<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended: June 30, 1999
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: 0-24464
THE CRONOS GROUP
(Exact name of Registrant as specified in its charter)
LUXEMBOURG NOT APPLICABLE
(State or other Jurisdiction (I.R.S Employer
of incorporation or organization) Identification No.)
16, ALLEE MARCONI, BOITE POSTALE 260, L-2120 LUXEMBOURG
(Address of principal executive offices)(zip code)
Registrant's telephone number, including area codes:
(352) 453145
-------------------------
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 [ ]
THE NUMBER OF COMMON SHARES OUTSTANDING AS OF AUGUST 2, 1999:
CLASS NUMBER OF SHARES OUTSTANDING
----- ----------------------------
Common 9,158,378
<PAGE> 2
THE CRONOS GROUP
TABLE OF CONTENTS
THE CRONOS GROUP
PART I--FINANCIAL INFORMATION
<TABLE>
<S> <C>
Item 1 -- Financial Statements..................................................1
Management Representation.....................................................1
Consolidated Statements of Income.............................................2
Consolidated Balance Sheets...................................................3
Consolidated Statements of Cash Flows.........................................4
Consolidated Statements of Shareholders' Equity...............................5
Notes to the Consolidated Financial Statements................................6
Item 2 -- Management's Discussion and Analysis of Financial
Condition and Results of Operations...................................9
General.......................................................................9
Three Months Ended June 30, 1999 Compared to
Three Months Ended June 30, 1998.....................................10
Six Months Ended June 30, 1999 Compared to
Six Months Ended June 30, 1998.......................................11
Liquidity and Capital Resources..............................................12
Item 3 -- Quantitative and Qualitative Disclosures about Market Risk...........14
PART II --OTHER INFORMATION
Item 1 -- Legal Proceedings....................................................15
Item 5 -- Other Information....................................................16
Item 6 -- Exhibits and Reports on Form 8-K.....................................16
</TABLE>
<PAGE> 3
THE CRONOS GROUP
PART I--FINANCIAL INFORMATION
ITEM 1 -- FINANCIAL STATEMENTS
MANAGEMENT REPRESENTATION
The interim financial statements included herein have been prepared by
the Company, without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules and
regulations. The Company believes, however, that the disclosures are adequate to
make the information presented not misleading.
These financial statements should be read in conjunction with the
financial statements and the notes thereto included in the Company's latest
Annual Report on Form 10-K.
This financial information reflects, in the opinion of management, all
adjustments necessary to present fairly, the results for the interim periods.
Such adjustments consist of only normal recurring adjustments. The results of
operations for such interim periods are not necessarily indicative of the
results to be expected for the full year.
1
<PAGE> 4
THE CRONOS GROUP
CONSOLIDATED STATEMENTS OF INCOME
(US dollar amounts in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------------------- -------------------------------
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
GROSS LEASE REVENUE $ 32,082 $ 40,042 $ 66,832 $ 80,568
Commissions, fees and other income 1,664 1,573 3,288 3,187
----------- ----------- ----------- -----------
TOTAL REVENUES 33,746 41,615 70,120 83,755
----------- ----------- ----------- -----------
Direct operating expenses 7,799 8,504 15,863 17,215
Payments to container owners 15,101 19,615 31,773 39,081
Depreciation and amortization 3,987 4,821 8,385 9,452
Selling, general and administrative expenses 4,013 5,871 8,139 11,226
Financing and recomposition expenses -- 242 -- 484
Interest expense 2,949 4,047 6,156 8,290
----------- ----------- ----------- -----------
TOTAL EXPENSES 33,849 43,100 70,316 85,748
----------- ----------- ----------- -----------
LOSS BEFORE INCOME TAXES (103) (1,485) (196) (1,993)
Income taxes -- 68 -- 235
----------- ----------- ----------- -----------
NET LOSS (103) (1,553) (196) (2,228)
=========== =========== =========== ===========
LOSS PER COMMON SHARE (BASIC AND DILUTED) $ (0.01) $ (0.17) $ (0.02) $ (0.25)
=========== =========== =========== ===========
BASIC AND DILUTED SHARES OUTSTANDING 8,858,378 8,858,378 8,858,378 8,858,378
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
2
<PAGE> 5
THE CRONOS GROUP
CONSOLIDATED BALANCE SHEETS
(US dollar amounts in thousands, except per share amounts)
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
--------- ------------
(Unaudited)
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 5,566 $ 9,281
Amounts due from lessees, net 29,062 33,215
Net investment in direct finance leases 1,577 3,504
Container equipment, net 143,312 168,558
Property and investments, net 29,160 32,323
Amounts receivable from related parties 225 5,500
Other 25,205 27,598
--------- ---------
TOTAL ASSETS $ 234,107 $ 279,979
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Amounts payable to container owners $ 25,643 $ 31,314
Debt and capital lease obligations 114,494 148,466
Current and deferred income taxes 7,696 8,085
Other liabilities 30,383 36,027
--------- ---------
TOTAL LIABILITIES 178,216 223,892
--------- ---------
SHAREHOLDERS' EQUITY
Common shares 17,717 17,717
Additional paid-in capital 49,077 49,108
Share subscriptions receivable (92) (123)
Retained earnings (10,811) (10,615)
--------- ---------
TOTAL SHAREHOLDERS' EQUITY 55,891 56,087
--------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 234,107 $ 279,979
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
3
<PAGE> 6
THE CRONOS GROUP
CONSOLIDATED STATEMENTS OF CASH FLOWS
(US dollar amounts in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
-------------------------
1999 1998
-------- --------
<S> <C> <C>
NET CASH PROVIDED BY OPERATING ACTIVITIES $ 12,047 $ 8,690
-------- --------
INVESTING ACTIVITIES:
Purchase of container and other equipment (267) (2,363)
Proceeds from sales of container and other equipment 19,416 901
-------- --------
NET CASH (USED) PROVIDED FOR INVESTING ACTIVITIES 19,149 (1,462)
-------- --------
FINANCING ACTIVITIES:
Proceeds from issuance of term debt -- 1,889
Repayments of term debt and capital lease obligations (34,911) (9,880)
-------- --------
NET CASH USED BY FINANCING ACTIVITIES (34,911) (7,991)
-------- --------
NET DECREASE IN CASH AND CASH EQUIVALENTS (3,715) (763)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 9,281 14,455
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 5,566 $ 13,692
======== ========
Supplementary disclosure of cash flow information:
Cash paid during the period for:
- - interest $ 6,345 $ 9,884
- - income taxes 257 82
Cash received during the period for:
- - interest 267 1,678
- - income taxes -- --
Non-cash investing and financing activities:
- - container equipment acquired under capital lease -- --
- - container equipment acquired but unpaid at June 30 -- --
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
4
<PAGE> 7
THE CRONOS GROUP
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
Six Months Ended June 30, 1998 and 1999
(U.S. dollar amounts in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Accumulated
Additional Share other Retained Total
Common paid-in subscriptions comprehensive earnings shareholders'
shares capital receivable income unrestricted equity
-------- ---------- ------------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
SIX MONTHS ENDED JUNE 30, 1998
Balance, December 31, 1997 $ 17,717 $ 49,154 $ (169) $ 1,159 $ 5,852 $ 73,713
MEIP lapses -- -- -- -- -- --
Net loss -- -- -- -- (2,228) (2,228)
-------- -------- -------- -------- -------- --------
Balance, June 30, 1998 $ 17,717 $ 49,154 $ (169) $ 1,159 $ 3,624 $ 71,485
======== ======== ======== ======== ======== ========
SIX MONTHS ENDED JUNE 30, 1999
Balance, December 31, 1998 $ 17,717 $ 49,108 $ (123) $ -- $(10,615) $ 56,087
MEIP lapses -- (31) 31 -- -- --
Net loss -- -- -- -- (196) (196)
-------- -------- -------- -------- -------- --------
Balance, June 30, 1999 $ 17,717 $ 49,077 $ (92) $ -- $(10,811) $ 55,891
======== ======== ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
5
<PAGE> 8
THE CRONOS GROUP
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(U.S. dollar amounts in thousands, except per share amounts)
1. The consolidated financial statements include the accounts of The Cronos
Group and its wholly-owned subsidiaries (the "Company"). All material
intercompany accounts and transactions have been eliminated.
2. Operating segment data
Condensed segment information is provided in the tables below:
<TABLE>
<CAPTION>
Other
US Limited container Owned
Partnerships owners containers Total
------------ --------- ---------- ---------
<S> <C> <C> <C> <C>
Three months ended June 30, 1998
Gross lease revenue $ 14,062 $ 15,750 $ 10,230 $ 40,042
Operating profit before indirect items 2,780 1,743 455 4,978
Operating profit 663 (366) (915) (618)
Segment assets 24,363 23,841 199,682 247,886
Three months ended June 30, 1999
Gross lease revenue $ 10,738 $ 13,538 $ 7,806 $ 32,082
Operating profit before indirect items 2,155 1,492 762 4,409
Operating profit 609 39 (167) 481
Segment assets 21,334 19,939 155,159 196,432
Six months ended June 30, 1998
Gross lease revenue $ 28,489 $ 31,594 $ 20,485 $ 80,568
Operating profit before indirect items 5,740 4,082 702 10,524
Operating profit 1,414 130 (1,844) (300)
Segment assets 24,363 23,841 199,682 247,886
Six months ended June 30, 1999
Gross lease revenue $ 22,533 $ 27,778 $ 16,521 $ 66,832
Operating profit before indirect items 4,521 3,102 1,304 8,927
Operating profit 1,380 182 (578) 984
Segment assets 21,334 19,939 155,159 196,432
</TABLE>
Reconciliation of operating profit for reportable segments to earnings before
taxes:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
----------------------- -----------------------
1999 1998 1999 1998
------- ------- ------- -------
<S> <C> <C> <C> <C>
Operating profit $ 481 $ (618) $ 984 $ (300)
Selling, general and administrative expenses (414) (468) (839) (913)
Amortization of intangibles (170) (157) (341) (296)
Financing and recomposition expenses -- (242) -- (484)
------- ------- ------- -------
Loss before income taxes $ (103) $(1,485) $ (196) $(1,993)
======= ======= ======= =======
</TABLE>
6
<PAGE> 9
THE CRONOS GROUP
3. Container equipment
Container equipment is net of accumulated depreciation of $59,863 and
$59,640 at June 30, 1999 and December 31, 1998, respectively.
4. Amounts payable to container owners
Amounts payable to container owners include amounts payable to related
parties of $11,942 and $13,287 at June 30, 1999 and December 31, 1998,
respectively.
5. Debt and capital lease obligations
Debt and capital lease obligations include amounts due within twelve
months of $59,477 and $87,271 at June 30, 1999 and December 31, 1998,
respectively. On August 2, 1999, the Company successfully closed a $50.0 million
re-financing transaction, the proceeds of which were used to refinance all of
the Company's debt scheduled to mature in the next six months. See also
"Liquidity and Capital Resources-Capital Resources".
6. Commitments and contingencies (to be read in conjunction with Note 21 to
the 1998 Consolidated Financial Statements)
i. Commitments
At June 30, 1999, the Company had commitments under operating leases for
office space and equipment that were not material.
The Company had no outstanding orders in respect of container equipment
at June 30, 1999.
ii. Contingencies --- Austrian allegations
Since 1983, as described in the Company's prospectus dated December 7,
1995, a subsidiary company has managed containers for Austrian investment
entities, including limited and unlimited partnerships and companies, sponsored
by companies owned by Contrin Holding S.A., a Luxembourg holding company
("Contrin"), and for that company itself. Mr. S M Palatin, a former Chairman of
the Board of Directors and former Chief Executive Officer, has been a director
of Contrin. During 1994, ownership of the companies sponsoring these entities
was transferred by Contrin to Barton Holding Ltd, a Bahamian company, which has
owned preferred shares in the Company ("the former preferred shareholder"). See
Note 21 to the 1998 Consolidated Financial Statements for further details
regarding Barton Holding Ltd ("Barton") and transactions involving that company.
Some participants in a number of the aforementioned Austrian investment
entities have made allegations to the Company and Austrian government
authorities regarding the conduct of the investment entities, the sponsoring
companies and companies alleged to be connected to Mr. Palatin and regarding Mr.
Palatin himself.
Firstly, it is alleged, broadly, that not all container management
income due to participants in these investment entities ("third parties") has
been received by them.
In this connection, in September 1997 the Company transferred $360 in
Contrin distributions to a bank account pursuant to instructions that may have
been falsified. The Austrian courts took control of the account and on June 8,
1999 authorized release of the monies to the originally intended Contrin
entities. The Company believes it has no further liability regarding this
matter. A further $118 deposited by the Company
7
<PAGE> 10
THE CRONOS GROUP
in an Austrian bank account also supervised by the Austrian Courts, representing
distributions due to certain Contrin entities, was released by the courts to
those entities in November 1998.
Moreover, Austrian courts have initiated investigations against Mr.
Palatin and additional persons, including Mr. R J Weissenberger, a former
Chairman and director, and Mr. A Friedberg, a former director. Mr. Palatin and
Mr. Friedberg have since been formally charged. Such investigations have not
resulted in any actions being taken against Mr. Weissenberger and he has
informed the Company that he does not believe that there is any valid basis for
any such actions to be taken against him.
Management has been unable to obtain definitive information regarding
the relationships suggested in the allegations by the third parties.
Secondly, it is alleged that funds may have been remitted to the
Company, which were not deposited in a Company bank account and are not
reflected in the Company's accounting records. Specifically, it is alleged that
Mr. Palatin acknowledged receipt of funds in the amount of $2,600 during the
year ended December 31, 1995, yet it appears that these funds were received into
a non-Company bank during the year ended December 31, 1994. Previous to these
allegations, the Company's current management was not aware of the receipt of
the $2,600, nor was it aware of Mr. Palatin's acknowledgement. The Company has
determined that a $400 distribution to third party investors was paid by the
Company in December 1994, into the same bank account into which the $2,600 was
apparently deposited. Management is investigating these allegations and is
continuing to seek definitive information regarding the non-Company bank account
and the receipt and disbursement of the $2,600.
Thirdly, claims relate to alleged transactions between third parties and
companies alleged to be connected to Mr. Palatin, involving the purchase and
sale of containers in a manner designed to secure a tax mitigation advantage to
those third parties. It is alleged that sums remain owing to the third parties
by one or more of these companies in connection with the pre-arranged trading in
containers. It is the view of management that the Company was not involved in
these transactions, that the Company has no access to the records of the alleged
transactions and, so far as the Company has managed the containers, the Company
has acted in accordance with instructions from authorised representatives of the
third parties. Management has been unable to quantify the extent, if any, that
the Company might be held to be liable should the claims prove to be
substantiable. The mechanisms, if any, and jurisdictions for initiation of any
claims are also unclear.
Certain of the companies which have sponsored Austrian investment
entities have, under the terms of the relevant management agreement, arranged
for examination of Company records pertaining to the management of containers
owned by those investment entities. Some inquiries were made by representatives
of the third parties. Management is not aware of any unresolved issues in this
respect.
In response to the actions taken by Contrin, the Company terminated
certain of its management agreements with Contrin entities in 1998. Discussions
are taking place between Contrin and the Company and it is anticipated that
these agreements will be reinstated.
Management considers that prudent provision has been made in the
financial statements for the matters in this connection. There is a reasonable
possibility that a material change could occur in respect of commitments and
contingencies within one year of the date of these financial statements. Details
of the provision are provided in Notes 1r and 3 to the 1998 Consolidated
Financial Statements.
iii. Contingencies --- Arbitration
Under the terms of the relevant management agreement, an arbitration
process was commenced on or around February 1997 by one of the companies that
had sponsored Austrian entities in respect of distributions made by the Company
through its Austrian attorney. In December 1998, the arbitration panel found
that the management agreements with the Austrian investment entities were valid.
The Company has made provision for anticipated legal expenses arising from the
arbitration.
See also Note 14 to the 1998 Consolidated Financial Statements.
8
<PAGE> 11
THE CRONOS GROUP
ITEM 2 -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
The Company generates revenues by leasing to ocean carriers marine
containers that are owned either by third-party container owners or by the
Company itself. These leases, which generate most of the Company's revenues, are
generally operating leases.
The following chart summarizes the composition of the Cronos fleet
(based on original equipment cost) at June 30 for each of the periods indicated:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
U.S. Public Limited Partnerships 34% 35%
Other Container Owners 43% 40%
Owned Containers 23% 25%
---- ----
Total 100% 100%
==== ====
</TABLE>
All containers, whether owned or managed, are operated as part of a
single fleet. The Company has discretion over which ocean carriers, container
manufacturers and suppliers of goods and services it deals with. Since the
Company's management agreements with the Managed Container Owners meet the
definition of leases in Statement of Financial Accounting Standards No. 13, they
are accounted for in the Company's financial statements as leases under which
the container owners are lessors and the Company is lessee. The agreements with
container owners generally provide that the Company will make payments to the
container owners based upon the rentals collected from ocean carriers after
deducting direct operating expenses and a management fee. The majority of
payments to container owners are therefore contingent upon the leasing of the
containers by the Company to ocean carriers and the collection of lease rentals.
Minimum lease payments on the minority of agreements that have fixed payment
terms are presented in Note 14(c) to the 1998 Consolidated Financial Statements.
The majority of payments to container owners represent a percentage of the
rentals collected from the ocean carriers to whom containers are leased by the
Company.
The following chart summarizes the composition of the Cronos fleet
(based on TEU thousands), by equipment type, at June 30 for each of the periods
indicated:
<TABLE>
<CAPTION>
Equipment Type 1999 1998
- -------------- ----- -----
<S> <C> <C>
Dry cargo 333.4 342.3
Refrigerated 14.2 15.1
Tank 2.0 2.0
Roll-Trailer 2.1 2.3
Cellular palletwide containers ("CPCs") 2.4 2.4
Other dry freight specials 2.5 1.8
----- -----
Total fleet 356.6 365.9
===== =====
</TABLE>
In recent months, economic reforms in Asia, as well as in Latin America,
have begun to produce gradual improvement in terms of world trade, and there are
preliminary indications that containerized trade volumes from North America and
Europe to Asia, in particular, may be increasing. Intra-Asian trade, which also
had stagnated since the Asia financial crisis began nearly two years ago, has
shown increased activity in
9
<PAGE> 12
THE CRONOS GROUP
recent months. These favorable signs, however, have yet to produce any
significant positive impact on the Company's operating performance. In spite of
the reduced redelivery of on-hire equipment by the ocean carriers, per-diem
rental rates have continued to decline as a result of competitive market
conditions and high inventories.
The Company continues to take advantage of its marketing resources in
order to seek out leasing opportunities during this period. The short-term
objective is to improve utilization by offering greater leasing incentives and
actively repositioning equipment to higher-demand locations. While this
short-term strategy will increase repositioning expenses, it may also minimize
those expenses related to storing off-hire containers. These measures will also
provide the longer-term advantage of placing the containers where the demand is
greatest.
The following chart summarizes the combined utilization of the Cronos
fleet (based on approximate original equipment cost) at the dates indicated:
<TABLE>
<CAPTION>
July 31 June 30 March 31 June 30
1999 1999 1999 1998
------- ------- -------- -------
<S> <C> <C> <C> <C>
Utilization 75.7% 75.2% 72.6% 80.4%
</TABLE>
During the first six months of 1999, the Company made significant
reductions to selling, general and administrative expenses in line with a
restructuring program that was announced in late 1998. This program, which has
now been substantially completed, involved the reorganization of key activities
together with the termination of certain employee positions. In addition, the
Company reduced its short-term debt by $20.6 million in accordance with its
strategy to refinance certain short-term debt obligations and thereby reduce the
cost of debt financing. Through June 30, 1999, this strategy has resulted in the
sale by Cronos of $36.6 million of container equipment, at Cronos' original
equipment cost, to various third party investor programs. On August 2, 1999, the
Company successfully closed a $50.0 million re-financing transaction, the
proceeds of which were used to refinance all of the Company's debt scheduled to
mature in the next six months. See also "Liquidity and Capital Resources-Capital
Resources".
THREE MONTHS ENDED JUNE 30, 1999 COMPARED TO THREE MONTHS ENDED JUNE 30,
1998
Operating profit for the three months ended June 30, 1999 was $0.5
million compared to a loss of $0.6 million during the corresponding period of
1998. Reductions in selling, general and administrative expenses, interest
expense and depreciation expense more than offset reduced income from both the
owned and managed container fleets.
Gross lease revenue of $32.1 million in the three months ended June 30,
1999 was $8.0 million, or 19.9% lower than in the corresponding period of 1998.
This decline can be attributed to the combined effect of reduced utilization,
lower per diem rates and a smaller fleet size representing approximately $3.7
million, $3.3 million and $1.0 million of the reduction respectively.
Commissions, fees and other income of $1.7 million in the three months
ended June 30, 1999 were almost unchanged from the corresponding period in 1998.
Increased income, primarily from specialized container products, was partially
offset by reduced fees from the disposal of containers and lower finance lease
income.
Direct operating expenses were $7.8 million in the three months to June
30, 1999, a decrease of $0.7 million, or 8.3%, compared to the corresponding
period in 1998. Increased storage, reflecting a larger off-hire fleet, was more
than offset by reductions in charges for doubtful accounts, repairs,
repositioning and handling.
10
<PAGE> 13
THE CRONOS GROUP
Payments to container owners amounted to $15.1 million during the three
months ended June 30, 1999, a decrease of $4.5 million or 23.0%, when compared
to the corresponding period in 1998.
Payments to U.S. Limited Partnerships amounted to $5.7 million, a
decline of $2.9 million or 33.9%, when compared to the corresponding period in
1998. Lower average utilization and per-diem rates, as well as a smaller
container fleet caused the decline in net lease revenue for this segment. The
U.S. Limited Partnership fleet declined from 135,517 TEU at June 30, 1998, to
126,620 TEU at June 30, 1999 as a result of the disposal of older container
equipment.
Payments to Other Container Owners were $9.4 million during the three
months ended June 30, 1999, a decrease of $1.6 million, or 14.4%, when compared
to the corresponding period of 1998 as lower average utilization and per-diem
rates more than offset a larger average fleet size. The increase in the average
fleet size was due to transactions involving the sale of equipment from the
Owned to the Other Container Owners segment.
Depreciation and amortization decreased by $0.8 million, or 17.3%, in
the three months to June 30, 1999, to $4.0 million due to container sales from
the Owned to the Other Container Owners segment.
Selling, general and administrative expenses decreased to $4.0 million
for the three months ended June 30, 1999 from $5.9 million for the three months
ended June 30, 1998, a decrease of $1.9 million or 31.6%. The decrease was due
primarily to a $1.0 million reduction in manpower and manpower-related costs,
together with lower costs related to information technology, professional
services and communications.
Interest expense of $2.9 million for the three months ended June 30,
1999 declined $1.1 million or 27.1%, when compared to the corresponding period
in 1998. This decrease is due primarily to a reduction in the average debt
balance from $163.8 million to $122.1 million between the second quarters of
1998 and 1999, respectively.
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30,
1998
Operating profit of $1.0 million for the six months to June 30, 1999 was
$1.3 million higher than the $0.3 million loss for the corresponding period in
1998. Reductions in selling, general and administrative expenses, interest
expense and depreciation expense more than offset reduced income from both the
owned and managed container fleets.
Gross lease revenue of $66.8 million in the six months to June 30, 1999
was $13.7 million, or 17.1%, lower than in the corresponding period in 1998.
This decline can be attributed to the combined effect of reduced utilization,
lower per diem rates and a smaller fleet size representing approximately $7.1
million, $4.7 million and $1.9 million of the reduction respectively.
Commissions, fees and other income of $3.3 million during the six months
ended June 30, 1999 were almost unchanged from the corresponding period in 1998.
Increased income, primarily from specialized container products, was partially
offset by reduced fees from the disposal of containers and lower finance lease
income.
Direct operating expenses were $15.9 million during the six months ended
June 30, 1999, a decrease of $1.4 million, or 7.9%, compared to the
corresponding period in 1998. Increased storage, reflecting a larger off-hire
fleet, was more than offset by reductions in charges for doubtful accounts,
repairs, repositioning and handling.
Payments to container owners decreased to $31.8 million during the six
months ended June 30, 1999, a decrease of $7.3 million, or 18.7%, compared to
the corresponding period in 1998.
Payments to U.S. Limited Partnerships amounted to $12.5 million, a
decline of $4.8 million or 27.7%, when compared to the corresponding period in
1998. Lower average utilization and per-diem rates, as well as a smaller
container fleet, caused the decline in net lease revenue for this segment.
11
<PAGE> 14
THE CRONOS GROUP
Payments to Other Container Owners were $19.2 million during the six
months ended June 30, 1999, a decrease of $2.5 million, or 11.5%, when compared
to the corresponding period in 1998, as lower average utilization and per-diem
rates more than offset a larger average fleet size. The increase in the average
fleet size was due to transactions involving the sale of equipment from both the
U.S. Limited Partnerships and Owned segments to the Other Container Owners
segment.
Depreciation and amortization decreased by $1.1 million, or 11.3%,
during the six months ended June 30, 1999 to $8.4 million due to container sales
from the Owned to the Other Container Owners segment.
Selling, general and administrative expenses decreased to $8.1 million
during the six months ended June 30, 1999 from $11.2 million in the
corresponding period of 1998, a decrease of $3.1 million or 27.5%. The decrease
was due primarily to a $1.5 million reduction in manpower and manpower-related
costs together with costs related to information technology, professional
services and communications.
Interest expense of $6.2 million for the six months to June 30, 1999 was
$2.1 million lower, or 25.7%, compared to the corresponding period of 1998 due
primarily to a reduction in the average debt balances.
LIQUIDITY AND CAPITAL RESOURCES
Cash from Operating Activities: Net cash provided by operating
activities was $12.0 million and $8.7 million during the first six months of
1999 and 1998, respectively. The net cash generated in 1999 reflected earnings
from operations together with the release of $4.9 million of deposits which had
been held in escrow, of which $2.7 million was utilized to make payments to
third party container owners. In addition, $5.3 million was received from the
sale of the Company's stock held as collateral on the Palatin Loans that was
utilized in reducing both short-term debt and Mr. Palatin's indebtedness to the
Company. The net cash generated in 1998 reflected earnings from operations
together with a $8.0 million decrease in new container equipment for resale.
Cash from Investing Activities: Net cash provided by investing
activities was $19.1 million in the first six months of 1999 reflecting sales of
container equipment to third party container owners. Net cash used for investing
activities was $1.5 million in the first six months of 1998 reflecting purchases
of container and other equipment of $2.4 million, which was partly offset by
proceeds from equipment sales.
Cash from Financing Activities: Net cash used by financing activities
was $34.9 million during the first six months of 1999 compared to $8.0 million
in the corresponding period of 1998. Repayments of debt and capital lease
obligations included $20.6 million in short-term debt repayments that were
generated from proceeds of container equipment sales. A further $5.3 million of
short-term debt was repaid following the sale of the Company's stock held as
collateral on the Palatin loans. In 1998, debt repayments of $9.9 million from
operating cash were partly offset by $1.9 million of additional funding.
CAPITAL RESOURCES
On August 2, 1999, the Company refinanced approximately $47.8 million of
its short-term and other indebtedness by establishing a Loan Facility (the "Loan
Facility") with MeesPierson N.V., a Dutch financial institution, as agent for
itself and First Union National Bank (collectively, the "Lenders"). The borrower
under the Loan Facility was Cronos Finance (Bermuda) Limited, a newly-organized,
wholly-owned, special purpose subsidiary of the Company ("Cronos Finance").
Cronos Finance borrowed $50.0 million under the Loan Facility for the purpose of
acquiring containers from three other direct or indirect wholly-owned
subsidiaries (the"Sellers") of the Company and paying certain fees associated
with the establishment of the Loan Facility and the fees of certain former
lenders. The Sellers utilized the cash proceeds from the sale of the containers
to Cronos Finance to repay $47.8 million in principal due by the Sellers to
eight different creditors or groups of creditors of the Group, including all
indebtedness owed to a group of banks for which Fleet Bank, N.A. acted as agent.
Monies borrowed under the Loan Facility bear interest at the annual rate
of the 3-month LIBOR plus 1.50% (currently 6.8725%). The interest rate will be
re-set quarterly. Amounts borrowed under the Loan
12
<PAGE> 15
THE CRONOS GROUP
Facility are repayable over five years, with a balloon payment of 25% of
borrowings due at the maturity. To secure the borrowings made under the Loan
Facility, the Lenders have been granted: (i) a first priority security interest
in the containers purchased by Cronos Finance; (ii) a guarantee by the Company
of 20% of the amount of the Credit facility; (iii) a second mortgage over the
Company's office building in Windsor, England; and (iv) certain additional
collateral. The Company guarantee is secured by (i) a pledge of the capital
stock held by the Company in Cronos Finance; (ii) a security interest in the
Company's shares of Common Stock of Transamerica Corporation (which are now
convertible into shares of Aegon N.V. as a result of the merger of Transamerica
with and into Aegon); and (iii) a pledge of the capital stock held by the
Company in Cronos Holdings/Investments (U.S.), Inc., a Delaware corporation
that, in turn, owns all of the outstanding capital stock of Cronos Capital
Corp., the general partner of the Group's U.S. container leasing limited
partnerships.
For establishing the Loan Facility, the Lenders were paid an arrangement
fee of 1.50% of the Facility amount, issued 300,000 shares of Common Stock of
the Company (150,000 shares to each Lender) and were each granted a warrant to
purchase 100,000 shares of the Company's Common Stock at an exercise price of
$4.41 per share (the average of the daily closing price of the Company's Common
shares during the thirty day period preceding August 2, 1999). While the Lenders
have advised the Company that they have no present intent of selling or
otherwise disposing of the shares of Common Stock of the Company acquired by
them, the Company has agreed to register the 300,000 shares issued to the
Lenders under the Securities Act of 1933, as amended, within sixty days of
August 2, 1999. In addition, under the Warrant Agreement entered into by the
Company and the Lenders, the Lenders have the right to demand registration of
the shares issuable thereunder.
The Company will amortize the arrangement fee it paid to establish the
Loan Facility ($0.75 million) and the fair market value of the 300,000 shares it
issued to the Lenders to establish the Loan Facility ($1.275 million, determined
by multiplying the 300,000 shares by the closing price of the Company's Common
Stock on August 2, 1999) over the five-year term of the borrowings made under
the Loan Facility.
The establishment of the Loan Facility and the repayment of
approximately $47.8 million in short-term indebtedness will result in a
reduction in the annual interest payable by the Company on its indebtedness.
Management estimates that the Company's interest cost will be reduced by
approximately $1.4 million per annum (assuming no material increase in LIBOR) as
a result of the establishment of the Loan Facility from the amounts payable by
the Company on its indebtedness as such indebtedness stood prior to the
establishment of the Loan Facility. These interest savings will be offset, in
part, by the costs of establishing the Facility, including the arrangement fee
paid and Common Stock issued to the Lenders and the legal expenses incurred by
the Company in establishing the Loan Facility.
In conjunction with the new facility, the Company has agreed to new
financial covenant levels with all of its current lenders and has obtained
waivers of non-compliance under current financial covenants. In addition, as
part of the facility, all lenders have agreed that the new covenant levels will
not be tested until the first quarter of 2000.
13
<PAGE> 16
THE CRONOS GROUP
YEAR 2000
The Company's computer systems have undergone modifications in order to
render the systems ready for the year 2000. The Company has completed a detailed
inventory of all software and hardware systems and has identified all components
that need to be modified. The Company has completed all the necessary changes
and testing in a dedicated year 2000 environment. The Company anticipates that
all compliant code will be live by the end of August 1999. The Company has
contacted all of its critical business suppliers and has been advised that their
systems are year 2000 compliant. The Company has also confirmed the compliance
of its suppliers' products through its own extensive testing. Expenses
associated with addressing the year 2000 issues are being recognized as
incurred. Management has not yet assessed the year 2000 compliance expense but
does not anticipate the costs incurred to date or to be incurred in the future
to be in excess of $0.5 million. The Company believes it will be able to resolve
any major year 2000 issues.
The Company is aware of the implications of a year 2000 computer system
failure and is currently in the process of developing its contingency plans.
Whilst management believes the possibility of a year 2000 system failure to be
remote, if the Company's internal systems or those of its critical business
suppliers fail, the Company's consolidated financial position, liquidity or
results of operations may be adversely affected.
ITEM 3 -- QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest rate risk: outstanding borrowings are subject to interest rate
risk. Approximately 65% and 60% of total borrowings had floating interest rates
at December 31, 1998 and June 30, 1999, respectively.
Exchange rate risk: Substantially all of the Company's revenues are
billed and paid in U.S. dollars and a significant portion of costs are billed
and paid in U. S. dollars. Of the remaining costs, the majority are individually
small, unpredictable and incurred in various denominations and thus are not
suitable for cost effective hedging. From, time to time, Cronos hedges a portion
of the expenses that are predictable and are principally in U.K. pounds
sterling. In addition, almost all of the Company's container purchases are paid
for in U.S. dollars.
As exchange rates are outside of the control of the Company, there can
be no assurance that such fluctuations will not adversely effect its results of
operations and financial condition.
The Company has assessed the introduction of a single European Currency,
the Euro, and believes that it will not be materially affected. In the past, the
effects of inflation on administrative and operating expenses have been largely
offset by the Company's ability to increase the operational economies of scale
through expansion of the fleet.
14
<PAGE> 17
THE CRONOS GROUP
PART II --OTHER INFORMATION
ITEM 1 -- LEGAL PROCEEDINGS
SEC Investigation
As the Company has previously reported, in February 1997, the Company's
former independent auditors, Arthur Andersen LLP ("Arthur Andersen"), resigned
as auditors to the Company, its subsidiaries, and related partnerships. In
connection with its resignation, Arthur Andersen prepared a report pursuant to
Section 10A of the Securities Exchange Act of 1934, as amended, for filing by
the Company with the Securities and Exchange Commission ("SEC"). In its report,
Arthur Andersen cited, as a reason for its resignation, its inability to obtain
what it believed to be adequate responses to its inquiries of former management
regarding the payment and subsequent return of $1.5 million paid by the Company
purportedly for professional fees in connection with a proposed strategic
alliance of the Company. The Arthur Andersen report constituted a "reportable
event" under the SEC's Regulation S-K in that it constituted advice to the
former management of the Company that information had come to Arthur Andersen's
attention that had made it unwilling to be associated with the financial
statements prepared by the former management of the Company.
As a result of the Arthur Andersen report, the SEC commenced a private
formal investigation of the Company on February 10, 1997. The focus of the
investigation has been to determine whether the Company and persons associated
with the Company violated the federal securities laws administered by the SEC.
Current management of the Company has been in discussions with the SEC with a
view to settling the investigation as to the Company. The Company is hopeful of
reaching a settlement of the investigation by the end of 1999. The Company does
not believe that any current director or officer of the Company is a subject of
the investigation.
Special Litigation Committee:
The Board of Directors of the Company established a Special Litigation
Committee ("Committee") of the Board in July 1998 to examine the relationships
between Stefan M. Palatin, the former Chairman of the Board and Chief Executive
Officer of the Company, and Contrin Holding S.A. ("Contrin"), Barton Holding Ltd
("Barton"), and affiliated persons. The Committee is also investigating
transactions between the Company and its present and former officers and
directors for the period from January 1, 1995, to determine whether improper
self-dealing occurred between the Company and such persons. The Committee
intends to complete its investigation by the end of 1999. The Committee has the
power, for and on behalf of the Company, and in consultation with counsel, to
pursue the recovery of any damages the Committee concludes may have been
suffered by the Company as a result of the transactions or conduct the Committee
investigates.
ITEM 2 -- CHANGES IN SECURITIES AND USE OF PROCEEDS
None
ITEM 3 -- DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4 -- SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
15
<PAGE> 18
THE CRONOS GROUP
ITEM 5 -- OTHER INFORMATION
CAUTIONARY STATEMENTS FOR THE PURPOSES OF THE "SAFE HARBOR" PROVISIONS
OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This Quarterly Report on Form 10-Q contains statements relating to
future results of the Company, including certain projections and business
trends, that are "forward-looking statements" as defined in the Private
Securities Litigation Reform Act of 1995. Actual results may differ materially
from those projected as a result of certain risks and uncertainties, including
but not limited to changes in: economic conditions; trade policies; demand for
and market acceptance of leased marine cargo containers; competitive utilization
and per-diem rental rate pressures; as well as other risks and uncertainties,
including but not limited to those described above in the discussion of the
marine container leasing business under Item 2, Management's Discussion and
Analysis of Financial Condition and Results of Operations; and those detailed
from time to time in the filings of the Company with the Securities and Exchange
Commission.
ITEM 6 -- EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<S> <C>
4.1 Warrant Agreement, dated as of July 30, 1999, by and between the
Company and MeesPierson N.V. ("MeesPierson") and First Union National
Bank ("First Union").
10.20 Guarantee, dated as of July 30, 1999, by and between the Company and
MeesPierson, as agent on behalf of itself and First Union.
10.21 Loan Agreement, dated as of July 30, 1999, by and between Cronos
Finance (Bermuda) Limited ("CFBL") as issuer, and MeesPierson, as
agent, on behalf of itself and First Union, as initial noteholders.
10.22 CFBL Secured Note, dated as of July 30, 1999, in the principal amount
of U.S. $25,000,000, in favor of MeesPierson.
10.23 CFBL Secured Note, dated as of July 30, 1999, in the principal amount
of U.S. $25,000,000, in favor of First Union.
10.24 Issuer Stock Pledge Agreement [CFBL], dated as of July 30, 1999, by
and between the Company and MeesPierson, as agent on behalf of itself
and First Union.
10.25 Stock Pledge Agreement [Cronos Holdings/Investments (U.S.), Inc.],
dated as of July 30, 1999, by and between the Company and
MeesPierson, as agent on behalf of itself and First Union.
