<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 For the quarterly period ended March 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from TO
------ ------
Commission file number 0-27496
CRONOS GLOBAL INCOME FUND XVI, L.P.
(Exact name of registrant as specified in its charter)
California 94-3230380
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
444 Market Street, 15th Floor, San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
(415) 677-8990
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
<PAGE> 2
CRONOS GLOBAL INCOME FUND XVI, L.P.
REPORT ON FORM 10-Q FOR THE QUARTERLY PERIOD
ENDED MARCH 31, 2000
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Balance Sheets - March 31, 2000 and December 31, 1999 (unaudited) 4
Condensed Statements of Operations for the three months ended March 31, 2000 and 1999 (unaudited) 5
Condensed Statements of Cash Flows for the three months ended March 31, 2000 and 1999 (unaudited) 6
Notes to Condensed Financial Statements (unaudited) 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 10
Item 3. Quantitative and Qualitative Disclosures About Market Risk 11
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 12
</TABLE>
2
<PAGE> 3
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Presented herein are the Registrant's condensed balance sheets as of
March 31, 2000 and December 31, 1999, condensed statements of
operations for the three months ended March 31, 2000 and 1999, and
condensed statements of cash flows for the three months ended March 31,
2000 and 1999.
3
<PAGE> 4
CRONOS GLOBAL INCOME FUND XVI, L.P.
CONDENSED BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------ ------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents, includes $1,374,902 at March 31, 2000
and $1,987,785 at December 31, 1999 in interest-bearing accounts $ 1,375,609 $ 1,987,885
Net lease receivables due from Leasing Company
(notes 1 and 2) 517,309 513,262
------------ ------------
Total current assets 1,892,918 2,501,147
------------ ------------
Container rental equipment, at cost 29,905,424 26,618,929
Less accumulated depreciation 5,951,273 5,542,131
------------ ------------
Net container rental equipment 23,954,151 21,076,798
------------ ------------
Other assets 812,487 50,000
------------ ------------
Total assets $ 26,659,556 $ 23,627,945
============ ============
Liabilities and partners' capital
Current liabilities:
Current portion of equipment debt $ 550,933 $ --
------------ ------------
Total current liabilities 550,933 --
------------ ------------
Equipment debt less current portion 2,754,667 --
------------ ------------
Total liabilities 3,305,600 --
------------ ------------
Partners' capital (deficit):
General partner (15,467) (12,730)
Limited partners 23,369,423 23,640,675
------------ ------------
Total partners' capital 23,353,956 23,627,945
------------ ------------
Total liabilities and partners' capital $ 26,659,556 $ 23,627,945
============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed financial statements.
4
<PAGE> 5
CRONOS GLOBAL INCOME FUND XVI, L.P.
CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended
-----------------------------
March 31, March 31,
2000 1999
----------- -----------
<S> <C> <C>
Net lease revenue (notes 1 and 3) $ 810,544 $ 678,913
Other operating expenses:
Depreciation 413,423 402,516
Other general and administrative expenses 20,468 13,710
----------- -----------
433,891 416,226
----------- -----------
Income from operations 376,653 262,687
Other income (loss):
Interest income 23,255 19,132
Net gain (loss) on disposal of equipment (351) 5,891
----------- -----------
22,904 25,023
----------- -----------
Net income $ 399,557 $ 287,710
=========== ===========
Allocation of net income:
General partner $ 30,941 $ 33,967
Limited partners 368,616 253,743
----------- -----------
$ 399,557 $ 287,710
=========== ===========
Limited partners' per unit share of net income $ 0.23 $ 0.16
=========== ===========
</TABLE>
The accompanying notes are an integral part of these condensed financial
statements.
5
<PAGE> 6
CRONOS GLOBAL INCOME FUND XVI, L.P.
CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended
-----------------------------
March 31, March 31,
2000 1999
----------- -----------
<S> <C> <C>
Net cash provided by operating activities $ 43,541 $ 753,021
Cash flows provided by investing activities:
Proceeds from disposal of equipment 17,727 10,820
Cash flows used in financing activities:
Distribution to partners (673,544) (631,446)
----------- -----------
Net increase (decrease) in cash and cash equivalents (612,276) 132,395
Cash and cash equivalents at January 1 1,987,885 1,843,812
----------- -----------
Cash and cash equivalents at March 31 $ 1,375,609 $ 1,976,207
=========== ===========
</TABLE>
Non cash financing activity:
In connection with the acquisition of container rental equipment, Cronos
Global Income Fund XVI, L.P. financed the purchase of $3,305,600 of equipment
through debt.
The accompanying notes are an integral part of these condensed financial
statements.
6
<PAGE> 7
CRONOS GLOBAL INCOME FUND XVI, L.P.
NOTES TO UNAUDITED CONDENSED FINANCIAL STATEMENTS
(1) Summary of Significant Accounting Policies
(a) Nature of Operations
Cronos Global Income Fund XVI, L.P. (the "Partnership") is a limited
partnership organized under the laws of the State of California on
September 1, 1995, for the purpose of owning and leasing marine cargo
containers, special purpose containers and container related equipment
worldwide to ocean carriers. To this extent, the Partnership's
operations are subject to the fluctuations of world economic and
political conditions. Such factors may affect the pattern and levels of
world trade. The Partnership believes that the profitability of, and
risks associated with, leases to foreign customers is generally the
same as those of leases to domestic customers. The Partnership's leases
generally require all payments to be made in United States currency.
Cronos Capital Corp. ("CCC") is the general partner and, with its
affiliate Cronos Containers Limited (the "Leasing Company"), manages
the business of the Partnership. CCC and the Leasing Company also
manage the container leasing business for other partnerships affiliated
with the general partner. The Partnership shall continue until December
31, 2015, unless sooner terminated upon the occurrence of certain
events.
The Partnership commenced operations on March 29, 1996, when the
minimum subscription proceeds of $2,000,000 were received from over 100
subscribers (excluding from such count Pennsylvania residents, the
general partner, and all affiliates of the general partner). On
February 3, 1997, CCC suspended the offer and sale of units in the
Partnership. The offering terminated on December 27, 1997.
(b) Leasing Company and Leasing Agent Agreement
The Partnership has entered into a Leasing Agent Agreement whereby the
Leasing Company has the responsibility to manage the leasing operations
of all equipment owned by the Partnership. Pursuant to the Agreement,
the Leasing Company is responsible for leasing, managing and re-leasing
the Partnership's containers to ocean carriers and has full discretion
over which ocean carriers, and suppliers of goods and services it may
deal with. The Leasing Agent Agreement permits the Leasing Company to
use the containers owned by the Partnership, together with other
containers owned or managed by the Leasing Company and its affiliates,
as part of a single fleet operated without regard to ownership. Since
the Leasing Agent Agreement meets the definition of an operating lease
in Statement of Financial Accounting Standards (SFAS) No. 13, it is
accounted for as a lease under which the Partnership is lessor and the
Leasing Company is lessee.
The Leasing Agent Agreement generally provides that the Leasing Company
will make payments to the Partnership based upon rentals collected from
ocean carriers after deducting direct operating expenses and management
fees to CCC and the Leasing Company. The Leasing Company leases
containers to ocean carriers, generally under operating leases which
are either master leases or term leases (mostly one to five years).
Master leases do not specify the exact number of containers to be
leased or the term that each container will remain on hire but allow
the ocean carrier to pick up and drop off containers at various
locations; rentals are based upon the number of containers used and the
applicable per-diem rate. Accordingly, rentals under master leases are
all variable and contingent upon the number of containers used. Most
containers are leased to ocean carriers under master leases; leasing
agreements with fixed payment terms are not material to the financial
statements. Since there are no material minimum lease rentals, no
disclosure of minimum lease rentals is provided in these condensed
financial statements.
7
<PAGE> 8
CRONOS GLOBAL INCOME FUND XVI, L.P.
NOTES TO UNAUDITED FINANCIAL STATEMENTS
(c) Basis of Accounting
The Partnership utilizes the accrual method of accounting. Net lease
revenue is recorded by the Partnership in each period based upon its
leasing agent agreement with the Leasing Company. Net lease revenue is
generally dependent upon operating lease rentals from operating lease
agreements between the Leasing Company and its various lessees, less
direct operating expenses and management fees due in respect of the
containers specified in each operating lease agreement.
(d) Financial Statement Presentation
These condensed financial statements have been prepared without audit.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting procedures have been omitted. It is suggested that these
condensed financial statements be read in conjunction with the
financial statements and accompanying notes in the Partnership's latest
annual report on Form 10-K.
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States (GAAP) requires the
Partnership to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reported period.
Actual results could differ from those estimates.
The interim financial statements presented herewith reflect all
adjustments of a normal recurring nature which are, in the opinion of
management, necessary to a fair statement of the financial condition
and results of operations for the interim periods presented. The
results of operations for such interim periods are not necessarily
indicative of the results to be expected for the full year.
(2) Net Lease Receivables Due from Leasing Company
Net lease receivables due from the Leasing Company are determined by
deducting direct operating payables and accrued expenses, base management
fees payable, and reimbursed administrative expenses payable to CCC and its
affiliates from the rental billings payable by the Leasing Company to the
Partnership under operating leases to ocean carriers for the containers
owned by the Partnership. Net lease receivables at March 31, 2000 and
December 31, 1999 were as follows:
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------- -------------
<S> <C> <C>
Gross lease receivables $ 985,303 $ 869,797
Less:
Direct operating payables and accrued expenses 270,533 223,001
Damage protection reserve 59,046 25,021
Base management fees payable 64,284 68,101
Reimbursed administrative expenses 37,943 16,942
Allowance for doubtful accounts 36,188 23,470
------------- -------------
Net lease receivables $ 517,309 $ 513,262
============= =============
</TABLE>
8
<PAGE> 9
CRONOS GLOBAL INCOME FUND XVI, L.P.
NOTES TO UNAUDITED CONDENSED FINANCIAL STATEMENTS
(3) Net Lease Revenue
Net lease revenue is determined by deducting direct operating expenses,
base management fees and reimbursed administrative expenses to CCC and its
affiliates from the rental revenue billed by the Leasing Company under
operating leases to ocean carriers for the containers owned by the
Partnership. Net lease revenue for the three-month periods ended March 31,
2000 and 1999 was as follows:
<TABLE>
<CAPTION>
Three Months Ended
----------------------------
March 31, March 31,
2000 1999
----------- -----------
<S> <C> <C>
Rental revenue (note 4) $ 1,123,818 $ 963,942
Less:
Rental equipment operating expenses 175,068 171,657
Base management fees 77,503 66,686
Reimbursed administrative expenses 60,703 46,686
----------- -----------
$ 810,544 $ 678,913
=========== ===========
</TABLE>
(4) Operating Segment
The Financial Accounting Standards Board has issued SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related Information,"
which changes the way public business enterprises report financial and
descriptive information about reportable operating segments. An operating
segment is a component of an enterprise that engages in business activities
from which it may earn revenues and incur expenses, whose operating results
are regularly reviewed by the enterprise's chief operating decision maker
to make decisions about resources to be allocated to the segment and assess
its performance, and about which separate financial information is
available. Management operates the Partnership's container fleet as a
homogenous unit and has determined, after considering the requirements of
SFAS No. 131, that as such it has a single reportable operating segment.
The Partnership derives its revenues from marine cargo containers. As of
March 31, 2000, the Partnership operated 4,509 twenty-foot, 1,494
forty-foot and 956 forty-foot high-cube marine dry cargo containers, as
well as 89 twenty-foot and 299 forty-foot refrigerated cargo containers,
and 52 twenty-four thousand-liter tanks. A summary of gross lease revenue,
by product, for the three-month periods ended March 31, 2000 and 1999
follows:
<TABLE>
<CAPTION>
Three Months Ended
----------------------------
March 31, March 31,
2000 1999
----------- -----------
<S> <C> <C>
Dry cargo containers $ 737,971 $ 537,982
Refrigerated containers 345,220 378,848
Tank containers 40,627 47,112
----------- -----------
Total $ 1,123,818 $ 963,942
=========== ===========
</TABLE>
Due to the Partnership's lack of information regarding the physical
location of its fleet of containers when on lease in the global shipping
trade, it is impracticable to provide the geographic area information
required by SFAS No. 131.
******
<PAGE> 10
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
It is suggested that the following discussion be read in conjunction with the
Registrant's most recent annual report on Form 10-K.
1) Material changes in financial condition between March 31, 2000 and December
31, 1999.
At March 31, 2000, the Registrant had $1,375,609 in cash and cash
equivalents, a decrease of $612,276 from the cash balances at December 31,
1999. At March 31, 2000, the Registrant had approximately $187,000 in cash
generated from equipment sales reserved as part of its cash balances.
Throughout the remainder of 2000, the Registrant expects to use cash
generated from equipment sales to purchase and replace containers which
have been lost or damaged beyond repair.
The Registrant's allowance for doubtful accounts increased from $23,470 at
December 31, 1999 to $36,188 at March 31, 2000. This increase was
attributable to the delinquent account receivable balances of approximately
nine lessees. The Leasing Company has either negotiated specific payment
terms with these lessees or is pursuing other alternatives to collect the
outstanding balances. In each instance, the Registrant believes it has
provided sufficient reserves for all doubtful accounts.
On March 30, 2000, the Registrant borrowed $3,305,600 under a term loan for
the purpose of acquiring additional equipment. The Registrant borrowed an
additional $1,011,000 on April 28, 2000 with another $727,000 to follow
sometime in May. The term loan was obtained from one lending source
allowing the Registrant to take advantage of equipment purchasing
opportunities pursuant to the Registrant's Partnership Agreement. The loan,
due to expire in the year 2006, is scheduled to be fully repaid in
twenty-four quarterly installments from leasing revenue received by the
Registrant.
The Registrant's cash distribution from operations for the first quarter of
2000 was 8.0% (annualized) of the limited partners' original capital
contribution, unchanged from the fourth quarter of 1999. These
distributions are directly related to the Registrant's results from
operations and may fluctuate accordingly.
In order to take advantage of improving market conditions and stronger
demand for leased containers, the Registrant undertook a strategy that was
aimed at significantly reducing its inventory of idle equipment in some
low-demand locations while, at the same time, fulfilling lessee container
requirements. As part of this strategy, the Registrant offered leasing
incentives to several lessees for picking up off-hire equipment from the
Registrant's higher inventory areas. This not only resulted in stronger
utilization of the Registrant's equipment, but it also significantly
lowered Partnership expenses related to storage and handling.
2) Material changes in the results of operations between the three-month
periods ended March 31, 2000 and 1999.
Net lease revenue for the three-month period ended March 31, 2000 was
$810,544, an increase of approximately 19% from the same three-month period
in the prior year. Gross rental revenue (a component of net lease revenue)
for the three-month period ended March 31, 2000 was $1,123,818, reflecting
an increase of 17% from the same three-month period in the prior year. Dry
cargo container average per-diem rental rates for the three-month period
ended March 31, 2000 declined approximately 9% when compared to the same
three-month period in the prior year. Refrigerated container average
per-diem rental rates for the three-month period ended March 31, 2000
declined 5% when compared to the same period in the prior year. Tank
container average per-diem rental rates for the three-month period ended
March 31, 2000 declined 11% when compared to the same period in the prior
year.
10
<PAGE> 11
The Registrant's average fleet size and utilization rates for the
three-month periods ended March 31, 2000 and 1999 were as follows:
<TABLE>
<CAPTION>
Three Months Ended
-------------------------
March 31, March 31,
2000 1999
--------- ---------
<S> <C> <C>
Average fleet size (measured in twenty-foot
equivalent units (TEU))
Dry cargo containers 6,815 6,840
Refrigerated containers 687 688
Tank containers 52 52
Average utilization
Dry cargo containers 80.5% 74.2%
Refrigerated containers 95.6% 99.6%
Tank containers 75.2% 76.1%
</TABLE>
Rental equipment operating expenses were 16% of the Registrant's gross
lease revenue during the three-month period ended March 31, 2000, as
compared to 18% during the same three-month period ended March 31, 1999.
This decrease was largely attributable to handling and storage costs
associated with fluctuating utilization levels.
