Page
	Name:	▇▇▇▇▇▇▇ ▇. Page
	Title:	Chief Financial Officer

	MUFG UNION BANK, N.A.,
		as Administrative Agent, Lender, Swing Line Lender and L/C Issuer
	By:	/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
	Title:	Director

	U.S. BANK, NATIONAL ASSOCIATION, as a Lender
	By:	/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
	Title:	Vice President

	THE HUNTINGTON NATIONAL BANK,
		as Documentation Agent and a Lender
	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
		Title: AVP Huntington Bank

	ING Bank, branch of ING-Diba AG, as Syndication
		Agent and a Lender
	By:	/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
		Name: ▇▇▇▇ ▇▇▇▇▇▇▇
		Title: Director

	UMPQUA BANK, as a Lender
	By:	/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
		Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
		Title: VP

	ABN AMRO CAPITAL USA LLC, as a Lender
	By:	/s/ R.A.V. Hoefnagels
		Name: R.A.V. Hoefnagels
		Title:
	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Title: Managing Director

	BRANCH BANKING AND TRUST COMPANY, as a Lender
	By:	/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
		Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
		Title: Senior Vice President

	BMO ▇▇▇▇▇▇ BANK N.A., as a Lender
	By:	/s/ ▇▇▇▇▇ Haven
		Name: ▇▇▇▇▇ Haven
		Title: Managing Director

	BNP PARIBAS, as a Lender
	By:	/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
		Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
		Title: Director