27 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K
On April 1, 1999, a Current Report on Form 8-K was filed by the Company
announcing the resignation of Rudolf J Weissenberger, Chairman of the Board of
Directors and non-executive director, and Axel Friedberg, non-executive
director. Dennis J Tietz and Charles Tharp were appointed Chairman and
non-executive director, respectively.
On April 13, 1999, a Current Report on Form 8-K was filed by the Company
announcing the resignation of Stephen J Brocato, president of the Company's
leasing division.
16
<PAGE> 19
THE CRONOS GROUP
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.
THE CRONOS GROUP
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
By /s/ P J Younger Executive Vice President, Chief Financial August 11, 1999
- -------------------------------- Officer and Chief Accounting Officer
Peter J. Younger (Principal Financial and Accounting Officer)
</TABLE>
17
<PAGE> 20
THE CRONOS GROUP
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Exhibit Page
- ------ ------- ----
<S> <C> <C>
4.1 Warrant Agreement, dated as of July 30, 1999, by and between the Company
and MeesPierson N.V. ("MeesPierson") and First Union National Bank
("First Union"). [ ]
10.20 Guarantee, dated as of July 30, 1999, by and between the Company and
MeesPierson, as agent on behalf of itself and First Union. [ ]
10.21 Loan Agreement, dated as of July 30, 1999, by and between Cronos Finance
(Bermuda) Limited ("CFBL") as issuer, and MeesPierson, as agent, on
behalf of itself and First Union, as initial noteholders. [ ]
10.22 CFBL Secured Note, dated as of July 30, 1999, in the principal amount of
U.S. $25,000,000, in favor of MeesPierson. [ ]
10.23 CFBL Secured Note, dated as of July 30, 1999, in the principal amount of
U.S. $25,000,000, in favor of First Union. [ ]
10.24 Issuer Stock Pledge Agreement [CFBL], dated as of July 30, 1999, by and
between the Company and MeesPierson, as agent on behalf of itself and
First Union. [ ]
10.25 Stock Pledge Agreement [Cronos Holdings/Investments (U.S.), Inc.], dated
as of July 30, 1999, by and between the Company and MeesPierson, as
agent on behalf of itself and First Union. [ ]
27. Financial Data Schedule 19
</TABLE>
18
<PAGE> 1
EXHIBIT 4.1
================================================================================
THE CRONOS GROUP
Company
and
MEESPIERSON N.V.
FIRST UNION NATIONAL BANK
Warrantholders
----------------------------------------------------
WARRANT AGREEMENT
Dated as of July 30, 1999
200,000 Warrants
of
The Cronos Group
----------------------------------------------------
================================================================================
<PAGE> 2
WARRANT AGREEMENT
THIS WARRANT AGREEMENT ("Agreement"), dated as of July 30, 1999, is made
by and between The Cronos Group, a Luxembourg societe anonyme (the "Company"),
First Union National Bank, a national banking association ("FUNB"), and
MeesPierson N.V., a Naamloze Vennootschap ("MeesPierson", together with FUNB,
and any transferee of Warrants or Warrant Stock, the "Warrantholders").
W I T N E S S E T H:
WHEREAS, the Company is the sole shareholder of Cronos Finance (Bermuda)
Limited, a company organized and existing under the laws of the Islands of
Bermuda (the "Issuer");
WHEREAS, Issuer, MeesPierson, as Agent, and the Warrantholders, as
Lenders, have entered into a certain Loan Agreement, dated as of July 30, 1999
(the "Loan Agreement"), pursuant to which FUNB and MeesPierson agreed to
purchase up to a specified principal amount of the notes (the "Notes") issued
pursuant to the Loan Agreement;
WHEREAS, the Company proposes to issue to the Warrantholders, as
additional compensation for their co-arranging of the facility pursuant to the
Loan Agreement, Warrants representing the right to purchase up to 200,000 shares
(the "Warrant Stock") of the Company's Common Stock, par value $2.00 per share
(the "Common Stock") currently representing 2.2577% of the total capital stock
of the Company, each Warrant entitling the holder thereof to purchase one share
of Common Stock;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
SECTION 1. ISSUANCE OF WARRANTS; EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES.
1.1 Issuance of Warrants. The number of Warrants to be issued and
delivered to each Warrantholder shall be 100,000 and shall be evidenced by a
certificate (each a "Warrant Certificate" and together, the "Warrant
Certificates") which the Company will issue and deliver to each Warrantholder,
or to an affiliate thereof designated by such Warrantholder, on the Closing Date
referred to in the Loan Agreement.
1.2 Execution and Delivery of Warrant Certificates. Each original
Warrant Certificate issued shall be in substantially the form set forth in
Appendix A hereto and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements printed thereon
as the officers of the Company executing the same may approve (execution thereof
to be conclusive evidence of such approval) and as are not inconsistent with
this Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto. The Warrant Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its President or one of its
Vice Presidents and by its Treasurer or its Secretary.
In case any officer of the Company who shall have signed any Warrant
Certificate shall cease to be an officer before the Warrant Certificate so
signed shall have been delivered by the Company,
<PAGE> 3
such Warrant Certificate may be delivered notwithstanding that such person
ceased to be an officer of the Company, and any Warrant Certificate may be
signed on behalf of the Company by such person as, at the actual date of the
execution of the Warrant Certificate, shall be a proper officer of the Company,
even if at the date of the execution of this Agreement such person was not an
officer.
1.3 No Fractional Shares to be Issued. The Company shall not be required
upon any exercise of this Warrant to issue a certificate representing any
fraction of a share of Common Stock but, in lieu thereof, shall purchase from
the Warrantholders any fractional shares created by exercise hereunder at the
Warrant Price.
SECTION 2. WARRANT PRICE, MANNER OF EXERCISE.
2.1 Warrant Price, Term, Expiration and Notice. Each Warrant Certificate
shall entitle the Warrantholder, subject to the provisions thereof and of this
Agreement, to purchase from the Company one share of Common Stock for each of
the Warrants evidenced thereby at $4.41 (the average of the daily closing stock
price as listed on the NASDAQ during the thirty (30) day period immediately
preceding the Closing Date), subject to adjustment as provided herein (the
"Warrant Price"). The Warrantholder may exercise any Warrants issued pursuant to
this Agreement at any time or from time to time, from the date hereof and prior
to 5:00 p.m., New York time, on the later to occur of (x) August 15, 2004 and
ninety (90) days and (b) the date on which all Outstanding Obligations under the
Loan Agreement have been indefeasibly paid in full and ninety (90) days (the
"Expiration Date"). If the Expiration Date is not a Business Day, then this
Warrant may be exercised on the next succeeding Business Day. For purposes
hereof, the term "Business Day" shall mean any day other than a Saturday or a
Sunday or a day on which commercial banking institutions in the City of New
York, New York are authorized or required by law to be closed, and provided that
any reference to "days" (unless Business Days are specified) shall mean calendar
days.
2.2 Manner of Exercise. The Warrants may be exercised by the
Warrantholder, in whole or in part, during normal business hours on any Business
Day by surrender of a Warrant Certificate, together with the form of Election to
Exercise included as Appendix B hereto (or a reasonable facsimile thereof) duly
executed by such Warrantholder, to the Company at its principal office,
accompanied by the required payment of the Warrant Price as then in effect, in
cash or other immediately available funds, or as provided in Section 2.3 below,
or a combination thereof.
2.3 Reserved.
2.4 When Exercise Deemed Effected. Each exercise of Warrants pursuant to
this Agreement shall be deemed to have been effected immediately upon surrender
of such Warrants to the Company as provided in Section 2.2, and at such time,
the person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such exercise as provided in
Section 2.5 shall be deemed to have become the holder of record thereof.
2.5 Delivery of Stock Certificates As soon as practicable after the
exercise of Warrants pursuant to this Agreement, in whole or in part, the
Company at its expense will cause
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock to which the Warrantholder shall be
-2-
<PAGE> 4
entitled upon such exercise, to be issued in the name of and delivered
to such Warrantholder or such other name as shall be designated by the
Warrantholder in the Election of Exercise; and
(b) in case less than all the Warrants represented by a Warrant
Certificate are exercised, a new Warrant Certificate of the same tenor
and for the number of Warrants not exercised to be registered in such
name or names as may be directed in writing by the Warrantholder and to
be delivered to the person entitled to receive such new Warrant
Certificate.
SECTION 3. ADJUSTMENT OF SHARES OF COMMON STOCK PURCHASABLE AND WARRANT
PRICE.
3.1 Antidilution Provision. So long as any Warrants are outstanding and
unexercised, in whole or in part:
(a) if the Company shall, on or after the date hereof, pay a
dividend in Common Stock or make any other distribution in Common Stock
on or with respect to its Common Stock, the number of shares of Common
Stock purchasable upon exercise of each Warrant outstanding and
unexercised at such time shall be increased by multiplying such number
of shares by a fraction, the denominator of which shall be the number of
shares of Common Stock outstanding at the close of business on the day
immediately preceding the date of such dividend or other distribution
and the numerator of which shall be the sum of such number of shares and
the total number of shares of Common Stock constituting such dividend or
other distribution, such increase to become effective immediately after
the record date of such dividend or other distribution;
(b) in the event outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the number
of shares of Common Stock purchasable upon exercise of each Warrant
shall be proportionately increased, and conversely, in case outstanding
shares of Common Stock shall be combined into a smaller number of shares
of Common Stock, the number of shares of Common Stock purchasable upon
exercise of each Warrant shall be proportionately decreased, such
increase or decrease, as the case may be, to become effective
immediately after the effective date of such subdivision or combination;
(c) Reserved;
(d) (i) If the Company shall, on or after the date hereof,
sell or issue shares of Common Stock or securities convertible
or exchangeable into shares of Common Stock or rights, options
or warrants to purchase shares of Common Stock, or securities
convertible or exchangeable into shares of Common Stock
(collectively, the "Additional Shares") at a price per share of
Common Stock lower than the price equal to ninety percent (90%)
of the average of the daily closing stock price as listed on the
NASDAQ during the thirty (30)
-3-
<PAGE> 5
day period immediately preceding such sale or issuance, then the
number of shares of Common Stock issuable upon exercise of each
Warrant shall be adjusted to that number determined by
multiplying the number of shares of Common Stock issuable upon
exercise of the Warrant immediately prior to such adjustment by
a fraction (y) the numerator of which shall be number of shares
of Common Stock outstanding immediately prior to the issuance of
such Additional Shares plus the number of such Additional Shares
to be issued and (z) the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior
to the issuance of such Additional Shares plus the number of
shares of Common Stock which the aggregate consideration for the
total number of such Additional Shares to be issued would
purchase at the Current Market Price. Notwithstanding the
foregoing, the provisions of this Section 3.1 (d) shall not
apply to any securities issued (A) in any of the transactions
described in Sections 3.1 (a), (b) or (c), (B) upon exercise of
this Warrant, (C) pursuant to any stock option or other benefit
plan to officers or employees of the Company that have been
approved by a majority of the disinterested directors of the
Board of Directors of the Company, (D) pursuant to any financing
arrangements with financial institutions, banks or other lenders
of the Company, or (E) pursuant to any public offering.
(ii) If, at any time after any adjustment of the number
of shares of Common Stock pursuant to this Section 3. 1 (d),
such rights, options, warrants or convertible or exchangeable
securities shall expire or no longer be outstanding and shall
not have been exercised for or converted or exchanged into
Common Stock, such previous adjustment shall be rescinded and
annulled and the Additional Shares which are deemed to have been
issued by virtue of the computation made in connection with the
adjustment so rescinded and annulled, shall no longer be deemed
to have been issued by virtue of such computation. Thereupon, a
recomputation shall be made to give effect to the expiration or
non-exercise of, or failure to convert, such rights, options,
warrants or convertible or exchangeable securities.
-4-
<PAGE> 6
3.2 Consolidation, Merger, Sale of Assets, Reorganization, etc.
(a) If the stockholders of the Company shall participate in a
share exchange or if the Company shall be a party to any transaction
(including, without limitation, a merger, consolidation, sale of all or
substantially all of the Company's assets, liquidation or
recapitalization of the Common Stock) in which the previously
outstanding Common Stock shall be changed into or exchanged for
different securities of the Company or common stock or other securities
of another corporation, or interests in a non-corporate entity or other
property (including cash), or any combination of the foregoing (each
such transaction being herein called a "Transaction"), then, as a
condition to the consummation of the Transaction, the Company, in the
case of the recapitalization or liquidation of the Common Stock, or such
other corporation or entity, in the case of a share exchange, merger,
consolidation or sale of all or substantially all of the assets, shall
make lawful and adequate provision so that, upon the exercise thereof at
any time on or after the consummation of the Transaction, each
Warrantholder shall be entitled to receive, and such Warrant shall
represent the right to receive, in lieu of the Common Stock issuable
upon consummation of such Transaction, the securities or other property
(including cash) to which the Warrantholder would have been entitled
upon the consummation of the Transaction if such Warrantholder had
exercised such Warrant immediately prior thereto, subject to adjustment
from and after the consummation date as nearly equivalent as possible to
the adjustments provided for in Section 3.1.
(b) The provisions of this Section 3 shall similarly apply to
successive share exchanges, consolidations, mergers, sales of all or
substantially all of the assets, or successive recapitalizations and
changes of shares of Common Stock.
3.3 Warrant Price Adjustment. Whenever the number of shares of Common
Stock purchasable upon exercise of a Warrant is adjusted as provided herein, the
Warrant Price payable upon exercise of the Warrant shall be adjusted by
multiplying such Warrant Price immediately prior to such adjustment by a
fraction, the numerator of which shall be the number of shares of Common Stock
purchasable upon exercise of the Warrant immediately prior to such adjustment,
and the denominator of which shall be the number of shares of Common Stock
purchasable immediately thereafter, provided, however, that in no event shall
the Warrant Price be adjusted below the par value of the Common Stock.
3.4 Statements on Warrant Certificates. The form of Warrant Certificate
need not be changed because of any adjustment made pursuant to this Section 3
and Warrant Certificates issued after such adjustment may state the same Warrant
Price and the same number of shares of Common Stock as are stated in the Warrant
Certificates initially issued pursuant to this Agreement, provided however, at
the Warrantholder's option and by such Warrantholder's request, the Company
shall issue a new Warrant Certificate in exchange for the initial Warrant
Certificate to accurately reflect any adjustment made pursuant to this Section
3.
3.5 Accountants' Report as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock (or other securities)
issuable upon the exercise of the Warrants, the Company at its expense will
promptly compute such adjustment or readjustment in accordance with the terms of
the Warrants and cause independent public accountants of recognized national
standing selected by the Company (which may be the regular auditors of the
Company) to
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verify such computation and prepare a report setting forth such adjustment or
readjustment and showing in reasonable detail the method of calculation thereof
and the facts upon which such adjustment or readjustment is based. The Company
will forthwith mail a copy of each such report to each Warrantholder. The
Company will also keep copies of all such reports at its principal office and
will cause the same to be available for inspection at such office during normal
business hours by any Warrantholder or any prospective purchaser of a Warrant
designated by the Warrantholder.
SECTION 4. NOTICES OF CORPORATE ACTION. In the event of:
(a) any offer to the holders of Common Stock of rights to
subscribe for or to purchase any Additional Shares or other securities,
or
(b) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of
stock of any class or any other securities or property, or to receive
any other right, or
(c) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company
or any consolidation or merger involving the Company and any other
person or entity, any share exchange involving stockholders of the
Company or any transfer of all or substantially all the assets of the
Company to any other person or entity, or
(d) any voluntary or involuntary dissolution, liquidation or
winding up of the Company,
the Company will mail to each known Warrantholder a notice specifying (i) the
date or expected date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, and (ii) the date or expected date on which any
such reorganization, reclassification, recapitalization, consolidation, merger,
share exchange, transfer, dissolution, liquidation or winding up is to take
place and the time, if any such time is to be fixed, as of which the holders of
record of Common Stock shall be entitled to exchange their shares of Common
Stock for the securities or other property deliverable upon such reorganization,
reclassification, recapitalization, consolidation, merger, share exchange,
transfer, dissolution, liquidation or winding up. Such notice shall be mailed at
least 15 days prior to the date therein specified.
SECTION 5. RIGHT OF FIRST REFUSAL; LEGENDS.
5.1 Right of First Refusal.
(a) Any Warrantholder that intends to transfer this Warrant
shall first submit to the Company a written offer to sell the Warrant to
the Company at the same price and upon the same terms of payment for
which the intended transfer is to be made. Every written offer submitted
to the Company in accordance with the provisions of this Section 5.1
shall
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<PAGE> 8
continue to be a binding offer to sell until expressly rejected by an
officer or director of the Company acting with the authority to so
reject the offer or until the expiration of a period of 30 days after
receipt of such offer to the Company, whichever time is earlier.
Notwithstanding the foregoing, any Warrantholder may at any time,
without complying with this Section, transfer this Warrant to any
Affiliate of such Warrantholder; provided that such Affiliate first
agrees in writing with the Company to be bound by the provisions of this
Agreement, including without limitation, this Section 5.1. As used
herein, "Affiliate" shall mean any person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is
under common control with, such Warrantholder, within the meaning of
Rule 405 of Regulation C promulgated under the Securities Act of 1933,
as amended (the "Securities Act").
(b) Every written offer submitted in accordance with the
provisions of this Section 5.1 shall specifically name the person or
persons to whom the Warrantholder intends to transfer the Warrant, the
number of Warrants that it so intends to transfer to such person or
persons, and the price of the Warrant and other terms upon which each
intended transfer is to be made. Upon the rejection or expiration of all
such written offers, the Warrantholder shall for a period of 90 days
thereafter be free to transfer the Warrant to the person or persons so
named in the written offer at the price and upon the terms set forth in
the written offer. Such transferee, as part of the transfer, will agree
in writing to become subject to all the provisions of this Agreement,
including without limitation this Section 5.1 in any subsequent transfer
of the Warrants by such person or persons. In the event no transfer
takes place within such 90-day period, then any transfer of this Warrant
shall again be subject to the requirements of this Section 5.1.
(c) If any consideration to be received by the Warrantholder for
the Warrant in connection with a transfer is property other than cash,
then the price of the Warrant to the Company shall be measured by the
fair market value of such non-cash consideration.
(d) The restrictions imposed on the Warrantholder by this
Section 5.1 shall apply only to the transfer of this Warrant and not to
any Warrant Stock issued upon the exercise of this Warrant.
5.2 The Purchase Date; Payment for the Warrants. If the Company elects
to exercise its rights under Section 5.1, the closing date for such purchase
(the "Purchase Date") shall be thirty (30) days following receipt by the
Warrantholder disposing of its Warrants of written notification of such election
(on the next Business Day if such date is not a Business Day). At 10:00 a.m. on
the Purchase Date, and at the Company's headquarters, or at such other time or
place designated by the parties, the Warrantholder disposing of its Warrants
shall deliver to the Company the certificates representing all of the Warrants
to be sold, duly endorsed, and free and clear of any liens, claims, or
encumbrances, and all assignments, certificates of authority, tax releases, and
other instruments or documents as may be reasonably required by the counsel of
the Company, and the Company shall pay the consideration for the Warrants being
acquired by certified check or other immediately available funds.
5.3 Legend on Warrant Stock. Each certificate for Warrant Stock
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Stock is registered under the
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<PAGE> 9
Securities Act, shall bear the following legend (and any additional legend(s)
required by any securities exchange upon which such Warrant Stock may, at the
time of such exercise, be listed) on the face thereof.
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or registered
or qualified under applicable state securities laws. Such shares may not
be offered, sold, transferred, pledged or hypothecated in the absence of
an effective registration statement in effect with respect to the shares
under such Act and registration or qualification under any applicable
state securities laws or an opinion of counsel reasonably satisfactory
to the Company that such registration or qualification is not required
under applicable federal and state securities laws."
SECTION 6. RESERVATION OF STOCK; REGULATORY MATTERS.
6.1 Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of the Warrants, the
number of shares of Common Stock from time to time issuable upon exercise of all
Warrants at the time outstanding. All shares of Common Stock shall be duly
authorized and, when issued upon such exercise and payment of the Warrant Price,
shall be validly issued, fully paid and nonassessable with no liability on the
part of the Warrantholders thereof.
6.2 Regulatory Matters. (a) In the event of any determination by the
Warrantholder that, by reason of any existing or future law, rule, regulation or
order (collectively, a "Regulatory Requirement"), such Warrantholder may be
restricted, prohibited or otherwise unable to hold the Common Stock, the Company
and such Warrantholder shall take such action as may be deemed reasonably
necessary by such Warrantholder to comply with such Regulatory Requirement. The
costs of taking such action, whether by the Company, such Warrantholder or
otherwise, shall be borne by the Warrantholder. Such action to be taken may
include without limitation the Company's authorization of one or more new
classes of capital stock for which this Warrant may be exercised, the issuance
of capital stock and securities in lieu of Common Stock or securities otherwise
receivable by such Warrantholder and containing equivalent economic rights, and
such modifications and amendments to this Warrant or any other document and
instruments executed in connection with this Warrant as may be deemed reasonably
necessary by such Warrantholder. Such Warrantholder shall give written notice to
the Company of any such determination and the action necessary to comply with
such Regulatory Requirement. All action described in such notice shall be
completed as soon as practicable.
(b) The Company shall use its best efforts to obtain any
shareholder consents required pursuant to this Section.
SECTION 7. OTHER PROVISIONS RELATING TO RIGHTS AND OBLIGATIONS OF THE
WARRANTHOLDERS.
7.1 No Rights as Stockholder Conferred by Warrants or Warrant
Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle
the Warrantholder to any of the rights of a holder of Common Stock, including,
without limitation, any right to vote at, or to receive notice
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<PAGE> 10
of, any meeting of stockholders of the Company; the consent of any Warrantholder
shall not be required with respect to any action or proceeding of the Company.
7.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation of any Warrant
Certificate and of indemnity reasonably satisfactory to it and, in the case of
mutilation, upon surrender of the Warrant Certificate to the Company for
cancellation, then, in the absence of notice to the Company that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a substitute Warrant Certificate of the same
tenor and evidencing a like number of Warrants. Upon the issuance of any
substitute Warrant Certificate under this Section 7.2, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other reasonable expenses in
connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section 7.2 in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and every holder thereof shall be entitled
to the benefits of this Warrant Agreement equally and proportionately with any
and all other Warrant Certificates duly executed and delivered hereunder subject
to the satisfaction of all indemnity obligations provided for herein.
7.3 Warrantholder May Enforce Rights. Notwithstanding any of the
provisions of this Warrant Agreement, any Warrantholder, without the consent of
the holder of any Common Stock or the holder of any other Warrant Certificate,
may, on its own behalf and for its own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such Warrantholder's right to exercise the Warrants
evidenced by such Warrantholder's Warrant Certificate in the manner provided in
its Warrant Certificate and in this Agreement.
SECTION 8. REGISTRATION RIGHTS.
8.1 [RESERVED.]
8.1.1 Registration. Subject to the requirements of this Section
8, the Company shall effect a registration of the Registrable Securities in the
United States. The Company will:
(i) promptly give written notice of the proposed registration to
all other holders of Registrable Securities; and
(ii) use its diligent good faith efforts to effect, as soon as
practicable, such registration (including, without limitation, the
filing of post-effective amendments, appropriate qualification under the
applicable blue sky or other state or foreign securities laws and
appropriate compliance with the Securities Act and any other
governmental requirements or regulations).
provided that the Company shall not be obligated to take any action to effect
any such registration pursuant to this Section 8.1.1 in any particular
jurisdiction in which the Company would be required
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<PAGE> 11
to execute a general consent to service of process, to register as a securities
broker or dealer or to cause any officer or employee of the Company to register
as a salesman in effecting such registration.
Subject to the foregoing, the Company shall prepare and file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable and within 60 days after such request is
received.
Notwithstanding the foregoing, the Company shall not be obligated to
effect a registration, qualification or compliance under this Section 8. 1.1
during any period during which the Company is in the process of negotiating or
preparing, and ending on a date 180 days following the effective date of a
registration statement pertaining to an underwritten or "best efforts" public
offering of securities for the account of the Company, provided that the Company
is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and such registration statement
becomes effective within three months of the Closing Date. For purposes hereof,
the term "public offering" shall mean the consummation of one or more public
offerings of Common Stock after the date hereof wherein the aggregate proceeds
to the Company from the sale of Common Stock are at least $15 million, pursuant
to a registration statement under the Securities Act (other than pursuant to a
registration statement relating to warrants, options or shares of capital stock
granted, to be granted, sold or to be sold exclusively to officers, employees or
directors of the Company or a registration statement filed pursuant to Rule 145
under the Securities Act).
As used in this Agreement, the term "Registrable Securities" shall mean,
collectively, (x) the 300,000 shares of Common Stock to be issued to First Union
National Bank and MeesPierson, N.V. and (y) the shares of Common Stock to be
acquired by the Warrantholder upon exercise of the Warrants pursuant to the
Agreement and any shares of Common Stock or other securities issued with respect
to such Common Stock by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation, share
exchange, reorganization or otherwise; provided, however, that such Common Stock
or other securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the disposition of such Common Stock or
other securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with the plan of
distribution set forth in such registration statement, (ii) such Common Stock or
other securities shall have been sold pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) an opinion of counsel, reasonably
satisfactory to the Company and the holders of Common Stock or other securities
to which the opinion relates, shall have been delivered to the Company and such
holders to the effect that the subsequent disposition of such Common Stock or
other securities may be made pursuant to Rule 144(k) (or any successor
provision) under the Securities Act, or (iv) such Common Stock or other
securities shall cease to be outstanding.
8.2 Expenses of Registration. All expenses incurred in connection with
any registration, qualification or compliance pursuant to this Section 8,
including, without limitation, all registration, filing and qualification fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company and fees and expenses of accountants incidental to or required by such
registration and the reasonable fees and disbursements of one special counsel
retained by the holders of Registrable Securities covered by such registration,
shall be borne by the Company.
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8.3 Registration Procedures. In the case of such registration,
qualification or compliance effected by the Company pursuant to this Section 8,
the Company will keep each holder of Registrable Securities participating
therein advised in writing as to the initial filing of each registration,
qualification and compliance and as to the completion thereof. At its expense,
the Company will:
(i) keep such registration, qualification or compliance pursuant
to Section 8.1.1 effective for a period of 180 days or until the holders
of Registrable Securities participating therein have completed the
distribution described in the registration statement relating thereto,
whichever occurs first; and
(ii) furnish such number of prospectuses and other documents
incident thereto as a holder of Registrable Securities participating
therein from time to time may reasonably request.
8.4 Related Registration Matters. In connection with the registration,
the Company also shall:
(i) engage a bank or other company to act as transfer agent and
registrar for the Registrable Securities;
(ii) use best efforts to cause customary opinions of counsel,
comfort letters of accountants and other appropriate documents to be
delivered by representatives of the Company, which documents shall be
addressed to the holders of Registrable Securities participating in the
offering designated as addressees in such documents; and
(iii) as soon as practicable after the effective date of the
registration statement, and, in any event, within 16 months thereafter,
make "generally available to its stockholders" (within the meaning of
Rule 158 under the Securities Act) an earnings statement (which need not
be audited) complying with Section 11 (a) of the Securities Act and
covering a period of at least 12 consecutive months beginning after the
effective date of the registration statement.
8.5 Indemnification and Contribution
(i) In the event of registration of any of the Registrable
Securities under the Securities Act, the Company will indemnify and hold
harmless each holder of Registrable Securities included in such
registration and each of its directors and officers, each underwriter of
such Registrable Securities and each of its directors and officers, and
each other person and each of its directors and officers, if any, who
controls such seller within the meaning of the Securities Act or the
Exchange Act, or otherwise, against any losses, claims, damages or
liabilities (or actions in respect thereof), joint or several, to which
such seller or controlling person (or their respective directors and
officers) may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities
(and each of its directors and officers or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement
under which such Registrable Securities were
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registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the registration statement, or any amendment or
supplement to such registration statement, or arise out of or are based
upon the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and the Company will reimburse such seller and each such
controlling person (and their respective directors and officers) for any
legal or any other expenses reasonably incurred by such seller or
controlling person (and their respective directors and officers) in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided that the Company will not have any
liability (and shall not be required to provide such indemnity and hold
harmless obligation) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
omission made in such registration statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of such holder of Registrable
Securities specifically for use in preparation thereof.
(ii) In the event of any registration of any of the Registrable
Securities under the Securities Act, each holder of Registrable
Securities included in such registration, severally and not jointly,
will indemnify and hold harmless the Company, each of its directors and
officers and each person and each of its directors and officers, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act, against losses, claims, damages or liabilities (or actions
in respect thereof), joint or several, to which the Company, such
directors and officers or controlling person (or their respective
directors and officers) may become subject under the Securities Act,
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such Registrable
Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the registration statement,
or any amendment or supplement to the registration statement, or arise
out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of such seller, specifically for use in
connection with the preparation of such registration statement,
prospectus, amendment or supplement; provided the liability of each
holder of Registrable Securities pursuant to this Section 8.5(ii) shall
be limited to the proceeds actually received by such holder from the
disposition of the Registrable Securities disposed of by such holder
pursuant to such registration.
(iii) Each party entitled to indemnification under this Section
8.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not be unreasonably
withheld, delayed or conditioned), and the Indemnifying Party may
participate in such defense at such party's expense, and provided,
further, that the failure of any
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Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 8.5 (except
and to the extent the rights of the Indemnifying Party are materially
prejudiced thereby). After notice from the Indemnifying Party to the
Indemnified Party of its election to assume the defense of such claim or
litigation, the Indemnifying Party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation so long as and to the extent the
Indemnifying Party continues to defend the Indemnified Party, unless the
Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.
(iv) To the extent the Company after the date hereof shall agree
to provide for contribution in any written agreement entered into with
the stockholders of the Company if the indemnification obligations are
otherwise unavailable, then the Company shall provide such similar
rights to the Warrantholders in the registration of their shares.
8.6 Information by Stockholders. Each holder of Registrable Securities
requesting to be included in any registration shall furnish to the Company such
information regarding such holder and the distribution proposed by such holder
as the Company may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in Section 8.
8.7 Sales Without Registration. If, at the time of any transfer of any
Warrant or Registrable Securities, such Warrant or Registrable Securities shall
not be registered under the Securities Act, the Company may require, as a
condition of allowing such transfer, that the holder of a Warrant or Registrable
Securities or transferee furnish to the Company an opinion of legal counsel
satisfactory in form and substance to the Company to the effect that such
transfer may be made without registration under the Securities Act; provided
that nothing contained in this Section 8.7 shall relieve the Company from
complying with any request for registration, qualification or compliance made
pursuant to the other provisions of this Section 8.
8.8 Rule 144 Reporting. With a view to making available to holders of
Registrable Securities the benefits of certain rules and regulations of the
Securities and Exchange Commission (the "SEC") that may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
(i) file with the SEC in a timely manner all reports and other
documents thereafter required of the Company under the reporting
requirements of Section 13 or 15(d) of the Exchange Act; and
(ii) furnish to each holder of Registrable Securities forthwith
upon its request (a) a written statement by the Company as to the
Company's compliance with the public information requirements of Rule
144 (at any time after 90 days after the Company becomes subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act), (b)
a copy of the most recent annual or quarterly report of the Company, and
(c) such other reports and
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documents as may be reasonably requested in availing any holder of
Registrable Securities of any rule or regulation of the SEC permitting
the sale of any such securities without registration.
8.9 Transfer of Registration Rights. The rights to cause the Company to
register Registrable Securities granted by the Company under Section 8.1.1 may
be assigned by any holder of a Warrant Certificate to a transferee or assignee
of any Warrant Certificate (if such transfer or assignment is permitted under
Section 5), unless such transferee or assignee acquires such Warrant Certificate
through a transaction or chain of transactions involving a public offering or a
sale effected pursuant to Rule 144; provided that the holder shall give the
Company written notice at the time of or within ten days after said transfer,
setting forth the name and address of said transferee or assignee and
identifying the Warrant Certificate with respect to which such registration
rights are being assigned.
8.10 Post-Effective Amendments. In connection with any registration
statement filed pursuant to this Section 8, the Company shall file any
post-effective amendment or amendments to the registration statement which may
be required under the Securities Act during the period reasonably required to
effect the distribution contemplated thereby.
8.11 Cessation of Sale Activities. The Company shall notify each
participating holder of Registrable Securities during the period any
registration statement filed pursuant to this Section 8 is required to remain
effective, or at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which such registration statement or the prospectus contained therein, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. Each participating holder agrees, upon receipt of such
notice, forthwith to cease making offers and sales of such securities pursuant
to such registration statement or deliveries of the prospectus contained therein
for any purpose and to return to the Company the copies of such prospectus not
theretofore delivered by such holder.
8.12 Supplements. At a participating holder's request, the Company shall
prepare and furnish to such participating holder a reasonable number of copies
of any supplement to or amendment of such prospectus that may be necessary so
that, as thereafter delivered to the purchaser of any shares of Registrable
Securities, such prospectus shall not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statement therein not misleading in the light of the circumstances
then existing. The Company shall promptly notify each participating holder of
any stop order or similar proceeding initiated by state or Federal regulatory
bodies and use reasonable efforts to take all necessary steps expeditiously to
remove such stop order or similar proceeding.
SECTION 9. EXCHANGE AND TRANSFER OR WARRANT CERTIFICATES.
9.1 Exchange and Transfer of Warrant Certificates. Subject to the terms
contained in this Agreement, upon surrender at the principal office of the
Company, Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates
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so surrendered. The Company shall keep the Warrant register in which, subject to
such reasonable regulations as it may prescribe, it shall register Warrant
Certificates upon surrender of such Warrant Certificates to the Company at its
principal office for exchange or registration of transfer, properly endorsed or
accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company. No service
charge shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are so surrendered for exchange or registration of
transfer, the authorized officers of the Company shall execute and deliver to
the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. All
Warrant Certificates issued upon any exchange or registration of transfer of the
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Agreement, as
the Warrant Certificate surrendered for such exchange or registration of
transfer.
9.2 Treatment of Holders of Warrant Certificates. Every holder of a
Warrant Certificate, by accepting the same, consents and agrees with the Company
and with every subsequent holder of such Warrant Certificate that until the
transfer of the Warrant Certificate is registered on the Warrant register,
before such Warrant Certificate is surrendered for transfer pursuant to Section
9.1 hereof, the Company may treat the registered holder of a Warrant Certificate
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
9.3 Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, registration of transfer or transfer or exercise of
the Warrants evidenced thereby shall be surrendered to the Company, and all
Warrant Certificates surrendered and so delivered to the Company shall be
promptly canceled by the Company and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in exchange or in lieu thereof.
SECTION 10. NOTICES. Any notice or other document required or permitted
to be given or delivered to the Warrantholders prior to the transfer or other
disposition of any Warrant by the Warrantholders shall be delivered at or sent
by certified or registered mail to the following addresses or such other
addresses as shall have been furnished in writing by such Warrantholders to the
Company:
MeesPierson N.V.
Coolsingle 93/PO Box 749
3000 AS Rotterdam
The Netherlands
Attention: Hans Hanegraaf
First Union National Bank
One First Union Center
301 South College Street, TW-9
Charlotte, North Carolina 28288-0735
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Attention: Milt Anderson
Thereafter, any notice or other document required or permitted to be given or
delivered to the Warrantholders shall be delivered to, or sent by certified or
registered mail to, each such holder at the last address shown on the books of
the Company maintained at the principal office of the Company for the
registration of transfer of the Warrants or at any more recent address of which
any Warrantholder shall have notified the Company in writing. Any notice or
other document required or permitted to be given or delivered to the Company
shall be delivered to, or sent by certified or registered mail to, the principal
office of the Company at 16 Allee Marconi, Boite Postale 260, L- 2120
Luxembourg, Attention: Chief Financial Officer, or such other address as shall
have been furnished by the Company to the Warrantholders. Any notice or other
document required or permitted to be given or delivered hereunder shall be
deemed to have been given when actually delivered to the addressee at the
address provided herein.
SECTION 11. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants as follows:
11.1 Capitalization. The authorized capital stock of the Company
consists of 25,000,000 shares of Common Stock (including the 300,000 shares
issued to the Warrantholders on August 2, 1999), of which 8,858,378 shares are
outstanding. All of the shares of Common Stock are duly authorized, validly
issued, fully paid and nonassessable. Except for this Agreement and as set forth
on Schedule 11.1, there is no commitment, plan, or arrangement to issue, and no
outstanding option, warrant, or other right calling for the issuance of, any
share of capital stock of the Company or any security or other instrument
convertible into, exercisable for, or exchangeable for capital stock of the
Company. There is outstanding no security or other instrument convertible into
or exchangeable for capital stock of the Company.
11.2 Authorization; Enforceability. The Company has the corporate power
and authority to enter into and perform its obligations under this Agreement.
The execution and delivery by the Company of this Agreement have been approved
by all requisite corporate action and no other corporate proceeding on its part
is necessary to authorize this Agreement and the transactions contemplated
hereby. This Agreement constitutes the valid and binding obligation of the
Company, except as it may be affected by bankruptcy, insolvency, moratorium,
reorganization or other laws and judicial decisions affecting the rights of
creditors generally and general principles of equity.
11.3 Issuance of Shares. The issuance of the shares of Common Stock
subject to the Warrants has been duly authorized and, when issued upon exercise
of the Warrants, such shares will have been validly issued and will be fully
paid and nonassessable.
11.4 Publicly Traded. The Common Stock is publicly traded on NASDAQ
and the Company shall use its best efforts to maintain the listing of the Common
Stock on the NASDAQ or similar exchange during the term of this Agreement.
SECTION 12. Reserved.
SECTION 13. MISCELLANEOUS.
-16-
<PAGE> 18
13.1 Amendment. This Agreement may be amended by the Company, with the
consent of the Warrantholders representing a majority of the then outstanding
Warrants, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company may deem necessary or desirable, provided that such action shall not
affect adversely the interests of any Warrantholder.
13.2 Parties in Interest. The agreements of the Company contained
herein, other than those applicable solely to the Warrants and the
Warrantholders thereof, shall continue to inure to the benefit of and be
enforceable by, any Warrantholder(s) subsequent to the time Common Stock is
issued upon the exercise of Warrants, whether so expressed or not.