YEAR 2000
The Registrant relies upon the financial and operational systems provided
by the Leasing Company and its affiliates, as well as the systems provided
by other independent third parties to service the three primary areas of
its business: investor processing/maintenance; container leasing/asset
tracking; and accounting/finance. Neither the Registrant nor the Leasing
Company experienced nor do they currently anticipate any material adverse
effects on the Registrant's business, results of operations or financial
condition as a result of Year 2000 issues involving internal use systems,
third party products or any of their software products. Costs incurred in
preparing for Year 2000 issues were expensed as incurred. Neither the
Registrant nor the Leasing Company anticipate any additional material costs
in connection with Year 2000 uncertainties. Pursuant to the Limited
Partnership Agreement, CCC or the Leasing Company, may not seek
reimbursement of data processing costs associated with the Year 2000
program.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Not applicable.
11
<PAGE> 12
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description Method of Filing
--------- ------------------------------------------------- --------------------
<S> <C> <C>
3(a) Limited Partnership Agreement of the Registrant, *
amended and restated as of December 28, 1995
3(b) Certificate of Limited Partnership of the **
Registrant
10 Form of Leasing Agent Agreement with Cronos ***
Containers Limited
10.1 Note Purchase Agreement, dated as of March 30, Filed with this document
2000, by and between the Registrant (the
"Company"), Cronos Containers Limited
(the "Guarantor") and IBJ Whitehall Business
Credit Corporation (the "Purchaser")
10.2 Guarantee, dated as of March 30, 2000, by and Filed with this document
between the Guarantor, the Company and
the Purchaser.
10.3 Secured note, dated as of March 30, 2000, by Filed with this document
and between the Company and the Purchaser
10.4 Pledge and Security Agreement, dated as Filed with this document
of March 30, 2000, by and between the
Registrant (the "Debtor") and IBJ
Whitehall Business Credit Corporation
(the "Secured Party)"
27 Financial Data Schedule Filed with this document
</TABLE>
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the Registrant during the quarter
ended March 31, 2000.
- -------------
* Incorporated by reference to Exhibit "A" to the Prospectus of the
Registrant dated December 28, 1995, included as part of Registration
Statement on Form S-1 (No. 33-98290)
** Incorporated by reference to Exhibit 3.2 to the Registration Statement on
Form S-1 (No. 33-98290)
*** Incorporated by reference to Exhibit 10.2 to the Registration Statement on
Form S-1 (No. 33-98290)
12
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
CRONOS GLOBAL INCOME FUND XVI, L.P.
By Cronos Capital Corp.
The General Partner
By /s/ Dennis J. Tietz
--------------------------------------
Dennis J. Tietz
President and Director of Cronos
Capital Corp. ("CCC")
Principal Executive Officer of CCC
Date: May 15, 2000
13
<PAGE> 14
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description Method of Filing
--------- ------------------------------------------------- --------------------
<S> <C> <C>
3(a) Limited Partnership Agreement of the Registrant, *
amended and restated as of December 28, 1995
3(b) Certificate of Limited Partnership of the **
Registrant
10 Form of Leasing Agent Agreement with Cronos ***
Containers Limited
10.1 Note Purchase Agreement, dated as of March 30, Filed with this document
2000, by and between the Registrant (the "Company"),
Cronos Containers Limited (the "Guarantor") and IBJ
Whitehall Business Credit Corporation (the "Purchaser")
10.2 Guarantee, dated as of March 30, 2000, by and Filed with this document
between the Guarantor, the Company and the Purchaser.
10.3 Secured note, dated as of March 30, 2000, by and Filed with this document
between the Company and the Purchaser
10.4 Pledge and Security Agreement, dated as of March Filed with this document
30, 2000, by and between the Registrant (the "Debtor")
and IBJ Whitehall Business Credit
Corporation (the "Secured Party)"
27 Financial Data Schedule Filed with this document
</TABLE>
- -------------
* Incorporated by reference to Exhibit "A" to the Prospectus of the
Registrant dated December 28, 1995, included as part of Registration
Statement on Form S1 (No. 33-98290)
** Incorporated by reference to Exhibit 3.2 to the Registration Statement on
Form S1 (No. 33-98290)
*** Incorporated by reference to Exhibit 10.2 to the Registration Statement on
Form S1 (No. 33-98290)
<PAGE> 1
Exhibit 10.1
================================================================================
NOTE PURCHASE AGREEMENT
AMONG
CRONOS GLOBAL INCOME FUND XVI, L.P.,
CRONOS CONTAINERS LIMITED,
AND
IBJ WHITEHALL BUSINESS CREDIT CORPORATION
Dated as of March 30, 2000
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I - DEFINITIONS
SECTION 1.1. Defined Terms..........................................................1
SECTION 1.2. Accounting and Financial Determinations................................5
SECTION 1.3. Construction...........................................................5
ARTICLE II - PURCHASE AND SALE OF NOTES
SECTION 2.1. Purchase Commitment....................................................6
SECTION 2.2. Sale of Notes..........................................................6
SECTION 2.3. Closings...............................................................6
ARTICLE III - CONDITIONS TO CLOSING
SECTION 3.1. Conditions for Each Closing............................................6
SECTION 3.2. Conditions to Initial Closing..........................................7
SECTION 3.3. Legal Opinions.........................................................8
SECTION 3.4. Representations True; No Default......................................10
SECTION 3.5. Proceedings...........................................................10
ARTICLE IV - PAYMENTS, REGISTRATION, ETC.
SECTION 4.1. Payment of Principal and Interest, Etc................................11
SECTION 4.2. Optional Prepayment...................................................11
SECTION 4.3. Manner of Payment.....................................................12
SECTION 4.4. Registration, Transfer, Etc...........................................12
SECTION 4.5. Additional Amounts....................................................12
ARTICLE V - GUARANTEE
SECTION 5.1. Guarantee.............................................................12
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTOR
SECTION 6.1. Corporate Existence...................................................13
SECTION 6.2. Authorization of Notes, Etc...........................................13
SECTION 6.3. Collateral............................................................13
SECTION 6.4. Consents, Approvals, Etc..............................................14
SECTION 6.5. Litigation............................................................14
SECTION 6.6. No Conflicting Agreements.............................................14
SECTION 6.7. Financial Statements..................................................14
SECTION 6.8. No Material Adverse Change............................................14
SECTION 6.9. Subsidiaries..........................................................15
SECTION 6.10. Offering of Notes....................................................15
SECTION 6.11. Broker's or Finder's Commissions.....................................15
</TABLE>
ii
<PAGE> 3
<TABLE>
<S> <C>
SECTION 6.12. Use of Proceeds......................................................15
SECTION 6.13. Investment Company Status............................................15
SECTION 6.14. Environmental Compliance.............................................15
SECTION 6.15. Full Disclosure.......................................................16
ARTICLE VII - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 7.1. Experience............................................................16
SECTION 7.2. Investment............................................................16
SECTION 7.3. Limitations on Disposition............................................16
SECTION 7.4. Restrictive Legend....................................................16
ARTICLE VIII - COMPANY COVENANTS
SECTION 8.1. Financial Statements..................................................17
SECTION 8.2. Partnership Existence, Etc............................................17
SECTION 8.3. Taxes and Claims......................................................18
SECTION 8.4. Insurance.............................................................18
SECTION 8.5. Compliance with Applicable Laws.......................................18
SECTION 8.6. Books and Accounts....................................................18
SECTION 8.7. Limitation on Liens...................................................19
SECTION 8.8. Maintenance and Use of Containers.....................................19
SECTION 8.9. Notices as to Default or Material Change..............................19
SECTION 8.10. Other Information....................................................19
SECTION 8.11. Change of Name/Location..............................................20
SECTION 8.12. Indemnification......................................................20
SECTION 8.13. Tangible Net Worth...................................................21
SECTION 8.14. Leverage..............................................................21
SECTION 8.15. Limitations on Distributions and Restricted Payments.................21
SECTION 8.16. Limitation on Sales of Assets and Containers.........................21
SECTION 8.17. Transactions with Affiliates.........................................21
SECTION 8.18. No Additional Indebtedness...........................................22
ARTICLE IX - GUARANTOR COVENANTS
SECTION 9.1. Corporate Existence, Etc..............................................22
SECTION 9.2. Container Information.................................................22
SECTION 9.3. Taxes and Claims......................................................22
SECTION 9.4. Insurance.............................................................22
SECTION 9.5. Compliance with Applicable Laws.......................................22
SECTION 9.6. Books and Accounts....................................................23
SECTION 9.7. Transactions with Affiliates..........................................23
SECTION 9.8. Management of Containers..............................................23
ARTICLE X - CHANGE OF CONTROL, MERGERS, CONSOLIDATIONS AND SALES OF ASSETS
SECTION 10.1. Change of Control....................................................23
</TABLE>
iii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 10.2. Mergers, Consolidations and Sales of Assets..........................24
ARTICLE XI - DEFAULTS AND REMEDIES
SECTION 11.1. Events of Default....................................................24
SECTION 11.2. Acceleration.........................................................25
ARTICLE XII - MISCELLANEOUS
SECTION 12.1. Waivers, Amendments, Etc.............................................26
SECTION 12.2. Expenses.............................................................26
SECTION 12.3. Persons Deemed Owners................................................26
SECTION 12.4. Non-Business Days....................................................27
SECTION 12.5. Notices..............................................................27
SECTION 12.6. Notices to Subsequent Holder.........................................27
SECTION 12.7. Severability.........................................................27
SECTION 12.8. Headings.............................................................27
SECTION 12.9. Counterparts.........................................................27
SECTION 12.10. Governing Law.......................................................27
SECTION 12.11. Entire Agreement....................................................28
SECTION 12.12. Successors and Assigns..............................................28
SECTION 12.13. Submission to Jurisdiction..........................................28
SECTION 12.14. Confidentiality.....................................................28
SECTION 12.15. Further Assurances..................................................29
SECTION 12.16. Waivers of Jury Trial...............................................29
</TABLE>
Exhibits
EXHIBIT A - FORM OF NOTE AND GUARANTEE
EXHIBIT B - FORM OF SECURITY AGREEMENT
iv
<PAGE> 5
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT is made as of March 30, 2000, by and among
CRONOS GLOBAL INCOME FUND XVI, L.P., a California limited partnership (the
"Company"), CRONOS CONTAINERS LIMITED, a United Kingdom company (the
"Guarantor"), and IBJ WHITEHALL BUSINESS CREDIT CORPORATION, a New York
corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Company has authorized the issuance of $5,000,000 aggregate
principal amount of its Secured Notes due 2006 (the "Notes") in substantially
the form set forth in Exhibit A hereto; and
WHEREAS, the Company has agreed to sell to the Purchaser, and the
Purchaser has agreed to purchase from the Company, the Notes; and
WHEREAS, the Guarantor has agreed to guarantee unconditionally the due
and punctual payment of the principal of and premium and interest on the Notes
and all of the other obligations of the Company hereunder and under the other
Purchase Documents (as defined below).
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINED TERMS. Except as otherwise expressly provided or
unless the context otherwise requires, the following terms shall have the
following meanings:
"Accountants" means Deloitte Touche LLP or any other firm among the five
largest independent public accountants selected by the Company or any other
accounting firm approved by the Purchaser.
"Affiliate" of any Person means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control," when used with
respect to any Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the words "controlling" and
"controlled by" have meanings correlative to the foregoing.
<PAGE> 6
"Agreement" means this Note Purchase Agreement, as from time to time
amended, supplemented or otherwise modified.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in California or New York are
authorized or obligated by law or executive order to close and, relative to the
determination of the interest rate provided for in the Notes, "Business Day"
also means a day on which dealings in U.S. Dollars are carried on in the
interbank eurodollar market in which the Purchaser participates.
"Capital Lease Obligation" means any lease obligation which, in
accordance with U.S.GAAP, is required to be classified as a capital lease in the
financial statements of the Company.
"Capital Stock" means any and all shares of capital stock or other
equity securities (however designated) that have no preference or priority over
shares of capital stock or other equity securities of any other class or classes
in the payment of dividends or the distribution of assets upon any liquidation,
dissolution or winding up.
"Change of Control" means (i) any consolidation or merger of the Company
with or into any other Person in which the Company is not the surviving Person,
(ii) any consolidation or merger of the Guarantor with or into any other Person
in which the Guarantor is not the surviving Person, (iii) any sale or transfer
of all or substantially all of the Company's assets to any Person, (iv) any
liquidation, dissolution or winding up of the Company or any adoption of a plan
of liquidation, dissolution or winding up of the Company, (v) any acquisition by
any Person (other than any beneficial owner of 50% or more of the outstanding
Capital Stock of the Guarantor on the date of this Agreement, and other than any
Person engaged in the business of underwriting and distributing securities that
purchases Capital Stock of the Guarantor for distribution), including its
Affiliates and Related Persons, of Capital Stock of the Guarantor entitling such
Person, together with any Affiliates and Related Persons thereof, to exercise
50% or more of the total voting power of all classes of Capital Stock of the
Guarantor entitled to vote generally in elections of directors of the Guarantor,
or (vi) any liquidation, dissolution or winding up of the Guarantor or any
adoption of a plan of liquidation or winding up of the Guarantor.
"Closing" is defined in Section 2.3 hereof.
"Closing Date" is defined in Section 2.2 hereof.
"Collateral" is defined in the Security Agreement.
"Commitment" is defined in Section 2.1 hereof.
"Containers" is defined in the Security Agreement.
"Default" means any event which is, or after the giving of notice or the
passage of time or both would be, an Event of Default.
"Environmental Notice" is defined in Section 6.14 hereof.
2
<PAGE> 7
"Event of Default" is defined in Section 11.1 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Payment Date" is defined in Section 4.1 hereof.
"Funded Debt" means without duplication, all indebtedness, liabilities
and obligations of the Company of any nature whatsoever, direct or contingent,
matured or unmatured, joint and several, joint or several, including, without
limitation (i) every obligation of the Company for borrowed money, (ii) all
liabilities of the Company for the deferred purchase price of Property acquired
by such Person (excluding accounts payable arising in the ordinary course of the
Company's business but including all liabilities created or arising under any
conditional sale or other title retention agreement entered into by such Person
with respect to any such Property), (iii) the principal component of all Capital
Lease Obligations of the Company, (iv) all payables of the Company due to
manufacturers of Containers, and (v) all obligations of the Company secured by a
Lien on any asset owned by such Person, and (vi) all guarantees of the Company,
if any, guaranteeing or in effect guaranteeing any obligation of the type
described in the foregoing clauses (i) through (v) above.
"Guarantee" means one of the Guarantees of the Notes in substantially
the form attached thereto.
"Interest Period" means, relative to the setting of the initial interest
rate of any Note or the rate to be determined on any LIBOR Interest
Determination Date (as defined in the Notes) for any Note, the period which
begins on the date of issuance of such Note or the Interest Reset Date (as
defined in the Notes), as applicable, and ends on the date which is (i) with
respect to periods commencing prior to the First Payment Date, the day of the
immediately succeeding month that numerically corresponds to such date of
issuance or Interest Reset Date, or (ii) with respect to periods commencing on
and after the First Payment Date, the day of the immediately succeeding third
month that numerically corresponds to such Interest Reset Date; provided,
however, that:
(a) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(b) if any Interest Period commences on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period),
such Interest Period shall end on the last Business Day of the last
calendar month of such Interest Period; and
(c) no Interest Period shall end later than the maturity date of
such Note.
"Leasing Agent Agreement" means the Leasing Agent Agreement dated as of
October 9, 1995, among the Company, Cronos Capital Corp. and the Guarantor.
3
<PAGE> 8
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property.
"Note" means one of the Secured Notes due 2006 payable by the Company to
the order of the Purchaser in substantially the form of Exhibit A attached
hereto issued under this Agreement and any other promissory note issued from
time to time in substitution, replacement or renewal thereof.
"Noteholder" means at any time a Person in whose name a Note is then
registered in accordance with Section 4.4 hereof.
"Obligations" is defined in Section 1 of the Security Agreement.
"Permitted Liens" is defined in Section 8.7 hereof.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" means capital stock of any class or classes (however
designated) that has a preference or priority over shares of capital stock of
any other class or classes in the payment of dividends or the distribution of
assets upon any liquidation, dissolution or winding up.
"Property" means property of all kinds, real or personal, tangible or
intangible.
"Purchase Documents" means this Agreement, the Security Agreement, the
Notes and the Guarantees, as from time to time amended, supplemented or
otherwise modified.