13.3 Applicable Law. THE VALIDITY, INTERPRETATION AND PERFORMANCE OF
THIS AGREEMENT AND EACH WARRANT CERTIFICATE ISSUED HEREUNDER AND OF THE
RESPECTIVE TERMS AND PROVISIONS THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF LUXEMBOURG WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
13.4 Consent to Jurisdiction. The Company hereby irrevocably consents to
the personal jurisdiction of the state and federal courts located in Southern
District of New York County, New York, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, any rights or
obligations hereunder, or the performance of such rights and obligations. The
Company hereby irrevocably consents to the service of a summons and complaint
and other process in any action, claim or proceeding brought by the
Warrantholders in connection with this Agreement, any rights or obligations
hereunder, or the performance of such rights and obligations.
13.5 Waiver of July Trial. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE COMPANY AND THE WARRANTHOLDERS HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.
13.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
13.7 Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal office of the Company for
inspection by each or any Warrantholder. The Company may require such
Warrantholder to submit its Warrant Certificate for inspection by the Company.
13.8 Headings. The section headings in this Agreement are for the
purposes of convenience only and shall not constitute a part hereof.
13.9 Extraordinary Resolution. Unless otherwise waived by all
Warrantholders, the Company shall at the last general meeting of its
shareholders immediately preceding the date that
-17-
<PAGE> 19
the authorized shares of capital stock underlying the Warrants shall expire,
recommend that such shareholders pass an extraordinary resolution to the effect
that the Company extend, for another five years, the period during which the
authorized capital stock represented by the Warrants shall be valid.
-18-
<PAGE> 20
IN WITNESS WHEREOF, The Cronos Group and the Warrantholders have caused
their respective duly authorized officers to sign this Agreement.
THE CRONOS GROUP
By: /s/ DENNIS TIETZ
--------------------------------
Name: DENNIS TIETZ
------------------------------
Title: CEO
-----------------------------
MEESPIERSON N.V.
By: /s/ J.G.H.M. HANEGRAAF
--------------------------------
Name: J.G.H.M. HANEGRAAF
------------------------------
Title:
-----------------------------
Number of Warrants Purchased: 100,000
FIRST UNION NATIONAL BANK
By: /s/ JESSICA TISDALE
---------------------------------
Name: JESSICA TISDALE
-------------------------------
Title: VP
------------------------------
Number of Warrants Purchased: 100,000
<PAGE> 21
APPENDIX A
100,000 Warrants No. 01
WARRANT TO PURCHASE COMMON STOCK OF
THE CRONOS GROUP
THIS WARRANT IS SUBJECT TO RESTRICTIONS
ON TRANSFER SET FORTH IN
THE AGREEMENT REFERENCED BELOW.
This certificate certifies that [MeesPierson N.V.] [First Union National
Bank] is the registered owner of the above indicated number of Warrants, each
Warrant entitling such owner to purchase initially one share of Common Stock
("Common Stock"), of Cronos Group, S.A. (RCS Lux. B27.489), a Luxembourg societe
anonyme (hereinafter called the "Company"), at a price equal to four and 41/100
dollars ($4.41) per share (the average of the daily closing stock price as
listed on NASDAQ during the thirty (30) day period preceding the Closing Date)
(the "Warrant Price"), subject to the terms of that Warrant Agreement hereafter
referred to. Capitalized terms used but not otherwise defined in this Warrant
Certificate have the meanings set forth in the Warrant Agreement referred to
below.
The holder may exercise the Warrant evidenced hereby by surrender to the
Company at its principal office at 16, Allee Marconi, L-2120, Luxembourg, of
this Warrant Certificate and the form of Election to Exercise attached hereto,
both duly filled in and signed, along with payment in full to the Company of the
Warrant Price in cash or immediately available funds as provided in the Warrant
Agreement and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement. According to the terms of the Warrant
Agreement, the Warrants shall cease to be exercisable at 5:00 p.m. New York time
on the later to occur of (x) August 15, 2004 and ninety (90) days and (b) the
date on which all Outstanding Obligations under the Loan Agreement have been
indefeasibly paid in full and ninety (90) days (the "Expiration Date").
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of July 30, 1999 (the "Warrant Agreement"), by and
between the Company, MeesPierson N.V. and First Union National Bank, and is
subject to the terms and provisions of the Warrant Agreement, which terms and
provisions are hereby incorporated by reference herein and made a part hereof.
Each holder of this Warrant Certificate consents to all of the terms contained
in the Warrant Agreement by acceptance hereof. A copy of the Warrant Agreement
is available for inspection by the registered holder hereof at the principal
office of the Company in 16, Allee Marconi, L-2120, Luxembourg.
<PAGE> 22
The Warrant Agreement and each Warrant Certificate, including this
Warrant Certificate, shall be deemed a contract made under the laws of
Luxembourg and for all purposes shall be construed in accordance with the laws
of Luxembourg.
Dated: August __, 1999
THE CRONOS GROUP
By:
---------------------------------
Name:
Title:
[Corporate Seal]
By:
---------------------------------
Attest:
<PAGE> 23
APPENDIX B
ELECTION TO EXERCISE
(To be executed only upon exercise of warrant)
To________________________________
The undersigned registered holder of the attached warrant hereby
irrevocably exercises and surrenders to the Company such warrant for, and
purchases thereunder, _______________(1) shares of Common Stock of The Cronos
Group, and herewith makes payment of $__________ therefor, in cash or
immediately available funds, and requests that the certificates for such
shares be issued in the name of, and delivered to ____________________, whose
address is _________________.
Dated:
____________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of this
warrant)
____________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
- --------
(1) Insert here the number of shares called for on the face of this
warrant (or, in the case of a partial exercise, the portion thereof as to which
this warrant is being exercised), in either case without making any adjustment
for additional shares of common stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of this warrant,
may be delivered upon exercise. In the case of a partial exercise, a new warrant
or warrants will be issued and delivered, representing the unexercised portion
of this warrant, to the holder surrendering the same.
<PAGE> 1
-1-
EXHIBIT 4.2
AMENDMENT NUMBER 1 TO THE WARRANT AGREEMENT
THIS AMENDMENT NUMBER 1, dated as of August 11, 1999 (the "Amendment") to
the WARRANT AGREEMENT, dated as of July 30, 1999 (the "Warrant Agreement"),
between The Cronos Group, a Luxembourg societe anonyme (the "Company"), First
Union National Bank, a national banking association ("FUNB"), and MeesPierson
N.V., a Naamlose Vennootaschap ("MeesPierson"), together with FUNB, and any
transferee of Warrants or Warrant Stock, the "Warrantholders").
W I T N E S S E T H :
WHEREAS, the Company and the Warrantholders have previously entered into
the Warrant Agreement;
WHEREAS, the parties wish to amend the Warrant Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned in the Warrant
Agreement.
SECTION 1. Amendments to the Warrant Agreement. Effective upon the
execution and delivery of this Amendment, the first full paragraph of Section
8.1 beginning with the words "Subject to the foregoing" is amended to read as
follows:
"Subject to the foregoing, the Company shall prepare and file a registration
statement covering the Registrable Securities so requested to be registered as
soon as practicable and within 60 days after the Closing Date".
SECTION 1. Representations and Warranties. The Company hereby confirms that
each of the representations and warranties set forth in Section 11 of the
Warrant Agreement are true and correct as of the date first written above with
the same effect as though each had been made as of such date, except to the
extent that any of such representations and warranties expressly relate to
earlier dates.
SECTION 1. Effectiveness of Amendment.
(a) This Amendment shall become effective as of August 2, 1999 (the
"Effective Date").
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(c) On and after the execution and delivery hereof, (i) this
Amendment shall be a part of the Warrant Agreement, and (ii) each reference in
the Warrant Agreement to "this
<PAGE> 2
Warrant Agreement" or "hereof", "hereunder" or works of like import, and each
reference in any other document to the Warrant Agreement shall mean and be a
reference to such Warrant Agreement as amended or modified hereby.
(d) Except as expressly amended or modified hereby, the Warrant
Agreement shall remain in full force and effect and are hereby ratified and
confirmed by the parties hereto.
(e) The Company and Warrantholders hereby consent to this Amendment
and all of the provisions hereof.
SECTION 1. Execution in Counterparts, Effectiveness. This Amendment may be
executed by the parties hereto in separate 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 1. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF LUXEMBOURG, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF LUXEMBOURG.
[signatures follow]
<PAGE> 3
IN WITNESS WHEREOF, the Company and the Warrantholders have caused this
Amendment Number 1 to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
THE CRONOS GROUP,
Company
By: /s/ Dennis J. Tietz
-------------------------------------
Name: Dennis J. Tietz
Title: Chief Executive Officer
MEESPIERSON N.V.,
Warrantholder
By: /s/ J.G.H.M. Hanegraff
-------------------------------------
Name: J.G.H.M. Hanegraff
Title: Senior Account Manager
FIRST UNION NATIONAL BANK,
Warrantholder
By: /s/ Jessica Tisdale
-------------------------------------
Name: Jessica Tisdale
Title: Vice President
<PAGE> 1
EXHIBIT 10.20
GUARANTY
This GUARANTY ("Guaranty") dated as of July 30, 1999 is made by
THE CRONOS GROUP, a Luxembourg societe anonyme ("Guarantor"), in favor of
MEESPIERSON N.V., as agent (the "Agent"), on behalf of, and for the benefit of,
itself and First Union National Bank ("First Union"; collectively with
MeesPierson N.V. in its capacity as a lender under the Loan Agreement, the
"Lenders") as the holders of the notes issued by Cronos Finance (Bermuda)
Limited.
RECITALS
WHEREAS, Cronos Finance (Bermuda) Limited, a company organized
and existing under the laws of the Islands of Bermuda (the "Issuer"), the Agent
and the Lenders have entered into a certain Loan Agreement, dated as of July 30,
1999 (as the same may from time to time be amended, modified, supplemented or
restated in accordance with its terms, the "Loan Agreement"), pursuant to which
the Lenders have agreed to purchase up to a specified principal amount of the
notes (the "Notes") issued pursuant to the Loan Agreement;
WHEREAS, in consideration of the agreement of the Lenders to
purchase the Notes under the Loan Agreement, Guarantor is willing to guarantee,
subject to the aggregate limitation set forth below, (i) the obligations of the
Issuer under the Notes, the Loan Agreement and the other Transaction Documents
and (ii) the performance by each Seller and the Manager of their respective
obligations arising under any Transaction Document;
WHEREAS, Guarantor is the direct or indirect parent of the
Issuer, each Seller and the Manager and will obtain substantial direct and
indirect benefit from the purchase of the Notes by the Lenders;
NOW, THEREFORE, in consideration of the foregoing recitals and
other good consideration, the receipt and adequacy is hereby acknowledged, and
intending to be legally bound, the parties hereto do hereby agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS. Unless otherwise defined in this
Guaranty, capitalized terms used herein shall have the meanings set forth in the
Loan Agreement.
SECTION 2. ACKNOWLEDGMENT; GUARANTY.
(a) Guarantor hereby consents to Issuer's issuance of the Notes
under the terms and conditions set forth in the Loan Agreement and the purchase
of the Notes by Lenders pursuant to the terms of the Loan Agreement. Guarantor
hereby unconditionally, absolutely and irrevocably guarantees to the Agent and
the Lenders (each, a "Guaranteed Party" and collectively, the "Guaranteed
Parties"): (i) the full and prompt payment when due of the principal balance of
the Notes and the indebtedness represented thereby, whether at the stated
maturity thereof or at such earlier date as may result from the acceleration
thereof as a result of the occurrence of an Event of
<PAGE> 2
Default (as such terms are defined in the Loan Agreement); (ii) the full and
prompt payment when due of interest on the outstanding principal balance of the
Notes, whether at the stated maturity date thereof or at such earlier date as
may result from the acceleration thereof following an Event of Default; (iii)
the full and prompt payment of an amount equal to any and all payments and other
sums when and as the same shall become due, required to be paid by the Issuer,
any Seller or the Manager to any Guaranteed Party under the terms of the Loan
Agreement or any other Transaction Document; and (iv) the full and prompt
performance and observance by the Issuer, any Seller or the Manager of all of
their respective obligations, covenants and agreements required to be performed
and observed pursuant to the terms of the Loan Agreement or any other
Transaction Document (items (i) through (iv) collectively, the "Guaranteed
Obligations"); provided, however, that, subject to the provisions of Section 15
hereof, the maximum aggregate amount of funds paid by the Guarantor under this
Guaranty (such maximum aggregate amount, the "Aggregate Maximum Guaranteed
Payment") throughout the entire term of this Guaranty shall not exceed an amount
equal to ten million dollars ($10,000,000).
(b) The Agent, on behalf of the Lenders, shall be entitled to
submit one or more claims under this Guaranty. The Agent shall be entitled to
submit a claim under this Guaranty on the date on which any amount is due under
the Loan Agreement or any other Transaction Documents or on any date thereafter
on which such amount remains unpaid for an amount not to exceed an amount equal
to the difference of (x) the Aggregate Maximum Guaranteed Payment and (y) the
aggregate amount of all payments previously made by the Guarantor under this
Guaranty.
(c) In order to secure the Guaranteed Obligations, subject to
the Aggregate Maximum Payment, and the performance of all of the Guarantor's
covenants and agreements in this Guaranty and all other Transaction Documents,
subject to the Aggregate Maximum Payment, the Guarantor (i) hereby assigns,
conveys, mortgages, pledges, hypothecates and transfers to Agent, for the
benefit of Noteholders to the extent provided herein, a security interest in and
to all of the Guarantor's right, title and interest in, to and under the
following, whether now existing or hereafter created: (A) the Escrowed Shares
and (B) the Class C Note, and (ii) has pledged all of its shares of Cronos
Holdings Investments (US) Inc. to the Agent, on behalf of the Lenders, pursuant
to a Stock Pledge Agreement dated as of July 30, 1999, between The Cronos Group
and Meespierson N.V., as agent. Notwithstanding the foregoing, the Aggregate
Maximum Payment shall not apply to Sections 6(j), 6(k) and 6(l).
SECTION 3. GUARANTY UNCONDITIONAL. The obligations of Guarantor
hereunder are irrevocable, absolute and unconditional, irrespective of the
value, genuineness, regularity, validity or enforceability of the Guaranteed
Obligations or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor. No set-off,
abatement, recoupment, counterclaim, off-set, reduction or diminution of an
obligation, or any defense of any kind or nature (other than performance by
Guarantor of its obligations hereunder) which Guarantor has or may have with
respect to a claim under this Guaranty, shall be available hereunder to
Guarantor against an Agent or Lenders. The Guaranteed Obligations are direct,
unconditional and completely independent of the obligations of any other Person
or entity, and a separate cause of action or separate causes of action may be
brought and prosecuted against the Guarantor without the necessity of joining
any other party or previous proceeding with or exhausting any other remedy
against any other Person who might have become liable for the indebtedness or of
realizing upon any security held by or for the benefit of the Agent.
<PAGE> 3
-3-
SECTION 4. PAYMENTS. All payments to be made by Guarantor to or
for the benefit of the Guaranteed Party hereunder shall be made in lawful money
of the United States of America, in immediately available funds for deposit into
the Trust Account and shall be accompanied by a notice from Guarantor stating
that such payments are made under this Guaranty.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF GUARANTOR.
Guarantor hereby represents and warrants to the Agent and the Lenders as of the
Closing Date that:
(a) The Guarantor is a societe anonyme duly organized, validly
existing and in good standing under the laws of Luxembourg, has the power to own
its assets and to engage in the activities in which it is now engaged and is
duly qualified and in good standing under the laws of each jurisdiction where
the conduct of its activities requires such qualification, if the failure to so
qualify would have a material adverse effect (a) on the financial condition of
the Guarantor, (b) the enforceability or effectiveness of this Guaranty or (c)
the transactions contemplated by the Loan Agreement and the other Transaction
Documents;
(b) The Guarantor has full power, authority and legal right to
execute, deliver and perform this Guaranty and each other Transaction Document
to which it is a party (collectively, the "GUARANTOR DOCUMENTS") and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Guarantor Documents. No consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any Governmental Authority or body or official is required for
the execution, delivery and performance by the Guarantor of the Guarantor
Documents which has not been obtained, made, given or accomplished. Each of the
Guarantor Documents has been duly executed and delivered by a duly authorized
representative of the Guarantor, and each such Guarantor Document constitutes
the valid, legal and binding obligations of the Guarantor, enforceable against
the Guarantor in accordance with its terms;
(c) The execution, delivery and performance by the Guarantor of
the Guarantor Documents will not violate any provision of any existing law or
regulation applicable to the Guarantor, or of any order, judgment, award or
decree of any court, arbitrator or governmental authority applicable to the
Guarantor or the organizational documents of the Guarantor or any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to
which the Guarantor is a party or by which the Guarantor or any of its assets
may be bound, and will not result in, or require, the creation or imposition of
any Lien on any of its property, assets or revenues pursuant to the provisions
of any such mortgage, indenture, lease, contract or other agreement, instrument
or undertaking;
(d) No litigation, investigation or administrative proceeding of
or before any court, arbitrator or governmental authority is pending or, to the
Guarantor's knowledge, threatened against the Guarantor which if decided
adversely to the Guarantor, would materially affect the condition (financial or
otherwise), business or operations of the Guarantor, or the ability of the
Guarantor to perform its obligations under the Guarantor Documents;
<PAGE> 4
-4-
(e) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court
required in connection with the execution and delivery of the Guarantor
Documents by the Guarantor, have been or will be taken or obtained on or prior
to the Closing Date;
(f) The consolidated balance sheet of the Guarantor at March 31,
1999 and the consolidated statements of income, retained earnings and cash flows
for the fiscal quarter then ended fairly present in all material respects,
subject to normal year-end audit adjustments and the absence of footnotes to
such statements, the financial condition of the Guarantor and the results of the
operations for the period ended on such date, all in accordance with generally
accepted accounting principles applied on a consistent basis.
(g) Guarantor is Solvent as of the Closing Date and will be
Solvent after giving effect to the transactions contemplated by the Transaction
Documents. The incurrence of Guarantor's obligations under the Guarantor
Documents will not cause Guarantor: (i) to be left with unreasonably small
capital for any business or transaction in which Guarantor is presently engaged
or plans to be engaged; or (ii) to be unable to pay its debts as such debts
mature.
(h) Guarantor has taken all action necessary to prevent a Year
2000 Problem or cause a Material Adverse Change with respect to itself or any of
its direct or indirect subsidiaries, and it will review, on an ongoing basis,
whether anticipated costs, problems, and uncertainties associated with Year 2000
Problems need to be disclosed, particularly in its filings with the Securities
and Exchange Commission ("SEC"). Guarantor will evidence to the Agent, at the
Agent's request, that all applicable SEC rules or regulations relating to Year
2000 disclosure have been duly followed.
Guarantor agrees that its, and all of its subsidiaries'
Essential Information Technology shall be maintained, modified, and updated as
needed to prevent any Material Adverse Change resulting from a Year 2000
Problem.
(i) The Guarantor has developed, a feasible contingency plan to
adequately ensure the uninterrupted and unimpaired business operation of the
Guarantor and its subsidiaries in the event of failure of its own or a third
party's system or equipment due to a Year 2000 Problem, including those of
vendors, customers, and suppliers, as well as a general failure of or
interruption in its communication and delivery infrastructure.
(j) The Guarantor is the owner of all of the issued and
outstanding shares of Cronos Holdings Investments (US) Inc., which in turn owns
all of the issued and outstanding shares of Cronos Capital Corp.
(k) After giving effect to the transactions on the Closing Date,
Cronos Capital Corp. will not have any unpaid Indebtedness.
(l) The Guarantor has good title to each of the Class C Note and
the Escrowed Shares, free and clear of all liens, claims and encumbrances,
except, in the case of the Escrowed
<PAGE> 5
-5-
Shares, for the encumbrance evidenced by the escrow agreement in effect with
respect thereto on the Closing Date.
(m) This Guaranty creates in favor of the Agent a valid lien in
all of Guarantor's right, title and interest in and to the Class C Note and the
Escrowed Shares, which lien is prior to all liens, claims and encumbrances.
SECTION 6. COVENANTS OF THE GUARANTOR. The Guarantor agrees
that, so long as this Guaranty shall remain in effect or any Outstanding
Obligations under the Loan Agreement shall be outstanding, it shall or, in the
case of paragraphs (h) and (i) below, it shall not, without the prior written
consent of the Agent and all of the Lenders in each instance (which shall not be
unreasonably withheld or delayed):
(a) Preservation of Properties; Enforcement of Rights.
Materially preserve and protect the usefulness and value of its properties and
assets, maintain the same in good repair, working order and condition, and from
time to time make, or cause to be made, all needed and proper repairs, renewals,
replacements, betterments and improvements thereto.
(b) Payment of Debts. Pay its debts, liabilities and obligations
when due except those which are contested in good faith and for which the
Guarantor has maintained adequate reserves satisfactory to Agent; provided that
such contest shall not result in a material lien being placed on its properties
and assets or any part thereof or result in any of its properties and assets
being subject to loss or forfeiture.
(c) Payment of Taxes and Claims. Prepare and timely file all tax
returns required to be filed by Guarantor and pay and discharge all taxes,
assessments and other governmental charges or levies imposed upon Guarantor or
in respect of any of its properties and assets before the same shall become in
default, as well as all lawful claims which, if unpaid, might become a material
lien or charge upon its properties and assets or any part thereof, except those
which are contested in good faith by the Guarantor and for which the Guarantor
has maintained adequate reserves satisfactory to the Agent; provided that such
contest shall not result in a material lien being placed on any of its
properties and assets or any part thereof being subject to forfeiture.
(d) Notification of Event of Default. Give prompt written notice
to the Agent of (i) any Guarantor Event of Default hereunder or (to the extent
to which Guarantor has actual or constructive notice thereof) any Event of
Default under the Loan Agreement or a default under any other Transaction
Document or of any condition, event or act which with the giving of notice or
the passage of time, or both, would constitute a Guarantor Event of Default,
specifying the same and the steps being taken to remedy the same and (ii) any
default, event of default or any condition, event or act which, with the giving
of notice or the lapse of time, or both would constitute such a default or event
of default under any agreement or contract to which Guarantor is a party or by
which any of its property or assets is bound.
(e) Existence. Keep in full effect its existence, rights and
franchises as a company under the laws of Luxembourg, and will obtain and
preserve its qualification as a foreign
<PAGE> 6
-6-
company in each jurisdiction in which such qualification is necessary to protect
the validity and enforceability of this Guaranty.
(f) Notification of Litigation and Adverse Business Development.
Give immediate written notice to Agent of (a) any action, proceeding or
investigation pending or threatened against Guarantor before any court or
governmental instrumentality or other administrative agency which involves the
possibility of any judgment or liability which would result in any material
adverse changes in the business, properties or assets of Guarantor, and (b) any
Materially Adverse Change in the financial condition, assets, liabilities,
business or operations of Guarantor.
(g) Financial Statements. Deliver to the Agent and to the
Lenders:
(1) Annual Statements -- within 120 days after the end
of each fiscal year of The Cronos Group, one copy of:
(i) consolidated balance sheets of The
Cronos Group and its consolidated
subsidiaries, at the end of such fiscal
year; and
(ii) consolidated statements of income,
retained earnings and cash flows of The
Cronos Group and its consolidated
subsidiaries for the fiscal year then
ended, setting forth in each case in
comparative form the figures for the
previous fiscal year, all in reasonable
detail and accompanied by an opinion of
a firm of independent certified public
accountants of recognized national
standing, stating that such financial
statements present fairly in all
material respects the financial
condition of The Cronos Group and its
consolidated subsidiaries and have been
prepared in accordance with generally
accepted accounting principles
consistently applied (except for changes
in application in which such accountants
concur and footnote), and that the
examination of such accountants in
connection with such financial
statements has been made in accordance
with generally accepted auditing
standards;
(2) Quarterly Statements -- within 60 days after the end
of each fiscal quarter of The Cronos Group, one copy of:
(i) consolidated balance sheets of The
Cronos Group and its consolidated
subsidiaries, at the end of such fiscal
quarter; and
(ii) consolidated statements of income,
retained earnings and cash flows of The
Cronos Group and its consolidated
subsidiaries for the fiscal quarter and
that portion of the fiscal year then
<PAGE> 7
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ended, setting forth in each case in
comparative form the figures for the
equivalent timeframe for the previous
year;
(3) SEC and Other Reports -- promptly upon their
becoming available, one copy of each report (if any), definitive proxy
statement, registration statement (upon it becoming effective) and definitive
prospectus filed by The Cronos Group with or delivered to any securities
exchange or the Securities and Exchange Commission or any successor agency; and
(4) Requested Information -- with reasonable promptness,
but in any event within two calendar weeks of the date requested, (A) any data
and information so requested and (B) any other publicly available information
with respect to The Cronos Group, in each case as may be reasonably requested
from time to time by the Agent or any Lender.
(h) Merger and Sale of Assets. Not merge, consolidate with or
sell substantially all of its assets to any other Person unless (i) all of the
requirements set forth in the immediately succeeding paragraph have been
satisfied, and (ii) the surviving entity, if not the Guarantor, is capable of
performing all the obligations of Guarantor hereunder, shall execute and deliver
to the Agent, in form and substance satisfactory to Agent, an instrument in
writing expressly assuming all the obligations of the Guarantor hereunder;
provided, however that, except as specifically set forth above, (x) any Person
succeeding to the business of the Guarantor shall be the successor of the
Guarantor hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, (y) nothing contained herein shall be deemed to release the
Guarantor from any obligation in the event that the Guarantor continues to exist
after the consummation of such transaction and (z) the successor or surviving
Person to the Guarantor shall execute such agreements evidencing such succession
and assumption as the Agent may request.
The Guarantor shall provide prior written notice to the Agent
and each Noteholder of any merger, consolidation or succession pursuant to this
Section 6(h). Notwithstanding the foregoing, the Guarantor shall not merge or
consolidate with any other Person or permit any other Person to become a
successor to the Guarantor's business, unless (x) immediately after giving
effect to such transaction, covenant made pursuant to Section 6(h) shall not
have been breached (for purposes hereof, such covenant shall speak as of the
date of the consummation of such transaction) and no event that, after notice or
lapse of time, or both, would become a Guarantor Event of Default, Potential
Event of Default, Event of Default or Manager Default shall have occurred and be
continuing and (y) the Guarantor shall have delivered to the Agent an Officer's
Certificate stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section 6(h) and that all conditions
precedent, if any, provided for in this Guaranty relating to such transaction
have been complied with. In addition to the foregoing, if any such merger or
consolidation of the Guarantor shall result in a Change of Control of the
Guarantor, then the Noteholders shall have the rights set forth in the Loan
Agreement.
(i) Restrictions on Dividends. Until such time as the Solvency
Level of The Cronos Group, as computed based on the most recently available
financial statements delivered by the Guarantor pursuant to Section 6(g) hereof,
exceeds 30%, the Guarantor shall not declare or pay
<PAGE> 8
-8-
any dividend, in cash or in kind. For purposes of this Section 6(i), "Solvency
Level" shall mean a fraction (expressed as a percentage) the numerator of which
shall be an amount equal to the Tangible Net Worth of The Cronos Group and the
denominator of which shall be equal to the total assets of The Cronos Group.
(j) Covenants with respect to Cronos Holdings Investments (US)
Inc. and Cronos Capital Corp.
(i) The Guarantor shall (A) at all times maintain Cronos
Holdings Investments (U.S.), Inc. as a direct wholly-owned
subsidiary and (B) shall cause Cronos Holdings Investments
(U.S.), Inc. to at all times maintain Cronos Capital Corp. as a
direct wholly-owned subsidiary.
(ii) The Guarantor shall cause each of Cronos Holdings
Investments (U.S.), Inc. and Cronos Capital Corp. (each, a
"Company") to not seek dissolution or liquidation in whole or in
part or reorganization of its business or affairs. In addition,
the Guarantor shall cause each such Company to be operated in
such a manner that it shall not be substantively consolidated
with the trust estate of any other person in the event of the
bankruptcy or insolvency of such Company or such other person.
(iii) The Guarantor shall not sell, assign, transfer,
pledge or otherwise encumber its shareholdings in Cronos
Holdings Investments (U.S.), Inc., and shall cause Cronos
Holdings Investment (U.S.), Inc. to not assign, transfer, sell,
pledge or otherwise encumber the shares of Cronos Capital Corp.
(iv) Notwithstanding any provision of law which
otherwise empowers each Company, the Guarantor shall not permit
either Cronos Holdings Investments (U.S.), Inc. or Cronos
Capital Corp. to (i) consolidate or merge with or into any other
person or dissolve or liquidate in whole or in part or transfer
its properties and assets substantially as an entirety to any
other person, (ii) hold itself out as being liable for the debts
of any other person, (iii) act other than in its corporate name
and through its duly authorized officers or agents, (iv) loan
monies to or guarantee the Indebtedness of any Affiliate
thereof, (v) commingle its funds or other assets with those of
any other person, (vi) create, incur, assume, guarantee or in
any manner become liable in respect of any funded Indebtedness,
or (vii) take any other action or engage in any other activity
that would be inconsistent with maintaining the separate legal
identity of such Company.
(k) Collections on the Class C Note. Promptly (but in no event
later than two Business Days after receipt thereof) the Guarantor shall promptly
remit to the Agent for deposit in the Trust Account all amounts which the
Guarantor receives in respect of the Class C Note.
(l) Escrowed Shares. Promptly (but in no event later than two
Business Days after receipt thereof) the Guarantor shall remit to the Agent for
deposit in the Trust Account the total
<PAGE> 9
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amount of all remittances received with respect to the Escrowed Shares. Promptly
(but in no event later than two Business Days) after the Escrowed Shares are
released to the Guarantor, the Guarantor shall sell the Escrowed Shares at the
then market price and remit the proceeds thereof to the Agent for deposit in the
Trust Account for application in accordance with the terms of the Transaction
Documents.
SECTION 7. GUARANTOR EVENTS OF DEFAULT. Any one or more of the
following events shall constitute a Guarantor Event of Default:
(a) the Guarantor shall default in making payment when due of
any Guaranteed Obligation;
(b) breach by the Guarantor of any of the covenants set forth in
Section 6(g) (which breach of such Section 6(g) shall not have been cured within
10 days), Section 6(h) or Section 6(i) hereof;
(c) default in the performance, or breach, of any covenant of
the Guarantor in any Transaction Document, (to the extent not otherwise
addressed in this Section 7) which breach materially and adversely affects the
interest of the Agent or any Noteholder and continues for a period of 30 days
after the earliest of (i) any Authorized Officer of the Guarantor, first
acquiring knowledge thereof, (ii) the Agent's giving written notice thereof to
the Guarantor, or (iii) any Noteholder giving written notice thereof to the
Guarantor and the Agent;
(d) any representation or warranty of the Guarantor made in any
other Transaction Document shall prove to be incorrect in any material respect
as of the time when the same shall have been made which breach materially and
adversely affects the interest of the Agent or any Noteholder;
(e) the entry of a decree or order for relief by a court having
jurisdiction in respect of the Guarantor in any involuntary case under any
applicable Insolvency Law, or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, or sequestrator
(or other similar official) for the Guarantor, or for any substantial part of
its properties, or ordering the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days;
(f) the commencement by the Guarantor of a voluntary case under
any applicable Insolvency Law, or other similar law now or hereafter in effect,
or the consent by the Guarantor to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or other
similar official) of the Guarantor or any substantial part of their respective
properties, or the making by the Guarantor of any general assignment for the
benefit of creditors, or the failure by the Guarantor generally to pay its debts
as they become due, or the taking of any action by the Issuer in furtherance of
any such action; and
<PAGE> 10
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(g) if any judgment against the Guarantor or any attachment,
execution, levy or restraining notice against its property in excess of $250,000
remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a
period of thirty (30) days;
(h) if Guarantor shall default (as principal or guarantor or
other surety) in any payment of principal or interest on any material obligation
for money borrowed other than the Obligations, or if any other default under any
material agreement after expiration of any applicable grace period under which
any such obligation is created or under any instrument securing or evidencing
such obligation, if the effect of such other default is to cause, or permit the
holder of such obligation to cause, such obligation to become due prior to its
stated maturity;
(i) if the validity or enforceability of this Guaranty or any
other Guarantor Document is contested (by the Guarantor or any Affiliate
thereof) or if Guarantor or party to any other Guarantor Document denies
liability thereunder.
SECTION 8. Remedies. In case an Event of Default shall have
occurred under Subsection 7(e), all of the Guaranteed Obligations shall
forthwith automatically be immediately due and payable and the Agent shall have
all the rights and remedies set forth below in Subsections 8(b) through 8(e). In
case any other Guarantor Event of Default shall have occurred the Agent shall
have the following rights and remedies:
(a) at any time thereafter and so long as such Guarantor Event
of Default shall be continuing, to declare all of the Guaranteed Obligations to
be immediately due and payable;
(b) upon the occurrence of a Guarantor Event of Default, to
demand payment of an amount equal to the difference between (x) the Aggregate
Maximum Guaranteed Payment and (y) the aggregate amount of all payments
previously made by the Guarantor under this Guaranty;
(c) to take any action at law or in equity to enforce payment,
performance and observance of the Guaranteed Obligations, or to recover damages
for breach thereof;
(d) to exercise any and all rights under the Guaranty and each
of the other Transaction Documents;
(e) to exercise any and all rights and remedies conferred upon
the Agent by applicable law; and
(f) to exercise the right of setoff against any assets of the
Guarantor held by Agent.
The Agent, in its sole discretion, shall have the right to
proceed first and directly against Guarantor under this Guaranty without
proceeding against or exhausting any other remedies which it may have and
without resorting to any other security held by the Agent under the other
Transaction Documents.
<PAGE> 11
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SECTION 9. CONSENTS. Guarantor hereby consents that any or all
of the following actions may be taken or things done without notice to Guarantor
and without affecting the liability of Guarantor under this Guaranty:
(a) The time for Issuer's, Seller's or Manager's performance of
or compliance with any of the obligations under the Loan Agreement or any
Transaction Document may be accelerated or extended or such performance or
compliance may be waived by the Agent, acting on behalf of and as directed by
the Lenders (including, without limitation, the renewal, extension, acceleration
or other change in the time of payment, or other terms of, the indebtedness,
such as an increase or decrease in the rate of interest thereon);
(b) Any of the acts referred to in the Transaction Documents may
be performed, upon default thereunder, by, or on behalf of; and
(c) The terms of any of the Guaranteed Obligations or any term
or condition in the Loan Agreement may be amended as provided for therein by
Issuer and the Agent for the purpose of adding any provisions thereto or
changing in any manner the rights or obligations of Issuer or the Agent
thereunder;
SECTION 10. DUE DILIGENCE. Guarantor acknowledges, independently
of and without reliance on the Agent, Lenders or any other party to the
Transaction Documents, that it is satisfied that the Issuer has the resources to
meet its obligations under the Transaction Documents and performed its own legal
review of this Guaranty, the Loan Agreement and all of the other Transaction
Documents and all related filings, and Guarantor is not relying on any of such
Persons with respect to any of the aforesaid items. Guarantor has established
adequate means of obtaining from Issuer, each Seller and the Manager on a
continuing basis financial and other information pertaining to its financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events or circumstances which might in any way affect Guarantor's risks
hereunder, and Guarantor further agrees that neither the Agent nor any Lender
shall have any obligation to disclose to Guarantor information or material with
respect to Issuer, any Seller or the Manager acquired in the course of each such
person's respective relationships with those Persons.
SECTION 11. TOLLING OF STATUTE OF LIMITATIONS. Guarantor agrees
that any payment or performance of any of the Guaranteed Obligations or other
acts which tolls any statute of limitations applicable to the Guaranteed
Obligations shall also toll the statute of limitations applicable to Guarantor's
liability under this Guaranty.
SECTION 12. WAIVER. Guarantor hereby expressly waives diligence,
presentment, demand for payment, protest, benefit of any statute of limitations
affecting Issuer's liability under the Notes, the Loan Agreement or any other
Transaction Document or the enforcement of this Guaranty, discharge due to any
disability of Issuer, any Seller or the Manager, any defenses of Issuer, any
Seller or the Manager to its obligations under the Notes, the Loan Agreement or
any other Transaction Document which under the law has the effect of discharging
such Person from the Guaranteed Obligations as to which this Guaranty is sought
to be enforced, the benefit of any act or omission by any Person which directly
or indirectly results in or aids the discharge of Issuer from
<PAGE> 12
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any of the Guaranteed Obligations by operation of law or otherwise, all notices
whatsoever, including, without limitation, notice of acceptance of this Guaranty
and the incurring of the Guaranteed Obligations, and any requirement that the
Agent exhaust any right, power or remedy or proceed against Issuer, the
Collateral or any other guarantor of, or any other Person liable for, any of the
Guaranteed Obligations, or any portion thereof. Guarantor specifically agrees
that it will not be necessary or required, and Guarantor shall not be entitled
to require, that the Agent file suit or proceed to assert or obtain a claim for
personal judgment against Issuer, any Seller or the Manager, as applicable for
the Guaranteed Obligations or to make any effort at collection or enforcement of
the Guaranteed Obligations from Issuer or file suit or proceed to obtain or
assert a claim for personal judgment against Guarantor or any other guarantor or
other party liable for the Guaranteed Obligations or make any effort at
collection of the Guaranteed Obligations from any such party or exercise or
assert any other right or remedy to which the Agent is or may be entitled in
connection with the Guaranteed Obligations or guaranty relating thereto or
assert or file any claim against the assets of Issuer, before or as a condition
of enforcing the liability of Guarantor under this Guaranty.
SECTION 13. CERTAIN RIGHTS. In pursuing their respective rights
under this Guaranty, neither the Agent nor any Lenders need (i) join Guarantor
in any suit against the Issuer, any Seller or the Manager, as the case may be,
nor (ii) join the Issuer, any Seller or the Manager, as the case may be, in any
suit against Guarantor or any Affiliate of the Guarantor.
SECTION 14. CONTINUING GUARANTY. This Guaranty shall be a
continuing guaranty and any other guarantors of all or a portion of the
Guaranteed Obligations may be released without affecting the liability of
Guarantor hereunder.
SECTION 15. INDEMNITY. In addition to and without limiting or
impairing in any manner whatsoever Guarantor's other obligations under this
Guaranty or any other document executed and delivered by Guarantor to a Lender
or the Agent, Guarantor agrees to indemnify the Agent and each Lender, from and
against any and all reasonable costs, expenses, losses and liabilities relating
to the enforcement of claims under this Guaranty (including, without limitation,
enforcement of this Guaranty), except claims, costs, expenses, losses or
liabilities resulting from such Lender's or Agent's gross negligence or willful
misconduct. The amount of the indemnities payable by the Guarantor pursuant to
this Section 15 shall not be subject to the limitation on payments set forth in
Section 2 of this Guaranty.
SECTION 16. NOTICE. All notices and other communications
provided for hereunder shall be in writing or telex: if to Guarantor, at its
address at 16 Allee Marconi L-2120 Luxembourg, Attention: Chief Financial
Officer, Fax # 352-453-147, copy to CCL at Orchard Lea, Windsor, UK if to the
Agent, at the address set forth in Section 1307 of the Loan Agreement, and if to
either Lender, at the respective addresses set forth in the Note Register. All
such notices and communications shall be sent in the manner, and shall be
effective on the dates, set forth in Section 1307 of the Loan Agreement.
SECTION 17. REINSTATEMENT. Notwithstanding any provision in the
Loan Agreement, the Notes or any other Transaction Document to the contrary, the
liability of Guarantor hereunder shall be reinstated and revived and the rights
of each Guaranteed Party shall continue if
<PAGE> 13
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and to the extent that for any reason any payment by or on behalf of Issuer, any
Seller or the Manager, as the case may be, is rescinded or must be otherwise
restored by a Guaranteed Party, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as though such amount had not
been paid. The determination as to whether any such payment must be rescinded or
restored shall be made by such Guaranteed Party in its sole discretion;
provided, however, that if any Guaranteed Party chooses to contest any such
matter at the request of Guarantor, Guarantor agrees to indemnify and hold
harmless any such Guaranteed Party from all costs and expenses (including,
without limitation, attorneys' fees) related to such request.
SECTION 18. NO WAIVER, AMENDMENTS, ETC. No failure on the part
of any Guaranteed Party to exercise, no delay in exercising and no course of
dealing with respect to, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law. This Guaranty may not be amended or modified except by written
agreement executed by each of the Guarantor, the Agent and each Lender and no
consent or waiver hereunder shall be valid unless in writing and executed in
accordance with the provisions of this Guaranty.
SECTION 19. COMPROMISE AND SETTLEMENT. No compromise,
settlement, release, renewal, extension, indulgence, change in, waiver or
modification of any of the Guaranteed Obligations or the release or discharge of
Issuer, any Seller or Manager, as the case may be, from the performance of any
of the Guaranteed Obligations shall release or discharge Guarantor from this
Guaranty.
SECTION 20. INSOLVENCY. The voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all
the assets and liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, or other proceeding affecting any
Issuer, any Seller, the Manager or the Guarantor or the disaffirmance of Notes,
the Loan Agreement or any Transaction Document, or Guarantor's obligations
hereunder in any such proceeding shall not release or discharge Guarantor from
this Guaranty.
SECTION 21. EXPENSES. In addition to its guaranty hereunder of
the Guaranteed Obligations, Guarantor hereby agrees to pay all reasonable costs
and expenses, including, without limitation, attorneys' fees, paid or incurred
by the Agent and each Lender in collecting or enforcing any or all of the
Guaranteed Obligations or in connection with the enforcement of this Guaranty.
SECTION 22. ENTIRE AGREEMENT. This Guaranty and all documents
mentioned or contemplated herein constitute and contain the entire agreement of
the parties and supersede any and all prior and contemporaneous agreements,
negotiations, correspondence, understandings and communications between the
parties, whether written or oral, respecting the subject matter hereof.
SECTION 23. SEVERABILITY. If any provision of this Guaranty is
held to be unenforceable for any reason, it shall be adjusted, if possible,
rather than voided in order to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Guaranty shall be deemed
valid and enforceable to the fullest extent possible.
<PAGE> 14
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SECTION 24. SUBORDINATION OF INDEBTEDNESS. Any indebtedness or
other obligation of Issuer, any Seller or Manager now or hereafter held by or
owing to Guarantor is hereby subordinated in time and right of payment of the
Guaranteed Obligations to the Guaranteed Parties; and any such indebtedness to
Guarantor is assigned to the Guaranteed Parties, as collateral security for this
Guaranty and the Guaranteed Obligations, and if any the Guaranteed Parties so
requests, shall be collected, enforced and received by Guarantor in trust for
the Guaranteed Parties, and be paid over to the Guaranteed Parties, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any notes now or hereafter evidencing any such
indebtedness to Guarantor shall be marked with a legend that the same are
subject to this Guaranty and shall be delivered to the Agent. Guarantor will,
and the Agent is hereby authorized, in the name of Guarantor from time to time,
to execute and file financing statements and continuation statements and execute
such other documents and take such other action as the Agent deems necessary or
appropriate to perfect, preserve and enforce the rights of the Guaranteed
Parties hereunder.
SECTION 25. ASSIGNMENT; GOVERNING LAW. This Guaranty shall be
binding upon and inure to the benefit of Guarantor, the Guaranteed Parties, and
their respective permitted successors and assigns and any other Lender, except
that Guarantor shall not have the right to assign its rights hereunder or any
interest herein unless authorized by a writing executed by all of the parties
hereto. This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of New York without giving effect to the conflict of laws
principals thereof.
SECTION 26. ACTIONS BY LENDERS. Subject to the limitations and
subordination set forth in the Loan Agreement, each Lender shall have the power
to enforce this Guaranty against Guarantor to the full extent of Guarantor's
obligations hereunder.
SECTION 27. CONSENT TO JURISDICTION. Guarantor hereby
irrevocably consents to the non-exclusive personal jurisdiction of the State and
Federal courts located in the Southern District of New York, in any action,
claim or other proceeding arising out of any dispute in connection with this
Guaranty, any rights or obligations hereunder or thereunder or the performance
of such rights and obligations. Guarantor hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by any Lender in connection with this Guaranty, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations, on behalf of itself or its property, in the manner specified in
Section 16 above. Nothing in this Section 27 shall affect the right of any
Lender to serve legal process in any other manner permitted by applicable law or
affect the right of either Lender to bring any action or proceeding against
Guarantor or its properties in the courts of any other jurisdictions.
SECTION 28. TERMINATION OF GUARANTY. This Guaranty shall
terminate upon payment in full of the Guaranteed Obligations in full; provided,
however, this Section shall not affect the obligations of Guarantor pursuant to
Section 15 of this Guaranty.
SECTION 29. WAIVER OF JURY TRIAL. GUARANTOR HEREBY IRREVOCABLY
WAIVES ITS RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
<PAGE> 15
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OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS.
SECTION 30. WAIVER OF SPECIFIC RIGHTS. GUARANTOR HEREBY
IRREVOCABLY WAIVES AND RELEASES:
(a) ANY AND ALL RIGHTS IT MAY HAVE AT ANY TIME (WHETHER ARISING
DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW, CONTRACT OR OTHERWISE) TO REQUIRE
THE MARSHALING OF ANY ASSETS OF ISSUER, ANY SELLER OR MANAGER, AS THE CASE MAY
BE, WHICH RIGHT OF MARSHALING MIGHT OTHERWISE ARISE FROM ANY SUCH PAYMENTS MADE
OR OBLIGATIONS PERFORMED;
(b) UNTIL SUCH TIME AS THE GUARANTEED OBLIGATION ARE PAID IN
FULL AND ALL RIGHTS THAT WOULD RESULT IN GUARANTOR BEING DEEMED A "CREDITOR" OF
ISSUER, ANY SELLER OR MANAGER, AS THE CASE MAY BE, UNDER THE UNITED STATES
BANKRUPTCY CODE, ON ACCOUNT OF PAYMENTS MADE OR OBLIGATIONS PERFORMED BY
GUARANTOR TO THE EXTENT SUCH CHARACTERIZATION MATERIALLY IMPAIRS THE RIGHT OF
ANY GUARANTEED PARTY HEREUNDER; AND
(c) ANY CLAIM, RIGHT OR REMEDY WHICH GUARANTOR MAY NOW HAVE OR
HEREAFTER ACQUIRE AGAINST ISSUER, ANY SELLER OR MANAGER, AS THE CASE MAY BE,
THAT ARISES HEREUNDER AND/OR FROM THE PERFORMANCE BY GUARANTOR HEREUNDER
INCLUDING, WITHOUT LIMITATION, ANY CLAIM, REMEDY OR RIGHT OF SUBROGATION,
REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNIFICATION, OR PARTICIPATION IN
ANY CLAIM, RIGHT OR REMEDY OF ANY GUARANTEED PARTY AGAINST ISSUER, ANY SELLER OR
MANAGER, AS THE CASE MAY BE, OR ANY COLLATERAL SECURITY WHICH ANY GUARANTEED
PARTY NOW HAS OR MAY HEREAFTER ACQUIRE, WHETHER OR NOT SUCH CLAIM, RIGHT OR
REMEDY ARISES IN EQUITY, UNDER CONTRACT, BY STATUTE, UNDER COMMON LAW OR
OTHERWISE.
(d) ANY RIGHT TO ASSERT A COUNTERCLAIM IN ANY ACTION OR
PROCEEDING BROUGHT AGAINST IT BY THE AGENT OR ANY LENDER.
SECTION 31. GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Guaranty except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Guaranty have the meanings
assigned to them in this Guaranty and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
<PAGE> 16
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(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections", "Subsections",
"paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions of
this Guaranty;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Guaranty as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
SECTION 32. FURTHER ASSURANCES. Guarantor agrees to do such
further acts and things and to execute and deliver such additional assignments,
agreements, powers and instruments as are required to carry into effect the
purposes of this Guaranty or to better assure and confirm unto the Agent or the
Lenders their rights, powers and remedies hereunder.
SECTION 33. COUNTERPARTS. This Guaranty may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which shall constitute one and the
same instrument.
SECTION 34. WAIVER OF IMMUNITY. To the extent that any party
hereto or any of its property is or becomes entitled at any time to any immunity
on the grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Guaranty, the other
Transaction Documents or the subject matter hereof or thereof, subject, in each
case, to the provisions of the Transaction Documents and mandatory requirements
of applicable law.
SECTION 35. JUDGMENT CURRENCY. This is an international
financing transaction in accordance with which the specification of Dollars is
of the essence, and Dollars shall be the currency of account in the case of all
obligations under the Transaction Documents. The payment obligations of any
Person under the Transaction Documents shall not be discharged by an amount paid
in a currency, or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to Dollars and transfer to the specified
place of payment under normal banking procedures does not
<PAGE> 17
-17-
yield the amount of Dollars, in such place, due under the governing Transaction
Documents. In the event that any payment, whether pursuant to a judgment or
otherwise, upon conversion and transfer does not result in payment of such
amount of Dollars in the specified place of payment, the obligee of such payment
shall have a separate cause of action against the party making the same for the
additional amount necessary to yield the amount due and owing under such
Transaction Documents. If, for the purpose of obtaining a judgment in any court
with respect to any obligation of a party under any of the Transaction Documents
or any of the agreements contemplated thereby, it shall be necessary to convert
to any other currency any amount in Dollars due thereunder and a change shall
occur between the rate of exchange applied in making such conversion and the
rate of exchange prevailing on the date of payment of such judgment, the
respective judgment debtor agrees to pay such additional amounts (if any) as may
be necessary to insure that the amount paid on the date of payment is the amount
in such other currency which, when converted into Dollars and transferred to New
York, New York, in accordance with normal banking procedures will result in the
amount then due under the respective Transaction Document in Dollars. Any amount
due from the respective judgment debtor shall be due as a separate debt and
shall not be affected by or merged into any judgment being obtained for any
other sum due under or in respect of any Transaction Document. In no event,
however, shall the respective judgment debtor be required to pay a larger amount
in such other currency, at the rate of exchange in effect on the date of payment
than the amount of Dollars stated to be due under the respective Transaction
Document, so that in any event the obligations of the respective judgment debtor
under the Transaction Document will be effectively maintained as Dollar
obligations.
SECTION 36. NO SUBROGATION. Notwithstanding any payments made by
the Guarantor hereunder, or any set-off or application of funds of the Guarantor
by the Agent or the Lenders, the Guarantor waives, for so long as the Guaranteed
Obligations remain outstanding, any right that it may have to be subrogated to
any of the rights of the Agent or the Lenders against any Person or any right of
offset held by the Agent for the payment of the Guaranteed Obligations or to
otherwise seek reimbursement, indemnity or contribution or any other payment
from the any Person.
SECTION 37. SUCCESSORS AND ASSIGNS. This Guaranty shall be
binding upon the Guarantor and its permitted successors and assigns, and shall
inure to the benefit of the Agent and the Lenders and their respective
successors and assigns. The Guarantor shall not assign its obligations hereunder
without the prior written consent of the Agent and the Majority of the Holders.
SECTION 38. BENEFICIARIES. The Guarantor is issuing this
Guaranty for the sole and exclusive benefit of the Agent and the Lenders.
<PAGE> 18
-18-
IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty as of the date first written above.
THE CRONOS GROUP
By: /s/ DENNIS TIETZ
---------------------------------
Name: Dennis Tietz
-------------------------------
Title: CEO
------------------------------
APPROVED AND ACCEPTED
MEESPIERSON N.V.,
as Agent
By: /s/ J.G.H.M. HANEGRAFF
---------------------------------
Name: J.G.H.M. Hanegraff
-------------------------------
Title: Senior Account Manager
------------------------------
<PAGE> 1
EXHIBIT 10.21
CRONOS FINANCE (BERMUDA) LIMITED
Issuer
and
MEESPIERSON N.V.
Agent
MEESPIERSON N.V.
FIRST UNION NATIONAL BANK
Initial Noteholders
-----------------------------------
LOAN AGREEMENT
Dated as July 30, 1999
-----------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C> <C>
ARTICLE I
DEFINITIONS
Section 101. Defined Terms..........................................-1-
Section 102. Other Definitional Provisions.........................-18-
Section 103. Interpretation of Loan Agreement......................-18-
Section 104. Payments, Computations, Etc...........................-18-
ARTICLE II
COMMITMENT OF NOTEHOLDERS; THE NOTES
Section 201. Commitment of Initial Noteholders.....................-20-
Section 202. Interest Payments on the Notes........................-20-
Section 203. Principal Payments on the Notes.......................-21-
Section 204. The Notes.............................................-22-
Section 205. Registration; Registration of Transfer and Exchange
of Notes..............................................-22-
Section 206. Mutilated, Destroyed, Lost and Stolen Notes...........-24-
Section 207. Delivery, Retention and Cancellation of Notes.........-24-
Section 208. Taxes.................................................-25-
Section 209. Illegality............................................-27-
Section 210. Increased Costs.......................................-27-
Section 211. Inability to Determine Rates..........................-27-
Section 212. Capital Requirements..................................-28-
Section 213. Place of Payment......................................-28-
Section 214. Offset................................................-29-
Section 215. Proration of Payments.................................-29-
ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Trust Account.........................................-30-
Section 302. Trust Account.........................................-30-
Section 303. Investment of Monies Held in the Trust Account and
Restricted Cash Account...............................-31-
Section 304. Reports to Noteholders................................-31-
Section 305. Records...............................................-32-
Section 306. Restricted Cash Account...............................-32-
ARTICLE IV
COLLATERAL
Section 401. Collateral............................................-32-
Section 402. Pro Rata Interest.....................................-35-
Section 403. Agent's Appointment as Attorney-in-Fact...............-35-
Section 404. Release of Security Interest..........................-36-
Section 405. Administration of Collateral..........................-36-
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 501. Existence.............................................-37-
Section 502. Authorization.........................................-37-
Section 503. No Conflict; Legal Compliance.........................-37-
Section 504. Validity and Binding Effect...........................-37-
Section 505. Executive Offices.....................................-38-
Section 506. No Agreements or Contracts............................-38-
Section 507. Consents and Approvals................................-38-
Section 508. Margin Regulations. ..................................-38-
Section 509. Taxes.................................................-38-
Section 510. Other Regulations.....................................-38-
Section 511. Solvency..............................................-39-
Section 512. Survival of Representations and Warranties............-39-
Section 513. No Default............................................-39-
Section 514. Litigation and Contingent Liabilities.................-39-
Section 515. Title; Liens..........................................-39-
Section 516. Subsidiaries. ........................................-39-
Section 517. No Partnership........................................-39-
Section 518. Pension and Welfare Plans.............................-39-
Section 519. Ownership of Issuer...................................-39-
Section 520. [Reserved]............................................-39-
ARTICLE VI
COVENANTS
Section 601. Payment of Principal and Interest; Payment of Taxes...-40-
Section 602. Maintenance of Office.................................-40-
Section 603. Existence.............................................-40-
Section 604. Protection of Collateral..............................-40-
Section 605. Performance of Obligations............................-41-
Section 606. Negative Covenants....................................-41-
Section 607. Non-consolidation of Issuer...........................-41-
Section 608. No Bankruptcy Petition................................-42-
Section 609. Liens.................................................-42-
Section 610. Other Debt............................................-42-
Section 611. Guarantees, Loans, Advances and Other Liabilities.....-42-
Section 612. Consolidation, Merger and Sale of Assets..............-42-
Section 613. Other Agreements......................................-42-
Section 614. Charter Documents.....................................-43-
Section 615. Capital Expenditures..................................-43-
Section 616. Permitted Activities..................................-43-
Section 617. Investment Company Act................................-43-
Section 618. Payments of Collateral................................-43-
Section 619. Notices...............................................-43-
Section 620. Books and Records. ...................................-44-
Section 621. Taxes.................................................-44-
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C> <C>
Section 622. Subsidiaries..........................................-44-
Section 623. Investments...........................................-44-
Section 624. Use of Proceeds.......................................-44-
Section 625. Managerial Report.....................................-44-
Section 626. Purchase of Containers................................-44-
Section 627. [Reserved]............................................-44-
Section 628. Maintenance of the Collateral.........................-44-
Section 629. Insurance.............................................-45-
Section 630. Nonconsolidation Matters..............................-45-
ARTICLE VII
DISCHARGE OF LOAN AGREEMENT
Section 701. Full Discharge........................................-47-
Section 702. Unclaimed Funds.......................................-47-
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES
Section 801. Event of Default......................................-48-
Section 802. Acceleration of Stated Maturity; Rescission and
Annulment.............................................-49-
Section 803. Collection of Indebtedness............................-50-
Section 804. Remedies..............................................-50-
Section 805. Agent May Enforce Claims Without Possession of Notes..-51-
Section 806. Allocation of Money Collected.........................-52-
Section 807. Limitation on Suits...................................-52-
Section 808. Unconditional Right of Holders to Receive Principal
and Interest..........................................-53-
Section 809. Restoration of Rights and Remedies....................-53-
Section 810. Rights and Remedies Cumulative........................-53-
Section 811. Delay or Omission Not Waiver..........................-53-
Section 812. Control by Majority of Holders........................-53-
Section 813. Waiver of Past Defaults...............................-54-
Section 814. Undertaking for Costs.................................-54-
Section 815. Waiver of Stay or Extension Laws......................-54-
Section 816. Reserved..............................................-55-
Section 817. Sale of Collateral....................................-55-
Section 818. Action on Notes.......................................-55-
ARTICLE IX
THE AGENT
Section 901. Appointment and Authorization.........................-56-
Section 902. Delegation of Duties. ................................-56-
Section 903. Liability of Agent. ..................................-56-
Section 904. Reliance by the Agent.................................-56-
Section 905. Notice of Default. ...................................-57-
Section 906. Credit Decision.......................................-57-
Section 907. Indemnification. .....................................-58-
Section 908. Agent in Individual Capacity. .......................-58-
Section 909. Successor Agent. ....................................-59-
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE X
CONDITIONS OF EFFECTIVENESS
Section 1001. Effectiveness.........................................-60-
ARTICLE XI
EARLY AMORTIZATION EVENT
Section 1101. Early Amortization Event..............................-62-
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. Compliance Certificates and Opinions..................-63-
Section 1202. Form of Documents Delivered to Agent..................-63-
Section 1203. Acts of Holders.......................................-64-
Section 1204. Inspection............................................-64-
Section 1205. Limitation of Rights..................................-65-
Section 1206. Severability..........................................-65-
Section 1207. Notices...............................................-65-
Section 1208. Consent to Jurisdiction...............................-65-
Section 1209. Captions..............................................-66-
Section 1210. Governing Law.........................................-66-
Section 1211. No Petition...........................................-66-
Section 1212. General Interpretive Principles.......................-66-
Section 1213. Counterparts..........................................-67-
Section 1214. CONSENT TO JURISDICTION...............................-67-
Section 1215. Judgment Currency.....................................-67-
Section 1216. WAIVER OF JURY TRIAL..................................-68-
Section 1217. Waiver of Immunity....................................-68-
Section 1218. Confidentiality.......................................-68-
Section 1219. Binding Effect; Assignability.........................-69-
</TABLE>
EXHIBIT A - Depreciation Methods by Type of Container
EXHIBIT B - Weighing Factors
EXHIBIT C - Form of Note
EXHIBIT D - Copy of Escrow Agreement for Common Shares of Transamerica
Corporation
EXHIBIT E - Copy of Mortgage Note
EXHIBIT F - Copy of Class C Note
EXHIBIT G - List of Agreed Upon Procedures
-iv-
<PAGE> 6
This Loan Agreement, dated as of July 30, 1999 (as amended or
supplemented from time to time as permitted hereby, the "Loan Agreement"),
between Cronos Finance (Bermuda) Limited, a company organized and existing under
the laws of the Islands of Bermuda (the "Issuer"), MEESPIERSON N.V., as agent on
behalf of the Noteholders (in such capacity, the "Agent") and each of
MEESPIERSON N.V. and FIRST UNION NATIONAL BANK, as Noteholders (each, an
"Initial Noteholder" and collectively, the "Initial Noteholders").
W I T N E S S E T H :
WHEREAS, the Issuer, the Agent and the Initial Noteholders have agreed
to enter into a term loan transaction, but only upon the terms and subject to
the conditions hereafter set forth and in reliance on the representations,
warranties and covenants of the Issuer set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, each party agrees as follows.
ARTICLE I
DEFINITIONS
Section 101. Defined Terms. Capitalized terms used in this Loan
Agreement shall have the following meanings and the definitions of such terms
shall be equally applicable to both the singular and plural forms of such terms:
Account Debtor: Any "account debtor," as such term is defined in Section
9-105(1)(a) of the UCC.
Accounts: Any "account," as such term is defined in Section 9-106 of the
UCC, arising out of or in any way related to the Containers and now owned or
hereafter acquired by Issuer and, in any event, shall include, without
limitation, all accounts receivable, book debts and other forms of obligations
(other than forms of obligations evidenced by Chattel Paper, Documents or
Instruments) now owned or hereafter received or acquired by or belonging or
owing to Issuer (including, without limitation, under any trade name, style or
division thereof) whether arising out of goods sold or services rendered by
Issuer or from any other transaction, whether or not the same involves the sale
of goods or services by Issuer (including, without limitation, any such
obligation which may be characterized as an account or contract right under the
UCC) and all of Issuer's rights in, to and under all purchase orders or receipts
now owned or hereafter acquired by it for goods or services, and all of Issuer's
rights to any goods represented by any of the foregoing (including, without
limitation, unpaid seller's rights of rescission, replevin, reclamation and
stoppage in transit and rights to returned, reclaimed or repossessed goods), and
all monies due or to become due to Issuer under all purchase orders and
contracts for the sale of goods or the performance of services or both by Issuer
(whether or not yet earned by performance on the part of Issuer or in connection
with any other transaction), now in existence or hereafter occurring, including,
without limitation, the right to receive the proceeds of said purchase orders
and contracts, and all collateral security and guarantees of any kind given by
any Person with respect to any of the foregoing.
-1-
<PAGE> 7
Address: With respect to any Noteholder, the office or offices of the
Noteholder specified in the Note Register.
Adjusted LIBOR: For each Interest Period, an interest rate per annum
(rounded upward to the nearest 1/16th of one percent (0.0625%)) determined
pursuant to the following formula:
<TABLE>
<S> <C>
Adjusted LIBOR = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
</TABLE>
The Adjusted LIBOR shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
Administration Agreement: The Administration Agreement, dated as of July
30, 1999, entered into between the Administrator and the Issuer, as such
agreement shall be amended, supplemented or modified from time to time in
accordance with its terms.
Administrator: Cronos Containers (Cayman) Limited, a company organized
under the laws of the Cayman Islands.
Affiliate: With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "control", when
used with respect to any specified 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 terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agent: The Person performing the duties of the Agent under this Loan
Agreement, initially, MeesPierson.
Agent-Related Persons: MeesPierson and any successor Agent appointed
pursuant to Article IX hereof, together with their respective Affiliates and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
Article 2A: Article 2A (or its equivalent) of the UCC.
Asset Base: As of the Closing Date and any Payment Date, an amount equal
to the sum of (i) the product of (x) seventy-eight percent (78%) and (y) the sum
of the Net Book Values (determined as of the end of the Closing Date or
immediately preceding Collection Period, as applicable) of all Containers then
owned by the Issuer, and (ii) amounts on deposit in the Restricted Cash Account
on the Closing Date or such Payment Date, as the case may be, after giving
effect to all deposits to, and withdrawals from, the Restricted Cash Account, on
such Payment Date (but not to any deposits therein made on the Closing Date). In
determining the amount set forth in clause (y) of the preceding sentence, the
Net Book Value of any Container that has been sold by the Issuer or that has
suffered a Casualty Event shall be equal to zero.
-2-
<PAGE> 8
Asset Base Certificate: A certificate completed by the Administrator
with appropriate insertions setting forth the components of the Asset Base as of
the last day of the Collection Period for which such certificate is submitted,
which certificate shall be substantially in the form of Exhibit C to the
Management Agreement and shall be certified by an Authorized Signatory.
Audit: An independent public accountant's ("auditor's") examination of
the likelihood of the Issuer's failing to become Year 2000 compliant by December
31, 1999. This shall include the auditor's assessment of the Year 2000 Problem
disclosures by their client in order to show compliance with applicable
Statements on Auditing Standards ("SAS"), promulgated pursuant to the American
Institute of Certified Public Accountants' ("AICPA") Generally Accepted Auditing
Standards ("GAAS").
Authorized Signatory: Any person designated by written notice delivered
to the Agent as authorized to execute documents and instruments on behalf of any
Person.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Breakage Costs: Any amount or amounts as shall compensate a Noteholder
for any loss, cost or expense incurred by such Noteholder in connection with
funding obtained by it with respect to a Loan (as reasonably determined by such
Noteholder) as a result of the failure of a requested Loan to be made when
requested or a prepayment by the Issuer of all or a portion of principal or
interest thereof; provided that Noteholders shall use reasonable efforts to
mitigate such Breakage Costs.
Business Day: Any day other than a Saturday, a Sunday or a day on which
banking institutions in Charlotte, North Carolina, Amsterdam, The Netherlands,
Bermuda, The City of New York or in London are authorized or are obligated by
law, executive order or governmental decree to be closed.
Carrier Lease: This term shall have the meaning set forth in the
Management Agreement.
Casualty Event: Any of the following events with respect to any
Container: (a) the actual total loss or compromised total loss of such
Container, (b) such Container shall become lost, stolen, destroyed, damaged
beyond repair or permanently rendered unfit for use for any reason whatsoever,
(c) the seizure of such Container for a period exceeding sixty (60) days or the
condemnation or confiscation of such Container (d) if such Container is subject
to a Lease, such Container shall have been deemed under its Lease to have
suffered a casualty loss as to the entire Container or (e) the sale of such
Container at the end of its economic life.
Casualty Proceeds: Any payment by, or on behalf of, the Issuer from any
source in connection with a Casualty Event with respect to a Container.
Change of Control: means (A) with respect to the Manager, the failure of
the Manager to be a direct or indirect wholly-owned subsidiary of The Cronos
Group; or (B) with respect to the Guarantor, any of the following events: (a)
any "person" or "group" (as such terms are used in Section 13(d) and 14(d) of
the Securities Act) becomes the "beneficial owner" (as
-3-
<PAGE> 9
defined in Rules 13d-3 and 13d-5 under the Securities Act, except that a person
shall be deemed to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than fifty
percent (50%) of the aggregate voting power of all classes of voting stock of
the Guarantor; and (b) the Guarantor amalgamates or consolidates with, or merges
with or into, another Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any Person, or
any Person amalgamates or consolidates with, or merges with or into, the
Guarantor, in any such event pursuant to a transaction in which the outstanding
voting stock of all classes of the Guarantor is converted into or exchanged for
cash, securities or other property, other than any such transaction in which (i)
the outstanding voting stock of each class of the Guarantor is converted into or
exchanged for voting stock (other than redeemable capital stock) of the
surviving or transferee company or corporation and (ii) the holders of each
class of the voting stock of the Guarantor immediately prior to such transaction
own, directly or indirectly, not less than a majority of each class of the
voting stock of the surviving or transferee company or corporation immediately
after such transaction.
Chattel Paper: Any "chattel paper," as such term is defined in Section
9-105(1)(b) of the UCC, arising out of or in any way related to the Containers
and now owned or hereafter acquired by Issuer.
Class C Note: The Class C Note issued by Cronos Funding (Bermuda)
Limited pursuant to a Master Loan Agreement, dated as of August 15, 1997.
Closing: The time at which each of the conditions precedent set forth in
Article X of this Loan Agreement shall have been duly fulfilled or satisfied.
Closing Date: The date on which Closing occurs, which for purpose of
this Loan Agreement shall be deemed to be August 2, 1999.
Code: The United States Internal Revenue Code of 1986, as amended, or
any successor statute thereto.
Collateral: This term shall have the meaning set forth in Section 401 of
this Loan Agreement.
Collection Period: The period commencing on the Closing Date and ending
on the next succeeding Collection Period Date and thereafter each successive
period of three consecutive months commencing on the day after a Collection
Period Date and ending on the next succeeding Collection Period Date.
Collection Period Date: The last day of each October, January, April and
July so long as any Note issued hereunder is Outstanding.
Consolidated Interest Coverage Ratio: For any Person on a consolidated
basis, as of any date of determination, the ratio of (a) the sum of (i)
Consolidated Net Income, (ii) the amount of the provision for income taxes
included in the determination of such Consolidated Net Income, and (iii) all
interest expense for borrowed money included in the determination of such
Consolidated
-4-
<PAGE> 10
Net Income to (b) the sum of interest expense for borrowed money, in each case
for the immediately preceding fiscal quarter.
Consolidated Net Income: For any Person, on a consolidated basis, as
calculated for any period of determination, the net income and net losses for
such period.
Container: Any dry cargo, refrigerated, tank or special purpose
container (including, but not limited to, open top, bulk, flat rack and high
cube containers) owned by the Issuer and held for lease or hire.
Container Related Agreement: Any agreement relating to the Containers or
agreements relating to the use, lease or management of such Containers whether
in existence on the Closing Date or thereafter acquired, including, but not
limited to, all Leases, the Management Agreement, the Purchase Agreement, the
Administration Agreement and the Chattel Paper.
Container Sale Agreement: This term shall have the meaning set forth in
the Purchase Agreement.
Contracts: All contracts, undertakings, franchise agreements or other
agreements (other than rights evidenced by Chattel Paper, Documents or
Instruments), arising out of or in any way related to the Containers, in or
under which Issuer may now or hereafter have any right, title or interest,
including, without limitation, the Management Agreement, the Administration
Agreement, each Purchase Agreement (including any Container Sale Agreements and
Substitute Container Contribution Agreements issued pursuant to the terms of
such Purchase Agreement) and any related agreements, security interests or UCC
or other financing statements and, with respect to an Account, any agreement
relating to the terms of payment or the terms of performance thereof.
Determination Date: The fifth Business Day prior to any Payment Date.
Disposition Fee: This term shall have the meaning set forth in the
Management Agreement.
Distributable Cash Flow: This term shall have the meaning set forth in
Section 302(a) of this Loan Agreement.
Distribution Report: This term shall have the meaning set forth in the
Management Agreement.
Documents: Any "documents," as such term is defined in Section
9-105(1)(f) of the UCC, arising out of or in any way related to the Containers
and now owned or hereafter acquired by the Issuer.
Dollars or the sign $: Lawful money of the United States of America.
Early Amortization Event: The occurrence of any of the events or
conditions set forth in Article XI hereof.
-5-
<PAGE> 11
Eligible Account: Either (a) a segregated account with an Eligible
Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States or any of the states thereof, including the District of Columbia (or any
domestic branch of a foreign bank), and acting as a trustee for funds deposited
in such account, so long as any of the securities of such depository institution
shall have a credit rating from each Rating Agency in one of its generic credit
rating categories which signifies investment grade.
Eligible Institution: Any one or more of the following institutions: (i)
the corporate trust department of either of the Noteholders, or (ii) a
depositary institution organized under the laws of the United States of America
or any one of the states thereof or the District of Columbia (or any domestic
branch of a foreign bank), which (a)(1) has either (w) a long-term unsecured
debt rating acceptable to the Rating Agency or (x) a short-term unsecured debt
rating or certificate of deposit rating acceptable to the Rating Agency or (2)
the parent corporation of which has either (y) a long-term unsecured debt rating
acceptable to the Rating Agency or (z) a short-term unsecured debt rating or
certificate of deposit rating acceptable to the Rating Agency and (b) whose
deposits are insured by the Federal Deposit Insurance Corporation.
Eligible Investments: An account maintained with the Agent.
ERISA: The United States Employee Retirement Income Security Act of
1974, as amended.
ERISA Affiliate: With respect to any Person, any other Person meeting
the requirements of Section 414(b), (c), (m) or (o) of the Code.
Escrowed Shares: All right of The Cronos Group to receive any payment in
respect of the shares of common stock of Transamerica Corporation that are
subject to the escrow agreement attached hereto as Exhibit D, including any
disposition of such shares upon their release from escrow under such escrow
agreement.
Essential Information Technology: Any computer hardware, software or
firmware essential to the business or operations of and owned by the Issuer.
Eurodollar Disruption Event: The occurrence of any of the following: (a)
a determination by a Noteholder that it would be contrary to law or to the
directive of any central bank or other governmental authority (whether or not
having the force of law) to obtain United States dollars in the London interbank
market to make, fund or maintain any Loan, (b) the failure of one or more of the
Reference Banks to furnish timely information for the purposes of determining
the Adjusted LIBOR, (c) a determination by a Noteholder that the rate at which
deposits of United States dollars are being offered to such Noteholder in the
London interbank market does not accurately reflect the cost to such Noteholder
of making, funding or maintaining any Loan or (d) the inability of such
Noteholder to obtain United States dollars in the London interbank market to
make, fund or maintain any Loan.
Eurodollar Reserve Percentage: The maximum reserve percentage (expressed
as a decimal, rounded upward to the nearest 1/100th of one percent (0.01%)) in
effect on the date LIBOR for such Interest Period is determined (whether or not
applicable to any Bank) under regulations
-6-
<PAGE> 12
issued from time to time by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding having a term
comparable to such Interest Period.
Event of Default: The occurrence of any of the events or conditions set
forth in Section 801 of the Loan Agreement.
Excluded Amounts: Any payments received from a lessee under a Lease in
connection with any taxes, fees or other charges imposed by any Governmental
Authority, or indemnity payments for the benefit of the originator of such Lease
or maintenance payments made pursuant to such Lease or other maintenance
agreement.
Federal Reserve Board: The Board of Governors of the United States
Federal Reserve System or any successor thereto.
Final Payment Date: August 15, 2004, or if such date is not a Banking
Day, the Banking Day immediately preceding such date.
First Union or FUNB: First Union National Bank.
Generally Accepted Accounting Principles or GAAP: Those generally
accepted accounting principles and practices which are recognized as such by (i)
in the case of the United States, the American Institute of Certified Public
Accountants acting through its Accounting Principles Board or by the Financial
Accounting Standards Board or through other appropriate boards or committees
thereof or (ii) in all other cases, by the appropriate boards or governing
bodies in such jurisdiction.
General Intangibles: Any "general intangibles," as such term is defined
in Section 9-106 of the UCC, arising out of or in any way related to the
Containers and now owned or hereafter acquired by Issuer and, in any event,
shall include, without limitation, all right, title and interest which Issuer
may now or hereafter have in or under any Contract, interests in partnerships,
joint ventures and other business associations, licenses, permits, software,
data bases, data, materials and records, claims in or under insurance policies,
including unearned premiums, uncertificated securities, deposit accounts, rights
to receive tax refunds and other payments and rights of indemnification.
Governmental Authority: This term shall mean (a) any federal, state,
county, municipal or foreign government, or political subdivision thereof, (b)
any governmental or quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, (c) any court or
administrative tribunal or (d) with respect to any Person, any arbitration
tribunal or other non-governmental authority to whose jurisdiction that Person
has consented.
Gross Container Revenues: This term shall have the meaning set forth in
the Management Agreement.
Guarantor: The Cronos Group.
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Guaranty: The Guaranty, dated as of July 30, 1999, by the Guarantor in
favor of the Agent on behalf of the Noteholders.
Holder: See Noteholder.
Indemnified Party: Shall have the meaning set forth in Section 208
hereof.
Indebtedness: With respect to any Person means, without duplication, (a)
any obligation of such Person for borrowed money, including, without limitation,
(i) any obligation incurred through the issuance and sale of bonds, debentures,
notes or other similar debt instruments, and (ii) any obligation for borrowed
money which is non-recourse to the credit of such Person but which is secured by
any asset of such Person, (b) any obligation of such Person on account of
deposits or advances, (c) any obligation of such Person for the deferred
purchase price of any property or services, except accounts payable arising in
the ordinary course of such Person's business, (d) any obligation of such Person
as lessee under a capital lease, (e) any Indebtedness of another secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed by
such Person and (f) any obligation in respect of interest rate hedging
agreements.