"Related Person" in respect of any Person means any other Person (i)
owning ten percent (10%) or more of the outstanding voting stock of such Person
or (ii) if such Person does not have voting stock, owning ten percent (10%) or
more of the equity interest in such Person.
"Restricted Investments" means all investments, made in cash or by
delivery of Property, by the Company in any other Person, whether by acquisition
of capital stock, securities, indebtedness or other obligations or by loan,
advance or capital contribution; excluding, however, (i) investments in direct
U.S. government or agency obligations maturing within one year; (ii) investments
in corporate obligations rated at least AA by Standard & Poor's or at least Aa
by Moody's Investors Service, Inc. maturing within one year; (iii) investments
in certificates of deposit issued by any U.S. or state commercial bank or trust
company, the U.S. branch of any foreign bank or any United Kingdom commercial
bank, each with capital and surplus of not less than the equivalent of U.S.
$100,000,000 and whose short-term certificate of deposit rating remains at least
A+ by Standard & Poor's or at least A-1 by Moody's Investors Service, Inc.
maturing within one year; (iv) Preferred Stock investments rated at least AA by
Standard & Poor's or at least Aa by Moody's Investors Service, Inc. scheduled to
be redeemed within one year; (v) any state, local or municipal obligations,
foreign or domestic, rated at least AA by Standard & Poor's or at least Aa by
Moody's Investors
4
<PAGE> 9
Service, Inc. maturing within one year; and (vi) accounts and lease receivables
incurred in the ordinary course of business.
"Security Agreement" means the Security Agreement dated as of the date
hereof between the Company and the Purchaser in the form of Exhibit B hereto, as
from time to time amended, supplemented or otherwise modified.
"Securities Act" means the Securities Act of 1933, as amended.
"Standard & Poor's" means Standard & Poor's Rating Services, a division
of The McGraw-Hill Companies.
"Subsidiary" of any Person means any other Person whose equity
securities entitled to elect more than 50% of the directors are, at the time of
determination, owned directly or indirectly by such Person, excluding, however,
any partnership or other non-corporate entity of which such Person or any of its
Subsidiaries is general partner unless such Person owns, directly or indirectly,
50% or more of the economic interest in such entity.
"Tangible Net Worth" means the sum of capital plus retained earnings
plus subordinated indebtedness minus goodwill, patents, trade names and such
other assets as are properly classified as "intangible assets" in accordance
with U.S.GAAP.
"Taxes" is defined in Section 4.5 hereof.
"U.S.GAAP" means generally accepted accounting principles in the United
States as in effect from time to time.
SECTION 1.2. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise
specified, all accounting terms used herein shall be interpreted, all accounting
determinations and computations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared, in accordance
with U.S.GAAP.
SECTION 1.3. CONSTRUCTION. As used herein, words importing the singular
number include the plural and vice versa, and words importing gender include all
genders.
5
<PAGE> 10
ARTICLE II
PURCHASE AND SALE OF NOTES
SECTION 2.1. PURCHASE COMMITMENT. Subject to the terms and conditions of
this Agreement, until the first to occur of May 31, 2000, or a Default, the
Company agrees from time to time to issue and sell to the Purchaser, and the
Purchaser agrees to purchase from the Company, Notes in the aggregate original
principal amount not to exceed $5,000,000 (the "Commitment"). Unless sooner
terminated pursuant to the provisions of this Agreement, the obligation of the
Purchaser to purchase Notes hereunder shall automatically terminate on May 31,
2000, without further action by, or notice of any kind from, the Purchaser.
SECTION 2.2. SALE OF NOTES. The Company may make up to three (3)
requests to the Purchaser to purchase Notes. Such requests shall be in writing
and shall be made no later than three (3) Business Days prior to the requested
date for the purchase of the Notes. Each such request shall (i) specify the
requested date for purchasing such Notes, which date shall be a Business Day and
with respect to purchases after the first purchase of Notes hereunder, shall
also be on the first Business Day following the last day of an Interest Period,
(ii) be accompanied by invoices for the Containers to be financed with the
proceeds of such Notes, in such detail as the Purchaser shall require, and (iii)
specify the principal amount of such Notes, which amount shall be not less than
the lesser of $1,000,000.00 or the remaining balance of the Commitment and shall
not exceed the amount shown on such invoices. On the requested date for
purchasing Notes (each, a "Closing Date"), the Company will deliver to the
Purchaser Notes, dated the applicable Closing Date, duly executed by the
Company, with the Guarantee of the Guarantor duly endorsed thereon, in the
aggregate principal amount requested and registered in the name of the Purchaser
or its nominees, against delivery by the Purchaser to the Company of immediately
available funds in the principal amount of such Notes. No Notes will be
purchased by the Purchaser if such purchase together with all prior purchases of
Notes hereunder by the Purchaser, exceeds the Commitment.
SECTION 2.3. CLOSINGS. Delivery of Notes against payment therefor (each,
a "Closing") shall take place at the offices of Ober, Kaler, Grimes & Shriver, A
Professional Corporation, 120 East Baltimore Street, Baltimore, Maryland 21202,
on the Closing Date at such time as the parties may agree.
ARTICLE III
CONDITIONS TO CLOSING
SECTION 3.1. CONDITIONS FOR EACH CLOSING. The obligation of the
Purchaser to purchase the Notes on any Closing Date is subject to the
fulfillment, to the Purchaser's satisfaction, at or concurrently with each
Closing, of the conditions set forth in Sections 3.4 and 3.5 below and of all of
the following conditions:
(a) the delivery of the Notes in accordance with Section 2.2 above;
6
<PAGE> 11
(b) copies of invoices for the Containers being purchased by the Company
with the proceeds of the Notes; and
(c) a list of the Containers being purchased by the Company with the
proceeds of the Notes.
SECTION 3.2. CONDITIONS TO INITIAL CLOSING. In addition to the
requirements of the conditions set forth in Section 3.1 above, the obligation of
the Purchaser to purchase the Notes at the initial Closing is subject to the
fulfillment, to the Purchaser's satisfaction, at or concurrently with the
initial Closing, of the conditions set forth in Section 3.3 below and of all of
the following conditions:
(a) Copies of the Agreement of Limited Partnership of the Company and of
the charter and bylaws of the general partner of the Company, each as in effect
on the Closing Date, certified by the Secretary of the general partner of the
Company
(b) Resolutions of the Company authorizing the execution and delivery of
this Agreement, the Security Agreement and the other Purchase Documents to which
it is a party and the issuance and sale of the Notes, certified by the Secretary
of the general partner of the Company;
(c) Copies of the Memorandum of Association and Bylaws of the Guarantor
as in effect on the Closing Date, certified by the Secretary of the Guarantor;
(d) Resolutions of the Board of Directors of the Guarantor authorizing
the execution and delivery of this Agreement, the Guarantees and the other
Purchase Documents to which it is a party, certified by the Secretary of the
Guarantor;
(e) An original counterpart of this Agreement and the Security
Agreement, each duly executed by the parties thereto and dated as of the initial
Closing Date;
(f) Official evidence that the Company has been duly formed and is an
existing limited partnership in good standing under the laws of the State of
California and that the Guarantor has been duly incorporated and is an existing
corporation under the laws of the United Kingdom;
(g) UCC-1 financing statements in a form approved by the Purchaser to be
filed with the Secretary of State of California;
(h) the deposit by the Company of $750,000 in a money market account
with IBJ Whitehall Bank & Trust Company, which account shall be in the name of
the Company but subject to the exclusive control of the Purchaser;
(i) insurance certificate or certificates in respect of the Containers
naming the Noteholders as loss payees and additional insureds; and
(j) a list of all of the Company's Containers.
7
<PAGE> 12
SECTION 3.3. LEGAL OPINIONS. The Purchaser shall have received the
following legal opinions, dated as of the initial Closing Date:
(a) The opinion of Denton Wilde Sapte, United Kingdom counsel to the
Guarantor, to the effect that:
(i) The Guarantor has been duly incorporated and is an existing
corporation under the laws of United Kingdom and is duly qualified as a
foreign corporation in each jurisdiction wherein the nature of its
business or property makes such qualification necessary and where
failure to qualify or to be in good standing would materially adversely
affect its business or assets, and has the corporate power and authority
to own its property and to carry on its business as now conducted.
(ii) The Guarantor has full corporate power and authority to
execute, deliver and perform this Agreement, the Guarantees and the
other Purchase Documents to which it is a party. This Agreement, the
Guarantees and the other Purchase Documents to which the Guarantor is a
party have been duly authorized, executed and delivered by the Guarantor
and constitute valid and legally binding obligations of the Guarantor
enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(iii) The execution, delivery and performance of this Agreement,
the Guarantees and the other Purchase Documents to which the Guarantor
is a party will not violate the Memorandum of Association or Bylaws of
the Guarantor or any United Kingdom law, regulation, order or decree
applicable to the Guarantor.
(iv) No consent, approval, authorization, order, registration or
qualification of or with any United Kingdom court or governmental agency
or body is required for the execution, delivery and performance by the
Guarantor of this Agreement, the Guarantees and the other Purchase
Documents to which the Guarantor is a party.
(v) Any judgment against the Guarantor duly obtained in the
courts of the State of New York or in the United States District Court
for the Southern District of New York in respect of this Agreement, the
Guarantees and the other Purchase Documents to which the Guarantor is a
party would be enforceable by suit against the Guarantor in a United
Kingdom court provided that (a) such judgment is enforceable in the
State of the court which rendered such judgment, (b) the court which
rendered such judgment had jurisdiction over the subject matter of the
action leading to such judgment, (c) the court which rendered such
judgment acted in accordance with its own procedural laws, (d) such
judgment was granted following proceedings where the counterparty had
received notice and at which the counterparty had the opportunity to
appear, and if it appeared, to present a defense, (e) the court which
rendered such judgment applied the substantive laws chosen by the
parties to govern the Purchase Documents, and (f) the decision is not
contrary to United Kingdom public order.
8
<PAGE> 13
(b) The opinion of Fotenos & Suttle, P.C., United States counsel to the
Company, to the effect that, insofar as the laws of the State of California and
the federal laws of the United States are concerned:
(i) The Company has been duly organized and is validly existing
under the laws of the State of California, is duly qualified as a
foreign partnership in each jurisdiction wherein the nature of its
business or property makes such qualification necessary and where
failure to qualify or to be in good standing would materially adversely
affect its business or assets, and has the partnership power and
authority to own its property and to carry on its business as now
conducted.
(ii) The Company has full partnership power and authority to
execute, deliver and perform this Agreement and the other Purchase
Documents to which it is a party. This Agreement and the other Purchase
Documents to which the Company is a party have been duly authorized,
executed and delivered by the Company.
(iii) No consent, approval, authorization, order, registration or
qualification of or with any United States (federal, state or local)
court or governmental agency or body is required for the execution,
delivery and performance by the Company of this Agreement and the other
Purchase Documents, except such consents, approvals, authorizations,
orders, registrations or qualifications as have been issued, filed or
obtained.
(iv) To our knowledge, there are no actions, suits,
investigations or proceedings at law or in equity pending or threatened
against the Company, before or by any governmental body or authority
which are reasonably expected to have a material adverse effect on the
financial condition, business or Property of the Company or which call
into question the validity or enforceability of this Agreement or the
other Purchase Documents. To our knowledge, the Company is not in
violation of any judgment, order, writ, injunction, decree, rule or
regulation of any court or governmental body or authority the violation
of which would, either individually or collectively, materially and
adversely affect the business, Property or financial position of the
Company and the Guarantor.
(v) To our knowledge, (1) the Company is not in default under any
mortgage, indenture, contract or agreement to which it is a party or by
which it or any of its Property is bound, which default would have a
material adverse effect on its financial position, business or Property;
(2) the execution, delivery and performance of this Agreement and the
other Purchase Documents will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien upon
any Property of the Company pursuant to the terms of any mortgage,
indenture, contract or agreement (other than Permitted Liens); and (3)
no provision of any existing mortgage, indenture, contract or agreement
of the Company conflicts with, requires any consent under or in any way
prevents the execution, delivery and performance of this Agreement or
the other Purchase Documents.
(vi) The Security Agreement and the description of the Collateral
are sufficient, to create a valid Lien with respect to the Collateral in
favor of the Noteholders to secure the
9
<PAGE> 14
Obligations and upon the filing of an Uniform Commercial Code financing
statement with the Secretary of State of California, the Noteholders
will have a perfected security interest in the Collateral.
(vii) Neither registration of the Notes or the Guarantees under
the Securities Act nor qualification of an indenture with respect
thereto under the Trust Indenture Act of 1939 is required for the offer
and sale of the Notes and the Guarantees to the Purchaser in accordance
with this Agreement.
(viii) No tax, levy, impost or other charges of any nature
whatsoever is required under the laws of the State of California to be
deducted or withheld from any payment required to be made by the Company
under the Notes.
(ix) No stamp or other taxes are payable under the laws of the
State of California in connection with the execution and delivery of
this Agreement and the other Purchase Documents or to ensure the
legality, validity, enforceability or admissibility in evidence thereof
or to preserve or protect the security interest granted under the
Security Agreement and the continuing priority of such security
interest.
(c) The opinion of Proskauer Rose LLP, special counsel to the Company,
to the effect that, insofar as the laws of the State of New York and the federal
laws of the United States are concerned, this Agreement and the other Purchase
Documents to which the Company is a party constitute, and the Notes, when
executed and delivered by the Company to the Purchaser against payment therefor
as provided herein, will constitute, valid and legally binding obligations of
the Company enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
SECTION 3.4. REPRESENTATIONS TRUE; NO DEFAULT. The representations and
warranties of the Company and the Guarantor contained herein shall be true on
each Closing Date, with the same effect as though such representations and
warranties had been made on and as of such Closing Date, and there shall exist
no Default or Event of Default. The Purchaser shall have received a certificate
dated each Closing Date of a senior officer of the Company and of the Guarantor
to the foregoing effect.
SECTION 3.5. PROCEEDINGS. All corporate and other proceedings taken or
to be taken by the Company and the Guarantor on or prior to each Closing Date in
connection with the transactions contemplated hereby and all documents incident
thereto (including without limitation any consents required in connection
therewith) shall be satisfactory in form and substance to the Purchaser.
10
<PAGE> 15
ARTICLE IV
PAYMENTS, REGISTRATION, ETC.
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST, ETC.
(a) The principal amount of each Note shall be due and payable in
twenty-four (24) consecutive equal quarterly installments each in the amount set
forth in the Note, commencing on the three month anniversary of the date of the
last purchase of Notes hereunder (the "First Payment Date") and continuing
thereafter on each three month anniversary thereof, until repayment in full of
such Note.
(b) The Company shall pay interest on the unpaid principal amount of
each Note on the last day of each Interest Period until the repayment in full of
such Note. The rate of interest shall be determined in accordance with the
provisions of the Notes entitled "LIBOR Rate." Each interest payment shall be
calculated by dividing the applicable annual interest rate by 360 and
multiplying the result by the actual number of days elapsed since the most
recent interest payment date and multiplying the result by the principal amount
of such Note outstanding.
(c) Any overdue principal or any overdue installment of interest on any
Note shall bear interest (to the extent that the payment of such interest shall
be legally enforceable) at a rate equal to the lesser of (i) the maximum rate
per annum permitted by applicable law or (ii) the applicable rate per annum
provided in the Notes plus 2.0% until paid. Such interest shall be payable upon
demand of the Noteholder.
(d) The Notes shall be entitled to the benefits and security of the
Security Agreement.
SECTION 4.2. OPTIONAL PREPAYMENT. The Company may, at its option from
time to time, upon fifteen (15) days' prior written notice, prepay on any
regularly scheduled payment date all (but not less than all) of the outstanding
principal amount of the Notes at a prepayment price equal to the sum of the
outstanding principal amount of the Notes plus all accrued but unpaid interest
thereon to the date of such prepayment plus a prepayment premium in an amount
equal to the applicable prepayment percentage (as set forth below) of the then
outstanding principal amount of the Notes.
<TABLE>
<CAPTION>
Note Payment Date No: Prepayment Percentage
--------------------- ---------------------
<S> <C>
1 through 4 5.0%
5 through 8 4.0%
9 through 12 3.0%
13 through 16 2.0%
17 and thereafter 1.0%
</TABLE>
SECTION 4.3. MANNER OF PAYMENT. Payments of principal, premium and
interest on the Notes shall be made by wire transfer of funds to such account or
accounts of the Noteholders as the Purchaser shall notify the Company in
writing.