Independent Accountant: Moore Stephens or any other accounting firm
which is (i) "independent" with respect to The Cronos Group and its Affiliates
within the meaning of the Securities Act and the applicable published rules and
regulations thereunder and (ii) otherwise reasonable acceptable to the Majority
of Holders.
Instruments: Any "instrument," as such term is defined in Section
9-105(1)(i) of the UCC arising out of or in any way related to the Containers
and now owned or hereafter acquired by Issuer, including, without limitation,
all notes, certificated securities, and other evidences of indebtedness, other
than instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.
Insolvency Law: The Bankruptcy Code or similar applicable law now or
hereafter in effect.
Insolvency Proceeding: For any Person, any of the following events:
(a) the commencement of any case or other proceeding, in any
court, seeking the liquidation, reorganization, dissolution or winding
up of such Person or the readjustment of debts of such Person, the
appointment of a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such Person or any substantial part of its
assets, or any similar action with respect to such Person under any law
relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect for a period of 60 days;
or an order for relief in respect of such Person shall be entered in an
involuntary case under any Insolvency Law, or
(b) the commencement of any voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt
arrangement, dissolution or other similar law now or hereafter in
effect, or such Person shall consent to the appointment of or
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taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or the like, of such Person or any substantial
part of its property, or such Person shall make any general assignment
for the benefit of its creditors, or such Person shall fail to, or admit
in writing its inability to, pay its debts generally as they become due.
Interest Arrearage: For any Payment Date, an amount equal to the excess,
if any, of (a) the Interest Payment for such Payment Date and any outstanding
Interest Arrearage from the immediately preceding Payment Date plus, to the
extent permitted by law, interest on such amounts at the Interest Rate from the
immediately preceding Payment Date through (but not including) the current
Payment Date minus (b) the amount of Interest Payment and Interest Arrearage
actually distributed to the Noteholders on such Payment Date.
Interest Payment: For any Payment Date, an amount equal to the product
of (i) (A) if the Interest Rate is based on Adjusted LIBOR, a fraction, the
numerator of which shall be equal to the actual number of days elapsed during
the Interest Period ending on the immediately preceding Banking Day and the
denominator of which is equal to 360, or (B) if the Interest Rate is based on
Prime Rate, the numerator of which shall be equal to the actual number of days
elapsed during the Interest Period ending on the immediately preceding Banking
Day and the denominator of which is equal to 365 or 366, as appropriate, (ii)
the Interest Rate for the immediately preceding Interest Period and (iii) the
Principal Balance on the immediately preceding Payment Date (or, in the case of
the first Payment Date, on the Closing Date), after giving effect to any
Principal Payments and Principal Arrearage paid on such preceding Payment Date.
Interest Period: The three-month period (or, if agreed to by all of the
Noteholders, a period of less than 90 days), commencing on a Payment Date and
ending on the Banking Day immediately preceding the next succeeding Payment
Date; provided, however, the initial Interest Period commence on the Closing
Date and shall end on November 14, 1999.
Interest Rate: For each Interest Period, a rate per annum equal to (A)
except during the continuation of a Eurodollar Disruption Event, the sum of (i)
the Adjusted LIBOR for such Interest Period plus (ii) one and one half percent
(1.50%) per annum or (B) during the continuation of a Eurodollar Disruption
Event, the sum of (i) the Prime Rate in effect for each Interest Period and (i)
one and one half percent (1.50%) per annum.
Inventory: Any "inventory," as such term is defined in Section 9-109(4)
of the UCC, wherever located, arising out of or in any way related to the
Containers and now or hereafter owned or acquired (whether as lessee or
otherwise) by Issuer and, in any event, shall include, without limitation, all
Containers, intermodal containers, trailers and other container related
transportation equipment, all inventory, merchandise, goods and other personal
property which are held by or on behalf of Issuer for sale or lease or are
furnished or are to be furnished under a contract of service or which constitute
raw materials, work in process or materials used or consumed or to be used or
consumed in Issuer's business, or the processing, packaging, promotion, delivery
or shipping of the same, and all furnished goods whether or not such inventory
is listed on any schedules, assignments or reports furnished to Agent from time
to time and whether or not the same is in transit or in the constructive, actual
or exclusive occupancy or possession of Issuer or is held by Issuer or by others
for Issuer's account, including, without limitation, all goods covered by
purchase orders and contracts with suppliers and all goods billed and held by
suppliers and all inventory which may be
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located on premises of Issuer or of any carriers, forwarding agents, truckers,
warehousemen, vendors, selling agents or other persons.
Investment: When used in connection with any Person, any investment by
or of that Person, whether by means of purchase or other acquisition of
securities of any other Person or by means of loan, advance, capital
contribution, guaranty or other debt or equity participation or interest, or
otherwise, in any other Person, including any partnership and joint venture
interests of such Person in any other Person. The amount of any Investment shall
be the original principal or capital amount thereof less all returns of
principal or equity thereon (and without adjustment by reason of the financial
condition of such other Person) and shall, if made by the transfer or exchange
of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property.
Irrevocable Proxy: The irrevocable proxy, dated as of July 30, 1999, by
The Cronos Group in favor of an officer of the Agent.
Issuer: Cronos Finance (Bermuda) Limited, a company organized and
existing under the laws of Bermuda, and its permitted successors and permitted
assigns.
Issuer Expenses: For any Collection Period, overhead and all other
costs, expenses and liabilities of the Issuer (other than Direct Operating
Expenses paid pursuant to the Management Agreement and any Management Fee)
payable during such Collection Period (including costs and expenses permitted to
be paid to or by the Administrator in connection with the conduct of the
Issuer's business), in each case determined on a cash basis, including but not
limited to the following:
(i) administration expenses;
(ii) accounting and audit expenses of the Issuer;
(iii) premiums for liability, casualty, fidelity, directors and
officers and other insurance;
(iv) directors' fees and expenses;
(v) legal fees and expenses;
(vi) other professional fees;
(vii) taxes (including personal or other property taxes and all
sales, value added, use and similar taxes);
(viii) taxes imposed in respect of any and all issuances of
equity interests, stock exchange listing fees, registrar and transfer
expenses and trustee's fees with respect to any outstanding securities
of the Issuer;
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(ix) the fees, if any, due under an agreement relating to
enhancement, if any; and
(x) surveillance fees assessed by the rating agencies.
Notwithstanding the foregoing, Issuer Expenses shall not include (1)
depreciation or amortization on the Containers and (2) the principal of, the
interest or premium, if any, on the Notes.
Lease: Each and every item of chattel paper, installment sales
agreement, equipment lease or rental agreement (including progress payment
authorizations) to which a Container is subject, including any Carrier Lease.
The term "Lease" includes (a) all payments to be made thereunder relating to a
Container, (b) all rights of Issuer therein, and (c) any and all amendments,
renewals, extensions or guaranties thereof.
LIBOR: The London Inter-Bank Offered Rate (determined solely by the
Agent), rounded upward to the nearest l/16th of one percent (0.0625%), at which
Dollar deposits are offered to the Agent by major banks in the London interbank
market at or about 11:00 a.m., London Time, on a LIBOR Determination Date in an
aggregate amount approximately equal to the then outstanding principal balance
of the Notes and for a period of time comparable to the number of days in the
applicable Interest Period. The determination of LIBOR by the Agent shall be
conclusive in the absence of manifest error.
LIBOR Determination Date: The second Banking Day prior to the first day
of the related Interest Period.
Lien: Any security interest, lien, charge, pledge, equity or encumbrance
of any kind.
Loan Agreement: This Loan Agreement, dated as of July 30, 1999, among
the Issuer, the Agent and the Noteholders, and all amendments hereof and
supplements hereto.
Majority of Holders: For so long as First Union National Bank and
MeesPierson N.V. are the only Noteholders, one hundred percent of the then
unpaid principal balance of the Notes then Outstanding, and at all other times,
the Noteholders representing more than sixty-six and two-thirds percent (66
2/3%) of the then unpaid principal balance of the Notes then Outstanding.
Management Agreement: The Management Agreement, dated as of July 30,
1999, entered into by and between the Manager and the Issuer, as such agreement
shall be amended, supplemented or modified from time to time in accordance with
its terms.
Management Fee: For any Collection Period, the amount calculated as set
forth in the Management Agreement.
Management Fee Arrearage: For any Payment Date, an amount equal to the
excess, if any, of (a) the Management Fee for such Payment Date and any unpaid
Management Fee from all prior Payment Dates over (b) the amount of Management
Fee and Management Fee Arrearage actually paid to the Manager on such Payment
Date.
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Manager: The Person performing the duties of the Manager under the
Management Agreement; initially, Cronos Containers (Cayman) Limited, a company
organized under the laws of the Cayman Islands, and its successors and permitted
assigns.
Manager Default: The occurrence of any of the events or conditions set
forth in Section 9 of the Management Agreement, after the expiration of the
applicable grace and cure periods.
Managing Officer: Any representative of the Administrator involved in,
or responsible for, the management of the day-to-day operations of the Issuer
and the administration and servicing of the Containers and the other Collateral
whose name appears on a list of managing officers furnished to Issuer and the
Agent by the Administrator, as such list may from time to time be amended.
Material Adverse Change: Any set of circumstances or events which (a)
has or could reasonably be expected to have any material adverse change
whatsoever upon the validity or enforceability of any Transaction Document, (b)
is or could reasonably be expected to be material and adverse to the condition
(financial or otherwise) or business operations of the Guarantor, Issuer,
Administrator or Manager, individually or taken together as a whole, (c)
materially impairs or could reasonably be expected to materially impair the
ability of the Guarantor, Issuer, Administrator or Manager to perform its
obligations under the Transaction Documents, or (d) materially impairs or could
reasonably be expected to materially impair the ability of Agent to enforce any
of its or their legal remedies pursuant to the Transaction Documents.
MeesPierson: MeesPierson N.V., and its successors and assigns.
Mortgage: The second mortgage granted by Advance Property Services
Limited to The Cronos Group on the office building located at Orchard Lea,
Winkfield Lane, Windsor, Berkshire SL4 4RV, United Kingdom, a copy of which
mortgage is attached as Exhibit E hereto.
Net Book Value: With respect to any Container as of any date of
determination, an amount equal to the net book value (determined in accordance
with GAAP using the depreciation method set forth in Exhibit A hereto) as of the
end of the immediately preceding Collection Period.
Net Container Revenues: This term shall have the meaning set forth in
the Management Agreement.
Note: Any one of the Notes issued pursuant to the terms of this Loan
Agreement, substantially in the form of Exhibit C hereto.
Noteholder or Holder: The person in whose name a Note is registered in
the Note Register, except that, solely for the purposes of giving any consent,
waiver, request or demand, the interest evidenced by any Note registered in the
name of the Seller or the Issuer or any Affiliate of any of them known to be
such an Affiliate by the Agent shall not be taken into account in determining
whether the requisite percentage of the Aggregate Principal Balance of the
Outstanding Notes necessary to effect any such consent, waiver, request or
demand is represented.
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Note Register: The register maintained by the Agent pursuant to Section
205 of this Loan Agreement.
Officer's Certificate: A certificate signed by a duly authorized officer
of the Person who is required to sign such certificate which, in the case of the
Issuer, may be a certificate signed by an authorized officer of the
Administrator.
Opinion of Counsel: A written opinion of counsel, who, unless otherwise
specified, may be counsel employed by the Issuer, Guarantor, Seller or the
Manager, in each case reasonably acceptable to the Person or Persons to whom
such Opinion of Counsel is to be delivered. The counsel rendering such opinion
may rely (i) as to factual matters on a certificate of a Person whose duties
relate to the matters being certified, and (ii) insofar as the opinion relates
to local law matters, upon opinions of local counsel.
Other Taxes: Shall have the meaning set forth in Section 208 of this
Loan Agreement.
Outstanding: When used with reference to the Notes and as of any
particular date, any Note theretofore and thereupon being authenticated and
delivered except:
(i) any Note cancelled by the Agent or proven to the
satisfaction of the Agent to have been duly cancelled by the Issuer at
or before said date;
(ii) any Note, or portion thereof, called for payment or
redemption for which monies equal to the principal amount or redemption
price thereof, as the case may be, with interest to the date of maturity
or redemption, shall have theretofore been deposited with the Agent
(whether upon or prior to maturity or the redemption date of such Note);
(iii) any Note in lieu of or in substitution for which another
Note shall subsequently have been authenticated and delivered; and
(iv) any Note held by the Guarantor, Manager, Issuer, the Seller
or any of their respective Affiliates.
Outstanding Obligations: As of any date, all accrued interest payable
on, and the then unpaid principal balance of, all Notes issued under this Loan
Agreement and all other amounts owing to Noteholders or to any Person under the
Loan Agreement.
Overdue Rate: A rate per annum equal to the sum of (i) the applicable
Interest Rate plus (ii) two percent (2%).
Payment Date: The fifteenth day of each November, February, May and
August or, if such day is not a Business Day, the immediately preceding Business
Day.
Person: An individual, a partnership, a corporation, a joint venture, an
unincorporated association, a joint-stock company, a trust, or other entity or a
government or any agency or political subdivision thereof.
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Plan: An "employee benefit plan," as such term is defined in ERISA,
established or maintained by Issuer or any ERISA Affiliate or as to which Issuer
or any ERISA Affiliate contributes or is a member or otherwise may have any
liability.
Potential Event of Default: A condition or event which, after notice or
lapse of time or both, will constitute an Event of Default.
Prime Rate: For MeesPierson NV for any day, the weighted average of its
cost of funds (as determined in good faith by MeesPierson NV) for such day, and
for First Union National Bank, for any day, the higher of (a) the per annum
floating rate established by a Noteholder as its "prime rate" for domestic
(United States) commercial loans in effect on such day, and (b) one-half percent
(0.50%) in excess of the Federal Funds Rate in effect on such day. The prime
rate is a rate set by a Noteholder based upon various factors, including such
Noteholder's costs and desired return, general economic conditions and other
factors, and is neither directly tied to an external rate of interest or index
or necessarily the lowest or best rate of interest actually charged by such
Noteholder at any given time to any customer or particular class of customers
for any particular credit extension. A Noteholder may make commercial or other
loans at rates of interest at, above or below its prime rate.
Principal Arrearage: For any Payment Date, an amount equal to the
excess, if any, of (a) the Principal Payment for such Payment Date and all prior
Payment Dates, over (b) the amount of Principal Payment and Principal Arrearage
actually distributed to the Noteholders on such Payment Date and all prior
Payment Dates.
Principal Balance: On the Closing Date, an amount equal to $50 million,
and thereafter shall be reduced by all amounts paid to the Noteholders
representing Principal Payments and Principal Arrearage.
Principal Payment: For any Payment Date, one of the amounts set forth in
(A) or (B):
(A) If no Early Amortization Event is then continuing, the Scheduled
Principal Payment for such Payment Date;
(B) If an Early Amortization Event is then continuing, all remaining
Distributable Cash Flow on deposit in the Trust Account after
payment of the amounts set forth in clauses (1) through (4)
inclusive of Section 302(a) of this Loan Agreement.
Proceeding: Any suit in equity, action at law, or other judicial or
administrative proceeding.
Proceeds: "Proceeds," as such term is defined in Section 9-306(1) of the
UCC and, in any event, shall include, without limitation, (a) any and all
Accounts, Chattel Paper, Instruments, cash or other proceeds payable to Issuer
from time to time in respect of the Collateral, (b) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to Issuer from time to time
with respect to any of the Collateral, (c) any and all payments (in any form
whatsoever) made or due
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and payable to Issuer from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral above by any governmental body, authority, bureau or agency (or any
person acting under color of governmental authority), and (d) any and all other
amounts from time to time paid or payable under or in connection with any of the
Collateral.
Pro Rata: With respect to the Noteholders, in proportion to the unpaid
principal balances of their respective Notes at any given time.
Prospective Owner: Each prospective initial Holder acquiring a Note,
each prospective transferee acquiring a Note, and each prospective owner of a
beneficial interest in a Note acquiring such beneficial interest.
Purchase Agreement: The Purchase Agreement, dated as of July 30, 1999,
among Cronos Equipment (Bermuda) Limited, Cronos Containers Limited, Cronos
Capital Corp. and the Issuer, and all amendments and supplements thereto.
Rated Institutional Noteholder: An institutional Noteholder whose long
term unsecured debt obligations are then rated BBB- or better by Standard &
Poor's Rating Services and Baa-3 or better by Moody's Investors Service, Inc.
Record Date: With respect to any Payment Date, the last Business Day of
the month preceding the month in which the related Payment Date occurs.
Reference Banks: The banks designated by the Agent for the determination
of LIBOR in accordance with Section 202(c) of this Loan Agreement.
Reportable Event: This term shall have the meaning given to such term in
ERISA.
Restricted Cash Account Requirement: For any Payment Date, an amount
equal to the product of (x) the Principal Balance on such Payment Date, after
giving effect to all principal payment to be made on such date, (y) the Interest
Rate then in effect and (z) a fraction, the numerator of which is equal to the
actual number of days from, and including, the Payment Date referred to in
clause (x) of this definition to but excluding, the second following Payment
Date, and the denominator of which is equal to 360.
Restricted Cash Account: The account or accounts established pursuant to
Section 306 of this Loan Agreement.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time.
Scheduled Principal Payment: On any Payment Date, one of the following:
(1) if such Payment Date is not the Final Payment Date, an amount equal
to the sum of (i) the aggregate amount of (a) Casualty Proceeds (to the extent
not used by the Issuer to purchase a replacement container in accordance with
the terms of the Transaction Documents) and
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(b) proceeds from the sale or other disposition of a Container (unless the sum
of the Net Book Values of all Containers affected by clauses (a) and (b) does
not exceed $25,000 on a cumulative basis since the Closing Date), in each case,
received during the related Collection Period, and (ii) an amount equal to three
and three-quarters percent (3.75%) of the Principal Balance on the Closing Date;
or
(2) if such Payment Date is the Final Payment Date, the then unpaid
principal balance of all Notes Outstanding.
Securities Act: The United States Securities Act of 1933, as amended
from time to time.
Seller: Any or all, as the context may require, of (i) Cronos Equipment
(Bermuda) Limited, a company organized and existing under the laws of the
Islands of Bermuda, (ii) Cronos Containers Limited, a company organized and
existing under the laws of the United Kingdom and (ii) Cronos Capital Corp., a
corporation organized and existing under the laws of the state of California.
State: Any state of the United States of America and, in addition, the
District of Columbia.
Stock Pledge Agreements: Any or all, as the context may require, of: (i)
the Issuer Stock Pledge Agreement, dated as of July 30, 1999, between The Cronos
Group and the Agent with respect to the shares of the Issuer, (ii) the Stock
Pledge Agreement, dated as of July 30, 1999, between The Cronos Group and the
Agent, with respect to the shares of Cronos Holdings Investments (US) Inc.
Structuring Fee: The fee that was paid to the Initial Noteholders by the
Issuer on August 2, 1999.
Subsidiary: A Person means any corporation, association, partnership,
joint venture or other business entity of which more than fifty percent (50.0%)
of the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
Taxes: Shall have the meaning set forth in Section 209 of this Loan
Agreement.
Transaction Documents: Any and all of the Loan Agreement, Notes, the
Management Agreement, the Purchase Agreement, the Administration Agreement, the
Irrevocable Proxy, the Guaranty, the Warrant Agreement, the Stock Pledge
Agreements, and any and all other agreements, documents and instruments executed
and delivered by or on behalf or support of Issuer with respect to the issuance
and sale of the Notes, as the same may from time to time be amended, modified,
supplemented or renewed.
Trust Account: The account or accounts established by the Issuer for the
benefit of the Agent pursuant to Section 302 of the Loan Agreement.
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UCC: The Uniform Commercial Code as the same may, from time to time, be
in effect in the State of New York; provided, however, in the event that, by
reason of mandatory provisions of law, any or all of the attachment, perfection
or priority of Agent's security interest in any collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of
New York, the term "UCC" shall mean the Uniform Commercial Code as in effect in
such other jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection of priority and for purposes of definitions related to
such provisions. The Uniform Commercial Code as in effect in the applicable
jurisdiction.
Warrant Agreement: The Warrant Agreement, dated as of July 30, 1999,
among The Cronos Group and the Initial Noteholders.
Warranty Purchase Amount: This term shall have the meaning set forth in
the Purchase Agreement.
Weighted Average Age of the Equipment: As of any date of determination,
a fraction (rounded to the nearest whole number), the numerator of which is
equal to the sum for each Container of the product of (x) the number of years
such Container has been in service and (y) the Weighing Factor for such
Container and the denominator of which is equal to the number of Containers.
Weighing Factor: For each Container the weighing factor assigned by the
Administrator to such Container as set forth in Exhibit B to this Loan
Agreement.
Section 102. Other Definitional Provisions.
(a) All terms defined in this Loan Agreement shall have the defined
meanings when used in any agreement, certificate or other document made or
delivered pursuant hereto, unless otherwise defined therein.
(b) As used in this Loan Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Loan Agreement or in any such certificate or other document, and
accounting terms partly defined in this Loan Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the definitions
of accounting terms in this Loan Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms under GAAP or
regulatory accounting principles, the definitions contained in this Loan
Agreement or in any such certificate or other document shall control.
(c) With respect to any Collection Period, the "related Determination
Date," the "related Record Date," and the "related Payment Date," shall mean the
Determination Date, Record Date, and Payment Date respectively, next following
the end of such Collection Period, and the relationships among Determination
Dates, Payment Dates and Record Dates shall be correlative to the foregoing
relationships.
Section 103. Interpretation of Loan Agreement. A Section, an Exhibit or
a Schedule is, unless otherwise stated, a reference to a section hereof, an
exhibit hereto or a schedule hereto, as
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the case may be. Section captions used in this Loan Agreement are for
convenience only, and shall not affect the construction of this Loan Agreement.
The words "hereof," "herein," "hereto" and "hereunder" and words of similar
purport when used in this Loan Agreement shall refer to this Loan Agreement as a
whole and not to any particular provision of this Loan Agreement.
Section 104. Payments, Computations, Etc.
(a) Unless otherwise expressly provided herein, all amounts to be paid
or deposited by or on behalf of the Issuer hereunder shall be paid or deposited
in accordance with the terms hereof no later than 11:00 a.m. (Amsterdam time) on
the day when due in immediately available funds, in Dollars, to the applicable
account.
(b) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, such extension of time shall in such case be included in the
computation of payment of interest or any fee payable hereunder, as the case may
be.
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ARTICLE II
COMMITMENT OF NOTEHOLDERS; THE NOTES
Section 201. Commitment of Initial Noteholders. Subject to the terms and
conditions of this Loan Agreement and in reliance upon the representations,
warranties and covenants set forth herein, each of the Initial Noteholders
severally agrees to make a loan to the Issuer (a "Loan") on the Closing Date in
an amount equal to the lesser of (i) twenty-five million Dollars ($25,000,000)
and (ii) its Pro Rata share of the Asset Base as of the Closing Date.
Section 202. Interest Payments on the Notes
(a) Interest on Notes. The Notes shall bear interest on the unpaid
principal balance thereof at a rate per annum equal to the Interest Rate for the
applicable Interest Period. Interest on the Notes shall be payable on each
Payment Date from amounts on deposit in the Trust Account in accordance with
Section 302(a) of this Loan Agreement. Interest shall be calculated on the basis
of actual days elapsed in a year consisting of (i) 360 days if the Interest Rate
is based on Adjusted LIBOR, or (ii) 365 or 366 days if the Interest Rate is
based on the Prime Rate. Subject to the terms of this Loan Agreement relating to
the prepayments of the Notes, the principal of, and all accrued interest on, the
Note and all other amounts payable by the Issuer under the Transaction Documents
shall be due and payable on the Final Payment Date.
(b) Overdue Interest. If the Issuer shall default in the payment of the
principal of or interest on any Note or on any other amount becoming due under
this Loan Agreement or any other Transaction Document, the Issuer shall from
time to time pay interest on such unpaid amounts, to the extent permitted by
applicable law, to, but not including, the date of actual payment (after as well
as before judgment), at a rate per annum equal to the Overdue Rate, for the
period during which such principal, interest or other amount shall be unpaid.
All such overdue interest shall be payable from amounts on deposit in the Trust
Account in accordance with Section 302(a) of this Loan Agreement.
(c) Determination of LIBOR.
(i) On each LIBOR Determination Date, the Agent shall determine LIBOR
for the next succeeding Interest Period for a period equal to three months on
the basis of the offered LIBOR quotations, appearing on Telerate Page 3750 as of
11:00 a.m., London Time, on such LIBOR Determination Date. If such rate does not
appear on Telerate Page 3750, the rate for that day will be determined on the
basis of the rates at which deposits in U.S. dollars are offered by the
Reference Banks at approximately 11:00 a.m., London Time, on the LIBOR
Determination Date to prime banks in the London interbank market for a period of
three months commencing on that day. The Agent will request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that day will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that day will be the arithmetic mean of the rates quoted
by major banks in New York City, selected by the Agent at approximately 11:00
a.m. (New York time) on that day for loans in U.S. Dollars to leading European
banks for a period of three months commencing on that day.
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(ii) If necessary, on each LIBOR Determination Date, the Agent shall
designate the banks that shall act as the Reference Banks for the succeeding
Interest Period. The Agent may conclusively rely and shall be protected in
relying upon the offered quotations (whether electronic, written or oral) of the
selected Reference Banks.
(iii) The establishment of LIBOR, and the subsequent calculation of the
Interest Rate for each Interest Period by the Agent in the absence of manifest
error, shall be final and binding. Promptly upon the determination of LIBOR, the
Interest Rate applicable to the Interest Period to which such LIBOR
determination relates shall be delivered by facsimile transmission from the
Agent to the Issuer, the Administrator and the Noteholders.
Section 203. Principal Payments on the Notes
(a) Scheduled Amortization of Notes. The principal balance of the Notes
shall be payable on each Payment Date in an amount equal to the Principal
Payment and any Principal Arrearage from amounts on deposit in the Trust Account
in accordance with Section 302(b) of this Loan Agreement. The unpaid principal
amount of the Notes shall be due and payable in full on the Final Payment Date,
together with all unpaid interest, fees, expense, costs and other amounts
payable by the Issuer pursuant to the terms of the Notes.
(b) Voluntary Prepayment of Notes. The Issuer may, from time to time,
and upon at least five (5) Business Days' prior written irrevocable notice to
the Agent and each Noteholder, make an optional prepayment of principal of the
Notes, in whole or in part; provided, however, that any partial prepayment of
principal shall be in a minimum amount of Two Hundred Fifty Thousand Dollars
($250,000). The Issuer shall promptly confirm any telephonic notice of
prepayment in writing. Any optional Prepayment of principal made by the Issuer
pursuant to this Section 203(b) shall also include (i) accrued interest to the
date of the prepayment on the principal balance being prepaid, (ii) unless
otherwise waived by the Noteholders, an additional amount equal to one percent
(1%) of the principal balance being prepaid (the "Prepayment Fee") and (iii) if
such prepayment is being made on a day other than a Payment Date, any Breakage
Costs; provided, however, that no Prepayment Fee shall be required in connection
with any prepayment required pursuant to the terms of this Loan Agreement in
accordance with Section 2.03(c) or (d).
(c) Mandatory Prepayment Upon Change of Control. If a Change of Control
occurs with respect to the Manager or The Cronos Group, the Agent, at the
written direction of the Noteholders, shall direct the Issuer to redeem the
Notes 60 days after receipt of notice requesting such prepayment for a purchase
price equal to the then outstanding principal balance of such Notes plus all
accrued interest thereon and all other amounts owing pursuant to this Loan
Agreement.
(d) Mandatory Prepayment of Notes in Connection Sale of Specified
Collateral. Unless otherwise directed by the Majority of Holders, the Issuer
shall prepay the principal balance of the Notes in an amount equal to the net
proceeds received (i) by The Cronos Group and transferred to the Issuer from any
sale or other disposition of the Escrowed Shares and (ii) by the Issuer or APSL
with respect to any disposition or other liquidation of the property that is the
subject of the Mortgage. Such prepayment shall be paid to the Agent on the next
succeeding Payment Date after the receipt of such proceeds.
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(e) Application of Prepayments. Any partial principal prepayments of the
Notes made pursuant to this Loan Agreement, shall be first applied to reduce the
Principal Payment due on the Final Payment Date, then to reduce the Principal
Payment due on the Payment Date immediately preceding the Final Payment Date and
so on until the entire amount of the prepayment has been applied.
Section 204. The Notes.
(a) The Loan made by each Lender shall be evidenced by a Note, issued in
fully registered form and substantially in the form of Exhibit C attached hereto
which Notes shall be known as "Cronos Finance (Bermuda) Limited Secured Notes."
(b) The Payment Date with respect to the Notes shall be the fifteenth
day of each November, February, May and August, or, if such day is not a
Business Day, the immediately preceding Business Day.
(c) Payments of principal and interest on the Notes shall be payable
from funds on deposit in the Trust Account, the Restricted Cash Account and the
Guaranty at the times and in the amounts set forth in Article III hereof.
(d) The Notes shall be executed on behalf of the Issuer by the President
or any Vice-President or director of the Issuer. In case any officer of the
Issuer whose signature shall appear on the Notes shall cease to be an officer of
the Issuer before the delivery of such Notes, such signature or facsimile
signature shall nevertheless be valid and sufficient for all purposes.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Notes or under this Loan Agreement or any
certificate, statement or other writing delivered in connection herewith or
therewith, against any incorporator, subscriber, agent, administrator,
shareholder, partner, officer or director, as such, of the Issuer or any
predecessor, successor, Affiliate or controlling person of the Issuer, or
against any stockholder of a corporation, partner of a partnership or
beneficiary or equity owner of a trust, succeeding thereto (all of the
foregoing, collectively, the "Exculpated Parties"), it being understood (and
each holder of Note, by its acceptance thereof, shall be deemed to have
consented and agreed) that recourse shall be solely to the Collateral. The
Issuer and any director or officer or employee or agent of the Issuer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by a Person respecting any matters arising hereunder. No suit, claim
or proceeding shall be brought against the Exculpated Parties or any of them for
any obligation under or relating to the Notes, this Loan Agreement or any
agreement, instrument, certificate or other document delivered in connection
therewith.
Section 205. Registration; Registration of Transfer and Exchange of
Notes. (a) The Agent shall keep at its principal office books for the
registration and transfer of the Notes (the "Note Register"). The Issuer hereby
appoints the Agent as its registrar and transfer agent to keep such books and
make such registrations and transfers as hereinafter set forth in this Section
205. The names and addresses of the Holders of all Notes and all transfers of,
and the names and addresses of the transferee of, all Notes will be registered
in such Note Register. The Person in whose name any Note is registered shall be
deemed and treated as the owner and Holder thereof for all purposes
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of this Loan Agreement, and the Agent and the Issuer shall not be affected by
any notice or knowledge to the contrary. If a Person other than the Agent is
appointed by the Issuer to maintain the Note Register, the Issuer will give the
Agent prompt written notice of such appointment and of the location, and any
change in the location, of the successor note registrar, and the Agent shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Agent shall have the right to rely upon a
certificate executed on behalf of the note registrar by an officer thereof as to
the names and addresses of the Noteholders and the principal amounts and number
of such Notes.
(b) Payments of principal, premium, if any, and interest on any Note
shall be payable on each Payment Date only to the registered Holder thereof on
the Record Date immediately preceding such Payment Date. The principal of,
premium, if any, and interest on each Note shall be payable at the principal
office of the Agent in immediately available funds in such coin or currency of
the United States of America as at the time for payment shall be legal tender
for the payment of public and private debts. Notwithstanding the foregoing or
any provision in any Note to the contrary, if so requested by the registered
Holder of any Note by written notice to the Agent, all amounts payable to such
registered Holder may be paid either (i) by crediting the amount to be
distributed to such registered Holder to an account maintained by such
registered Holder with the Agent or by transferring such amount by wire to such
other bank in the United States, including a Federal Reserve Bank, as shall have
been specified in such notice, for credit to the account of such registered
Holder maintained at such bank, or (ii) by mailing a check to such registered
Holder to the address specified in such notice, in either case without any
presentment or surrender of such Note to the Agent at the principal office of
the Agent.
(c) In the event that a Noteholder shall request a new Note or Note(s)
in different denominations, such Noteholder shall surrender to the Issuer the
Note(s) then held by such Noteholder against receipt from the Issuer of new
Note(s) which in the aggregate shall evidence the then unpaid principal balance
of the Note(s) so surrendered.
(d) Any service charge made or expense incurred by the Agent for any
such registration, discharge from registration or exchange referred to in this
Section 205 shall be paid by the Noteholder. The Agent or the Issuer may require
payment by the Holder of a sum sufficient to cover any tax expense or other
governmental charge payable in connection therewith.
(e) Any Note is transferable, with the prior written consent of all
other Noteholders to any Person only upon the delivery to the Issuer (with a
copy to the Agent) of all of the following: (i) the Note to be so transferred,
(ii) an assignment executed by the existing Holder or its duly authorized
attorney and (iii) a certification from the transferring Noteholder to the
effect that such transfer is made in a transaction which does not require
registration under the Securities Act and pursuant to an effective registration
or qualification under any foreign or State securities or "Blue Sky" laws, or in
a transaction which does not require such registration or qualification. Upon
satisfaction of the requirements set forth in the preceding sentence, the Issuer
shall execute and deliver to the transferee a new Note the same as the Note so
surrendered.
(f) Any Noteholder may at any time sell to one or more commercial banks
or other Persons participating interests in any Note issued hereunder; provided,
however, that (i) such Noteholder's obligations under the Transaction Documents
shall remain unchanged, (ii) such
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Noteholder shall remain solely responsible for the performance of such
obligations, (iii) Issuer and the Agent shall continue to deal solely and
directly with such Noteholder in connection with such Noteholder's rights and
obligations under the Transaction Documents and (iv) all other Noteholders shall
have given their prior written consent thereto.
Section 206. Mutilated, Destroyed, Lost and Stolen Notes. (a) If (i) any
mutilated Note is surrendered to the Agent, or the Agent receives evidence to
its satisfaction of the destruction, loss or theft of any Note, and (ii) there
is delivered to the Agent such security or indemnity as it and the Issuer may
require to hold the Issuer and the Agent harmless (the unsecured indemnity of a
Rated Institutional Noteholder being deemed satisfactory for such purpose), then
the Issuer shall execute and the Issuer shall deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note
of the same maturity and of like terms as the mutilated, destroyed, lost or
stolen Note; provided, however, that if any such destroyed, lost or stolen Note,
but not a mutilated Note, shall have become, or within seven days shall be, due
and payable, or shall have been called for redemption, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable instead of issuing a
replacement Note.
(b) If, after the delivery of such replacement Note, or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Agent shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Agent in connection therewith.
(c) The Agent may, for each new Note delivered under the provisions of
this Section 205, require the advance payment by the Noteholder of the expenses,
including counsel fees, service charges and any tax or governmental charge which
may be incurred by the Agent. Any Note issued under the provisions of this
Section 206 in lieu of any Note alleged to be destroyed, mutilated, lost or
stolen, shall be equally and proportionately entitled to the benefits of this
Loan Agreement with all other Notes. The provisions of this Section 206 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.
Section 207. Delivery, Retention and Cancellation of Notes. Each
Noteholder is required, and hereby agrees, to return to the Agent, within 30
days after the Final Payment Date, any Note on which the final payment due
thereon has been made. Any such Note as to which the Agent has made or holds the
final payment thereon shall be deemed cancelled and shall no longer be
Outstanding or outstanding for any purpose of this Loan Agreement, whether or
not such Note is ever returned to the Agent. Matured Notes delivered upon final
payment to the Issuer and any Notes transferred or exchanged for other Notes
shall be cancelled and destroyed by the Issuer. If the Agent, for its own
account, shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes. If the
Issuer shall acquire any of the Notes, such acquisition shall operate as a
redemption or satisfaction of the indebtedness represented by such Notes. Notes
which have been cancelled by the Issuer shall be deemed paid and discharged for
all purposes under this Loan Agreement.
Section 208. Taxes.
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(a) Any and all payments by the Issuer on the Notes shall be made free
and clear of, and without deduction or withholding for, any and all present or
future taxes, fees, duties, levies, imposts, deductions, charges or
withholdings, whatsoever imposed by any Governmental Authority, and all
liabilities with respect thereto, excluding, in the case of each Noteholder and
any Person to whom a Noteholder has sold an interest in the Note owned by such
Noteholder (such Noteholder and any such person being an "Indemnified Party"),
such taxes as are imposed on or measured by each Indemnified Party's net income
by the jurisdiction under the laws of which such Indemnified Party, as the case
may be, is organized or maintains an office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Issuer shall pay (i) any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Loan Agreement
or any other documents related to the issuance of the Notes and (ii) any present
or future taxes, withholdings or liabilities relating to the use, possession or
leasing of the Containers (hereinafter referred to as "Other Taxes").
(c) If any Taxes or Other Taxes are directly asserted or imposed against
any Indemnified Party, the Issuer shall indemnify and hold harmless such
Indemnified Party for the full amount of the Taxes or Other Taxes (including any
Taxes or Other Taxes asserted or imposed by any jurisdiction on amounts payable
under this Section 208) paid by the Indemnified Party and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted or imposed. Payment under this indemnification shall be made
within thirty (30) days from the date the Indemnified Party makes written demand
therefor. The Indemnified Party, in its discretion also may, but shall not be
obligated to, pay such Taxes or Other Taxes and the Issuer will promptly pay
such additional amount (including any penalties, interest or expenses, except
for, in the event the Indemnified Party fails to deliver notice of such
assertion of Taxes or Other Taxes to the Issuer within ninety (90) days after it
has received notice of such assertion or imposition of Taxes or Other Taxes, any
such penalties, interest or expenses which would not have arisen but for the
failure of the Indemnified Party to so notify the Issuer of such assertion or
imposition of Taxes or Other Taxes) as is necessary in order that the net amount
received by the Indemnified Party after the payment of such Taxes or Other Taxes
(including any Taxes on such additional amount) shall equal the amount the
Indemnified Party would have received had not such Taxes or Other Taxes been
asserted or imposed. The Indemnified Party shall return to the Issuer the amount
of any Taxes or Other Taxes for which it receives a refund, net of any income or
other taxes that it will be required to pay as a result of the receipt of such
refund.