11
<PAGE> 16
SECTION 4.4. REGISTRATION, TRANSFER, ETC. The Notes shall be issued only
in registered form, without coupons, in minimum denominations of $1,000,000, or
such lesser amount as may remain outstanding thereon. The Company shall keep a
register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and the registration of
transfer of Notes. Upon surrender to the Company for registration of transfer of
any Note, the Company will, at its expense, issue one or more new Notes of like
tenor and of a like aggregate outstanding principal amount, dated the date to
which interest has been paid, with the Guarantee of the Guarantor duly endorsed
thereon, registered in the name of the designated transferee or its nominee;
provided, however, that, unless an Event of Default has occurred and is
continuing, the Company shall not be obligated to register any transfer to, and
no Noteholder shall be entitled to make any transfer to, a competitor of the
Company or the Guarantor, or any other Person in the business of owning or
leasing only marine cargo containers. The Company will issue, in exchange for
any Note surrendered for such purpose, one or more new Notes of like tenor and
of a like aggregate outstanding principal amount, dated the date to which
interest has been paid, with the Guarantee of the Guarantor duly endorsed
thereon, registered in the name of the holder of the Note so surrendered or its
nominee. No service charge shall be imposed for any exchange or registration of
transfer of Notes. All Notes presented or surrendered for registration of
transfer, exchange, partial payment or payment shall (if so required by the
Company) be duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company duly executed by, the holder or its attorney
duly authorized in writing.
SECTION 4.5. ADDITIONAL AMOUNTS. All payments made with respect to the
Notes will be made free and clear of and without withholding or deduction for or
on account of any present or future tax, duty, levy, impost, assessment or other
governmental charge imposed or levied by or on behalf of any taxing authority
(other than taxes levied by the United States Internal Revenue Service on or by
reason of the income of the Noteholders) (hereinafter "Taxes"), unless the
Company is required to withhold or deduct Taxes by law or by the interpretation
or administration thereof. If the Company is so required to withhold or deduct
any amount for or on account of Taxes from any payment made under or with
respect to the Notes, the Company will pay such additional amounts, after such
withholding or deduction, so that the Noteholders will not receive less than the
amounts such holders would have received if such Taxes had not been withheld or
deducted.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE. The Guarantor shall execute and deliver to the
Purchaser Guarantees in the form attached to the Notes.
12
<PAGE> 17
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE GUARANTOR
The Company and the Guarantor hereby represent and warrant to, and agree
with, the Noteholders as follows:
SECTION 6.1. CORPORATE EXISTENCE. Each of the Company and the Guarantor
has been duly organized or formed and is existing under the laws of its
jurisdiction of incorporation or formation, as applicable, is duly qualified as
a foreign corporation or partnership, as applicable, in each jurisdiction
wherein the nature of its business or property makes such qualification
necessary and where failure to qualify or to be in good standing would
materially adversely affect its business or assets, and has the corporate or
partnership power and authority to own its property and to carry on its business
as now conducted.
SECTION 6.2. AUTHORIZATION OF NOTES, ETC. The Company has full
partnership power and authority to execute, deliver and perform this Agreement,
the Security Agreement, the Notes and the other Purchase Documents to which it
is a party, and the Guarantor has full corporate power and authority to execute,
deliver and perform this Agreement, the Guarantees and the other Purchase
Documents to which it is a party. This Agreement, the Security Agreement and the
other Purchase Documents to which the Company is a party have been duly
authorized, executed and delivered by the Company and constitute, and the Notes
have been duly authorized and when executed and delivered by the Company to the
Purchaser against payment therefor as provided herein will constitute, valid and
legally binding obligations of the Company enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles. This Agreement
and the other Purchase Documents to which the Guarantor is a party have been
duly authorized, executed and delivered by the Guarantor and constitute, and the
Guarantees have been duly authorized and when executed by the Guarantor and
delivered by the Company to the Purchaser of the Notes against payment therefor
as provided herein will constitute, valid and legally binding obligations of the
Guarantor enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
SECTION 6.3. COLLATERAL. The Security Agreement, when executed and
delivered by the Company to the Purchaser, will create a valid security interest
in the Collateral securing the payment of the Obligations (as defined in the
Security Agreement). All action necessary to perfect such security interest has
been, or will be, taken, and such security interest has priority over any other
Lien on such Collateral, except Permitted Liens. Upon the purchase by the
Purchaser of the Notes and the application by the Company of the proceeds
thereof in accordance with Section 6.12 hereof, there will be no Liens in favor
of manufacturers of the Containers.
SECTION 6.4. CONSENTS, APPROVALS, ETC. No consent, approval,
authorization, order, registration or qualification of or with any United
Kingdom or United States (federal, state or local)
13
<PAGE> 18
court or governmental agency or body is required for the execution, delivery and
performance by the Company and the Guarantor of this Agreement, the Security
Agreement, the Notes and the other Purchase Documents, except such consents,
approvals, authorizations, orders, registrations or qualifications as have been
issued, filed or obtained.
SECTION 6.5. LITIGATION. There are no actions, suits, investigations or
proceedings at law or in equity pending or, to the knowledge of the Company or
the Guarantor, threatened against the Company or the Guarantor, before or by any
governmental body or authority which are reasonably expected to have a material
adverse effect on the financial condition, business or Property of the Company
or the Guarantor or which call into question the validity or enforceability of
this Agreement or the other Purchase Documents. Neither the Company nor the
Guarantor is in violation of any judgment, order, writ, injunction, decree, rule
or regulation of any court or governmental body or authority the violation of
which would, either individually or collectively, materially and adversely
affect the business, Property or financial position of the Company or the
Guarantor.
SECTION 6.6. NO CONFLICTING AGREEMENTS. Neither the Company nor the
Guarantor is in default under any mortgage, indenture, contract or agreement to
which it is a party or by which it or any of its Property is bound, which
default would have a material adverse effect on its financial position, business
or Property. The execution, delivery and performance of this Agreement and the
other Purchase Documents will not constitute a default under, or result in the
creation or imposition of, or obligation to create, any Lien upon any Property
of the Company or the Guarantor pursuant to the terms of any mortgage,
indenture, contract or agreement (other than Permitted Liens). No provision of
any existing mortgage, indenture, contract or agreement of the Company or the
Guarantor conflicts with, requires any consent under or in any way prevents the
execution, delivery and performance of this Agreement or the other Purchase
Documents.
SECTION 6.7. FINANCIAL STATEMENTS. The Purchaser has been furnished with
(a) the Company's 10-K for the period ending December 31, 1998 and with the
balance sheet of the Guarantor as at December 31, 1998, together with the
related statements of operations, cash flow and partners' equity for the fiscal
year ended December 31, 1998 (the "Annual Financial Statements"), including the
related notes, all accompanied by the report thereon of Moore Stephens Chartered
Accountants, independent public accountants, and (b) the Company's 10-Q for the
period ending September 30, 1999 (the "10-Q"). The Annual Financial Statements
and the 10-Q fairly present (subject, in the case of the 10-Q, to normal
year-end adjustments), in all material respects, the financial position, results
of operations and cash flows of the Company and of the Guarantor as at the dates
and for the periods referred to therein in conformity with U.S.GAAP (except as
otherwise stated therein or in the notes thereto).
SECTION 6.8. NO MATERIAL ADVERSE CHANGE. There has not been any material
adverse change in the condition, financial or otherwise, of the Company since
September 30, 1999 or of the Guarantor subsequent to December 31, 1998.
SECTION 6.9. SUBSIDIARIES. Neither the Company nor the Guarantor has any
Subsidiary and neither shall create any Subsidiary without the prior written
consent of the Noteholders.
14
<PAGE> 19
SECTION 6.10. OFFERING OF NOTES. Neither the Company nor the Guarantor
has, directly or indirectly, offered the Notes or any similar security for sale
to, or solicited any offers to buy the Notes or any similar security from, or
otherwise approached or negotiated with respect thereto with more than 50
Persons including the Purchaser, all of which Persons are "accredited investors"
(as such term is defined under Rule 501 of the Securities and Exchange
Commission), and neither the Company nor the Guarantor nor any agent acting on
behalf of the Company or the Guarantor has taken any action which would require
the issuance or sale of the Notes or the Guarantees to the Purchaser to be
registered under the Securities Act or to be registered or qualified under any
securities or Blue Sky law of any applicable jurisdiction.
SECTION 6.11. BROKER'S OR FINDER'S COMMISSIONS. The Company and the
Guarantor will hold the Noteholders harmless from any claim, demand or liability
for broker's or finder's or placement fees or commissions alleged to have been
incurred in connection with the issuance and sale of the Notes and the
Guarantees, other than for any such claim, demand or liability by any broker or
finder engaged by the Noteholders in connection with the transactions
contemplated hereby.
SECTION 6.12. USE OF PROCEEDS. The net proceeds from the sale of the
Notes will be used by the Company to finance the purchase of new dry cargo 20
and 40 foot marine cargo containers. The Guarantor or the Company has provided
to the Purchaser a schedule certified by an officer of the Guarantor setting
forth the type, serial number, age, date of acquisition and original cost of
each Container presently owned by the Company. None of the transactions
contemplated by this Agreement (including, without limitation, the use of
proceeds from the sale of the Notes) will violate or result in a violation of
Section 7 of the Exchange Act or any regulations issued pursuant thereto.
SECTION 6.13. INVESTMENT COMPANY STATUS. Neither the Company nor the
Guarantor is an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.14. ENVIRONMENTAL COMPLIANCE. Neither the Company nor the
Guarantor is in violation, or alleged to be in violation, of any judgment,
decree, order, law, license, rule or regulation pertaining to environmental
matters, including, without limitation, those arising under the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986, the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or local
statute, regulation, ordinance, order or decree relating to health, safety or
the environment (collectively, as amended, the "Environmental Laws"), which
violation would have a material adverse effect on the business, assets or
financial condition of the Company or of the Guarantor. Neither the Company nor
the Guarantor has received any written or oral notice ("Environmental Notice")
from any third party, including, without limitation, any federal, state or local
governmental authority (i) that the Company or the Guarantor is in breach or
violation of any Environmental Law, or (ii) of a claim of liability thereunder.
Except in accordance with applicable law, at no time has the Company or the
Guarantor stored, manufactured, generated, treated, transported, recycled or
disposed of, or contracted with another party who, to their knowledge, has
stored, transported, recycled or disposed of any hazardous waste, as defined by
42 U.S.C. ' 6903(5), any hazardous substances as defined by 42 U.S.C. '
9601(14), any pollutant or
15
<PAGE> 20
contaminant as defined by 42 U.S.C. ' 9601(33) and any toxic substances, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws.
SECTION 6.15. FULL DISCLOSURE. The Annual Financial Statements and 10-Q
do not, nor does this Agreement, nor do any written statements furnished by the
Company or the Guarantor to the Noteholders in connection with the purchase of
the Notes, contain any untrue statement of fact as of the date made or,
considered together, omit a fact necessary to make the statements contained
therein or herein not misleading.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
The Purchaser represents and warrants to the Company and the Guarantor
as follows:
SECTION 7.1. EXPERIENCE. The Purchaser has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the investment in the Notes and of making an informed decision
regarding such investment.
SECTION 7.2. INVESTMENT. The Purchaser is acquiring the Notes for
investment for its own account and not with the view to, or for resale in
connection with, any distribution thereof and understands that the Notes have
not been registered under the Securities Act by reason of a specified exemption
from such registration which depends upon, among other things, the bona fide
nature of its investment intent as expressed herein.
SECTION 7.3. LIMITATIONS ON DISPOSITION. The Purchaser acknowledges that
the Notes must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available and
that the Company has no obligation or intention of registering the Notes and may
take action to prevent the transfer of Notes in violation of this Agreement.
SECTION 7.4. RESTRICTIVE LEGEND. Each Note shall (unless otherwise
permitted or unless the Notes shall have been registered under the Securities
Act) be stamped or otherwise imprinted with a legend in the following form (in
addition to any legend required under applicable state securities laws):
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM."
16
<PAGE> 21
ARTICLE VIII
COMPANY COVENANTS
The Company covenants and agrees that so long as any of the Notes shall
be outstanding:
SECTION 8.1. FINANCIAL STATEMENTS. The Company will deliver to the
Purchaser:
(a) within 60 days after the end of each quarterly period (other than
the last quarterly period) of each fiscal year, copies of unaudited interim
financial statements of each of the Company and the Guarantor for that period
and for that part of the fiscal year ended with such quarterly period prepared
in accordance with U.S.GAAP, subject to year-end adjustments;
(b) within 120 days after the end of each fiscal year, copies of the
unaudited balance sheet and statements of operations, cash flow and partners'
equity of each of the Company and of the Guarantor, certified by the principal
financial officer of the Guarantor; and within 180 days after the end of each
fiscal year, copies of the balance sheet and statements of operations, cash flow
and partners' equity of the Company and of the Guarantor, accompanied by a
report or opinion of the Accountants to the Company or the Guarantor, as
applicable, based on their examination of said financial statements in
accordance with U.S.GAAP, stating that such financial statements present fairly,
in all material respects, the financial position of the Company and of the
Guarantor as of the end of such year and the results of their operations and
cash flows for the year then ended;
(c) concurrently with the aforesaid financial statements delivered
pursuant to Section 8.1(a) and 8.1(b) above, a certificate of the chief
financial officer of the general partner of the Company and of the chief
financial officer of the Guarantor stating that, to the best of his or her
knowledge, neither the Company nor the Guarantor is in default in the
fulfillment of any of the terms, covenants, provisions or conditions of this
Agreement or the other Purchase Documents, or if any such default exists,
specifying such default or defaults and the nature and status thereof and
containing computations showing compliance by the Company with the provisions of
Sections 8.13 and 8.14 hereof; and
(d) concurrently with the aforesaid financial statements delivered
pursuant to Section 8.1(b) above, a list of the Company's Containers, certified
by a responsible officer of the Company.
SECTION 8.2. PARTNERSHIP EXISTENCE, ETC. Subject to Section 10.2, the
Company will do or cause to be done all things reasonably necessary to preserve
and keep in full force and effect its limited partnership existence and all
permits, rights and privileges necessary for the proper conduct of its business
and continue to engage in the same line of business. The Company's chief
executive office is located in San Francisco, California. The Company shall not
enter into any amendment of its agreement of limited partnership that would have
a material adverse affect on any Noteholder, the Collateral or the financial
condition, business or Property of the Company.
SECTION 8.3. TAXES AND CLAIMS. The Company will pay and discharge all
taxes, assessments and other governmental charges and levies imposed upon it or
upon its income or profits
17
<PAGE> 22
or upon any Property belonging to it prior to the date on which penalties attach
thereto and all lawful claims known to the management of the Company which, if
unpaid, might become a Lien upon the Property of the Company, provided that so
long as there is no material risk of the forfeiture of the Collateral, the
Company shall not be required hereby to pay any such taxes, assessments,
charges, levies or claims the payment of which are being contested in good faith
and by proper proceedings and against which adequate reserves are being
maintained in accordance with U.S. GAAP.
SECTION 8.4. INSURANCE. The Company will maintain or cause to be
maintained insurance of such type in such amounts and against such material
risks as is usually carried by owners of similar businesses and properties in
the same general areas in which the Company operates, in each case with good and
responsible insurance companies. Without limiting the foregoing, the Company
shall maintain in force (i) general liability insurance in an amount
satisfactory to the Noteholders, naming the Noteholders as additional insureds;
and (ii) all risk physical damage insurance (naming the Noteholders as sole loss
payees) with respect to the Containers in an amount at least equal to
$2,500,000.00. Any proceeds from such physical damage insurance paid to the
Noteholders shall be paid by the Noteholders to the Company, provided no Default
or Event of Default then exists, and shall be used by the Company for repair or
replacement of such Containers (with any repaired Container continuing to be,
and with any replacement Container becoming, part of the Collateral, and with
such documentation to be executed in connection therewith as shall be acceptable
to the Noteholders). If a Default or Event of Default exists at the time any
proceeds of physical damage insurance are paid or payable, the Noteholders shall
determine, in their sole discretion, whether such proceeds shall be used for
such repair or replacement or shall be applied against the Notes in the inverse
order of maturity. Any replacement container shall have a market value, utility,
condition and remaining life equal to or greater than that of the replaced
container immediately prior to the casualty event following which such Container
is being replaced.
SECTION 8.5. COMPLIANCE WITH APPLICABLE LAWS. The Company will comply
with the requirements of all applicable laws, rules, regulations and orders of
any governmental body or regulatory authority, the breach of any of which would
be likely to have a material adverse effect on the financial position, business
or Property of the Company.
SECTION 8.6. BOOKS AND ACCOUNTS. The Company will maintain its present
system of accounting, in which true and faithful entries of its transactions
will be made and will set aside on its books from its earnings for each fiscal
year all such proper reserves as shall be required under U.S.GAAP.
SECTION 8.7. LIMITATION ON LIENS. The Company will not create or suffer
to be created any Lien upon the Collateral or any part thereof or upon the
income therefrom, other than the following (collectively, "Permitted Liens"):
(i) the Liens created by the Security Agreement, (ii) the possessory leasehold
interest of lessees under leases relating to the Collateral, (iii) liens for
taxes, assessments and other governmental charges not delinquent or which can be
paid without penalty, and for which adequate reserves have been established,
(iv) unfiled, inchoate mechanics' and materialmen's liens for work in progress
and for which payment is not yet due, (v) workmen's, repairmen's, warehousemen's
and carrier's liens and other similar Liens, if any, arising in the ordinary
course of business, and (vi) liens in favor of the manufacturers of Containers
that secure the payment
18
<PAGE> 23
of the purchase price of Containers, which payment is not past due. The Company
will from time to time pay or cause to be paid as they become due and payable
all taxes, assessments and governmental charges lawfully levied or assessed or
imposed upon the Collateral or any part thereof or upon any income therefrom and
also all taxes, assessments and governmental charges lawfully levied or assessed
or imposed upon the Lien of the Noteholders in the Collateral, so that such Lien
shall at all times be preserved; provided, however, that so long as there is no
material risk of the forfeiture of the Collateral, the Company shall not be
required hereby to pay any such taxes, assessments, charges, levies or claims
the payment of which are being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained in accordance with U.S.
GAAP.
SECTION 8.8. MAINTENANCE AND USE OF CONTAINERS. The Company shall cause
the Containers to be maintained in good working order and condition and in all
respects shall deal with the Containers in accordance with industry standards
and practices.
SECTION 8.9. NOTICES AS TO DEFAULT OR MATERIAL CHANGE. The Company will
deliver to the Noteholders, as soon as possible and in any event within five (5)
days after the Company or the Guarantor becomes aware of the occurrence of
Default or an Event of Default or an event or circumstances that would result in
a material adverse effect on the financial condition of the Company or of the
Guarantor, written notice setting forth the details of such occurrence, event or
circumstances and the action which the Company proposes to take with respect
thereto. Thereafter the Company will keep the Noteholders apprised of all
material developments with respect thereto with reasonable frequency and
promptness.
SECTION 8.10. OTHER INFORMATION.
(a) At any time when the Company is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, the Company will furnish,
upon request of a Noteholder, to such Noteholder and any qualified institutional
buyer (as such term is used in Rule 144A under the Securities Act) designated by
such Noteholder, information required to be delivered under subsections (d)(3)
and (d)(4) of Rule 144A under the Securities Act (or any successor provision
thereto, in each case as may be amended from time to time) in connection with
the resale of any Notes.
(b) The Company will furnish to a Noteholder, with reasonable
promptness, such other data and information as such Noteholder may from time to
time reasonably request in connection herewith, provided that such Noteholder
agrees or has agreed in writing to confidentiality provisions substantially in
the form of Section 12.14 hereof.
(c) The Company will furnish to the Noteholders copies of any
Environmental Notice promptly after its receipt thereof.
SECTION 8.11. CHANGE OF NAME/LOCATION. The Company shall notify the
Noteholders thirty (30) days in advance of any change in its name or the
location of its chief executive office.
19
<PAGE> 24
SECTION 8.12. INDEMNIFICATION. The Company shall indemnify and hold
harmless the Noteholders, on a net After-Tax basis, against and from any and all
claims, demands, actions, expenses, penalties and liabilities (including,
without limitation, reasonable attorneys' fees and legal expenses) of whatsoever
nature (other than as a result of the negligence or willful misconduct or
actions in breach of the Purchase Documents by the Noteholders) arising prior to
(but not after) the Noteholders taking possession of the Collateral pursuant to
the terms of the Security Agreement and (i) made by any lessee of any Container
and arising out of the transactions contemplated by this Agreement or otherwise
relating to the Containers, (ii) arising out of or resulting from the use by the
Company, or any agents or employees of the Company, of any Container or any
alteration thereof or any addition or attachment thereto, (iii) which may be
imposed on, incurred by or asserted at any time against the Noteholders or any
of the Collateral (whether or not also indemnified against by the Company in any
other document or by any one else) and in any way relating to or arising out of
the purchase, ownership, possession, use, operation, maintenance, repair,
storage, mortgaging, leasing, selling or other handling, dealing with or
disposition of any of the Containers (including, without limitation thereto,
leakage, spillage, fire, explosion, damage, spoilage, contamination or loss of
cargo, acts or omissions of lessees and carriers and their respective servants
and agents, claims or penalties arising from violation of any treaty or the laws
of any country or political subdivision thereof, as well as any claim arising
out of latent or other defects, whether or not discoverable by the Company, and
any claim for patent, trademark or copyright infringement) or in any way
relating to or arising out of any of this Agreement, the Security Agreement, the
other Purchase Documents or any lease or any action or inaction on the part of
the Company or any one else in connection therewith, or (iv) arising out of or
result from any past, present or future violation or alleged violation of any of
the Environmental Laws. The obligation of the Company under the preceding
sentence shall survive the termination of this Agreement and the repayment in
full of the Obligations. For purposes hereof, the term "After-Tax" shall mean,
when used in connection with an indemnity payment (the "initial payment") by one
party to another party, that in addition to the initial payment the payor shall
pay the recipient an additional amount (the "gross-up amount") such that (i) the
initial payment, plus (ii) the gross-up amount, less (iii) any increase in the
Federal, state or local income taxes actually payable by the recipient as a
result of its receipt of the initial payment and the gross-up amount, and taking
into account the income tax effect (including any savings) resulting from the
events or payments giving rise to the initial payment, shall equal the initial
payment.
In the event any claims, demands, actions, expenses, penalties and
liabilities are made against or incurred by the Noteholders arising out of or
resulting from the use by any lessee, or the agents or employees thereof, of any
Container or any alteration thereof or any addition or attachment thereto, the
Company shall assist the Noteholders to any reasonable extent requested by the
Noteholders in enforcing the Noteholders' rights (as assignees of the Company
pursuant to the Security Agreement) under any applicable indemnity or
hold-harmless provision for the benefit of the Company contained in any lease of
the Containers.
SECTION 8.13. TANGIBLE NET WORTH. The Company will maintain a Tangible
Net Worth at the end of each fiscal quarterly period: (i) until and including
December 31, 2000, of not less than $20,000,000; (ii) from January 1, 2001 and
until and including December 31, 2001, of not less than $18,000,000; (iii) from
January 1, 2002 and until and including December 31, 2002, of not less than
$16,000,000; (iv) from January 1, 2003 and until and including December 31,
2003, of not less than
20
<PAGE> 25
$14,000,000; (v) from January 1, 2004 and until and including December 31, 2004,
of not less than $12,000,000; (vi)from January 1, 2005 and until and including
December 31, 2005, of not less than $10,000,000; and (vi) thereafter, of not
less than $8,000,000.
SECTION 8.14. LEVERAGE. The Company will at all times maintain a ratio
of Funded Debt to Tangible Net Worth of not greater than 0.25 to 1.0.
SECTION 8.15. LIMITATIONS ON DISTRIBUTIONS AND RESTRICTED PAYMENTS.
Until the occurrence and during the continuance of an Event of Default, the
Company may (i) make any distributions with respect to any of its partnership
interests, (ii) redeem, purchase or otherwise acquire any of its partnership
interests, or (iii) make any Restricted Investments, provided that any such
distribution, redemption, purchase or acquisition is not made with the proceeds
of any of the Collateral. Notwithstanding the foregoing, the Company may make
such distributions, redemptions, purchases and acquisitions with the proceeds of
any sale or other disposition of the Collateral, provided that such
distributions, redemptions, purchases and acquisitions do not exceed (x)
$200,000 in the aggregate per year and (y) $1,000,000 in the aggregate over the
term of the Notes.
SECTION 8.16. LIMITATION ON SALES OF ASSETS AND CONTAINERS. Other than
pursuant to Section 10.2, the Company will not sell, lease or otherwise dispose
of any assets in one or a series of transactions, other than sales of assets in
the ordinary course of business; provided, however, that the Guarantor (on
behalf of the Company) may (i) lease the Containers pursuant to the Leasing
Agent Agreement, and (ii) replace the Containers in accordance with Section 8.4
hereof.
SECTION 8.17. TRANSACTIONS WITH AFFILIATES. The Company will not enter
into or be a party to, any transaction or arrangement with any Affiliate
(including without limitation, the purchase from, sale to or exchange of
Property with, or the rendering of any service by or for, any Affiliate), except
pursuant to the reasonable requirements of the Company's business and upon fair
and reasonable terms no less favorable to the Company than could be obtained in
a comparable arm's-length transaction with a Person other than an Affiliate.
SECTION 8.18. NO ADDITIONAL INDEBTEDNESS. The Company will not create,
incur guaranty, assume, permit to exist or otherwise become liable for any
Funded Debt, except (a) Funded Debt to the Purchaser; (b) Funded Debt incurred
by the endorsement of negotiable instruments for deposit or collection in the
ordinary course of business; and (c) indebtedness to manufacturers of the
Containers for the purchase price of the Containers.
21
<PAGE> 26
ARTICLE IX
GUARANTOR COVENANTS
The Guarantor covenants and agrees that so long as any of the Notes
shall be outstanding:
SECTION 9.1. CORPORATE EXISTENCE, ETC. Subject to Section 10.2, the
Guarantor will do or cause to be done all things reasonably necessary to
preserve and keep in full force and effect its corporate existence and all
permits, rights and privileges necessary for the proper conduct of its business
and continue to engage in the same line of business.
SECTION 9.2. CONTAINER INFORMATION. Upon request either (a) once, but
not more than once, during any calendar year or (b) upon and during the
continuance of a Default or an Event of Default or at any time after Noteholders
have taken possession of the Collateral or have caused the Collateral to be sold
pursuant to the provisions of the Security Agreement, the Guarantor shall cause
to be provided to the Noteholders, at Guarantor's sole cost, a report setting
forth a list of the Containers, to whom the Containers are on lease, the
location of all Containers that are not on hire as such location appears on the
Company's records. In addition, the Company and the Guarantor agree to provide
the Purchaser and the other Noteholders the same access to the Guarantor's
computer systems and electronic data with respect to the Containers as the
Guarantor provides the Purchaser as of the date hereof.
SECTION 9.3. TAXES AND CLAIMS. The Guarantor will pay and discharge all
taxes, assessments and other governmental charges and levies imposed upon it or
upon its income or profits or upon any Property belonging to it prior to the
date on which penalties attach thereto and all lawful claims known to the
management of the Guarantor which, if unpaid, might become a Lien upon the
Property of the Guarantor, provided that the Guarantor shall not be required
hereby to pay any such taxes, assessments, charges, levies or claims the payment
of which are being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained.
SECTION 9.4. INSURANCE. The Guarantor will maintain or cause to be
maintained insurance of such type in such amounts and against such material
risks as is usually carried by owners of similar businesses and properties in
the same general areas in which the Guarantor operates, in each case with good
and responsible insurance companies.
SECTION 9.5. COMPLIANCE WITH APPLICABLE LAWS. The Guarantor will comply
with the requirements of all applicable laws, rules, regulations and orders of
any governmental body or regulatory authority, the breach of any of which would
be likely to have a material adverse effect on the financial position, business
or Property of the Guarantor, except where diligently contested in good faith
and by proper proceedings.
SECTION 9.6. BOOKS AND ACCOUNTS. The Guarantor will maintain its present
system of accounting, in which true and faithful entries of its transactions
will be made and will set aside on its books from its earnings for each fiscal
year all such proper reserves as shall be required under United Kingdom
accounting practices.
22
<PAGE> 27
SECTION 9.7. TRANSACTIONS WITH AFFILIATES. The Guarantor will not enter
into or be a party to, any transaction or arrangement with any Affiliate
(including without limitation, the purchase from, sale to or exchange of
Property with, or the rendering of any service by or for, any Affiliate), except
pursuant to the reasonable requirements of the Guarantor's business and upon
fair and reasonable terms no less favorable to the Guarantor than could be
obtained in a comparable arm's-length transaction with a Person other than an
Affiliate.
SECTION 9.8. MANAGEMENT OF CONTAINERS. Upon and during the continuance
of a Default or Event of Default, upon request of the Noteholders, the Guarantor
will manage the leasing of the Containers for the benefit of the Noteholders
upon the terms of the Leasing Agent Agreement or other terms mutually agreed
upon by the Noteholders and the Guarantor.
ARTICLE X
CHANGE OF CONTROL, MERGERS, CONSOLIDATIONS
AND SALES OF ASSETS
SECTION 10.1. CHANGE OF CONTROL. Upon the occurrence of a Change of
Control, the Company shall so notify each Noteholder in writing within five (5)
Business Days thereafter, and each Noteholder shall have the right to require
the Company to prepay the Notes held by such Noteholder (the "Prepayment Right")
at a prepayment price equal to the sum of 100% of the unpaid principal amount
thereof plus accrued interest to the date of prepayment plus a prepayment
premium determined in accordance with Section 4.2 hereof. Notice of exercise by
any Noteholder of the Prepayment Right shall be given in writing to the Company
at any time within the thirty (30) day period after such Noteholder shall have
received notice of such Change of Control from the Company. If a Noteholder does
not elect to exercise the Prepayment Right during such thirty (30) day period,
then such Noteholder shall not be able to exercise the Prepayment Right with
respect to such Change of Control. The prepayment shall occur on a date selected
by the Company (in a notice from the Company to such Noteholder at least three
(3) days prior to such prepayment) that shall be not later than the later to
occur of (i) 25 days after the Company has provided notice to such Noteholder of
such Change of Control or (ii) ten (10) days after the giving of notice of
exercise by such Noteholder. Any Note so prepaid shall be promptly thereafter
surrendered by such Noteholder to the Company.
SECTION 10.2. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. Neither the
Company nor the Guarantor shall consolidate or merge with or transfer all or
substantially all of its assets to another Person unless (i) the surviving
entity or transferee shall expressly assume (pursuant to documentation
reasonably satisfactory to Noteholders holding a majority of the outstanding
principal amount of the Notes) the obligations of the Company under the Notes
and the other Purchase Documents to which it is a party or the obligations of
the Guarantor under the Guarantees and the other Purchase Documents to which it
is a party, as the case may be; (ii) the surviving entity or transferee
possesses immediately thereafter a Tangible Net Worth of not less than the
Tangible Net Worth of the Company or the Guarantor, as the case may be,
immediately prior thereto; and (iii)
23
<PAGE> 28
immediately thereafter no Default or Event of Default exists. The Company shall
be responsible for all expenses of the Purchaser (including, without limitation,
reasonable attorneys' fees and expenses, filing fees, lien searches, etc.)
incurred in connection with any such consolidation, merger or transfer, whether
or not consummated and, upon the request of the Purchaser, shall execute and
deliver such financing statements and other documents as the Purchaser may
reasonably require or deem necessary to maintain and protect its first priority,
perfected security interest in, and lien on, the Collateral.