(d) If the Issuer shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Indemnified Party, then:
(i) the sum payable shall be increased as necessary so that
after making all required deductions such Indemnified Party receives an amount
equal to the sum it would have received had no such deduction or withholding
been made;
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(ii) the Issuer shall make such deduction or withholding; and
(iii) the Issuer shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(e) Within thirty (30) days after the date of any payment by the Issuer
of Taxes or Other Taxes, the Issuer shall furnish to each of the Noteholders the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Noteholders.
(f) If the Issuer fails to pay any Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Indemnified Party, the
required receipts or other required documentary evidence, the Issuer shall
indemnify the Indemnified Party for any incremental Taxes or Other Taxes,
interest or penalties that may become payable by the Indemnified Party as a
result of any such failure.
(g) If the Issuer is required to pay additional amounts to any
Indemnified Party pursuant to Section 208, then such Indemnified Party shall use
its reasonable efforts (consistent with legal and regulatory restrictions) to
change its Address so as to eliminate any such additional payment by the
Indemnified Party which may thereafter accrue if such change in the judgment of
such Indemnified Party is not otherwise disadvantageous to such Indemnified
Party.
(h) In addition, if requested by the Issuer in writing within 15
Business Days after receipt of notice from any Indemnified Party of the
liability for any Taxes or Other Taxes pursuant to this Section 208, such
Indemnified Party shall in good faith diligently contest in the name of the
Issuer the validity, applicability and amount of such Taxes or Other Taxes by
(x) resisting payment of the Tax or Other Taxes, fee or other charge, (y) not
paying the same except under protest, if protest is necessary and proper, or (z)
if payment is made, seeking a refund in appropriate administrative or judicial
proceedings. Notwithstanding anything to the contrary herein, in no event shall
any such contest by such Indemnified Party with respect to the imposition of any
Taxes or Other Taxes for which the Issuer is obligated to pay pursuant to this
Section 208 be initiated or permitted to continue, unless (i) the Issuer and the
Guarantor shall have agreed in writing to promptly pay, and shall pay to such
Indemnified Party within 10 days after request for such payment, on an after-tax
basis, any and all expenses associated with such contest (including all out of
pocket costs, expenses, reasonable outside legal and accounting fees and
disbursements, penalties, fines, additions to tax and interest thereon), (ii) no
Event of Default shall have occurred and be continuing, (iii) in the reasonable
determination of the Indemnified Party, the action to be taken will not (A)
result in any material danger or risk of sale, forfeiture or loss of, or the
creation of any Lien on the Collateral or (B) result in the risk of any criminal
or non-tax civil penalties, (iv) the Issuer shall have provided at the Issuer's
expense to such Indemnified Party an opinion of independent tax counsel
(selected by the Issuer and reasonably acceptable to such Indemnified Party) to
the effect that there is a reasonable basis for contesting such Taxes or Other
Taxes and (v) the amount of the potential indemnity exceeds $25,000. The
Indemnified Party shall from time to time keep the Issuer informed of all
aspects of any such proceeding and shall from time to time consult with the
Issuer and its counsel with respect to any such proceeding.
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Section 209. Illegality. (a) If an Indemnified Party shall determine
that it is unlawful to maintain any investment in any Note at a rate based upon
LIBOR, the Issuer shall prepay in full all Notes then outstanding, together with
interest accrued thereon and any Breakage Costs, either on the last day of the
Interest Period thereof if the Indemnified Party may lawfully continue to
maintain such investment in any Note at a rate based upon LIBOR to such day, or
immediately, if the Indemnified Party may not lawfully continue to maintain such
investment in any Note at a rate based upon LIBOR.
(b) If any Noteholder shall require the Issuer to prepay any Note
immediately as provided in Section 209(a), then concurrently with such
prepayment, the Issuer shall issue to the affected Noteholder and the affected
Noteholder shall purchase, in the amount of such repayment, a loan or note at a
rate which, in the sole discretion of the affected Noteholder, reflects an index
based on the Prime Rate.
(c) Before giving any notice to the Issuer pursuant to this Section, the
affected Noteholder shall designate a different Address with respect to its
LIBOR Notes if such designation will avoid the need for giving such notice or
making such demand and will not, in the judgment of the Noteholder, be illegal
or otherwise disadvantageous to the Noteholder.
Section 210. Increased Costs. If any Indemnified Party shall determine
that, due to either (a) the introduction of or any change (other than any change
by way of imposition of or increase in reserve requirements included in the
calculation of LIBOR) in or in the interpretation of any law or requirement of
law or (b) the compliance with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Indemnified Party of agreeing to
maintain their investment in any Note at a rate of interest based upon LIBOR,
then the Issuer shall be liable for, and shall from time to time, upon demand
therefor by such Indemnified Party, pay to such Indemnified Party such
additional amounts as are sufficient to compensate such Indemnified Party for
such increased costs.
Section 211. Inability to Determine Rates. If the Agent shall have
determined that for any reason adequate and reasonable means do not exist for
ascertaining LIBOR for any requested Interest Period, the Agent will forthwith
give notice of such determination to the Issuer and each Noteholder. Thereafter,
the obligation of the Noteholders to maintain their investment in any Note at a
rate of interest based upon LIBOR hereunder shall be suspended until the Agent,
upon the instruction of the Majority of Holders, revokes such notice in writing.
During such period of suspension, the Issuer shall issue and the Noteholders
shall purchase a note at a rate described in the last clause of Section 209(b)
hereof.
Section 212. Capital Requirements. If any Indemnified Party shall
determine that any change after the date of this Loan Agreement in any law,
rule, regulation or guideline adopted pursuant to or arising out of the July
1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and Capital
Standards," or the adoption after the date hereof of any other law or
requirement of law regarding capital adequacy, or any change after the date of
this Loan Agreement in any of the foregoing or in the enforcement or
interpretation or administration of any of the foregoing by any Governmental
Authority charged with the enforcement or interpretation or administration
thereof, or compliance by any Indemnified Party (or any Address of the
Indemnified Party) or the Indemnified Party's
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holding company with any request or directive regarding capital adequacy of any
such Governmental Authority, has or would have the effect of reducing the rate
of return on the Indemnified Party's capital or on the capital of the
Indemnified Party's holding company, if any, as a consequence of maintaining its
investment in a Note at a rate of interest based upon LIBOR to a level below
that which the Indemnified Party or the Indemnified Party's holding company
could have achieved but for such adoption, change or compliance (taking into
consideration the Indemnified Party's policies and the policies of the
Indemnified Party's holding company with respect to capital adequacy) by an
amount reasonably deemed by the Indemnified Party to be material, then, upon
written demand by the Indemnified Party, the Issuer shall pay to the Indemnified
Party, from time to time such additional amount or amounts as will compensate
the Indemnified Party or the Indemnified Party's holding company for any such
reduction suffered. Without affecting its rights under this Section 212 or any
other provision of this Loan Agreement, the Indemnified Party agrees that if
there is any increase in any cost to or reduction in any amount receivable by
the Indemnified Party with respect to which the Issuer would be obligated to
compensate the Indemnified Party pursuant to this Section 212, the Indemnified
Party shall use reasonable efforts to select an alternative Address which would
not result in any such increase in any cost to or reduction in any amount
receivable by the Indemnified Party; provided, however, that the Indemnified
Party shall not be obligated to select an alternative lending office if the
Indemnified Party determines that (i) as a result of such selection the
Indemnified Party would be in violation of any applicable law, or would incur
material, additional costs or expenses, or (ii) such selection would be
unavailable for regulatory reasons.
Section 213. Place of Payment. All payments to be made by the Issuer
hereunder (including payments with respect to the Note) shall be made without
set-off or counterclaim and shall be made in immediately available funds by the
Issuer to the Agent for the account of the Noteholders in accordance with their
Pro Rata share. All such payments shall be made to the Agent prior to 11:00
a.m., Amsterdam time, on the date due, by deposit in the Trust Account or at
such other place as may be designated by the Agent to the Issuer in writing. Any
payments received after 11:00 a.m., Amsterdam time, shall be deemed received on
the next Banking Day. The Agent shall promptly remit to each Noteholder in the
same type of funds as payment was received, each Noteholder's share according to
its respective interest of all such payments received by the Agent for the
account of such Noteholder. Whenever any payment to be made hereunder or under
any Note shall be stated to be due on a date other than a Business Days, such
payment may be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of payment of interest or any fees.
Section 214. Offset. In addition to and not in limitation of all rights
of offset that the Agent or any Noteholder may have under applicable law, the
Agent and each Noteholder shall, upon the occurrence of any Event of Default or
any Potential Event of Default, have the right to appropriate and apply to the
payment of each Note any and all balances, credits, deposits, accounts or moneys
of the Issuer or Guarantor then or thereafter with the Agent or any Noteholder.
Section 215. Proration of Payments. If any Noteholder shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
offset, setoff, banker's lien, counterclaim or otherwise) on account of
principal of or interest on the Note in excess of its Pro Rata share of payments
and other recoveries obtained by all Noteholders on account of principal of and
interest on the Note, such Noteholder shall purchase from the other Noteholders
such participation
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interest as shall be necessary to cause such purchasing Noteholder to share the
excess payment or other recovery Pro Rata with each of them; provided, however,
that if all, or any portion of, the excess payment or other recovery is
thereafter recovered, from such purchasing Noteholder, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest. The Issuer agrees that the Noteholder so purchasing a
participation from the other Noteholders under this Section 215 may exercise all
its rights of payment, including the right of set-off, with respect to such
participation as fully as if such Noteholder were the direct creditor of the
Issuer in the amount of such participation.
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ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Trust Account. On or prior to Closing Date, the Issuer
shall establish and maintain with the Agent the Trust Account which account
shall be entitled "Cronos Finance (Bermuda) Limited/MeesPierson Trust Account".
The Trust Account shall be an Eligible Account and shall be pledged to Agent, on
behalf of the Noteholders, pursuant to the terms of this Loan Agreement. The
Issuer shall cause the Manager to deposit in the Trust Account all Net Container
Revenues for each calendar week by not later than the 7th day following the end
of each calendar week. The Issuer shall not establish any additional accounts,
other than the Restricted Cash Account, without the prior written consent of the
Agent.
Section 302. Trust Account. (a) On each Payment Date, the Agent, based
on the Distribution Report, shall distribute an amount equal to the sum of (1)
all amounts on deposit in the Trust Account as of the last day of the related
Collection Period and (2) amounts deposited in the Trust Account from the
Restricted Cash Account in accordance with Section 306(b) of this Loan Agreement
(the sum of (1) and (2), the "Distributable Cash Flow"), to the following
Persons in the following order of priority, with no payment being made toward
any item unless and until all prior items have been fully satisfied:
(1) if no Early Amortization Event is continuing, to the Manager by
wire transfer of immediately available funds, an amount equal to
the sum of (x) Management Fee Arrearage and (y) Management Fee;
(2) to the Agent by wire transfer of immediately available funds,
the amount of the fees and expenses of the Agent then due and
payable;
(3) to such Persons as the Administrator shall direct the amount of
any Issuer Expenses then due and payable that have not been paid
by the Manager in accordance with the terms of the Management
Agreement;
(4) to each Holder of a Note on the immediately preceding
Determination Date, pro rata, by wire transfer of immediately
available funds (to the account that the Noteholder has
designated to the Agent in writing on or prior to the Business
Day immediately preceding such Payment Date), an amount equal to
the sum of (x) the Interest Payment and (y) Interest Arrearage,
if any;
(5) to each Noteholder an amount equal to the sum of (x) Principal
Arrearage, if any, and (y) Principal Payment.
(6) to each Noteholder, any overdue interest, prepayment premium,
Other Taxes or indemnification payments (including any amounts
payable pursuant to Section 210 and Section 212 hereof) then due
and payable;
(7) to the Restricted Cash Account, the amount necessary, if any, to
restore the amount on deposit in the Restricted Cash Account on
such Payment Date
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(after giving effect to withdrawals on such Payment Date) to the
Restricted Cash Account Requirement;
(8) if an Early Amortization Event is continuing, to the Manager by
wire transfer of immediately available funds, an amount equal to
the sum of (x) Management Fee Arrearage and (y) Management Fee;
(9) to the Manager, any Disposition Fees then due and payable;
(10) to the Manager, any indemnification payments owing by the Issuer
to the Manager pursuant to Section 18 of the Management
Agreement;
(11) to the Administrative Agent, any indemnification payment owed by
the Issuer pursuant to Section 109 of the Administration
Agreement; and
(12) To the Issuer, any remaining Distributable Cash Flow.
Notwithstanding the foregoing, no monies shall be payable to the Manager or the
Issuer pursuant to this Section 302(a) until such time as the Agent shall have
received written correspondence from The Securities and Exchange Commission
indicating that its investigation with respect to The Cronos Group has been
concluded in a manner not substantially worse than (such determination to be
made in the sole discretion of the Agent and the Noteholders exercised in good
faith) the proposal set forth in the letter previously provided to the Agent and
the Initial Noteholders.
(b) If the amounts to be distributed on any Payment Date are not
sufficient (after giving effect to payments by the Guarantor) to make payment in
full to the Noteholders with respect to any of clauses described in Section
302(a) above, then payments to Noteholders pursuant to any such clause will be
allocated to such Noteholders on a pro rata basis based on the amount payable to
each such Noteholder pursuant to each such clause.
Section 303. Investment of Monies Held in the Trust Account and
Restricted Cash Account. The Agent shall invest any cash deposited in the Trust
Account and the Restricted Cash Account in Eligible Investments. Each Eligible
Investment (including reinvestment of the income and proceeds of Eligible
Investments) shall be held to its maturity and shall mature not later than the
Business Day immediately preceding the next succeeding Payment Date. Any
earnings on Eligible Investments in the Trust Account and the Restricted Cash
Account shall be retained in each such account and be distributed in accordance
with the terms of this Loan Agreement.
Section 304. Reports to Noteholders. (a) By January 31 of each calendar
year following any year during which the Notes are outstanding, commencing
January 31, 2000, the Agent will, to the extent such information is received
from the Administrator, furnish to each Noteholder of record at any time during
such preceding calendar year, a statement setting forth the aggregate amount of
principal and interest paid to such Holder during the preceding calendar year.
(b) The Agent shall promptly upon request furnish to each Noteholder a
copy of all reports, financial statements and notices received by the Agent,
pursuant to the terms of the Administration Agreement, the Purchase Agreement or
the Management Agreement.
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Section 305. Records. The Agent shall cause to be kept and maintained
adequate records pertaining to the Trust Account and Restricted Cash Account and
all disbursements therefrom. The Agent shall file at least monthly an accounting
thereof in the form of a trust statement with the Issuer and the Administrator.
Section 306. Restricted Cash Account. (a) On or prior to Closing Date,
the Issuer shall establish and maintain with the Agent the Restricted Cash
Account which account shall be entitled "Cronos Finance (Bermuda) Limited
Restricted Cash Account". The Restricted Cash Account shall be an Eligible
Account and shall be pledged to Agent, on behalf of the Noteholders, pursuant to
the terms of this Loan Agreement. The Issuer shall not establish any additional
restricted cash account without the prior written consent of the Agent.
(b) So long as the Notes remain Outstanding, the Agent, on the basis of
the information set forth in the Distribution Report shall withdraw from the
Restricted Cash Account and deposit in the Trust Account on each Payment Date,
an amount equal to the excess of (x) the sum of amounts payable pursuant to
items (2) through (5) of Section 302(a) over (y) the amount of the Distributable
Cash Flow otherwise available to make such payments.
(c) Upon repayment in full of all Outstanding Obligations, all amounts
then remaining in the Restricted Cash Account shall be remitted to the Issuer.
ARTICLE IV
COLLATERAL
Section 401. Collateral. (a) In order to secure the payment of all
Outstanding Obligations and the performance of all of the Issuer's covenants and
agreements in this Loan Agreement and all other Transaction Documents, the
Issuer hereby assigns, conveys, mortgages, pledges, hypothecates and transfers
to Agent, for the benefit of Noteholders to the extent provided herein, a
security interest in and to all of the Issuer's right, title and interest in, to
and under the following, whether now existing or hereafter created: (i) the
Containers including, without limitation, those listed on the List of
Containers, (ii) all amounts and Eligible Investments on deposit from time to
time in the Trust Account and the Restricted Cash Account including all
financial assets and securities entitlement credited thereto, (iii) the Purchase
Agreement and any Container Sale Agreements, (iv) the Management Agreement, (v)
the Administration Agreement, (vi) all income, payments and proceeds of the
foregoing, and (vii) all of the following which arise out of or in any way
relate to the Containers:
(a) All Accounts;
(b) All Chattel Paper;
(c) All Contracts;
(d) All Documents;
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(e) All General Intangibles;
(f) All Instruments;
(g) All Inventory;
(h) All property of the Issuer held by the Agent including, without
limitation, all property of every description now or hereafter in the possession
or custody of or in transit to the Agent or such other party for any purpose,
including, without limitation, safekeeping, collection or pledge, for the
account of the Issuer, or as to which the Issuer may have any right or power;
(i) To the extent not included above and without limiting the foregoing,
all Chattel Paper, all Leases and all schedules, supplements, amendments,
modifications, renewals, extensions, and guarantees thereof in every case
whether now owned or hereafter acquired and all amounts, rentals, proceeds and
other sums of money due and to become due under the Container Related
Agreements, including, without limitation, (i) all rentals, payments and other
moneys, including all insurance payments and claims for losses due and to become
due to the Issuer under, and all claims for damages arising out of the breach
of, any Container Related Agreement; (ii) the right of the Issuer to terminate,
perform under, or compel performance of the terms of the Container Related
Agreements; and (iii) any guarantee of the Container Related Agreements and any
rights of the Issuer in respect of any subleases or assignments permitted under
the Container Related Agreements;
(j) All insurance proceeds of the Collateral, all proceeds of the
voluntary or involuntary disposition of the Collateral or such proceeds;
(k) Any and all payments made or due to the Issuer in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental body, authority or agency and any
other cash or non-cash receipts from the sale, exchange, collection or other
disposition of the Collateral; and
(l) To the extent not otherwise included, all Proceeds of each of the
foregoing and all accessions to, substitutions and replacements for, and rents,
profits and products of each of the foregoing.
All of the property described above collectively called the "Collateral".
Simultaneously with the execution of this Loan Agreement, the Mortgage has also
been executed and delivered as additional collateral security for the
Outstanding Obligations.
(a) The Notes and the obligations of the Issuer hereunder shall be
solely an obligation of the Issuer (and the Guarantor, to the extent provided in
the Guaranty). Except to the extent provided in the Guaranty, the Noteholders
shall have only the benefit of, and the Notes shall be secured by and be payable
from, the Issuer's right, title and interest in the Collateral.
(b) Notwithstanding anything contained in this Loan Agreement to the
contrary, the Issuer expressly agrees that it shall remain liable under each of
its Contracts and each of its
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licenses to observe and perform all the conditions and obligations to be
observed and performed by it thereunder and that it shall perform all of its
duties and obligations thereunder, all in accordance with and pursuant to the
terms and provisions of each such Contract or license. The Agent shall not have
any obligation or liability under any Contract or license by reason of or
arising out of this Loan Agreement or the granting to Agent of a Lien therein or
the receipt by Agent of any payment relating to any Contract pursuant hereto,
nor shall the Agent be required or obligated in any manner to perform or fulfill
any of the obligations of the Issuer under or pursuant to any Contract, or to
make any payment, or to make any inquiry as to the nature or the sufficiency of
any payment received by it or the sufficiency of any performance by any party
under any Contract, or to present or file any claim, or to take any action to
collect or enforce any performance or the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
(c) The Issuer shall continue to collect the Accounts, provided that
such collection is performed in a prudent and businesslike manner, and Agent
may, upon the occurrence of any Event of Default or Potential Event of Default
and upon prior notice, limit or terminate said authority at any time. Any
Proceeds received in payment of any such Account or in payment for any of its
Inventory or on account of any of its Contracts shall be promptly deposited by
the Issuer, except as otherwise permitted hereby, in precisely the form received
(with all necessary endorsements) in the Trust Account as hereinafter provided,
and until so turned over shall be deemed to be held in trust by the Issuer for
and as Agent's property and shall not be commingled with the Issuer's other
funds or properties. Such Proceeds, when deposited, shall continue to be
collateral security for all of the obligations secured by this Loan Agreement
and shall not constitute payment thereof until applied as hereinafter provided.
If an Event of Default or Potential Event of Default has occurred, at the
request of Agent, the Issuer shall deliver to the Agent all original and other
documents evidencing, and relating to, the sale and delivery of such Inventory
and the Issuer shall deliver all original and other documents evidencing and
relating to, the performance of labor or service which created such Accounts,
including, without limitation, all original orders, invoices and shipping
receipts.
(d) Pursuant to the Management Agreement, Manager shall continue to
manage those Containers that are on lease to lessees at the time the Manager has
been terminated as Manager pursuant to the Management Agreement.
(e) The Agent may at any time, upon the occurrence of and continuation
of any Event of Default or Potential Event of Default, after first notifying the
Issuer of its intention to do so, notify Account Debtors of the Issuer, parties
to the Contracts of the Issuer, obligors in respect of Instruments of the Issuer
and obligors in respect of Chattel Paper of the Issuer that the Accounts and the
right, title and interest of the Issuer in and under such Contracts,
Instruments, and Chattel Paper have been assigned to Agent and that
(notwithstanding the license granted to the Manager to collect such payments)
payments shall be made directly to Agent. Upon the request of the Agent, the
Issuer shall so notify such Account Debtors, parties to such Contracts, obligors
in respect of such Instruments and obligors in respect of such Chattel Paper.
Upon the occurrence and continuation of an Event of Default or Potential Event
of Default, the Agent may, communicate with such Account Debtors, parties to
such Contracts, obligors in respect of such Instruments and obligors in respect
of such Chattel Paper to verify with such parties, to Agent's satisfaction, the
existence, amount and terms of any such Accounts, Contracts, Instruments or
Chattel Paper.
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(f) The security interest hereby granted to Agent by the Issuer is
subject to the right of any lessee to the quiet enjoyment of the related
Container so long as such lessee is not in default under such Lease and the
Manager under the Management Agreement (or the Agent, as provided in Section
401(d)) continues to receive all amounts payable under the related Contract.
Section 402. Pro Rata Interest. (a) The Notes shall be equally and
ratably entitled to the benefits of this Loan Agreement without preference,
priority or distinction, all in accordance with the terms and provisions of this
Loan Agreement. All Notes issued hereunder are and are to be equally and ratably
secured by this Loan Agreement without preference, priority or distinction on
account of the actual time or times of the delivery of the Notes so that, all
Notes shall have the same right, Lien and preference under this Loan Agreement
and shall all be equally and ratably secured hereby with like effect as if they
had all been executed, authenticated and delivered simultaneously on the date
hereof.
(b) The execution and delivery of this Agreement shall be upon the
express condition that if the conditions specified in Section 701 of this Loan
Agreement are met, the security interest and all other estate and rights granted
by this Loan Agreement with respect to the Notes shall cease and become null and
void and all of the property, rights, and interest granted as security for the
Notes shall revert to and revest in the Issuer without any other act or
formality whatsoever.
Section 403. Agent's Appointment as Attorney-in-Fact. (a) The Issuer
hereby irrevocably constitutes and appoints Agent, and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Issuer and in the name of the Issuer or in its own name, from time
to time at Agent's discretion, for the purpose of carrying out the terms of this
Loan Agreement, to take any and all appropriate action and to execute and
deliver any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Loan Agreement.
(b) Except upon the occurrence and continuation of an Event of Default
or Potential Event of Default, the Agent shall not exercise the power of
attorney or any rights granted to Agent pursuant to this Section 403. The Issuer
hereby ratifies, to the extent permitted by law, all that said attorney shall
lawfully do or cause to be done by virtue hereof. The power of attorney granted
pursuant to this Section 403 is a power coupled with an interest and shall be
irrevocable until all Notes are paid and performed in full.
(c) The powers conferred on Agent hereunder are solely to protect
Agent's interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. Agent shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and neither it nor
any of its officers, directors, employees, agents or representatives shall be
responsible to the Issuer for any act or failure to act, except for its own
gross negligence or willful misconduct.
(d) The Issuer also authorizes Agent, at any time and from time to time
upon the occurrence of any Event of Default or Potential Event of Default, to
(i) communicate in its own name with any party to any Contract with regard to
the assignment of the right, title and interest of the Issuer in and under the
Contracts hereunder and other matters relating thereto and (ii) execute,
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in connection with the sale of Collateral provided for in Article VIII hereof,
any endorsements, assignments or other instruments of conveyance or transfer
with respect to the Collateral.
(e) If the Issuer fails to perform or comply with any of its agreements
contained herein and Agent shall perform or comply, or otherwise cause
performance or compliance, with such agreement, the reasonable expenses,
including attorneys' fees, of Agent incurred in connection with such performance
or compliance together with interest thereon at the Overdue Rate shall be
payable by the Issuer to Agent on demand and shall constitute obligations
secured hereby.
Section 404. Release of Security Interest. The Agent, at the written
direction of the Administrator, shall release from the security interest created
pursuant to the terms of this Loan Agreement, any Container and the related
items of Collateral (1) for which the Warranty Purchase Amount has been
deposited in the Trust Account in accordance with the provisions of the related
Purchase Agreement or (2) upon the sale of a Container in accordance with the
provisions of Section 6 of the Management Agreement; in each case subject to the
limitations on sales set forth herein. In effectuating such release, the Agent
shall be entitled to rely on a certificate of the Administrator identifying each
Contract or other items to be released from the Loan Agreement in accordance
with the provisions of this Section 404.
The Agent will, promptly upon receipt of such certificate from the
Administrator, execute and deliver to the Issuer, a non-recourse certificate of
release and such additional documents and instruments as that Person may
reasonably request to evidence the termination and release from the Lien of this
Loan Agreement of such Container, the other related items of Collateral.
Section 405. Administration of Collateral. The Agent hereby acknowledges
the appointment by the Issuer of the Administrator and the Manager to service
and administer the Collateral in accordance with the provisions of the
Administration Agreement and the Management Agreement and agrees to provide the
Administrator and the Manager with such documentation, and to take all such
actions, as the Administrator and the Manager may reasonably request in
accordance with the provisions of the Administration Agreement and the
Management Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Noteholders to purchase the Notes, the Issuer hereby
represents and warrants to the Agent and the Noteholders that:
Section 501. Existence. Issuer is a company duly organized, validly
existing and in good standing under the laws of Bermuda. Issuer is in good
standing and is duly qualified to do business in each state or county where the
nature of its activities or properties require such qualification, except to the
extent that the failure to be so qualified, licensed or approved would not, in
the aggregate, materially and adversely affect the ability of Issuer to perform
its obligations under and comply with the terms of this Loan Agreement or any
other Transaction to which it is a party.
Section 502. Authorization. Issuer has the power and is duly authorized
to execute and deliver this Loan Agreement and the other Transaction Documents
to which is a party; and Issuer is authorized to perform its obligations under
this Loan Agreement and under the other Transaction Documents. The execution,
delivery and performance by Issuer of this Loan Agreement and the other
Transaction Documents to which it is a party do not and will not require any
consent or approval of any Governmental Authority, stockholder or any other
Person which has not already been obtained.
Section 503. No Conflict; Legal Compliance. The execution, delivery and
performance of this Supplement and each of the other Transaction Documents and
the execution, delivery and payment of the Notes will not: (a) contravene any
provision of Issuer's articles of incorporation or bye-laws or other
organizational documents; (b) contravene, conflict with or violate any
applicable law or regulation, or any order, writ, judgment, injunction, decree,
determination or award of any Governmental Authority; or (c) violate or result
in the breach of, or constitute a default under this Loan Agreement or other
loan or credit agreement, or other agreement or instrument to which Issuer is a
party or by which Issuer, or its property and assets may be bound or affected in
each case that would adversely affect the Issuer's ability to consummate the
transactions contemplated hereby. Issuer is not in violation or breach of or
default under (i) any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award except to the extent that such violation would
not materially and adversely affect the ability of the Issuer to perform its
obligations under and comply with the terms of the Supplement or any other
Transaction Document to which it is a party or (ii) any material contract,
agreement, lease, license, Loan Agreement or other instrument to which it is a
party.
Section 504. Validity and Binding Effect. This Loan Agreement is, and
other Transaction Document to which Issuer is a party, when duly executed and
delivered, will be, legal, valid and binding obligations of Issuer, enforceable
against Issuer in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
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Section 505. Executive Offices. The current location of Issuer's
registered office and principal place of business is located at Clarendon House,
Church Street, Hamilton HM 11 Bermuda, Attn: Secretary, Telephone: 441 295-1422,
Telefax: 441 292-4720.
Section 506. No Agreements or Contracts. The Issuer has not transacted
any business on or prior to the Closing Date. The Issuer is not and has not been
a party to any contract or agreement (whether written or oral), other than the
Transaction Documents.
Section 507. Consents and Approvals. No approval, authorization or
consent of any trustee or holder of any Indebtedness or obligation of Issuer
under any material agreement, contract, lease or license or similar document or
instrument to which Issuer is a party or by which Issuer is bound, is required
to be obtained by Issuer in order to make or consummate the transactions
contemplated under the Transaction Documents. All consents and approvals of,
filings and registrations with, and other actions in respect of, all
Governmental Authorities required to be obtained by Issuer in order to make or
consummate the transactions contemplated under the Transaction Documents have
been, or prior to the time when required will have been, obtained, given, filed
or taken and are or will be in full force and effect.
Section 508. Margin Regulations. Issuer does not own any "margin
security", as that term is defined in Regulation U of the Federal Reserve Board,
and the proceeds of the Notes will be used only for the purposes contemplated
hereunder. None of the proceeds of the Notes will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security, for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any margin security or for any other purpose which
might cause any of the Notes to be considered a "purpose credit" within the
meaning of Regulations T, U and X. Issuer will not take or permit any agent
acting on its behalf to take any action which might cause this Supplement or any
document or instrument delivered pursuant hereto to violate any regulation of
the Federal Reserve Board.
Section 509. Taxes. All federal, state, local and foreign tax returns,
reports and statements required to be filed by Issuer have been filed with the
appropriate Governmental Authorities, and all Taxes, Other Taxes and other
impositions shown thereon to be due and payable by Issuer have been paid prior
to the date on which any fine, penalty, interest or late charge may be added
thereto for nonpayment thereof, or any such fine, penalty, interest, late charge
or loss has been paid, or Issuer is contesting its liability therefor in good
faith and has fully reserved all such amounts according to GAAP. Issuer has paid
when due and payable all material charges upon the books of Issuer and
Government Authority has asserted any Lien against Issuer with respect to unpaid
Taxes or Other Taxes.
Section 510. Other Regulations. Issuer is not: (a) a "public utility
company" or a "holding company," or an "affiliate" or a "Subsidiary company" of
a "holding company," or an "affiliate" of such a "Subsidiary company," as such
terms are defined in the United States Public Utility Holding Company Act of
1936, as amended, or (b) an "investment company," or an "affiliated person" of,
or a "promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the United States Investment Company Act of 1940, as
amended. The application of the proceeds and repayment of the Notes by Issuer
and the performance of the transactions contemplated by this Loan Agreement and
the Transaction Documents will not violate
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any provision of the United States Investment Company Act or the United States
Public Utility Holding Company Act, or any rule, regulation or order issued by
the SEC thereunder.
Section 511. Solvency. Issuer is Solvent before and after giving effect
to the transactions contemplated by this Supplement.
Section 512. Survival of Representations and Warranties. Except as
otherwise provided in this Section 512, the representations and warranties of
each party hereto shall remain operative and in full force and effect so long as
any of the Notes shall be Outstanding. The representations and warranties in
this Agreement shall terminate upon the payment and performance in full of the
Outstanding Obligations.
Section 513. No Default. No Event of Default, Potential Event of
Default, Early Amortization Event or Manager Default has occurred and is
continuing.
Section 514. Litigation and Contingent Liabilities. No claims,
litigation, arbitration proceedings or governmental proceedings by any
Governmental Authority are pending or threatened against or are affecting Issuer
the results of which might interfere with the consummation of any of the
transactions contemplated by this Loan Agreement or any document issued or
delivered in connection herewith.
Section 515. Title; Liens. Issuer has good, legal and marketable title
to each of its respective assets, and none of such assets is subject to any
Lien, except for the Lien created pursuant to this Loan Agreement.
Section 516. Subsidiaries. At all times on or prior to the Closing Date,
the Issuer has had no subsidiaries.
Section 517. No Partnership. Issuer is not a partner or joint venturer
in any partnership or joint venture.
Section 518. Pension and Welfare Plans. The Issuer does not maintain any
Plan.
Section 519. Ownership of Issuer. On the Closing Date, The Cronos Group
owns 12,000 shares of the Issuer representing 100% of total authorized and
issued share capital of the Issuer.
Section 520. [Reserved].
ARTICLE VI
COVENANTS
For so long as any Obligation of the Issuer under this Loan Agreement
and the Notes is Outstanding, the Issuer shall observe each of the following
covenants:
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Section 601. Payment of Principal and Interest; Payment of Taxes. (a)
The Issuer will duly and punctually pay the principal of and interest on the
Notes in accordance with the terms of the Notes and this Loan Agreement.
(b) Subject to the availability of funds therefor under Article III, the
Issuer will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (1) all taxes, of every kind and nature, and all other
governmental charges levied or imposed upon the Issuer or (to the extent payable
by the Issuer) upon the income, profits or property (including the Collateral or
any part thereof) of the Issuer and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Issuer; provided, however, that the Issuer shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim the amount, applicability or validity of which is being contested in good
faith by appropriate proceedings and for which the Issuer maintains adequate
reserves and in no event shall any such contest result in an actual forfeiture
of any portion of the Collateral. The Issuer will deliver to the Agent receipts
evidencing the payment of all such taxes, assessments, levies, fees, rents and
other public charges imposed upon or assessed against the Issuer or the
Collateral.
Section 602. Maintenance of Office. The registered office of the Issuer
is located at Clarendon House, Church Street, Hamilton HM 11, Bermuda. The
Issuer shall not establish a new location for its registered office unless (i)
it shall have given to the Agent not less than thirty (30) days' prior written
notice of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the Agent may
reasonably request, and (ii) with respect to such new location, it shall have
taken at its own cost all action necessary so that such change of location does
not impair the security interest of the Agent in the Collateral, or the
perfection of the sale or contribution of the Containers to the Issuer, and
shall have delivered to the Agent copies of all filings required in connection
therewith.
Section 603. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a company under the laws of Bermuda, and
will obtain and preserve its qualification as a foreign company in each
jurisdiction in which such qualification is necessary to protect the validity
and enforceability of this Loan Agreement and the Notes.
Section 604. Protection of Collateral. The Issuer will from time to time
execute and deliver all amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will, upon the reasonable request of the Administrator or the Agent, take
such other action necessary or advisable to:
(a) grant more effectively the security interest in all or any portion
of the Collateral;
(b) maintain or preserve the Lien of this Loan Agreement (and the
priority thereof) or carry out more effectively the purposes hereof;
(c) perfect, publish notice of, or protect the validity of the security
interest in the Collateral created pursuant to this Loan Agreement;
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(d) enforce any of the items of the Collateral; and
(e) preserve and defend its right, title and interest to the Collateral
and the rights of the Agent in such Collateral against the claims of all Persons
(other than the Noteholders or any Person claiming through the Noteholders).
Section 605. Performance of Obligations. The Issuer will not take, or
fail to take, any action, and will use its best efforts not to permit any action
to be taken by others, which would release any Person from any of such Person's
covenants or obligations under any agreement or instrument included in the
Collateral, or which would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such agreement or instrument.
Section 606. Negative Covenants. The Issuer will not:
(a) sell, transfer, exchange or otherwise dispose of any of the
Collateral, except in connection with a sale pursuant to Sections 612 or 817
hereof or as otherwise permitted by this Loan Agreement;
(b) claim any credit on, make any deduction from the principal, premium,
if any, or interest payable in respect of the Notes (other than amounts properly
withheld from such payments under any Applicable Law) or assert any claim
against any present or former Noteholder by reason of the payment of any taxes
levied or assessed upon any of the Collateral;
(c) (i) permit the validity or effectiveness of this Loan Agreement to
be impaired, or (ii) permit the Lien of this Loan Agreement with respect to the
Collateral to be subordinated, terminated or discharged, except as permitted in
accordance with Section 404 or Article VII hereof, or (iii) permit any Person to
be released from any covenants or obligations with respect to such Collateral,
except as may be expressly permitted by the Management Agreement;
Section 607. Non-consolidation of Issuer. The Issuer shall (1) maintain
its books and records separate from the books and records of any other entity,
(2) maintain separate bank accounts, (3) not commingle its funds with those of
any other Person, (4) not engage in any action that would cause the separate
legal identity of the Issuer not to be respected, including, without limitation
(a) holding itself out as being liable for the debts of any other Person or (b)
acting other than through its duly authorized representatives or agents, (5)
maintain a separate office from that of its shareholders, and (6) conduct all of
its business correspondence in Issuer's own name.
Section 608. No Bankruptcy Petition. The Issuer shall not (1) commence
any case, proceeding or other action under any existing or future bankruptcy,
insolvency or similar law seeking to have an order for relief entered with
respect to it, or seeking reorganization, arrangement, adjustment, wind-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, (2) seek appointment of a receiver, trustee, custodian or other similar
official for it or any part of its assets, (3) make a general assignment for the
benefit of creditors, or (4) take any action in furtherance of, or consenting or
acquiescing in, any of the foregoing.