ARTICLE XI
DEFAULTS AND REMEDIES
SECTION 11.1. EVENTS OF DEFAULT. The following events shall be "Events
of Default" hereunder:
(a) the Company shall default in the payment of interest, principal or
premium, if any, on any Note or any other amount payable under the Purchase
Documents when and as the same becomes due and payable and such default shall
continue for a period of five (5) Business Days after the date that such payment
is due and payable;
(b) the Company shall default in the performance of Sections 8.2, 8.4,
8.7, 8.11, 8.13, 8.14, 8.15, 8.16, 8.18 and 10.2 hereof;
(c) the Company or the Guarantor shall fail to comply, for a period of
thirty (30) days after written notice has been given to the Company or the
Guarantor by any Noteholder, with any other provision of this Agreement or the
other Purchase Documents or any material covenant under the other material
agreements of the Company or the Guarantor;
(d) (i) any event shall occur or any condition shall exist in respect of
any indebtedness of the Company or the Guarantor (other than the Notes) in an
aggregate unpaid principal amount of $1,000,000 or more (with respect to the
Company) or $5,000,000 or more (with respect to the Guarantor), or under any
agreement securing or relating to any such indebtedness, the effect of which is
(1) to cause (or permit any holder of such indebtedness or a trustee to cause)
the acceleration of the maturity of such indebtedness and such holder or trustee
actually does accelerate such maturity or (2) in the case of the Company only,
to permit such acceleration if such event or condition is not cured or waived
(whether or not the giving of notice or the passage of time or both is necessary
in order for such acceleration to occur), or (ii) any such indebtedness referred
to in clause (i) shall not have been paid at the final maturity or due date
thereof and any applicable grace period shall have expired;
(e) a court of competent jurisdiction shall enter a decree or order in
an involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law or appoint a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of the affairs of the
24
<PAGE> 29
Company or the Guarantor, which decree or order shall have remained in force
undischarged or unstayed for a period of ninety (90) days;
(f) the Company or the Guarantor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
it or of or relating to all or substantially all of its Property;
(g) the Company or the Guarantor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations;
(h) the Security Agreement or any of the other Purchase Documents shall
cease to be in full force and effect with respect to the Collateral or the
rights of the Noteholders defined therein or the Noteholders no longer have a
first priority perfected security interest in, and lien on, the Collateral;
(i) Any representation or warranty of the Company or the Guarantor
herein shall have been untrue or misleading in any material respect at and as of
the date hereof; and
(j) The Leasing Agent Agreement shall be terminated, invalidated or
otherwise rendered unenforceable and the Company shall not have promptly entered
into another agreement to manage the leasing of the Containers with the
Guarantor (or other Person satisfactory to the Noteholders, in their sole
discretion) upon terms similar to the Leasing Agent Agreement or otherwise
satisfactory to the Noteholders, in their sole discretion.
SECTION 11.2. ACCELERATION. If an Event of Default (other than the Event
of Default specified in Section 11.1(e), (f) or (g) hereof) occurs and is
continuing, each Noteholder may, at its option and in addition to any other
right, power or remedy permitted by law or equity or herein granted, by notice
to the Company, declare to be due and payable immediately the unpaid principal
amount of all Notes held by such Noteholder, and upon any such declaration the
same shall become and shall be immediately due and payable, together with all
accrued and unpaid interest thereon. If an Event of Default specified in Section
11.1(e), (f) or (g) hereof occurs, there shall automatically become and be
immediately due and payable, without any declaration or other act on the part of
any of the Noteholders, the principal amount of all the Notes, together with all
accrued and unpaid interest thereon. Each Noteholder by notice to the Company
may rescind an acceleration and the consequences thereof in respect of the Notes
held by such Noteholder.
25
<PAGE> 30
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement
may from time to time be amended, modified or waived if such amendment,
modification or waiver is in writing and consented to by the Company and the
Noteholders. No failure or delay on the part of any Noteholder in exercising any
power or right under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No notice
to or demand on the Company in any case shall entitle it to any notice or demand
in similar or other circumstances. No waiver or approval by any Noteholder under
this Agreement shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 12.2. EXPENSES. The Company agrees, whether or not the
transactions hereby contemplated shall be consummated, to pay, and save the
Noteholders harmless against liabilities for the payment of, (i) the
out-of-pocket costs and expenses incurred by the Purchaser in connection with
its due diligence and the preparation, negotiation, execution and delivery of
this Agreement and the other Purchase Documents; provided, however, if such
costs and expenses exceed $10,000, they will be shared equally between the
Company and the Purchaser, (ii) all taxes (including any intangible personal
property tax, together in each case with interest and penalties, if any, and
also including any filing fees payable to any governmental authority, and any
income tax payable by the Noteholders in respect of any reimbursement for any
such tax or fee) which may be payable in respect of the execution or delivery of
this Agreement or the other Purchase Documents (including, without limitation,
the execution, delivery or acquisition of any Note issued under or pursuant to
this Agreement), and (iii) the cost and expenses, including reasonable
attorneys' fees, incurred by the Noteholders in enforcing any of the
Noteholders' rights hereunder, including without limitation, costs and expenses
incurred in connection with any bankruptcy case, restructuring or workout. The
obligations of the Company under this Section shall survive any transfer of the
Notes and the termination of this Agreement.
SECTION 12.3. PERSONS DEEMED OWNERS. Prior to due presentment for
registration of transfer, the Company may treat the Person in whose name any
Note is registered as the owner and holder of such Note for the purpose of
receiving payment of principal of and interest and premium (if any) on such Note
and for all other purposes whatsoever, whether or not such Note shall be
overdue, and the Company shall not be affected by notice to the contrary.
SECTION 12.4. NON-BUSINESS DAYS. If the date for making any payment or
the last date for performance of any act or the exercising of any right, as
provided in this Agreement, shall not be a Business Day, such payment may be
made or act performed or right exercised on the immediately succeeding Business
Day with the same force and effect as if done on the nominal date provided in
this Agreement, except that interest shall accrue and be payable for the period
after such nominal date.
26
<PAGE> 31
SECTION 12.5. NOTICES. All notices and other communications provided to
any party hereto under this Agreement or any other instrument executed or
delivered to the Purchaser or any Noteholder after the Closing Date (to the
extent not otherwise provided therein) shall be in writing or by facsimile
transmission (with telephonic confirmation of receipt) and addressed or
delivered to it at its address set forth below its signature hereto or at such
other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if transmitted by facsimile
transmission, shall be deemed given when transmitted if transmitted before the
end of normal business hours of the receiving party, and if transmitted after
the end of normal business hours of the receiving party, shall be deemed given
as of the next day.
SECTION 12.6. NOTICES TO SUBSEQUENT HOLDER. If any Note shall have been
transferred to another holder pursuant to Section 4.4 and such holder shall have
designated in writing the address to which communications with respect to such
Note shall be mailed, all notices, certificates, requests, statements and other
documents required or permitted to be delivered to the Purchaser with respect to
such Note by any provision hereof shall be delivered to such holder.
SECTION 12.7. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, which shall remain in
full force and effect, or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 12.8. HEADINGS. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
SECTION 12.9. COUNTERPARTS. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 12.10. GOVERNING LAW. THIS AGREEMENT AND THE OTHER PURCHASE
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES
(EXCEPT TITLE 14, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 12.11. ENTIRE AGREEMENT. This Agreement and the other Purchase
Documents constitute the entire understanding between the parties hereto with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
SECTION 12.12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by the
Company.
27
<PAGE> 32
SECTION 12.13. SUBMISSION TO JURISDICTION. The Company and the Guarantor
hereby irrevocably submit to the nonexclusive jurisdiction of any New York state
or federal court sitting in the Borough of Manhattan in the City of New York,
U.S.A., in any action or proceeding arising out of or relating to this Agreement
or the other Purchase Documents, and the Company and the Guarantor hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such New York state or federal court. The Company and
the Guarantor hereby irrevocably waive, to the fullest extent that they may
legally do so, the defense of an inconvenient forum to the maintenance of such
action or proceeding and agree that a final judgment in any such action or
proceeding shall be conclusive to the fullest extent permitted by law and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. The Company and the Guarantor each hereby irrevocably
designates and appoints Dennis J. Tietz, President of the general partner of the
Company (and the successors in such office) as its agent to receive on its
behalf service of all process brought against it with respect to any such
proceeding in any such court in the State of New York, such service being hereby
acknowledged to be effective and binding upon it in every respect. If for any
reason such agent shall cease to be available to act as such, then the Company
and the Guarantor shall promptly designate a new agent for such purpose in New
York, New York.
SECTION 12.14. CONFIDENTIALITY. Except as may be required to enforce the
rights and duties established hereunder or under the other Purchase Documents,
the Noteholders and their respective Affiliates agree (a) to keep confidential
any information received from the Company or the Guarantor or any of their
Affiliates pursuant to or in connection herewith and the transactions
contemplated hereunder and reasonably designated by the Company or the Guarantor
as being confidential ("Confidential Information"), (b) not to use Confidential
Information in any manner, or in connection with any business or service,
competitive with the Company or the Guarantor, and (c) not to disclose any
Confidential Information; provided that the Noteholders may disclose such
information (i) as may be required by law, regulation or legal process if, to
the extent practical, the Noteholders provide the Company and the Guarantor
prior notice of any such legally required disclosure (except that no prior
notice shall be necessary before disclosure is made to the Securities Valuation
Office of the NAIC, any bank examiner or other similar regulator) or (ii) that
has become generally publicly available other than through a breach of this
Agreement by the Noteholders, or (iii) as may be necessary or appropriate in the
Noteholders' reasonable judgment in connection with providing information to
securities exchanges, rating agencies, their lenders, auditors and other
representatives which have a legitimate business reason to know and with which
the Noteholders maintains a confidential relationship.
SECTION 12.15. FURTHER ASSURANCES. Upon the request of the Purchaser or
the Company, the other party, at the Company's sole cost and expense, shall
execute and deliver to the requesting party such further instruments and shall
do and cause to be done such further acts with respect to this Agreement and the
other Purchase Documents as the requesting party reasonably may deem necessary
or desirable to carry out more effectively the provisions and purposes of this
Agreement and the other Purchase Documents.
SECTION 12.16. WAIVERS OF JURY TRIAL. EACH OF THE NOTEHOLDERS, THE
COMPANY AND THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
28
<PAGE> 33
INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATED TO THIS
AGREEMENT OR THE OTHER PURCHASE DOCUMENTS AND AGREES THAT ANY SUCH DISPUTE SHALL
BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
[SIGNATURES CONTINUED]
29
<PAGE> 34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CRONOS GLOBAL INCOME FUND XVI, L.P.
By: CRONOS CAPITAL CORP., as General Partner
By: /s/ Dennis J. Tietz
-------------------------------------
Dennis J. Tietz
President
Address: c/o Cronos Capital Corp.
444 Market Street
San Francisco, CA 94111
Facsimile No.: (415) 677-9196
CRONOS CONTAINERS LIMITED
By: /s/ Peter J. Younger
-----------------------------------------
Peter J. Younger
Director
Address: Orchard Lea
Winkfield Lane
Winkfield Windsor
Berkshire SL4 4RU
England
Facsimile No.: 011 44 344 89-1129
IBJ WHITEHALL BUSINESS CREDIT CORPORATION
By: /s/ Robert F. Brown
-----------------------------------------
Name: Robert F. Brown
Title: Sr. Vice President
Address: One State Street
New York, New York 10004
Attention: Vice President/
Operations
Facsimile No.: 212-952-1629
30
<PAGE> 1
Exhibit 10.2
GUARANTEE
CRONOS CONTAINERS LIMITED, a company organized under the laws of the
United Kingdom (the "Guarantor"), hereby unconditionally and irrevocably
guarantees to the registered holder (the "Noteholder") of the Secured Note due
2006 (the "Note") of CRONOS GLOBAL INCOME FUND XVI, L.P. (the "Company") upon
which this Guarantee is endorsed, the due and punctual payment in full of (i)
the principal of, premium, if any, and interest on such Note when and as the
same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption, pursuant to an offer to purchase or
otherwise, in accordance with the terms of such Note and of the Note Purchase
Agreement dated as of March 30, 2000 (the "Purchase Agreement"), among the
Company, the Guarantor and IBJ Whitehall Business Credit Corporation, and (ii)
any other sums as may at any time be owing to the Noteholder by the Company
pursuant to the Purchase Agreement or the other Purchase Documents (as defined
therein). This Guarantee is a guaranty of payment and not of collection.
The obligations and liabilities of the Guarantor under this Guarantee
are primary, direct, unlimited, continuing, irrevocable and immediate and not
conditional or contingent upon the pursuit by the Noteholder of any rights or
remedies it may have against the Company or any person other than the Company.
The obligations and liabilities of the Guarantor hereunder and under the other
Purchase Documents shall not be subject to any counterclaim, recoupment,
set-off, reduction, or defense based upon any claim that the Guarantor may have
against the Noteholder, the Company or any other person.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of any extension of time for the
payment of the Note, any invalidity, irregularity or unenforceability of the
Note or the other Purchase Documents, the absence of any action to enforce the
same, any release or amendment or waiver of any term of any other guarantee of,
or any consent to departure from any requirement of any other guarantee of all
or any of the Notes issued pursuant to the Purchase Agreement, any waiver or
consent by the Noteholder with respect to any provisions thereof or of the other
Purchase Documents, the obtaining of any judgment against the Company or any
action to enforce the same or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
The Guarantor hereby waives the benefits of diligence, presentment,
demand of payment, any requirement that the Noteholder protect, secure, perfect
or insure any security interest in or other lien on any property subject thereto
or exhaust any right or take any action against the Company or any other Person,
the filing of claims with a court in the event of insolvency or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to the Note or the debt evidenced thereby and all
demands whatsoever.
The Guarantor hereby covenants that this Guarantee will not be
discharged except by complete payment of the amounts guaranteed hereunder and
the performance of the other obligations contained in the Note and in the other
Purchase Documents.
8
<PAGE> 2
The Guarantor hereby agrees that, in the event of a default in payment
of principal of, premium, if any, or interest on the Note, whether at its stated
maturity, by acceleration, call for redemption, purchase or otherwise, legal
proceedings may be instituted by the Noteholder directly against the Guarantor
to enforce this Guarantee without first proceeding against the Company or the
Collateral (as defined in the Purchase Agreement). The Guarantor further agrees
that if, after the occurrence and during the continuance of an Event of Default,
the Noteholder is prevented by applicable law from exercising its right to
accelerate the maturity of the Note, to collect interest on the Note or to
enforce or exercise any other right or remedy with respect to the Note, the
Guarantor will pay to the Noteholder, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Noteholder.
The Guarantor hereby waives any rights of subrogation in respect of any
payment on the Note upon which this Guarantee is endorsed pursuant to the
provisions of this Guarantee or the other Purchase Documents, until payment in
full in cash of the obligations guaranteed hereunder. Any liability,
indebtedness or obligation of the Company to the Guarantor of every kind or
nature, whether now existing or hereafter created, due or to become due, direct
or contingent, is hereby subordinated in all respects to the payment to the
Noteholder of the amounts guaranteed hereunder. The Guarantor agrees not to
accept or receive any payment with respect to any such liability, indebtedness
or obligation until the payment and performance in full of all of the amounts
guaranteed hereunder; provided, however, that, so long as no Event of Default
then exists, the Guarantor may receive and retain payments from the Company
pursuant to the Leasing Agent Agreement so long as the Guarantor is in
compliance thereunder.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Note is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Note, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Note shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
The Guarantor acknowledges and agrees that the Note may be transferred
in accordance with the Purchase Agreement, and each transferee, and its
successors and assigns, shall have the right to enforce this Guarantee against
the Guarantor.
All payments made hereunder will be made free and clear of and without
withholding or deduction for or on account of any Taxes (other than taxes levied
by the United States Internal Revenue Service on or by reason of the income of
the Noteholder), unless the Guarantor is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof. If the Guarantor is so
required to withhold or deduct any amount for or on account of Taxes from any
payment made under or with respect to this Guarantee, the Guarantor will pay
such additional
9
<PAGE> 3
amounts, after such withholding or deduction, so that the Noteholders will not
receive less than the amounts such holders would have received if such Taxes had
not been withheld or deducted.
All terms used in this Guarantee which are defined in the Purchase
Agreement shall have the meanings assigned to them in the Purchase Agreement
unless otherwise defined herein.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS
RULES (EXCEPT TITLE 14, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
This Guarantee and the other Purchase Documents constitute the entire
understanding between the Noteholder and the Guarantor with respect to the
subject matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
This Guarantee shall be binding upon the Guarantor and its successors
and permitted assigns and shall inure to the benefit of the Noteholder and its
successors and assigns. This Guarantee may not be assigned by the Guarantor.
The Guarantor hereby irrevocably submits to the nonexclusive
jurisdiction of any New York state or federal court sitting in the Borough of
Manhattan in the City of New York, U.S.A., in any action or proceeding arising
out of or relating to this Guarantee or the other Purchase Documents, and the
Guarantor hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York state or federal court.
The Guarantor hereby irrevocably waives, to the fullest extent that it may
legally do so, the defense of an inconvenient forum to the maintenance of such
action or proceeding and agrees that a final judgment in any such action or
proceeding shall be conclusive to the fullest extent permitted by law and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. The Guarantor hereby irrevocably designates and appoints
Christopher P. Langley, Company Secretary (and the successors to such office) as
its agent to receive on its behalf service of all process brought against it
with respect to any such proceeding in any such court in the State of New York,
such service being hereby acknowledged to be effecting and binding upon it in
every respect. If for any reason such agent shall cease to be available to act
as such, then the Guarantor shall promptly designate a new agent for such
purpose in New York, New York.
Any provision of this Guarantee that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Guarantee, which shall remain in full force and effect, or
affecting the validity or enforceability of such provision in any other
jurisdiction.
THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO
THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
OF ANY DISPUTE ARISING UNDER OR RELATED TO THIS GUARANTEE OR THE OTHER PURCHASE
DOCUMENTS AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING
WITHOUT A JURY.
10
<PAGE> 4
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed.
Dated: _____________, 2000 CRONOS CONTAINERS LIMITED
By: /s/ Christopher P. Langley
-------------------------------------
Christopher P. Langley
Director
11
<PAGE> 1
Exhibit 10.3
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM.
CRONOS GLOBAL INCOME FUND XVI, L.P.
SECURED NOTE DUE 2006
CRONOS GLOBAL INCOME FUND XVI, L.P., a California limited partnership
(the "Company"), for value received, hereby promises to pay to the order of IBJ
WHITEHALL BUSINESS CREDIT CORPORATION, a New York corporation (the "Purchaser"),
or registered assigns, the principal amount of
_________________________________________ Dollars ($____________.00) (the
"Indebtedness"), together with interest thereon from the date hereof until the
Indebtedness and all interest thereon is paid in full in accordance with the
following:
The Indebtedness shall be repaid by the Company in twenty-four (24)
consecutive equal quarterly installments of principal each in an amount set
forth in Schedule 1 hereto commencing on the three month anniversary (the "First
Payment Date") of the date of the last purchase of Notes under the Purchase
Agreement (as defined below) and continuing thereafter on each three month
anniversary thereof, until repayment in full of the Indebtedness.
Interest on the unpaid balance of the Indebtedness shall be paid by the
Company on the last day of each Interest Period (as defined below) until the
repayment in full of the Indebtedness.
Unless accelerated, the unpaid balance of the Indebtedness, together
with interest accrued and unpaid thereon and all other fees and charges due
hereunder, shall be due and payable in full on the date that the 24th quarterly
installment of principal is due and payable hereunder.
If any date on which a payment of principal or interest is due hereunder
is not a Business Day (as defined below), then such payment shall be made on the
immediately succeeding Business Day and interest shall accrue until such payment
date. Payments of principal and interest on this Note shall be made in lawful
money of the United States of America by wire transfer to the registered holder
of this Note, as said holder shall have designated in writing to the Company
pursuant to the terms of the Note Purchase Agreement dated as of March 30, 2000
(the "Purchase Agreement") among the Company, Cronos Containers Limited (the
"Guarantor") and the Purchaser.
1. THE NOTE. This Note has been issued by the Company pursuant to the
Purchase Agreement, and, to the extent set forth in the Purchase Agreement, each
subsequent holder hereof is bound by and entitled to the benefits thereof and
may enforce each of the agreements of the
<PAGE> 2
Company and the Guarantor therein and may exercise each of the remedies provided
for thereby or otherwise in respect hereof. The principal of this Note may be
prepaid in whole or in part at the option of the Company at any time in
accordance with the provisions of the Purchase Agreement. This Note is entitled
to the benefits and security of the Security Agreement dated as of the date
hereof, between the Company and the Purchaser in substantially the form attached
as Exhibit B to the Purchase Agreement.
2. INTEREST RATE. The initial interest rate on this Note shall be _____%
per annum. Such interest rate shall be in effect until reset as hereinafter
provided. Interest on any overdue principal and on any overdue installment of
interest (to the extent that the payment of such interest shall be legally
enforceable) shall accrue at a rate equal to the lesser of (i) the maximum rate
per annum permitted by applicable law and (ii) the applicable rate per annum
payable on this Note plus 2.0% until paid. Such interest shall be payable upon
demand of the Noteholder.
(a) LIBOR Rate. The interest rate per annum payable on this Note
shall be reset as follows:
(i) The rate of interest will be reset on the first day of
each Interest Period (each such date, an "Interest Reset Date"). The interest
rate so reset will be LIBOR determined by the Noteholder as provided in clauses
(ii), (iii) or (iv) below plus 1.75% per annum.
(ii) On the Business Day prior to such Interest Reset Date
(a "LIBOR Interest Determination Date"), the Noteholder will determine LIBOR on
the basis of the London Interbank Offered Rate published in The Wall Street
Journal on such Business Day for the previous Business Day in respect of
deposits with a maturity date equal to the applicable Interest Period; provided,
however, that if no such offered rate is so published, LIBOR for such LIBOR
Interest Determination Date will be determined as provided in clause (iii)
below.
(iii) If on any LIBOR Interest Determination Date no
London Interbank Offered Rate is so published in The Wall Street Journal for
deposits with a maturity date equal to the applicable Interest Period, the
Noteholder will determine LIBOR on the basis of the offered rate for deposits of
not less than $1,000,000, having an index maturity equal to the applicable
Interest Period, appearing on the display designated as Page 3750 on the Dow
Jones Telerate Service (or such other page as may replace Page 3750 on that
service for the purpose of displaying London interbank offered rates for U.S.
Dollar deposits) ("Telerate Page 3750") at approximately 11:00 A.M., London
time, on such LIBOR Interest Determination Date; provided, however, that if no
such offered rate so appears, LIBOR for such LIBOR Interest Determination Date
will be determined as described in (iv) below.
(iv) If on any LIBOR Interest Determination Date no
offered rate for an index maturity equal to the applicable Interest Period
appears on Telerate Page 3750 as described in clause (iii) above, the Noteholder
will determine LIBOR on the basis of the rates at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date at which deposits of not
less than $1,000,000, having an index maturity equal to the applicable Interest
Period, are offered to prime banks in the London interbank market by four major
banks selected by the Noteholder. The
2
<PAGE> 3
Noteholder will request the principal London office of each such bank to provide
a quotation of its rate. If at least two such quotations are provided, LIBOR for
such LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., New York City time, on such LIBOR Interest
Determination Date by three major banks in The City of New York selected by the
Noteholder for loans of not less than $1,000,000 to leading European banks
having an index maturity equal to the applicable Interest Period; provided,
however, that if fewer than three banks selected as aforesaid are quoting as
mentioned in this sentence, LIBOR will be the LIBOR in effect on the next
preceding LIBOR Interest Determination Date (or, if the initial interest rate is
then in effect, the initial interest rate).
(b) Unavailability of Rate. If at any time the Noteholder (or,
without duplication, the bank holding company of which the Noteholder is a
Subsidiary) determines that either adequate and reasonable means do not exist
for ascertaining LIBOR, or it becomes impractical for the Noteholder to obtain
funds to make or maintain the financing hereunder with interest at LIBOR, or the
Noteholder shall have determined that LIBOR will not adequately and fairly
reflect the cost to the Noteholder of making, maintaining, or funding the
transaction hereunder at LIBOR, or the Noteholder reasonably determines that, as
a result of changes to applicable law after the date of execution of this Note,
or the adoption or making after such date of any interpretations, directives or
regulations (whether or not having the force of law) by any court, governmental
authority or reserve bank charged with the interpretation or administration
thereof, it shall be or become unlawful or impossible to make, maintain, or fund
the financing hereunder at LIBOR, then the Noteholder promptly shall give notice
to the Company of such determination, and the Noteholder and the Company shall
negotiate in good faith a mutually acceptable alternative method of calculating
the interest rate payable on this Note and shall execute and deliver such
documents as reasonably may be required to incorporate such alternative method
of calculating such interest rate in this Note, within thirty (30) days after
the date of the Noteholder's notice to the Company. If the parties are unable
mutually to agree to such alternative method of calculating the interest rate
payable on this Note in a timely fashion, on the interest payment date next
succeeding the expiration of such thirty (30) day period, the Company shall pay
the Noteholder the unpaid balance of the Indebtedness, together with interest
accrued and unpaid thereon and all other fees and charges due hereunder.
(c) Increased Cost and Reduced Return. If at any time after the
date hereof, the Noteholder (or, without duplication, the bank holding company
of which the Noteholder is a Subsidiary) determines that the adoption or
modification of any applicable law regarding taxation, the Noteholder's required
levels of reserves, deposits, insurance or capital (including any allocation of
capital requirements or conditions), or similar requirements, or any
interpretation or administration thereof by any court or other governmental
authority or compliance of the Noteholder with any of such requirements, has or
would have the effect of (a) increasing the Noteholder's costs relating to the
Indebtedness, or (b) reducing the yield or rate of return of the Noteholder on
the Indebtedness, to a level below that which the Noteholder could have achieved
but for the adoption or modification of any such requirements, the Company
shall, within fifteen (15) days of any request by the Noteholder, pay to the
Noteholder such additional amounts as (in the Noteholder's sole judgment, after
good faith and reasonable computation) will compensate the Noteholder for such
increase in costs or reduction in yield or rate of return of the Noteholder. No
failure by the
3
<PAGE> 4
Noteholder to immediately demand payment of any additional amounts payable
hereunder shall constitute a waiver of the Noteholder's right to demand payment
of such amounts at any subsequent time. Nothing herein contained shall be
construed or so operate as to require the Company to pay any interest, fees,
costs or charges greater than is permitted by applicable law.
(d) Indemnity. Within fifteen (15) days after request by the
Noteholder (or at the time of any prepayment), the Company shall pay to the
Noteholder such amount or amounts as will compensate the Noteholder for any
loss, cost, expense, penalty, claim or liability, including any loss incurred in
obtaining, prepaying, liquidating or employing deposits or other funds from
third parties and any loss of yield, as determined by the Noteholder in its
judgment reasonably exercised (together, "Consequential Loss") incurred by it
with respect to the funding of the Indebtedness evidenced by this Note as a
result of: (i) the failure of the Company to make payments on the date specified
under this Note or in any notice from Company to Noteholder, (ii) the payment or
prepayment of any amount on a date other than the date such amount is required
or permitted to be paid or prepaid, or (iii) any Change in Control; provided
that the Noteholder delivers to the Company a certificate as to the amounts of
the Consequential Loss, which certificate shall be conclusive in the absence of
manifest error. The Noteholder shall have no obligation to purchase, sell and/or
match funds in connection with the funding or maintaining of the Indebtedness or
any portion thereof. The obligations of the Company under this Section shall
survive any termination of the Purchase Agreement and payment of this Note and
shall not be waived by any delay by the Noteholder in seeking such compensation.
3. PREPAYMENT; TRANSFER. Prepayment and transfer of this Note are
subject to certain restrictions set forth in the Purchase Agreement.
4. REGISTERED HOLDERS. Prior to due presentment for registration of
transfer of this Note, the Company may deem and treat the registered holder
hereof as the absolute owner hereof for the purposes of receiving payments of
principal, premium, if any, and interest hereon and for the purposes of any
notices, waivers or consents.
5. PAYMENT AFTER EVENT OF DEFAULT. In case an Event of Default shall
occur and be continuing, the principal of this Note may be declared due and
payable in the manner and with the effect provided in the Purchase Agreement.
6. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
ITS CONFLICT OF LAWS RULES (EXCEPT TITLE 14, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
7. DEFINED TERMS. The terms used in this Note which are defined in the
Purchase Agreement shall have the meanings specified therein unless the context
otherwise requires or unless such terms are otherwise defined herein. For
purposes of this Note, the following terms shall have the following meanings:
4
<PAGE> 5
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in California or New York are
authorized or obligated by law or executive order to close and, relative to the
determination of the interest rate provided for in the Notes, "Business Day"
also means a day on which dealings in U.S. Dollars are carried on in the
interbank eurodollar market in which the Purchaser participates.
"Interest Period" means, relative to the setting of the initial interest
rate of this Note or the rate to be determined on any LIBOR Interest
Determination Date, the period which begins on the date of this Note or the
Interest Reset Date, as applicable, and ends on the date which is (i) with
respect to periods commencing prior to the First Payment Date, the day of the
immediately succeeding month that numerically corresponds to such date of
issuance or Interest Reset Date, or (ii) with respect to periods commencing on
and after the First Payment Date, the day of the immediately succeeding third
month that numerically corresponds to such Interest Reset Date; provided,
however, that:
(a) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
(b) if any Interest Period commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period), such Interest Period
shall end on the last Business Day of the last calendar month of such Interest
Period; and
(c) no Interest Period shall end later than the maturity date of
this Note.
8. HEADINGS. The headings of the sections and subsections of this Note
are inserted for convenience only and do not constitute a part of this Note.
9. CURRENCY. Payments hereunder shall be made in lawful money of the
United States of America.
10. ENTIRE AGREEMENT. This Note and the other Purchase Documents
constitute the entire understanding between the Purchaser and the Company with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
11. SUCCESSORS AND ASSIGNS. This Note shall be binding upon the Company
and its successors and permitted assigns and shall inure to the benefit of the
Purchaser and its successors and assigns. This Note may not be assigned by the
Company.
12. SUBMISSION TO JURISDICTION. The Company hereby irrevocably submits
to the nonexclusive jurisdiction of any New York state or federal court sitting
in the Borough of Manhattan in the City of New York, U.S.A., in any action or
proceeding arising out of or relating to this Note or the other Purchase
Documents, and the Company hereby irrevocably agrees that all claims in
5
<PAGE> 6
respect of such action or proceeding may be heard and determined in such New
York state or federal court. The Company hereby irrevocably waives, to the
fullest extent that it may legally do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding and agrees that a final judgment
in any such action or proceeding shall be conclusive to the fullest extent
permitted by law and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. The Company hereby irrevocably
designates and appoints Dennis J. Tietz, President of the general partner of the
Company (and the successors in such office) as its agent to receive on its
behalf service of all process brought against it with respect to any such
proceeding in any such court in the State of New York, such service being hereby
acknowledged to be effecting and binding upon it in every respect. If for any
reason such agent shall cease to be available to act as such, then the Company
shall promptly designate a new agent for such purpose in New York, New York.
13. SEVERABILITY. Any provision of this Note that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Note, which shall remain in full force and effect,
or affecting the validity or enforceability of such provision in any other
jurisdiction.
14. REDUCTION IN INTEREST RATE. The interest rate required hereby or by
any of the Purchase Documents shall not exceed the maximum rate permissible
under applicable law, and any amounts paid in excess of such rate shall be
applied to reduce the unpaid balance of the Indebtedness or shall be refunded to
the Company at the sole option of the Purchaser.
15. WAIVERS OF JURY TRIAL. EACH OF THE PURCHASER AND THE COMPANY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING
UNDER OR RELATED TO THIS NOTE OR THE OTHER PURCHASE DOCUMENTS AND AGREES THAT
ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
[SIGNATURE ON NEXT PAGE]
IN WITNESS WHEREOF, CRONOS GLOBAL INCOME FUND XVI, L.P. has caused this
Note to be executed by the manual signature of an officer thereunto duly
authorized.
Dated: _________, 2000 CRONOS GLOBAL INCOME FUND XVI, L.P.
New York, New York
By: CRONOS CAPITAL CORP., as General
Partner
By: /s/ Dennis J. Tietz
-------------------------------
Dennis J. Tietz
President
6
<PAGE> 1
Exhibit 10.4
EXHIBIT B
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made as of March 30, 2000,
by and between CRONOS GLOBAL INCOME FUND XVI, L.P., a California limited
partnership (the "Debtor"), and IBJ WHITEHALL BUSINESS CREDIT CORPORATION (the
"Secured Party").
W I T N E S S E T H:
WHEREAS, the Debtor, Cronos Containers Limited and the Secured Party
have entered into a Note Purchase Agreement dated as of the date hereof (the
"Note Purchase Agreement"), relating to the offer and sale of Secured Notes due
2006 (the "Notes") and is obligated thereunder to enter into this Agreement to
secure the due and punctual payment of the obligations of the Debtor under the
Notes and the other Purchase Documents (as defined in the Note Purchase
Agreement); and
WHEREAS, under the terms and conditions and subject to the exceptions
hereinbelow provided, the Debtor is granting the Secured Party and its
registered assigns, as holders of the Notes (collectively, the "Holders"), a
security interest in the Collateral (as defined herein).