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Section 609. Liens. The Issuer shall not contract for, create, incur,
assume or suffer to exist any Lien upon any of its property or assets, whether
now owned or hereafter acquired, except for (i) the Lien created pursuant to the
terms of this Loan Agreement and (ii) Permitted Liens.
Section 610. Other Debt. The Issuer shall not contract for, create,
incur, assume or suffer to exist any indebtedness other than any Notes issued
pursuant to this Loan Agreement, except trade payables and expense accruals
incurred in the ordinary course and which are incidental to the purposes
permitted pursuant to Section 616 hereof.
Section 611. Guarantees, Loans, Advances and Other Liabilities. The
Issuer will not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing, or otherwise),
endorse (except for the endorsement of checks for collection or deposit) or
otherwise become contingently liable, directly or indirectly, in connection with
the obligations, stock or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person.
Section 612. Consolidation, Merger and Sale of Assets. (a) The Issuer
shall not consolidate with or merge with or into any other Person or convey or
transfer to any Person all or any part of the Collateral, except for (A) (i) any
such conveyance or transfer contemplated in this Loan Agreement issued hereunder
and (ii) any sale of any Container made in accordance with the provisions of
Section 6 of the Management Agreement or (B) upon the prior written consent of
the Agent.
(b) The obligations of the Issuer hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Issuer hereunder except in
each case in accordance with the provisions of this Loan Agreement.
Section 613. Other Agreements. The Issuer will not after the date of the
issuance of the Notes enter into or become a party to any agreements or
instruments other than this Loan Agreement, the Guaranty, the Stock Pledge
Agreements, the Purchase Agreement, the Note Purchase Agreements, or any other
agreement(s) contemplated by this Loan Agreement or the Purchase Agreement,
including, without limitation, any agreement(s) for disposition of the
Collateral permitted by Sections 612, 804 or 817 hereof and any agreement(s) for
the sale or re-lease of a Container made in accordance with the provisions of
the Purchase Agreement. In addition, the Issuer will not amend, modify or waive
any provision of the Purchase Agreement or give any approval or consent or
permission provided for therein without the prior written consent of the
requisite Persons set forth in the Purchase Agreement.
Section 614. Charter Documents. The Issuer will not amend or modify its
Memorandum of Association or bye-laws, without (i) the unanimous vote of all
Shareholders of the Issuer and (ii) the prior written consent of the Majority of
Holders.
Section 615. Capital Expenditures. The Issuer will not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(both realty and personalty), except for,
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with the prior written approval of the Majority of Holders in each instance,
acquisition of additional Containers from any Seller.
Section 616. Permitted Activities. The Issuer will not engage in any
activity or enter into any transaction except as permitted under its Memorandum
of Association or bye-laws as in effect on the date on which this Loan Agreement
is executed.
Section 617. Investment Company Act. The Issuer will conduct its
operations, and will cause the Administrator to conduct the Issuer's operations,
in a manner which will not subject it to registration as an "investment company"
under the United States Investment Company Act of 1940, as amended.
Section 618. Payments of Collateral. If the Issuer shall receive from
any Person any payments with respect to the Collateral (to the extent such
Collateral has not been released from the Lien of this Loan Agreement in
accordance with Section 404 hereof), the Issuer shall receive such payment in
trust for the Agent, as secured party hereunder, and subject to the Agent's
security interest and shall immediately deposit such payment in the Trust
Account.
Section 619. Notices. The Issuer will notify the Agent in writing of any
of the following events immediately upon learning of the occurrence thereof,
describing the same and, if applicable, the steps being taken by the Person(s)
affected with respect thereto:
(a) Default. The occurrence of an Event of Default or a Potential Event
of Default;
(b) Litigation. The institution of any litigation, arbitration
proceeding or proceeding before any Governmental Authority which might have or
result in a Material Adverse Change;
(c) Material Adverse Change. The occurrence of a Material Adverse
Change;
(d) Other Events. The occurrence of such other events as the Agent or
any Noteholder may from time to time specify.
Section 620. Books and Records. The Issuer shall, and shall cause the
Administrator to, maintain complete and accurate books and records in which full
and correct entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its business and activities.
Section 621. Taxes. The Issuer shall, or shall cause the Administrator
to, pay when due, all of its taxes, unless and only to the extent that Issuer is
contesting such taxes in good faith and by appropriate proceedings and Issuer
has set aside on its books such reserves or other appropriate provisions
therefor as may be required by GAAP.
Section 622. Subsidiaries. The Issuer shall not create any Subsidiaries.
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Section 623. Investments. The Issuer shall not make or permit to exist
any Investment in any Person except for Investments in Eligible Investments made
in accordance with the terms of this Loan Agreement.
Section 624. Use of Proceeds. The Issuer shall use the proceeds of the
Notes only for the purchase of Containers and other general corporate purposes.
In addition, Issuer shall not permit any proceeds of the Notes to be used,
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying any margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, as amended
from time to time, and shall furnish to each Bank, upon its request, a statement
in conformity with the requirements of Regulation U.
Section 625. Managerial Report. On or prior to each Determination Date,
the Issuer shall deliver to the Agent each of the following: (i) an Asset Base
Certificate as of the most recent Collection Period Date; (ii) a Distribution
Report for the related Collection Period, (iii) a report stating the Gross Lease
Revenues, Operating Expenses, Net Lease Revenues, Management Fee, Original
Equipment Cost, Net Book Value, average age of the Containers, an aged accounts
receivable summary, top ten customers of the Manager, and (iv) calculation and
certification of each of the financial covenants set forth herein.
Section 626. Purchase of Containers. The Issuer shall not purchase any
Container pursuant to the Purchase Agreement or otherwise, without the prior
written consent of the Majority of Holders, such consent not to be unreasonably
withheld or delayed. Nothing contained in this Section 626 shall be construed to
limit the ability of a Seller to provide, and for the Issuer to accept delivery
of, Substitute Containers in accordance with the provisions of the Purchase
Agreement.
Section 627. [Reserved].
Section 628. Maintenance of the Collateral. Issuer shall maintain at its
expense, or cause the Manager to maintain, each item of Collateral in good order
and in safe operating condition in accordance with the manufacturer's
specifications therefor and in accordance with international conventions
regarding Containers.
Section 629. Insurance. Issuer shall insure, at its expense, or cause
the Manager to insure, the Containers against risks for physical damage, total
loss and claims by third parties for damages. The coverages to be provided under
policy with a reputable insurer to be in accordance with industry practice in
terms of amount, risks and deductibles.
Section 630. Nonconsolidation Matters.
The Issuer shall:
(1) not engage in any business unrelated to the ownership and
financing, leasing, use and operation of the Containers;
(2) not have any assets other than those related to the Containers;
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(3) do all things necessary to preserve its existence;
(4) maintain its accounts, books and records separate from any other
Person;
(5) maintain its books, records, resolutions and agreements as
official records;
(6) not commingle its funds or assets with those of any other
Person;
(7) hold its assets in its own name and maintain its assets in such
a manner that it will not be costly or difficult to segregate,
ascertain or identify its individual assets from those of any
Affiliate or any other Person;
(8) conduct its business in its name;
(9) maintain its books, records, financial statements, accounting
records, bank accounts and other entity documents separate from
any other Person, and file its own tax returns;
(10) pay its own liabilities out of its own funds and assets;
(11) observe all corporate formalities;
(12) maintain an arms-length relationship with its Affiliates;
(13) not have or assume any indebtedness, secured or unsecured,
direct or indirect, absolute or contingent (including
guaranteeing any obligation), other than as expressly permitted
under the Transaction Documents;
(14) not assume or guaranty or become obligated for the debts of any
other Person nor hold itself out to be responsible for the debts
or obligations of any other Person;
(15) not acquire obligations or securities of its member, beneficial
owners or its Affiliates;
(16) remain solvent, pay debts and liabilities as they become due and
allocate fairly and reasonably shared expenses, including,
without limitation, shared office space;
(17) not pledge its assets for the benefit of any other Person,
except pursuant to the Transaction Documents;
(18) hold itself out and identify itself as a separate and distinct
entity under its own name and not as a division or part of any
other Person;
(19) maintain and utilize separate stationary, invoices and checks;
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(20) not make loans or advances to any other Person;
(21) not identify its member, beneficial owners or any of its
Affiliates as a division or part of it;
(22) not enter into or be a party to any transaction, contract or
agreement with its member, beneficial owners or its Affiliates
other than as contemplated in the Transaction Documents, except
in the ordinary course of its business and on terms which are
intrinsically fair and are no less favorable to it than would be
obtained in a comparable arms-length transaction with an
unrelated third party;
(23) pay the salaries of its own employees from its own funds;
(24) maintain adequate capital for the normal obligations reasonably
foreseeable in its contemplated business and in light of its
contemplated business operations.
(25) not guarantee any obligation of any Person, including any
Affiliate (except as permitted by the Transaction Documents);
(26) not engage, directly or indirectly, in any business other than
that arising out of the ownership and leasing of the Containers
and the issuance of the Indebtedness or the actions required or
permitted to be performed under the Transaction Documents;
(27) not incur, create or assume any indebtedness other than the
indebtedness incurred by the Issuer in accordance with the
Transaction Documents;
(28) not to the fullest extent permitted by law, engage in any
dissolution, liquidation, conversion, domestication (including
transfer and continuance), consolidation, merger, asset sale or
transfer of ownership interests other than such activities as
are expressly permitted pursuant to any provision of the
Transaction Documents; or
(29) not form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other).
ARTICLE VII
DISCHARGE OF LOAN AGREEMENT
Section 701. Full Discharge. After payment in full of (i) the principal
of, and premium, if any, and interest on, such Notes, (ii) the fees and charges
of the Agent and (iii) all other obligations of the Issuer under this Loan
Agreement the Agent shall, at the request of the Issuer, execute and deliver to
the Issuer such deeds or other instruments as shall be requisite to evidence
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the satisfaction and discharge of this Loan Agreement and the security hereby
created, and to release the Issuer from its covenants contained in this Loan
Agreement.
Section 702. Unclaimed Funds. In the event that any amount due to any
Noteholder remains unclaimed, the Issuer shall, at its expense, cause to be
published once, in the eastern edition of The Wall Street Journal, notice that
such money remains unclaimed. Any such unclaimed amounts shall not be invested
by the Agent (notwithstanding the provisions of Section 305 hereof) and no
additional interest shall accrue on the related Note subsequent to the date on
which such funds were available for distribution to such Noteholder. Any such
unclaimed amounts shall be held by the Agent in trust until the latest of (i)
two years after the date of the publication described in the second preceding
sentence, (ii) the date all other registered Noteholders shall have received
full payment of all principal of and premium, if any, and interest and other
sums payable to them on such Notes or the Agent shall hold (and shall have
notified the registered Noteholders that it holds) in trust for that purpose an
amount sufficient to make full payment thereof when due and (iii) the date the
Issuer shall have fully performed and observed all their covenants and
obligations contained in this Loan Agreement with respect to such Notes.
Thereafter any such unclaimed amounts shall be paid by the Agent on demand to
the Issuer.
Thereupon the Agent shall be released from all further liability with
respect to such monies, and thereafter the registered Noteholders in respect of
which such monies were so paid to the Issuer shall have no rights in respect
thereof except to obtain payment of such monies from the Issuer.
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES
Section 801. Event of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of principal, the premium, if any,
and interest on the Notes within 5 calendar days after the same shall
have become due and payable in accordance with the terms of such Notes
and this Loan Agreement.
(ii) default in any material respect in the performance, or
breach in any material respect, of any covenant of the Issuer in this
Loan Agreement or any other Transaction Document (other than a covenant
or agreement a breach of which or default in the performance of which
breach is elsewhere in this Section specifically dealt with), or if any
representation or warranty of the Issuer made in this Loan Agreement or
any other Transaction Document or in any certificate or other writing
delivered pursuant hereto or thereto or in connection herewith with
respect to or affecting the Notes shall prove to be inaccurate in any
material respect as of the time when the same shall have been made, and,
if such breach or default or inaccuracy is curable, continuance of such
default or breach or inaccuracy for a period of 60 days
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after the earlier to occur of (i) actual knowledge of such default,
breach or inaccuracy by the Issuer or (ii) the date on which there has
been given, by telephone or facsimile, to the Issuer by the Agent, or to
the Issuer and the Agent by any Noteholder, a written notice specifying
such default or breach or inaccuracy and requiring it to be remedied;
(iii) the entry of a decree or order for relief by a court
having jurisdiction in respect of the Issuer in any involuntary case
under any applicable Insolvency Law, or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, or sequestrator (or other similar official) for the
Issuer, as the case may be, or for any substantial part of their
respective properties, or ordering the winding up or liquidation of
their respective affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days;
(iv) the commencement by the Issuer of a voluntary case under
any applicable Insolvency Law, or other similar law now or hereafter in
effect, or the consent by the Issuer, as the case may be, to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or other similar official) of the
Issuer, as the case may be, or any substantial part of their respective
properties, or the making by the Issuer, as the case may be of any
general assignment for the benefit of creditors, or the failure by the
Issuer, as the case may be generally to pay its debts as they become
due, or the taking of corporate action by the Issuer in furtherance of
any such action;
(v) any Transaction Document ceases to be in full force and
effect;
(vi) the continuation of a Manager Default for two consecutive
Payment Dates following the date on which such Manager Default occurred;
(vii) beginning with the Payment Date occurring on February 15,
2000, the amount of funds on deposit in the Restricted Cash Account on
any Payment Date (after giving effect to all required withdrawals
therefrom on such Payment Date) is less than the Restricted Cash Account
Requirement and such deficiency continues for a period of fifteen (15)
Business Days;
(viii) the occurrence of a Guarantor Event of Default; or
(ix) failure to (A) deliver to the Agent and the Noteholders by
September 30, 1999, a report prepared by Price Waterhouse Coopers or any
other Person reasonably acceptable to the Agent and the Majority of
Holders with respect to the results of the agreed upon procedures
outlined in Exhibit G hereto or (B) resolve all discrepancies set forth
in such report within fifteen (15) days after the delivery thereof.
[DISCUSS DEADLINE FOR COMPLETION OF FIELD WORK AND REPORTS.]
Section 802. Acceleration of Stated Maturity; Rescission and Annulment.
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(a) Upon the occurrence of an Event of Default under either clause (iii)
or (iv) of Section 801, then the principal of, and accrued interest on, all
Notes then Outstanding shall become immediately due and payable without any
further action by any Person. If any other Event of Default under Section 801
occurs and is continuing, then in every case the Agent (unless instructed in
writing to the contrary by the Majority of Holders) shall declare the principal
of, and accrued interest on, all Notes then Outstanding to be due and payable
immediately, by a notice in writing to the Issuer, and upon any such declaration
such principal and accrued interest shall become immediately due and payable.
(b) At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Agent as hereinafter in this Article provided, the Majority of Holders,
by written notice to the Issuer and the Agent, may rescind and annul such
declaration and its consequences if:
(i) the Issuer has paid or deposited with the Agent a sum
sufficient to pay:
(A) all of the installments of interest and premium on
and principal of all Notes which were overdue prior to the date
of such acceleration;
(B) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
default Overdue Rate; and
(C) all sums paid or advanced by the Agent hereunder or
the Manager and the reasonable compensation, out-of-pocket
expenses, disbursements and advances of the Agent, its agents
and counsel incurred in connection with the enforcement of this
Loan Agreement; and
(ii) all Events of Default, other than the nonpayment of the
principal of or interest on Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 813 hereof.
No such rescission with respect to any Event of Default shall affect any
subsequent Event of Default or impair any right consequent thereon.
(c) Upon the occurrence of an Event of Default, Issuer shall cause
Manager to (i) provide to the Agent such information as the Agent may request in
order to ascertain the location and condition of the Container and (ii) grant
Agent or any of its employees or agents access to Manager's information system
(and the system of any affiliates of either of them) providing the equipment
management and tracking information.
Section 803. Collection of Indebtedness.
The Issuer covenants that, if an Event of Default occurs and is
continuing, the Issuer will, upon demand of the Agent, pay to the Agent, for the
benefit of the Noteholders, the whole amount then due and payable on such Notes
for principal and interest, with interest upon the overdue
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principal and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the default interest rate
payable with respect to each such Note; and, in addition thereto, such further
amount as shall be sufficient to cover all Outstanding Obligations, including
the costs and out-of-pocket expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Agent, its agents and
counsel incurred in connection with the enforcement of this Loan Agreement.
Section 804. Remedies.
(a) If an Event of Default shall occur and be continuing, the Agent, by
such officer or agent as it may appoint, (A) shall notify the Noteholders of
such Event of Default, (B) may replace the Manager in accordance with the terms
of the Management Agreement, and (C) shall (unless instructed in writing to the
contrary by the Majority of Holders) take all of the following actions:
(i) institute any Proceedings for the collection of all
amounts then due and payable on the Notes or under this
Loan Agreement, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the
Collateral and any other assets of the Issuer any monies
adjudged due;
(ii) take possession of the Collateral or any portion thereof
or rights or interest therein, and, in accordance with
the provisions of Section 804(b) hereof, sell or
re-lease such Collateral;
(iii) institute any Proceedings from time to time for the
complete or partial foreclosure of the Lien created by
this Loan Agreement with respect to the Collateral; and
(iv) exercise any remedies of a secured party under the
Uniform Commercial Code or any applicable law (to the
extent not otherwise dealt with in this Section 804(a))
and take any other appropriate action to protect and
enforce the rights and remedies of the Agent or the
Noteholders hereunder.
(b) Upon foreclosing upon or otherwise taking possession of the
Collateral in accordance with the provisions of Section 804(a) above, the Agent
shall, in accordance with the written directions of the Majority of Holders,
exercise one or more of the following options: (i) sell the Collateral in
accordance with the provisions of Section 817 hereof or (ii) arrange for the
Manager to operate the Collateral in accordance with the provisions of this
Section 804(b).
If the Agent shall have not received written direction from the Majority
of Holders with respect to the foregoing actions within 30 days after the date
on which Event of Default shall have occurred, then the Majority of Holders
shall be deemed to have elected to have a replacement Manager operate the
Collateral in accordance with the provisions of this Section 804(b) for a period
not to exceed one year. The Agent shall then use its best efforts to appoint a
company having a net worth of not less than $5,000,000 and whose regular
business includes equipment leasing, as the
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successor to the Manager of all or any part of the responsibilities, duties or
liabilities of the Manager under the Management Agreement. In connection with
the appointment of a replacement Manager, the Agent may make such arrangements
for the compensation of such replacement out of Net Container Revenue as the
Agent shall agree; provided, however, that no such revised compensation shall be
in excess of the Management Fees permitted the Manager under the Management
Agreement and the arrangement for reimbursement of expenses shall be no more
favorable than that set forth in the Management Agreement. If the Agent is
unable to arrange for a replacement Manager within 90 Business Days, then the
Agent shall sell the Collateral in accordance with Section 817 hereof.
Section 805. Agent May Enforce Claims Without Possession of Notes.
(a) In all Proceedings brought by the Agent (and also any Proceedings
involving the interpretation of any provision of this Loan Agreement to which
the Agent shall be a party), the Agent shall be held to represent all of the
Noteholders, and it shall not be necessary to make any Noteholder a party to any
such Proceedings.
(b) All rights of action and claims under this Loan Agreement or such
Notes may be prosecuted and enforced by the Agent without the possession of any
of the Notes or the production thereof in any Proceeding relating thereto, and
any such Proceeding instituted by the Agent shall be brought in its own name as
Agent hereunder, and any recovery whether by judgment, settlement or otherwise
shall, after provision for the payment of the reasonable compensation, expenses,
and disbursements incurred and advances made, by the Agent, its agents and
counsel, be for the ratable benefit of the Holders of the Notes.
Section 806. Allocation of Money Collected.
If the Notes have been declared due and payable following an Event of
Default and such declaration and its consequences have not been rescinded or
annulled, any money collected by the Agent pursuant to this Article or otherwise
and any other monies that may be held or thereafter received by the Agent as
security for such Notes shall be applied, to the extent permitted by law, in the
following order, at the date or dates fixed by the Agent:
FIRST: To the payment of all amounts due to the Agent in connection with
the enforcement of the remedies set forth in this Article VIII; and
SECOND: Any remaining amounts shall be distributed in accordance with
Section 302(a) hereof.
Section 807. Limitation on Suits.
Except to the extent provided in Section 808 hereof, no Noteholder shall
have the right to institute any Proceeding, with respect to this Loan Agreement,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such Holder has previously given written notice to the Agent
of a continuing Event of Default;
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(ii) the Agent, after request by the Noteholders, shall have
failed to institute Proceedings in accordance with the provisions of
Section 804 hereof;
(iii) such Holder or Holders have offered to the Agent
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request (the unsecured indemnity of a
Rated Institutional Noteholder being deemed satisfactory for such
purpose);
(iv) the Agent has, for 30 days after its receipt of such
notice, request and offer of security or indemnity, failed to institute
any such Proceeding; and
(v) no direction inconsistent with such written request has been
given to the Agent during such 30 day period by the Majority of Holders;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Loan Agreement to affect, disturb or prejudice the rights of any other
Noteholder, or to obtain or to seek to obtain priority or preference over any
other Noteholder or to enforce any right under this Loan Agreement, except in
the manner herein provided and for the benefit of all Noteholders.
Section 808. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision of this Loan Agreement, each
Noteholder shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note as such principal and
interest becomes due and payable and to institute any Proceeding for the
enforcement of such payment, and such rights shall not be impaired without the
consent of such Holder.
Section 809. Restoration of Rights and Remedies.
If the Agent or any Holder has instituted any Proceeding to enforce any
right or remedy under this Loan Agreement and such Proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Agent or to such Holder, then and in every such case, subject to any
determination in such Proceeding, the Issuer, the Agent and the Holders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Agent and the Holders shall continue
as though no such Proceeding had been instituted.
Section 810. Rights and Remedies Cumulative.
No right or remedy conferred upon or reserved to the Agent or to the
Holders pursuant to this Loan Agreement is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
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Section 811. Delay or Omission Not Waiver.
No delay or omission of the Agent or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Agent or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Agent or by the Holders, as the case may be.
Section 812. Control by Majority of Holders.
Upon the occurrence of an Event of Default, the Majority of Holders
shall, subject to the express provisions of Article VIII of this Loan Agreement,
have the right to direct the time, method and place of conducting any Proceeding
for any remedy available to the Agent or exercising any trust or power conferred
on the Agent, provided that (i) such direction shall not be in conflict with any
rule of law or with this Loan Agreement, including, without limitation, Section
804 hereof, (ii) such Noteholders have offered to the Agent reasonable indemnity
against costs, expenses and liabilities which it might incur in connection
therewith (the unsecured indemnity of a Rated Institutional Noteholder being
deemed sufficient for such purpose) and (iii) the Agent may take any other
action deemed proper by the Agent which is not inconsistent with such direction
provided, however, that the Agent need not take any action which it determines
might involve it in personal liability or be unjustly prejudicial to the
Noteholders not consenting.
Section 813. Waiver of Past Defaults.
(a) The Majority of Holders may, on behalf of all Noteholders, waive any
past Event of Default and its consequences, except an Event of Default
(i) in the payment of the principal of or interest on any Note,
or
(ii) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of all the Noteholders.
(b) Upon any such waiver, such Event of Default shall cease to exist and
shall be deemed to have been cured and not to have occurred for every purpose of
this Loan Agreement; provided, however that no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon.
Section 814. Undertaking for Costs.
All parties to this Loan Agreement agree, and each Holder of any Note by
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Loan Agreement, or in any suit against the Agent for any action taken,
suffered or omitted by it as Agent, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however that the provisions of this Section shall not apply to any suit
instituted by the
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Agent, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the aggregate principal balance of the Notes then
Outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Note on or after the stated
maturity date of such Note.
Section 815. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Loan Agreement; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Agent, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 816. Reserved.
Section 817. Sale of Collateral.
(a) The power to effect any sale (a "Sale") of any portion of the
Collateral pursuant to Section 804 hereof shall not be exhausted by any one or
more Sales as to any portion of the Collateral remaining unsold, but shall
continue unimpaired until the entire Collateral shall have been sold or all
amounts payable on the Notes and under this Loan Agreement and the related
Supplement with respect thereto shall have been paid. The Agent may from time to
time postpone any Sale by public announcement made at the time and place of such
Sale.
(b) Upon any Sale, whether made under the power of sale hereby given or
under judgment, order or decree in any Proceeding for the foreclosure or
involving the enforcement of this Loan Agreement: (i) the Agent, on behalf of
all Noteholders, may bid for and purchase the property being sold, and upon
compliance with the terms of such Sale may hold, retain and possess and dispose
of such property in accordance with the terms of this Loan Agreement; and (ii)
the receipt of the Agent or of any officer thereof making such sale shall be a
sufficient discharge to the purchaser or purchasers at such sale for its or
their purchase money, and such purchaser or purchasers, and its or their assigns
or personal representatives, shall not, after paying such purchase money and
receiving such receipt of the Agent or of such officer therefor, be obliged to
see to the application of such purchase money or be in any way answerable for
any loss, misappropriation or non-application thereof.
(c) The Agent shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Collateral in
connection with a Sale thereof. In addition, the Agent is hereby irrevocably
appointed the agent and attorney-in-fact of the Issuer to transfer and convey
its interest in any portion of the Collateral in connection with a Sale thereof,
and to take all action necessary to effect such Sale. No purchaser or transferee
at such a Sale shall be bound to ascertain the Agent's authority, inquire into
the satisfaction of any conditions precedent or see to the application of any
monies.
Section 818. Action on Notes.
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The Agent's right to seek and recover judgment on the Notes or under
this Loan Agreement shall not be affected by the seeking, obtaining or
application of any other relief under or with respect to this Loan Agreement.
Neither the Lien of this Loan Agreement nor any rights or remedies of the Agent
or the Noteholders shall be impaired by the recovery of any judgment by the
Agent against the Issuer or by the levy of any execution under such judgment
upon any portion of the Collateral or upon any of the assets of the Issuer.
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ARTICLE IX
THE AGENT
Section 901. Appointment and Authorization.
Each Noteholder, by acceptance of its Note, hereby irrevocably appoints,
designates and authorizes MeesPierson as the Agent under this Loan Agreement and
under each of the other Transaction Documents and irrevocably authorizes the
Agent to take such action on its behalf under the provisions of this Loan
Agreement and each other Transaction Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this Loan
Agreement or any other Transaction Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Loan Agreement or in any other Transaction
Documents, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Noteholder, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Transaction Document or otherwise exist against the
Agent.
Section 902. Delegation of Duties.
The Agent may execute any of its duties under this Loan Agreement or any
other Transaction Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
Section 903. Liability of Agent.
None of the Agent-Related Persons shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Loan Agreement or any other Transaction Document (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any
Noteholder for any recital, statement, representation or warranty made by
Issuer, or any officer thereof, contained in this Loan Agreement or in any other
Transaction, Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Loan Agreement or any other Transaction Document, or for
the value of any Collateral or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Loan Agreement or any other Transaction
Document, or for any failure of the Issuer or any other party to any Transaction
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Noteholder to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Loan Agreement or any other Transaction Document, or
to inspect the properties, books or records of Issuer.
Section 904. Reliance by the Agent.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any
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writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to Issuer), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Loan Agreement or any other Transaction
Document unless it shall first be indemnified to its satisfaction by the
Noteholders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action (the unsecured
indemnity of a Rated Institutional Noteholder deemed sufficient for such
purpose). The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Loan Agreement or any other Transaction
Document in accordance with a request or consent of the Majority of Holders and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Noteholders.
Section 905. Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default or Potential Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Agent on behalf and for the benefit of the Noteholders, unless
the Agent shall have received written notice from a Noteholder or the Issuer
referring to this Loan Agreement, describing such Event of Default or Potential
Event of Default and stating that such notice is a "notice of default". In the
event that the Agent receives such a notice, the Agent shall give notice thereof
to the Noteholders. The Agent shall take such action with respect to such Event
of Default or Potential Event of Default as shall be required by Article VIII
hereof; provided, however, that unless and until the Agent shall have received
any such request, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Event of
Default or Potential Event of Default as it shall deem advisable or in the best
interest of the Noteholders.
Section 906. Credit Decision.
Each Noteholder by acceptance of a Note expressly acknowledges that none
of the Agent-Related Persons has made any representation or warranty to it and
that no act by the Agent hereinafter taken, including any review of the affairs
of Issuer, shall be deemed to constitute any representation or warranty by the
Agent to any Noteholder. Each Noteholder represents to the Agent that it has,
independently and without reliance upon the Agent and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of Issuer, and all applicable Noteholder
regulatory laws relating to the transactions contemplated thereby, and made its
own decision to enter into this Loan Agreement and extend credit to Issuer under
and pursuant to this Loan Agreement. Each Noteholder also represents that it
will, independently and without reliance upon the Agent and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Loan Agreement and the other Transaction Documents, and to
make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of Issuer. Except for notices, reports and other documents
expressly herein required to be furnished to the Noteholders by the Agent, the
Agent shall not have any duty or responsibility to provide any Noteholder with
any
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credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of Issuer, which may
come into the possession of any of the Agent-Related Persons.
Section 907. Indemnification.
Whether or not the transactions contemplated hereby shall be
consummated, the Noteholders shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of Issuer and without
limiting the obligation of Issuer to do so), ratably from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind whatsoever which may at any
time (including at any time following the repayment of the Loans and the
termination or resignation of the related Agent) be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Loan Agreement or any document contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by any such Person under or in connection with any of the foregoing;
provided, however, that no Noteholder shall be liable for the payment to the
Agent-Related Persons of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Noteholder shall reimburse the Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including reasonable attorney fees) incurred by the Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Loan
Agreement, any other Transaction Document, or any document contemplated by or
referred to herein to the extent that the Agent is not reimbursed for such
expenses by or on behalf of the Issuer. Without limiting the generality of the
foregoing, if the United States Internal Revenue Service or any other
Governmental Authority of the United States or other jurisdiction asserts a
claim that the Agent did not properly withhold tax from amounts paid to or for
the account of any Noteholder (because the appropriate form was not delivered,
was not properly executed, or because such Noteholder failed to notify the Agent
of a change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason), such Noteholder shall
indemnify the Agent fully for all amounts paid, directly or indirectly, by the
Agent as tax or otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to the Agent under this
Section 907, together with all costs and expenses (including reasonable attorney
fees). The obligation of the Noteholders in this Section 907 shall survive the
payment of all Obligations.
Section 908. Agent in Individual Capacity.
MeesPierson and its affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory or other
business with Issuer and any of its affiliates as though MeesPierson were not
the Agent hereunder and without notice to or consent of the Noteholders. With
respect to its Notes, MeesPierson shall have the same rights and powers under
this Loan Agreement as any other Noteholder and may exercise the same as though
it were not the Agent, and the terms "Noteholder" and "Noteholders" shall
include MeesPierson in its individual capacity.
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Section 909. Successor Agent.
The Agent may, and at the request of the Majority of Holders shall,
resign as Agent upon thirty (30) days' notice to the Noteholders. If the Agent
shall resign as Agent under this Loan Agreement, the Majority of Holders shall
appoint from among the Noteholders a successor agent for the Noteholders. If no
successor agent is appointed prior to the effective date of the resignation of
the Agent, the Agent may appoint, after consulting with the Noteholders and the
Issuer, a successor agent from among the Noteholders. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article IX shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent under
this Loan Agreement. If no successor agent has accepted appointment as Agent by
the date which is thirty (30) days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Noteholders shall perform all of the duties of the
Agent hereunder until such time, if any, as the Majority of Holders appoint a
successor agent as provided for above.
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ARTICLE X
CONDITIONS OF EFFECTIVENESS
Section 1001. Effectiveness. The effectiveness of this Loan Agreement is
subject to the condition precedent that the Agent shall have received all of the
following, each duly executed and dated as of the Closing Date, in form and
substance satisfactory to each of the Noteholders and each (except for the
Notes, of which only the originals shall be signed) in sufficient number of
signed counterparts to provide one for each Noteholder:
(a) Notes. Separate Notes executed by the Issuer in favor of each
Noteholder.
(b) Certificate(s) of Chief Financial Officer and Secretary. Separate
certificates, each dated the Closing Date, executed by authorized signatories of
each of Manager, Administrator, the Guarantor, Issuer and all Sellers,
certifying (i) that the respective company has the authority to execute and
deliver, and perform their respective obligations under each of the Transaction
Documents to which it is a party, (ii) that attached to such certificate(s) is a
true, correct and complete copy of the certificate of incorporation or other
organizational document of such company certified by proper Secretary of State
or such other Governmental Authority as applicable as of date close to the
Closing Date, (iii) that attached to such certificate is a true, correct and
complete copy of the bylaws and each other organizational document of such
company then in full force and effect, (iv) that attached to such certificate is
a certificate of the Secretary of State (or equivalent) of any other
jurisdiction where Issuer is required to be qualified to do business, dated as
of a date close to the Closing Date, stating that such company is a corporation
in good standing in such jurisdiction, (v) that attached to such certificate is
a true, correct and complete copy of the resolutions adopted by the board of
directors of each of such company then in full force and effect authorizing the
execution, delivery and performance by such company of each of the Transaction
Documents to which such company is a party and (vi) the name of the officer(s)
of such company authorized to execute Transaction Documents on behalf of such
company together with a sample of the true signatures of such officer(s).
(c) Transaction Documents. All of the Transaction Documents, are in form
and substance satisfactory to the Noteholders, and shall have been executed and
delivered by Issuer and all other parties thereto.
(d) Certificate as to Containers. A Certificate from Manager certifying
that it is managing all of the Containers in accordance with the Management
Agreement.
(e) True Sale Opinions and Non-Consolidation Opinion. Each of the
Noteholders shall have received opinion letters from Conyers, Dill & Pearman,
Denton Hall and/or Proskauer Rose LLP with respect to (i) the "true sale" of the
Containers to the Issuer from each of Cronos Equipment (Bermuda) Limited, Cronos
Containers Limited and Cronos Capital Corp., respectively and (ii)
"nonconsolidation" of the Issuer with any of the Sellers, Proskauer Rose LLP
shall have delivered its opinion with respect to the New York law aspects of the
Transaction Documents. The Agent shall have received such other opinions as it
deems appropriate.
(f) Deposit in Restricted Cash Account. The Issuer shall have deposited
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$[985,421] in the Restricted Cash Account on or prior to the Closing Date.
(g) Default. No Event of Default, Potential Event of Default, Manager
Default or Early Amortization Event shall have occurred and be continuing.
(h) Certification. Issuer shall have delivered to the Noteholders a
Compliance Certificate of Issuer, signed by an authorized signatory of Issuer,
as to the matters set out in Article X of this Loan Agreement
(i) Asset Base Certificate. Issuer shall have delivered to the
Noteholders a duly completed and executed Asset Base Certificate calculated as
of July 30, 1999 (which calculation shall be based on the actual Container
statistics as of June 30, 1999, adjusted to reflect one month of depreciation).
(j) Security Interest Financing Statements. The Agent shall have
received all Uniform Commercial Code financing statements and documents of
similar import in other jurisdictions reasonably requested by Noteholders
recording the security interest(s) in favor of the Agent, on behalf of the
Lender, created pursuant to the terms of the Transaction Documents.
(k) Approval of Purchase. Each of the Noteholders shall have given its
prior written approval to the purchase of the Containers to be made on the
Closing Date.
(l) Structuring Fee. The Issuer shall have paid the structuring fee to
the Noteholders.
(m) Stock. The Cronos Group shall have issued 150,000 of its shares to
each Lender.
(n) Warrants. The Cronos Group shall have entered into the Warrant
Agreement pursuant to which it shall have issued to the Noteholders representing
two and thirty hundredths of one percent of (2.3%) of the total outstanding
capital stock of The Cronos Group.
(o) Pledge of shares. The Cronos Group shall have pledged to the Agent,
for the benefit of the Noteholders, all of The Cronos Group's interest in (i)
the shares of the Issuer and Cronos Holdings Investment (US) Inc., (ii) the
Class C Note and (iii) the Escrowed Shares.
Notwithstanding the foregoing conditions precedent, upon the issuance of the
Notes, all of the Agent's rights under this Loan Agreement (and by operation of
law) shall vest in Agent, whether or not the conditions precedent were in fact
satisfied.
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ARTICLE XI
EARLY AMORTIZATION EVENT
Section 1101. Early Amortization Event. As of any Determination Date,
the existence of any one of the following events or conditions shall constitute
an Early Amortization Event:
(1) An Event of Default shall have occurred and then be continuing;
(2) The sum of the then unpaid principal balances of all Notes then
Outstanding on any Payment Date (after giving effect to all
payments of principal to be paid on such Payment Date) exceeds
the Asset Base, and such condition is not remedied for a period
of ten (10) consecutive days;
(3) A Manager Default shall have occurred and then be continuing;
(4) The Consolidated Interest Coverage Ratio of the Issuer
determined as of any Payment Date occurring on or after the
Closing Date shall be less than 1.1 to 1.0;
(5) The Issuer, Manager or Guarantor shall fail to be in compliance
with any of their financial covenants set forth in this
Agreement, the Management Agreement, the Guaranty or any other
Transaction Document.
(6) The Weighted Average Age of the Equipment as of any Payment Date
is greater than ten (10) years.
If an Early Amortization Event exists on any Payment Date, then such
Early Amortization Event shall be deemed to continue until the earlier of (x)
the Business Day immediately preceding the Payment Date on which no Early
Amortization Event exists and (y) the Business Day on which the Majority of
Holders waives in writing such Early Amortization Event.
Upon the occurrence of an Early Amortization Event of the type set forth
in clauses (1), (2), (3), (4) and (6) of this Section 1101, the Agent shall have
the right to conduct an annual audit of the Issuer at Issuer's expense.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Agent to take
any action under any provision of this Loan Agreement, the Issuer shall furnish
to the Agent a certificate stating that all conditions precedent, if any,
provided for in this Loan Agreement relating to the proposed action have been
complied with and, if deemed reasonably necessary by the Agent or if required
pursuant to the terms of this Loan Agreement, an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Loan Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Loan Agreement shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1202. Form of Documents Delivered to Agent.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous.