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. SECURITY INTEREST IN THE COLLATERAL. For value received, and to
induce the Secured Party to purchase the Notes, Debtor hereby grants and assigns
to the Secured Party, as security for all present and future obligations and
liabilities of the Debtor under the Notes, this Agreement and the other Purchase
Documents (collectively, the "Obligations"), a security interest in, and lien
on, all of the Debtor's right, title and interest in and to:
(a) all standard and specialized marine cargo containers and all
improvements, additions, parts, fittings, accessories, special tools, and
attachments and accessions now or hereafter affixed thereto or used in
connection therewith and all substitutions and replacements thereof (the
"Containers");
(b) all leases, management agreements, sale and purchase
agreements, instruments, invoices, orders, documents of title and bills of sale
relating to the Containers (including, without limitation, the Leasing Agent
Agreement (as defined in the Note Purchase Agreement)) and all rights to
exercise any election or option or to make any decision or determination or to
give or receive any notice, consent, waiver or approval or to take any other
action under or in respect of any of the foregoing documents;
<PAGE> 2
(c) all general intangibles, rights to payment, tolls, rents,
issues, profits, revenues, income, accounts receivable, contract rights and
proceeds of any kind (including, without limitation, insurance, disposition
proceeds and condemnation awards) with respect to or on account of the
Containers or the Leasing Agent Agreement;
(d) all rights, claims and causes of action against the
manufacturer or any other party, by contract or otherwise, in respect of any
defect in any of the Containers;
(e) (i) the Money Market Account, MMA Account No. 30865757,
maintained by the Debtor with IBJ Whitehall Bank & Trust Company (the
"Depository") representing money and funds currently on deposit by the Debtor
with the Depository in the amount of $750,000 (the "Account"), or any account
both now and hereafter opened in substitution or replacement for, or as a
renewal, extension, reissue or roll-over of such Account or as a reinvestment of
the money or funds on deposit thereto, (ii) all moneys and funds now and
hereafter deposited to such account or payable thereon, and (iii) all interest,
dividends, cash, income or other property now or hereafter payable or
distributable under, on, to or by reason of, such Account;
(f) all instruments, books and records maintained by or for the
Debtor concerning any of the foregoing; and
(g) any and all cash and non-cash proceeds of the foregoing;
in each case, wherever located and whether now owned or hereafter created or
acquired by the Debtor (collectively, the "Collateral").
The Debtor agrees that the Secured Party shall have the sole power of
access and withdrawal from the Account. The Debtor shall deliver or promptly
cause to be delivered to the Secured Party an acknowledgment duly executed and
delivered by the Depository and in form and content satisfactory to the Secured
Party under which, among other things, the Depository will accept and confirm
notice of the Secured Party's security interest in the Account. Unless and until
an Event of Default shall have occurred and is continuing, the Debtor shall be
entitled to receive and retain any and all interest, income or dividends paid in
cash on the Account on a quarterly basis. Upon the occurrence and during the
continuance of an Event of Default, all such rights of the Debtor to receive
interest, income or dividends shall cease, and all such rights shall thereupon
become vested in the Secured Party as Collateral, and the Secured Party shall
have the sole and exclusive right and authority to receive and retain such
interest, income or dividends. All interest, income or dividends which are
received by the Debtor contrary to the provisions hereof shall be received in
trust for the benefit of the Secured Party, shall be segregated from other
property or funds of the Debtor and shall be forthwith delivered to the Secured
Party in the same form as so received with any necessary endorsement which the
Debtor agrees to make.
2. WARRANTIES, COVENANTS AND AGREEMENTS OF THE DEBTOR. The Debtor
warrants, covenants and agrees that:
2
<PAGE> 3
(a) Except for the security interest granted hereby, the Debtor
is, and as to Collateral acquired after the date hereof the Debtor shall be at
the time of acquisition, the owner and holder of the Collateral free from any
Lien (as defined in the Note Purchase Agreement) and covenants that at all times
the Collateral will be and remain free of all Liens, except Permitted Liens (as
defined in the Note Purchase Agreement); the Debtor has full power and lawful
authority to enter into this Agreement and to grant to the Secured Party a
security interest in the Collateral as herein provided; and the Debtor will
defend the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein.
(b) The Debtor has not heretofore signed any financing statement
or security agreement covering any of the Collateral, and no such financing
statement or security agreement is now on file in any public office.
(c) The Debtor authorizes the Secured Party to file, in its
discretion, financing statements signed only by the Secured Party covering the
Collateral and hereby appoints the Secured Party as the Debtor's
attorney-in-fact to sign and file any such financing statements covering the
Collateral. At the request of the Secured Party, the Debtor will join the
Secured Party in executing such documents as the Secured Party may reasonably
determine from time to time to be necessary or desirable under provisions of the
laws of the States of California and New York and of any other jurisdiction from
time to time identified by the Secured Party and, without limiting the
generality of the foregoing, the Debtor will pay the costs of filing or
recording the same or of filing or recording this Agreement in such public
offices at any time and from time to time, whenever filing or recording of any
such financing statement or of this Agreement is deemed by the Secured Party to
be necessary or desirable. In connection with the foregoing, it is agreed and
understood between the parties hereto (and the Secured Party is hereby
authorized to carry out and implement this agreement and understanding and
Debtor hereby agrees to pay the costs thereof) that the Secured Party may at any
time or times file as a financing statement any counterpart, copy or
reproduction of this Agreement.
3. FURTHER ASSURANCES. The Debtor agrees to take such actions and to
execute such writings as the Secured Party may reasonably request to further
confirm and assure the security interest granted hereby in the Collateral and to
assist the realization thereon.
4. EVENTS OF DEFAULT. The occurrence of any "Event of Default" as
defined in the Note Purchase Agreement shall constitute an "Event of Default"
hereunder.
5. RIGHTS AND REMEDIES OF THE SECURED PARTY AND DEBTOR RELATED TO THE
COLLATERAL. Until the occurrence of an Event of Default and subject to the
provisions of the Note Purchase Agreement, the Debtor shall be entitled to
exercise any and all rights pertaining to the Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the Note
Purchase Agreement and shall receive all income from or interest on the
Collateral, and if the Secured Party receives any such income or interest prior
to the occurrence of an Event of Default, the Secured Party shall pay the same
promptly to the Debtor.
Upon the occurrence and continuance of an Event of Default, the Secured
Party may exercise with reference to the Collateral any or all of the rights and
remedies of a secured party under
3
<PAGE> 4
applicable law, including, without limitation, the right and power to sell at
public or private sale or sales or otherwise dispose of or otherwise utilize the
Collateral and any part or parts thereof in any manner authorized or permitted
under applicable law after default by a debtor and to apply the proceeds thereof
toward payment of the Obligations. Specifically and without limiting the
foregoing, the Secured Party shall have the right to take possession of and to
exercise all rights of the Debtor pertaining to all or any part of the
Collateral or any security therefor and of all books, records, papers and
documents of Debtor or in Debtor's possession or control relating to the
Collateral which are not already in the Secured Party's possession and for such
purpose may enter upon any premises upon which any of the Collateral or any
security therefor or any of said books, records, papers and documents are
situated and remove the same therefrom without any liability for trespass or
damages thereby occasioned.
Upon the occurrence and continuance of an Event of Default, the Debtor
shall hold in trust for Secured Party all rents and other payments thereafter
received by Debtor with respect to the Collateral, which funds shall be
delivered to the Secured Party immediately upon receipt thereof by the Debtor in
the same form as received except for any necessary endorsement of the Debtor. To
the extent permitted by law, Debtor expressly waives any notice of sale or other
disposition of the Collateral and all other rights or remedies of Debtor or
formalities prescribed by law relative to the sale or other disposition of the
Collateral or the exercise of any other right or remedy of the Secured Party
existing after default hereunder; and to the extent any such notice is required
and cannot be waived, Debtor agrees that if such notice is given in the manner
provided herein at least ten (10) days before the time of the sale or
disposition, such notice shall be deemed reasonable and shall fully satisfy any
requirement for giving of said notice. The Secured Party shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
The Secured Party may adjourn any public or private sale.
The Secured Party shall never be under any obligation to collect,
attempt to collect, protect or enforce the Collateral or any security therefor,
which the Debtor agrees and undertakes to do at the Debtor's expense, but the
Secured Party may do so in its discretion at any time after the occurrence of an
Event of Default and at such time the Secured Party shall have the right to take
any steps by judicial process or otherwise it may deem proper to effect the
collection of all or any portion of the Collateral or to protect or to enforce
the Collateral or any security therefor. All expenses (including, without
limitation, attorneys' fees and expenses) incurred or paid by the Secured Party
in connection with or incident to any collection or attempt to collect the
Collateral or actions to protect or enforce the Collateral, the Purchase
Documents or any security therefor shall be borne by the Debtor or reimbursed by
the Debtor to the Secured Party upon demand. The proceeds received by the
Secured Party as a result of any such actions in collecting or enforcing or
protecting the Collateral and the Purchase Documents shall be held by the
Secured Party without liability for interest thereon and shall be applied by the
Secured Party as provided herein.
In the event the Secured Party shall pay any taxes, assessments,
interests, costs, penalties or expenses incident to or in connection with the
collection of the Collateral or protection or enforcement of the Collateral, the
Purchase Documents or any security therefor, the Debtor, upon demand of the
Secured Party, shall pay to the Secured Party the full amount thereof, and this
Agreement shall operate as security therefor as fully and to the same extent as
it operates as security
4
<PAGE> 5
for payment of the other Obligations secured hereunder, and for the enforcement
of such repayment the Secured Party shall have every right and remedy provided
for enforcement of payment of the Obligations.
The Secured Party shall not have any responsibility for (i) ascertaining
or taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Collateral, whether or not the Secured
Party has or is deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to any
Collateral.
6. PAYMENTS UPON DEFAULT. Monies received by the Secured Party through
the enforcement of the security interests granted hereunder in favor of the
Secured Party for the benefit of the Holders will be applied: first, to pay any
amounts due to the Secured Party hereunder or under any of the other Purchase
Documents; second, to pay interest (including late charges, if any) due on the
Notes; and third, to pay the outstanding principal of the Notes. Any amounts and
any Collateral remaining after such application and after payment of all of the
Obligations in full shall be paid or delivered to Debtor, its successor or
assigns, or as a court of competent jurisdiction may direct.
7. TERMINATION. This Agreement and the security interest created
hereunder shall terminate when all the Obligations have been indefeasibly paid
in full, at which time the Secured Party shall execute and deliver to the
Debtor, at Debtor's cost and expense, all documents which the Debtor shall
reasonably request to evidence termination of such security interest.
8. ABSOLUTE INTEREST.
(a) All rights of the Secured Party hereunder, and all
obligations of the Debtor hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any provision of
this Agreement, any agreement with respect to the Obligations or any other
agreement or instrument relating to any of the foregoing, (ii) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from this Agreement or any other agreement or instrument relating to the
foregoing, (iii) any exchange, release or nonperfection of any Collateral, or
any release or amendment or waiver of or any consent to or departure from any
guarantee, for all or any of the Obligations, or (iv) any other circumstance
which might constitute a defense available to, or a discharge of, the Debtor in
respect of the Obligations or this Agreement.
(b) This Agreement shall not be construed as relieving Debtor
from full liability on the Obligations and any and all future and other
indebtedness secured hereby and for any deficiency thereon.
(c) The Secured Party is hereby subrogated to all of Debtor's
interests, rights and remedies in respect to the Collateral and all security now
or hereafter existing with respect thereto and all guaranties and endorsements
thereof and with respect thereto.
9. NOTICES. Any communication, notice or demand to be given hereunder
shall be duly given if delivered or mailed by certified mail, or if delivered by
facsimile transmission (with
5
<PAGE> 6
telephonic confirmation of receipt) within one day of such delivery, to the
Debtor or the Secured Party at the respective address set forth below, or such
other address as shall be designated by any party hereto to each other party
hereto in a written notice delivered in accordance with the terms hereof:
Debtor: Cronos Global Income Fund XVI, L.P.
c/o Cronos Capital Corp.
444 Market Street
San Francisco, CA 94111
Telephone No.: 415-677-8990
Facsimile No.: 415-677-9196
Attention: President
Secured Party: IBJ Whitehall Business Credit Corporation
One State Street
New York, New York 10004
Telephone No.: 212-858-2000
Facsimile No.: 212-952-1629
Attention: Vice President / Operations
10. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of the Secured
Party to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the Secured Party of any right, remedy or power hereunder preclude
any other or future exercise of any other right, remedy or power. Each and every
right, remedy and power hereby granted to the Secured Party or allowed it by law
or other agreement shall be cumulative and not exclusive the one of any other,
and may be exercised by the Secured Party from time to time.
11. APPLICABLE LAW; CONSENT TO JURISDICTION. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICT OF LAWS RULES (EXCEPT TITLE 14, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW), EXCEPT TO THE EXTENT THAT THE LAWS OF ANOTHER
JURISDICTION MANDATORILY GOVERN THE PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE SECURITY INTEREST CREATED BY THIS AGREEMENT.
Debtor hereby irrevocably submits to the non-exclusive jurisdiction of
any New York state or federal court sitting in the Borough of Manhattan in the
City of New York, New York, in any action or proceeding arising out of or
relating to this Agreement, and the Debtor hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such New York state or federal court. The Debtor hereby irrevocably waives, to
the fullest extent that it may legally do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding and agrees that a final
judgment in any such action or proceeding shall be conclusive to the fullest
extent permitted by law and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. The Debtor irrevocably
designates and appoints Dennis J.
6
<PAGE> 7
Tietz, President of the general partner of the Company (and the successors in
such office) as its agent to receive on its behalf service of all process
brought against it with respect to any such proceeding in any such court in the
State of New York, such service being hereby acknowledged to be effecting and
binding upon it in every respect. If for any reason such agent shall cease to be
available to act as such, then the Debtor shall promptly designate a new agent
for such purpose in New York, New York.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
13. AMENDMENT. The Secured Party and the Debtor may agree in writing to
amend this Agreement, or waive any of the provisions of this Agreement.
14. ENTIRE AGREEMENT. This Agreement and the other Purchase Documents
constitute the entire understanding between the Secured Party and the Debtor
with respect to the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Debtor and its successors and permitted assigns and shall inure to the benefit
of the Secured Party and its successors and assigns. This Agreement may not be
assigned by the Debtor.
16. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, which shall remain in full force and
effect, or affecting the validity or enforceability of such provision in any
other jurisdiction.
17. WAIVERS OF JURY TRIAL. EACH OF THE DEBTOR AND THE SECURED PARTY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED
BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATED TO THIS AGREEMENT OR THE OTHER PURCHASE DOCUMENTS AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
[SIGNATURES ON NEXT PAGE]
7
<PAGE> 8
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
CRONOS GLOBAL INCOME FUND XVI, L.P.
By: CRONOS CAPITAL CORP., as General Partner
By: /s/ DENNIS J. TIETZ
-------------------------------------
Dennis J. Tietz
President
IBJ WHITEHALL BUSINESS CREDIT CORPORATION
By: /s/ Robert F. Brown
-----------------------------------------
Name: Robert F. Brown
Title: Sr. Vice President
8
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE
SHEET AT MARCH 31, 2000 (UNAUDITED) AND THE STATEMENT OF OPERATIONS FOR THE
QUARTERLY PERIOD ENDED MARCH 31, 2000 (UNAUDITED) AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS INCLUDED AS PART OF ITS
QUARTERLY REPORT ON FORM 10-Q FOR THE PERIOD MARCH 31, 2000
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 1,375,609
<SECURITIES> 0
<RECEIVABLES> 517,309
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1,892,918
<PP&E> 29,905,424
<DEPRECIATION> 5,951,273
<TOTAL-ASSETS> 26,659,556
<CURRENT-LIABILITIES> 550,933
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 23,353,956
<TOTAL-LIABILITY-AND-EQUITY> 26,659,556
<SALES> 0
<TOTAL-REVENUES> 810,544
<CGS> 0
<TOTAL-COSTS> 433,891
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 399,557
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