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(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Loan Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1203. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Loan Agreement to be given or taken by
Holders may be (i) embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing, (ii) evidenced by the written consent or direction of
Holders of the specified percentage of the principal amount of the Notes, or
(iii) evidenced by a combination of such instrument or instruments; and, except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments and record are delivered to the Agent and, where
it is hereby expressly required, to the Issuer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Loan Agreement and conclusive in favor of the Agent and the
Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Agent deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Agent or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 1204. Inspection. (a) Issuer agrees that it will permit, and
shall cause the Administrator to permit, any representative of the Agent or any
Noteholder and their duly authorized representatives, attorneys or accountants,
(i) upon reasonable request, (ii) during the Issuer's normal business hours and
(iii) at offices designated by the Issuer, to examine all of the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's or Administrator's officers, employees and Independent
Accountants all at such reasonable times and as often as may be reasonably
requested. The Agent shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing). Any expense incident to the reasonable exercise by the Agent or any
Noteholder of any right under this Section shall be borne by the Person
exercising such
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right unless an Event of Default shall have occurred and then be continuing in
which case such expenses shall be borne by the Issuer.
(b) The Issuer also agrees (i) to make available on a reasonable
basis to the Agent, any Noteholder or any Prospective Owner a responsible
officer for the purpose of answering reasonable questions respecting recent
developments affecting the Issuer and (ii) to allow the Agent, any Noteholder or
any prospective owner to inspect the Administrator's facilities during normal
business hours.
Section 1205. Limitation of Rights. Except as expressly set forth in
this Loan Agreement, this Loan Agreement shall be binding upon the Issuer, the
Noteholders and their respective successors and permitted assigns and shall not
inure to the benefit of any Person other than the parties hereto, the
Noteholders and the Administrator as provided herein.
Section 1206. Severability. If any provision of this Loan Agreement is
held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever.
The invalidity of any one or more phrases, sentences, clauses or
Sections of this Loan Agreement contained, shall not affect the remaining
portions of this Loan Agreement, or any part thereof.
Section 1207. Notices. All demands, notices and communications hereunder
shall be in writing, personally delivered or mailed by certified mail-return
receipt requested, and shall be deemed to have been duly given upon receipt (a)
in the case of the Agent, at the following address: MeesPierson N.V. at the
following address: Coolsingle 93/1 PO Box 749 3000 As Rotterdam, The
Netherlands, and (b) in the case of the Issuer, at the following address: Cronos
Finance (Bermuda) Limited, Clarendon House, Church Street, Hamilton HM 11
Bermuda, Attn: Secretary, Telephone: 441 295-1422, Telefax: 441 292-4720. Any
notice required or permitted to be given to a Noteholder shall be given by
certified first class mail, postage prepaid (return receipt requested), or by
courier, or by facsimile, with subsequent telephone confirmation of receipt
thereof, in each case at the address of such Holder as shown in the Note
Register or to the telephone and fax number furnished by such Noteholder. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice.
Section 1208. Consent to Jurisdiction. Any legal suit, action or
proceeding against the Issuer arising out of or relating to this Loan Agreement,
or any transaction contemplated hereby, may be instituted in any federal or
state court in The City of New York, State of New York and the Issuer hereby
waives any objection which it may now or hereafter have to the laying of venue
of any such suit, action or proceeding, and the Issuer hereby irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding. The Issuer hereby irrevocably appoints and designates CT Corporation
System, having an address at 1633 Broadway, New York, New York, its true and
lawful attorney-in-fact and duly authorized agent for the limited purpose of
accepting servicing of legal process and the Issuer agrees that service of
process upon such party shall
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<PAGE> 70
constitute personal service of such process on such Person. The Issuer shall
maintain the designation and appointment of such authorized agent until all
amounts payable under this Loan Agreement shall have been paid in full. If such
agent shall cease to so act, each of the Agent and the Owner shall immediately
designate and appoint another such agent satisfactory to the Agent and shall
promptly deliver to the Agent evidence in writing of such other agent's
acceptance of such appointment.
Section 1209. Captions. The captions or headings in this Loan Agreement
are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or sections of this Loan Agreement.
Section 1210. Governing Law. This Loan Agreement shall be governed by
and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 1211. No Petition. The Agent, on its own behalf, hereby
covenants and agrees, and each Noteholder by its acquisition of a Note shall be
deemed to covenant and agree, that it will not institute against the Issuer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law, at
any time other than on a date which is at least one year and one day after the
last date on which any Note of any Series was Outstanding.
Section 1212. General Interpretive Principles. For purposes of this Loan
Agreement except as otherwise expressly provided or unless the context otherwise
requires:
(a) the defined terms in this Loan Agreement shall include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include any other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date hereof;
(c) references herein to "Articles", "Sections", "Subsections",
"paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions of
this Loan Agreement;
(d) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to paragraphs and other
subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Loan Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
Section 1213. Counterparts. This Loan Agreement may be executed in two
or more counterparts, and by different parties on separate counterparts, each of
which shall be an original,
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<PAGE> 71
but all of which shall constitute one and the same instrument.
Section 1214. CONSENT TO JURISDICTION. ANY LEGAL SUIT, ACTION OR
PROCEEDING AGAINST THE AGENT ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR STATE
COURT IN THE CITY AND COUNTY OF NEW YORK, STATE OF NEW YORK AND THE AGENT AND
THE ISSUER EACH HEREBY WAIVE ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE
PURPOSES OF ENFORCING THIS AGREEMENT, EACH AGENT AND THE ISSUER EACH HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING. THE AGENT AND THE ISSUER HEREBY IRREVOCABLY APPOINTS AND
DESIGNATES CT CORPORATION SYSTEMS, HAVING AN ADDRESS AT 1633 BROADWAY, NEW YORK,
NEW YORK, ITS TRUE AND LAWFUL ATTORNEY-IN-FACT AND DULY AUTHORIZED AGENT FOR THE
LIMITED PURPOSE OF ACCEPTING SERVICING OF LEGAL PROCESS AND THE AGENT AND THE
ISSUER EACH AGREE THAT SERVICE OF PROCESS UPON SUCH PARTY SHALL CONSTITUTE
PERSONAL SERVICE OF SUCH PROCESS ON SUCH PERSON. PURSUANT TO NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1402, THE AGENT AND THE ISSUER SHALL EACH MAINTAIN THE
DESIGNATION AND APPOINTMENT OF SUCH AUTHORIZED AGENT UNTIL ALL AMOUNTS PAYABLE
UNDER THIS AGREEMENT SHALL HAVE BEEN PAID IN FULL. IF SUCH AGENT SHALL CEASE TO
SO ACT, THE AGENT OR THE ISSUER, AS THE CASE MAY BE, SHALL IMMEDIATELY DESIGNATE
AND APPOINT ANOTHER SUCH AGENT SATISFACTORY TO THE AGENT AND SHALL PROMPTLY
DELIVER TO THE AGENT EVIDENCE IN WRITING OF SUCH OTHER AGENT'S ACCEPTANCE OF
SUCH APPOINTMENT.
Section 1215. Judgment Currency. This is an international financing
transaction in accordance with which the specification of Dollars is of the
essence, and Dollars shall be the currency of account in the case of all
obligations under the Transaction Documents. The payment obligations of the
Issuer under the Transaction Documents shall not be discharged by an amount paid
in a currency, or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to Dollars and transfer to the specified
place of payment under normal banking procedures does not yield the amount of
Dollars, in such place, due under the governing Transaction Documents. In the
event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer does not result in payment of such amount of Dollars in
the specified place of payment, the obligee of such payment shall have a
separate cause of action against the party making the same for the additional
amount necessary to yield the amount due and owing under such Transaction
Documents. If, for the purpose of obtaining a judgment in any court with respect
to any obligation of a party under any of the Transaction Documents or any of
the agreements contemplated thereby, it shall be necessary to convert to any
other currency any amount in Dollars due thereunder and a change shall occur
between the rate of exchange applied in making such conversion and the rate of
exchange prevailing on the date of payment of such judgment, the respective
judgment debtor agrees to pay such additional amounts (if any) as may be
necessary to insure that the amount paid on the date of payment is the amount in
such other currency which, when converted into Dollars and transferred to New
York, New York, in accordance with normal banking procedures will result in the
amount
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<PAGE> 72
then due under the respective Transaction Document in Dollars. Any amount due
from the respective judgment debtor shall be due as a separate debt and shall
not be affected by or merged into any judgment being obtained for any other sum
due under or in respect of any Transaction Document. In no event, however, shall
the respective judgment debtor be required to pay a larger amount in such other
currency, at the rate of exchange in effect on the date of payment than the
amount of Dollars stated to be due under the respective Transaction Document, so
that in any event the obligations of the respective judgment debtor under the
Transaction Document will be effectively maintained as Dollar obligations.
Section 1216. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, AS AGAINST THE OTHER PARTIES HERETO, ANY RIGHTS IT MAY HAVE
TO A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION OR PROCEEDING (WHETHER ARISING IN
CONTRACT OR TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING UNDER OR
RELATING TO THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, INCLUDING IN RESPECT
OF THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.
Section 1217. Waiver of Immunity. To the extent that any party hereto or
any of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Loan Agreement, the other
Transaction Documents or the subject matter hereof or thereof, subject, in each
case, to the provisions of the Transaction Documents and mandatory requirements
of applicable law.
Section 1218. Confidentiality. Except to the extent necessary or
desirable for the exercise of its rights and remedies and the performance of its
obligations under the Transaction Documents, no party hereto will itself use or
intentionally disclose or permit its agents to disclose, directly or indirectly,
any confidential information obtained from any of the parties hereto or in
connection herewith and each party hereto will use all reasonable efforts to
have all such information kept confidential; provided that (a) each party may
use, retain and disclose any such information to (i) its legal counsel and
public accountants, and any of its potential transferees if the potential
transferee agrees to keep such information confidential to the extent provided
herein and (ii) any governmental agency, including a judicial body, or
instrumentality or other supervisory body requesting or requiring such
disclosure, (b) each party may use, retain and disclose any such information
which has been publicly disclosed (other than by such party or any Affiliate
thereof in breach of this subsection) or has rightfully come into possession of
such party or any Affiliate thereof (other than from another party hereto) and
(c) to the extent that such party or any Affiliate thereof may have received a
subpoena or other written demand under color of legal right for such
information, such party or Affiliate may disclose such information, but such
party shall, as soon as practicable upon receipt of such demand, furnish a copy
thereof to the party such information relates to; provided, however, that no
party shall make any disclosure under clauses (a)(ii) and (c) unless (i) it
shall have determined, upon the advice of counsel, that such disclosure is
legally required and
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<PAGE> 73
then such disclosure shall be made only to the extent legally required and (ii)
the other party has been afforded a reasonable opportunity to contest (if such
contest rights are then available under applicable law) the legal requirement to
make such disclosure through appropriate proceedings.
Section 1219. Binding Effect; Assignability. This Loan Agreement shall
be binding upon and inure to the benefit of the Issuer, the Agent, the
Noteholders, and their respective successors and permitted assigns. The Issuer
may not assign its rights or obligations under this Loan Agreement without the
prior written consent of the Agent and all of the Noteholders.
-68-
<PAGE> 74
IN WITNESS WHEREOF, the Issuer, the Agent and the Initial
Noteholders have caused this Loan Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized and duly attested, to be
hereunto affixed, all as of the day and year first above written.
CRONOS FINANCE (BERMUDA) LIMITED
By: /s/ C.P. LONGHAM
---------------------------------
Name: C.P. Longham
Title: Attorney-in-fact
MEESPIERSON N.V., as Agent and
Lender
By: /s/ J.G.H.M. HANEGRAAF
---------------------------------
Name: J.G.H.M. Hanegraaf
Title:
-----------------------------
FIRST UNION NATIONAL BANK
By: /s/ JESSICA TISDALE
---------------------------------
Name: Jessica Tisdale
Title: Vice President
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<PAGE> 75
EXHIBIT A
Depreciation Methods by Type of Container
1. Dry Cargo Containers
6% (Six percent) per annum, over 15 years, to a 10% (Ten percent) residual
value.
2. Refrigerated Containers
7.08% (Seven and eight hundredths percent) per annum, over 12 years, to a 15%
(Fifteen percent) residual value.
3. Tank Containers
6% (Six percent) per annum, over 15 years, to a 10% (Ten percent) residual
value.
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<PAGE> 76
EXHIBIT B
Weighing Factors
<TABLE>
<CAPTION>
Container Type Weighing Factor
-------------- ---------------
<S> <C>
20' Dry Cargo Containers 1.0
40' Dry Cargo Containers 1.6
40' HC Dry Cargo Containers 1.8
20' Refrigerated Containers 6.0
40' Refrigerated Containers 8.0
40' HC Refrigerated Containers 8.0
Tank Containers 8.5
</TABLE>
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<PAGE> 77
EXHIBIT C
Form of Note
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<PAGE> 78
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED, UNLESS SO REGISTERED OR THE TRANSACTION
RELATING THERETO SHALL BE EXEMPT WITHIN THE MEANING OF SUCH ACT AND THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION ADOPTED THEREUNDER. IN
ADDITION, SUCH TRANSACTION MUST COMPLY WITH THE PROVISIONS SET FORTH IN SECTION
205 OF THE LOAN AGREEMENT. BECAUSE OF THE PROVISIONS FOR THE PAYMENT OF
PRINCIPAL CONTAINED HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANYONE PURCHASING THIS NOTE MAY
ASCERTAIN THE OUTSTANDING PRINCIPAL AMOUNT HEREOF BY INQUIRY OF THE AGENT.
CRONOS FINANCE (BERMUDA) LIMITED
SECURED NOTE
$25,000,000.00 No. 1
KNOW ALL PERSONS BY THESE PRESENTS that CRONOS FINANCE (BERMUDA)
LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (the "Company"), for value received, hereby promises to pay to
MeesPierson N.V., or its registered assigns, at the principal office of the
Agent named below, the principal sum of Twenty- Five Million Dollars
($25,000,000), which sum shall be payable on the dates and in the amounts set
forth herein, in the Loan Agreement, dated as of July 30, 1999 (the "Loan
Agreement"), among the Company, MeesPierson N.A., as agent (the "Agent"), and
MeesPierson N.V. and First Union National Bank (each a "Noteholder" and together
the "Noteholders"). Capitalized terms not otherwise defined herein will have the
meaning set forth in the Loan Agreement as the same may be amended or
supplemented from time to time.
Payment of the principal and interest on this Note shall be made in
lawful money of the United States of America which at the time of payment is
legal tender for payment of public and private debts. Principal and interest are
payable on each Payment Date in immediately available funds to the extent set
forth in the Loan Agreement from funds on deposit in the Trust Account and the
Restricted Cash Account and as further set forth in Articles II and III of the
Loan Agreement.
This Note shall bear interest on the unpaid principal balance hereof at
a rate per annum equal to the Interest Rate for the applicable Interest Period.
Interest payable on this Note shall be calculated as set forth in the Loan
Agreement.
This Note shall be an obligation of the Company, and shall be secured by
the Collateral, all as defined in, and subject to limitations set forth in, the
Loan Agreement, for the equal and ratable benefit of the Holders, from time to
time, of the Notes (the "Noteholders"). Except to the extent set forth in the
Guaranty, dated July 30, 1999 (the "Guaranty") between The Cronos Group
("Guarantor") and Agent, no other Person shall be liable for any obligation of
the Company under the Loan Agreement or this Note or any losses incurred by the
Holder of this Note.
<PAGE> 79
Except to the extent set forth in the Guaranty, no recourse may be
taken, directly or indirectly, with respect to the obligations of the Company on
this Note or under the Loan Agreement or any certificate, statement or other
writing delivered in connection herewith or therewith, against any incorporator,
subscriber, agent, administrator, shareholder, partner, officer or director, as
such, of the Company or any predecessor, successor, Affiliate or controlling
person of the Company, or against any stockholder of a corporation, partner of a
partnership or beneficiary or equity owner of a trust, succeeding thereto (all
of the foregoing, collectively, the "Exculpated Parties"), it being understood
(and any holder of this Note, by its acceptance thereof, shall be deemed to have
consented and agreed) that recourse shall be solely to the Collateral. The
Company and any director or officer or employee or agent of the Company may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. No suit, claim
or proceeding shall be brought against the Exculpated Parties or any of them for
any obligation under or relating to this Note, the Loan Agreement or any
agreement, instrument, certificate or other document delivered in connection
therewith.
The Agent or Company may require payment by the Noteholder of a sum
sufficient to cover any tax expense or other governmental charge payable in
connection with any transfer or exchange of this Note.
The Company, the Agent and any agent of the Company may treat the person
in whose name this Note is registered as the absolute owner hereof for all
purposes, and neither the Company, the Agent, nor any other such agent shall be
affected by notice to the contrary.
This Note may be prepaid with penalty as set forth in Section 203 of the
Loan Agreement, at the Company's option, upon such notice and in the minimum
amounts set forth in Section 203 of the Loan Agreement.
If an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Loan Agreement.
The Noteholder shall have no right to enforce the provisions of the Loan
Agreement or to institute an action to enforce the covenants, or to take any
action with respect to a default under the Loan Agreement, or to institute,
appear in or defend any suit or other proceedings with respect thereto, except
as provided under certain circumstances described in the Loan Agreement;
provided, however, that nothing contained in the Loan Agreement shall affect or
impair any right of enforcement conferred on the Noteholder to enforce any
payment of the principal of and interest on this Note on or after the due date
thereof; provided further, however, that by acceptance hereof the Noteholder is
deemed to have covenanted and agreed that it will not institute against the
Company any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law, at any time other than at such time as permitted in Section 1211 of
the Loan Agreement.
All terms and provisions of the Loan Agreement are herein incorporated
by reference as if set forth herein in their entirety.
<PAGE> 80
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions
and things required to exist, happen and be performed precedent to the execution
and delivery of the Loan Agreement and the issuance of this Note, do exist, have
happened and have been timely performed in regular form and manner as required
by law.
This Note, and the rights and obligations of the parties hereunder,
shall be governed by, and construed and interpreted with, the laws of the State
of New York, without giving effect to the principles of conflicts of laws.
<PAGE> 81
IN WITNESS WHEREOF, Cronos Finance (Bermuda) Limited has caused this
Note to be duly executed by its duly authorized representative, on this __ day
of ____________, 1999.
CRONOS FINANCE (BERMUDA) LIMITED
By:_________________________________
Its:________________________________
<PAGE> 82
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED, UNLESS SO REGISTERED OR THE TRANSACTION
RELATING THERETO SHALL BE EXEMPT WITHIN THE MEANING OF SUCH ACT AND THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION ADOPTED THEREUNDER. IN
ADDITION, SUCH TRANSACTION MUST COMPLY WITH THE PROVISIONS SET FORTH IN SECTION
205 OF THE LOAN AGREEMENT. BECAUSE OF THE PROVISIONS FOR THE PAYMENT OF
PRINCIPAL CONTAINED HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANYONE PURCHASING THIS NOTE MAY
ASCERTAIN THE OUTSTANDING PRINCIPAL AMOUNT HEREOF BY INQUIRY OF THE AGENT.
CRONOS FINANCE (BERMUDA) LIMITED
SECURED NOTE
$25,000,000.00 No. 2
KNOW ALL PERSONS BY THESE PRESENTS that CRONOS FINANCE (BERMUDA)
LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (the "Company"), for value received, hereby promises to pay to First
Union National Bank, or its registered assigns, at the principal office of the
Agent named below, the principal sum of Twenty-Five Million Dollars
($25,000,000.00), which sum shall be payable on the dates and in the amounts set
forth herein, in the Loan Agreement, dated as of July 30, 1999 (the "Loan
Agreement"), among the Company, MeesPierson N.A., as agent (the "Agent"), and
MeesPierson N.V. and First Union National Bank (each a "Noteholder" and together
the "Noteholders"). Capitalized terms not otherwise defined herein will have the
meaning set forth in the Loan Agreement as the same may be amended or
supplemented from time to time.
Payment of the principal of this Note shall be made in lawful money of
the United States of America which at the time of payment is legal tender for
payment of public and private debts. Principal is payable on each Payment Date
in immediately available funds to the extent set forth in the Loan Agreement
from funds on deposit in the Trust Account and the Restricted Cash Account and
as further set forth in Articles II and III of the Loan Agreement.
This Note shall not bear interest.
This Note shall be an obligation of the Company, and shall be secured by
the Collateral, all as defined in, and subject to limitations set forth in, the
Loan Agreement, for the equal and ratable benefit of the Holders, from time to
time, of the Notes (the "Noteholders"). Except to the extent set forth in the
Guaranty, dated July 30, 1999 (the "Guaranty") between The Cronos Group
("Guarantor") and Agent, no other Person shall be liable for any obligation of
the Company under the Loan Agreement or this Note or any losses incurred by the
Holder of this Note.
<PAGE> 83
Except to the extent set forth in the Guaranty, no recourse may be
taken, directly or indirectly, with respect to the obligations of the Company on
this Note or under the Loan Agreement or any certificate, statement or other
writing delivered in connection herewith or therewith, against any incorporator,
subscriber, agent, administrator, shareholder, partner, officer or director, as
such, of the Company or any predecessor, successor, Affiliate or controlling
person of the Company, or against any stockholder of a corporation, partner of a
partnership or beneficiary or equity owner of a trust, succeeding thereto (all
of the foregoing, collectively, the "Exculpated Parties"), it being understood
(and any holder of this Note, by its acceptance thereof, shall be deemed to have
consented and agreed) that recourse shall be solely to the Collateral. The
Company and any director or officer or employee or agent of the Company may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. No suit, claim
or proceeding shall be brought against the Exculpated Parties or any of them for
any obligation under or relating to this Note, the Loan Agreement or any
agreement, instrument, certificate or other document delivered in connection
therewith.
The Agent or Company may require payment by the Noteholder of a sum
sufficient to cover any tax expense or other governmental charge payable in
connection with any transfer or exchange of this Note.
The Company, the Agent and any agent of the Company may treat the person
in whose name this Note is registered as the absolute owner hereof for all
purposes, and neither the Company, the Agent, nor any other such agent shall be
affected by notice to the contrary.
This Note may be prepaid with penalty as set forth in Section 203 of the
Loan Agreement, at the Company's option, upon such notice and in the minimum
amounts set forth in Section 203 of the Loan Agreement.
If an Event of Default shall occur and be continuing, the principal of
this Note may be declared to be due and payable in the manner and with the
effect provided in the Loan Agreement.
The Noteholder shall have no right to enforce the provisions of the Loan
Agreement or to institute an action to enforce the covenants, or to take any
action with respect to a default under the Loan Agreement, or to institute,
appear in or defend any suit or other proceedings with respect thereto, except
as provided under certain circumstances described in the Loan Agreement;
provided, however, that nothing contained in the Loan Agreement shall affect or
impair any right of enforcement conferred on the Noteholder to enforce any
payment of the principal of this Note on or after the due date thereof; provided
further, however, that by acceptance hereof the Noteholder is deemed to have
covenanted and agreed that it will not institute against the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law, at
any time other than at such time as permitted in Section 1211 of the Loan
Agreement.
All terms and provisions of the Loan Agreement are herein incorporated
by reference as if set forth herein in their entirety.
<PAGE> 84
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions
and things required to exist, happen and be performed precedent to the execution
and delivery of the Loan Agreement and the issuance of this Note, do exist, have
happened and have been timely performed in regular form and manner as required
by law.
This Note, and the rights and obligations of the parties hereunder,
shall be governed by, and construed and interpreted with, the laws of the State
of New York, without giving effect to the principles of conflicts of laws.
<PAGE> 85
IN WITNESS WHEREOF, Cronos Finance (Bermuda) Limited has caused this
Note to be duly executed by its duly authorized representative, on this __ day
of ____________, 1999.
CRONOS FINANCE (BERMUDA) LIMITED
By:_________________________________
Its:________________________________
<PAGE> 1
Exhibit 10.22
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED, UNLESS SO REGISTERED OR THE TRANSACTION
RELATING THERETO SHALL BE EXEMPT WITHIN THE MEANING OF SUCH ACT AND THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION ADOPTED THEREUNDER. IN
ADDITION, SUCH TRANSACTION MUST COMPLY WITH THE PROVISIONS SET FORTH IN SECTION
205 OF THE LOAN AGREEMENT. BECAUSE OF THE PROVISIONS FOR THE PAYMENT OF
PRINCIPAL CONTAINED HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANYONE PURCHASING THIS NOTE MAY
ASCERTAIN THE OUTSTANDING PRINCIPAL AMOUNT HEREOF BY INQUIRY OF THE AGENT.
CRONOS FINANCE (BERMUDA) LIMITED
SECURED NOTE
$25,000,000.00 No. 1
KNOW ALL PERSONS BY THESE PRESENTS that CRONOS FINANCE (BERMUDA)
LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (the "Company"), for value received, hereby promises to pay to
MeesPierson N.V., or its registered assigns, at the principal office of the
Agent named below, the principal sum of Twenty- Five Million Dollars
($25,000,000), which sum shall be payable on the dates and in the amounts set
forth herein, in the Loan Agreement, dated as of July 30, 1999 (the "Loan
Agreement"), among the Company, MeesPierson N.A., as agent (the "Agent"), and
MeesPierson N.V. and First Union National Bank (each a "Noteholder" and together
the "Noteholders"). Capitalized terms not otherwise defined herein will have the
meaning set forth in the Loan Agreement as the same may be amended or
supplemented from time to time.
Payment of the principal and interest on this Note shall be made in
lawful money of the United States of America which at the time of payment is
legal tender for payment of public and private debts. Principal and interest are
payable on each Payment Date in immediately available funds to the extent set
forth in the Loan Agreement from funds on deposit in the Trust Account and the
Restricted Cash Account and as further set forth in Articles II and III of the
Loan Agreement.
This Note shall bear interest on the unpaid principal balance hereof at
a rate per annum equal to the Interest Rate for the applicable Interest Period.
Interest payable on this Note shall be calculated as set forth in the Loan
Agreement.
This Note shall be an obligation of the Company, and shall be secured by
the Collateral, all as defined in, and subject to limitations set forth in, the
Loan Agreement, for the equal and ratable benefit of the Holders, from time to
time, of the Notes (the "Noteholders"). Except to the extent set forth in the
Guaranty, dated July 30, 1999 (the "Guaranty") between The Cronos Group
("Guarantor") and Agent, no other Person shall be liable for any obligation of
the Company under the Loan Agreement or this Note or any losses incurred by the
Holder of this Note.
<PAGE> 2
Except to the extent set forth in the Guaranty, no recourse may be
taken, directly or indirectly, with respect to the obligations of the Company on
this Note or under the Loan Agreement or any certificate, statement or other
writing delivered in connection herewith or therewith, against any incorporator,
subscriber, agent, administrator, shareholder, partner, officer or director, as
such, of the Company or any predecessor, successor, Affiliate or controlling
person of the Company, or against any stockholder of a corporation, partner of a
partnership or beneficiary or equity owner of a trust, succeeding thereto (all
of the foregoing, collectively, the "Exculpated Parties"), it being understood
(and any holder of this Note, by its acceptance thereof, shall be deemed to have
consented and agreed) that recourse shall be solely to the Collateral. The
Company and any director or officer or employee or agent of the Company may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. No suit, claim
or proceeding shall be brought against the Exculpated Parties or any of them for
any obligation under or relating to this Note, the Loan Agreement or any
agreement, instrument, certificate or other document delivered in connection
therewith.
The Agent or Company may require payment by the Noteholder of a sum
sufficient to cover any tax expense or other governmental charge payable in
connection with any transfer or exchange of this Note.
The Company, the Agent and any agent of the Company may treat the person
in whose name this Note is registered as the absolute owner hereof for all
purposes, and neither the Company, the Agent, nor any other such agent shall be
affected by notice to the contrary.
This Note may be prepaid with penalty as set forth in Section 203 of the
Loan Agreement, at the Company's option, upon such notice and in the minimum
amounts set forth in Section 203 of the Loan Agreement.
If an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Loan Agreement.
The Noteholder shall have no right to enforce the provisions of the Loan
Agreement or to institute an action to enforce the covenants, or to take any
action with respect to a default under the Loan Agreement, or to institute,
appear in or defend any suit or other proceedings with respect thereto, except
as provided under certain circumstances described in the Loan Agreement;
provided, however, that nothing contained in the Loan Agreement shall affect or
impair any right of enforcement conferred on the Noteholder to enforce any
payment of the principal of and interest on this Note on or after the due date
thereof; provided further, however, that by acceptance hereof the Noteholder is
deemed to have covenanted and agreed that it will not institute against the
Company any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law, at any time other than at such time as permitted in Section 1211 of
the Loan Agreement.
All terms and provisions of the Loan Agreement are herein incorporated
by reference as if set forth herein in their entirety.
<PAGE> 3
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions
and things required to exist, happen and be performed precedent to the execution
and delivery of the Loan Agreement and the issuance of this Note, do exist, have
happened and have been timely performed in regular form and manner as required
by law.
This Note, and the rights and obligations of the parties hereunder,
shall be governed by, and construed and interpreted with, the laws of the State
of New York, without giving effect to the principles of conflicts of laws.
<PAGE> 4
IN WITNESS WHEREOF, Cronos Finance (Bermuda) Limited has caused this
Note to be duly executed by its duly authorized representative, on this __ day
of ____________, 1999.
CRONOS FINANCE (BERMUDA) LIMITED
By: /s/ C.P. LANGLEY
---------------------------------
Its: Attorney-in-Fact
--------------------------------
<PAGE> 1
Exhibit 10.23
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED, UNLESS SO REGISTERED OR THE TRANSACTION
RELATING THERETO SHALL BE EXEMPT WITHIN THE MEANING OF SUCH ACT AND THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION ADOPTED THEREUNDER. IN
ADDITION, SUCH TRANSACTION MUST COMPLY WITH THE PROVISIONS SET FORTH IN SECTION
205 OF THE LOAN AGREEMENT. BECAUSE OF THE PROVISIONS FOR THE PAYMENT OF
PRINCIPAL CONTAINED HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANYONE PURCHASING THIS NOTE MAY
ASCERTAIN THE OUTSTANDING PRINCIPAL AMOUNT HEREOF BY INQUIRY OF THE AGENT.
CRONOS FINANCE (BERMUDA) LIMITED
SECURED NOTE
$25,000,000.00 No. 2
KNOW ALL PERSONS BY THESE PRESENTS that CRONOS FINANCE (BERMUDA)
LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (the "Company"), for value received, hereby promises to pay to First
Union National Bank, or its registered assigns, at the principal office of the
Agent named below, the principal sum of Twenty-Five Million Dollars
($25,000,000.00), which sum shall be payable on the dates and in the amounts set
forth herein, in the Loan Agreement, dated as of July 30, 1999 (the "Loan
Agreement"), among the Company, MeesPierson N.A., as agent (the "Agent"), and
MeesPierson N.V. and First Union National Bank (each a "Noteholder" and together
the "Noteholders"). Capitalized terms not otherwise defined herein will have the
meaning set forth in the Loan Agreement as the same may be amended or
supplemented from time to time.
Payment of the principal of this Note shall be made in lawful money of
the United States of America which at the time of payment is legal tender for
payment of public and private debts. Principal is payable on each Payment Date
in immediately available funds to the extent set forth in the Loan Agreement
from funds on deposit in the Trust Account and the Restricted Cash Account and
as further set forth in Articles II and III of the Loan Agreement.
This Note shall not bear interest.
This Note shall be an obligation of the Company, and shall be secured by
the Collateral, all as defined in, and subject to limitations set forth in, the
Loan Agreement, for the equal and ratable benefit of the Holders, from time to
time, of the Notes (the "Noteholders"). Except to the extent set forth in the
Guaranty, dated July 30, 1999 (the "Guaranty") between The Cronos Group
("Guarantor") and Agent, no other Person shall be liable for any obligation of
the Company under the Loan Agreement or this Note or any losses incurred by the
Holder of this Note.
<PAGE> 2
Except to the extent set forth in the Guaranty, no recourse may be
taken, directly or indirectly, with respect to the obligations of the Company on
this Note or under the Loan Agreement or any certificate, statement or other
writing delivered in connection herewith or therewith, against any incorporator,
subscriber, agent, administrator, shareholder, partner, officer or director, as
such, of the Company or any predecessor, successor, Affiliate or controlling
person of the Company, or against any stockholder of a corporation, partner of a
partnership or beneficiary or equity owner of a trust, succeeding thereto (all
of the foregoing, collectively, the "Exculpated Parties"), it being understood
(and any holder of this Note, by its acceptance thereof, shall be deemed to have
consented and agreed) that recourse shall be solely to the Collateral. The
Company and any director or officer or employee or agent of the Company may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. No suit, claim
or proceeding shall be brought against the Exculpated Parties or any of them for
any obligation under or relating to this Note, the Loan Agreement or any
agreement, instrument, certificate or other document delivered in connection
therewith.
The Agent or Company may require payment by the Noteholder of a sum
sufficient to cover any tax expense or other governmental charge payable in
connection with any transfer or exchange of this Note.
The Company, the Agent and any agent of the Company may treat the person
in whose name this Note is registered as the absolute owner hereof for all
purposes, and neither the Company, the Agent, nor any other such agent shall be
affected by notice to the contrary.
This Note may be prepaid with penalty as set forth in Section 203 of the
Loan Agreement, at the Company's option, upon such notice and in the minimum
amounts set forth in Section 203 of the Loan Agreement.
If an Event of Default shall occur and be continuing, the principal of
this Note may be declared to be due and payable in the manner and with the
effect provided in the Loan Agreement.
The Noteholder shall have no right to enforce the provisions of the Loan
Agreement or to institute an action to enforce the covenants, or to take any
action with respect to a default under the Loan Agreement, or to institute,
appear in or defend any suit or other proceedings with respect thereto, except
as provided under certain circumstances described in the Loan Agreement;
provided, however, that nothing contained in the Loan Agreement shall affect or
impair any right of enforcement conferred on the Noteholder to enforce any
payment of the principal of this Note on or after the due date thereof; provided
further, however, that by acceptance hereof the Noteholder is deemed to have
covenanted and agreed that it will not institute against the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law, at
any time other than at such time as permitted in Section 1211 of the Loan
Agreement.
All terms and provisions of the Loan Agreement are herein incorporated
by reference as if set forth herein in their entirety.
<PAGE> 3
IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions
and things required to exist, happen and be performed precedent to the execution
and delivery of the Loan Agreement and the issuance of this Note, do exist, have
happened and have been timely performed in regular form and manner as required
by law.
This Note, and the rights and obligations of the parties hereunder,
shall be governed by, and construed and interpreted with, the laws of the State
of New York, without giving effect to the principles of conflicts of laws.
<PAGE> 4
IN WITNESS WHEREOF, Cronos Finance (Bermuda) Limited has caused this
Note to be duly executed by its duly authorized representative, on this 2nd day
of August, 1999.
CRONOS FINANCE (BERMUDA) LIMITED
By: /s/ C. P. LANGLEY
---------------------------------
Its: ATTORNEY-IN-FACT
--------------------------------
<PAGE> 1
Exhibit 10.24
ISSUER STOCK PLEDGE AGREEMENT
THIS ISSUER STOCK PLEDGE AGREEMENT dated as of July 30, 1999 (the
"Issuer Pledge Agreement") among THE CRONOS GROUP, a Luxembourg societe anonyme
(the "Pledgor"), as owner of all of the outstanding capital stock in Cronos
Finance (Bermuda) Limited, and MEESPIERSON N.V., as agent (the "Agent") on
behalf of itself and First Union National Bank ("FUNB"; collectively with
MeesPierson N.V., the "Noteholders").
RECITALS
WHEREAS, the Pledgor is the sole shareholder of Cronos Finance (Bermuda)
Limited, a company organized and existing under the laws of the Islands of
Bermuda (the "Issuer");
WHEREAS, Issuer, Agent and Lenders have entered into a certain Loan
Agreement, dated as of July 30, 1999 (the "Loan Agreement"), pursuant to which
the Issuer issued notes (the "Notes") to the Noteholders;
WHEREAS, in consideration of the agreement of the Noteholders to
purchase the Notes, Guarantor will pursuant to the Guaranty, dated as of July
30, 1999 (the "Guaranty"), guarantee the obligations of the Issuer, under the
Notes, the Loan Agreement and the other Transaction Documents and the
performance of the obligations of the Sellers, the Administrator and the Manager
under the Transaction Documents, up to a maximum amount of $10,000,000;
WHEREAS, to secure the obligations of the Pledgor under the Guaranty
(the "Pledgor Obligations"), the Pledgor has agreed to pledge all of its
interest as a shareholder of the Issuer to the Agent and all such interest
represented by the stock certificate listed on attached Schedule A (the "Pledged
Shares");
NOW, THEREFORE, in consideration of the foregoing recitals and of the
agreements contained herein and other good consideration, the receipt and
adequacy is hereby acknowledged, and intending to be legally bound, the parties
hereto do hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise defined
in this Pledge Agreement shall have the meanings specified therefor in the Loan
Agreement or, if such terms are not defined therein, as defined in the Guaranty.
Section 2. Pledge of Stock and Grant of Security Interest. As security
for the full and complete performance of all of the Pledgor Obligations, the
Pledgor hereby delivers, pledges and assigns to the Agent on behalf of the
Noteholders, and grants in favor of the Agent on behalf of the
<PAGE> 2
Noteholders, a first priority security interest in all of the Pledgor's right,
title and interest in and to (i) the Pledged Shares, (ii) all of the Pledgor's
rights and privileges with respect to the Pledged Shares and (iii) all proceeds,
income and profits thereof and all property received in exchange thereof or in
substitution therefor (all of the foregoing collectively, the "SPC Share
Collateral").
Section 3. Stock Dividends, Options, or Other Adjustments. Until the
date on which (i) the Outstanding Obligations are indefeasibly paid in full and
(ii) the Guaranteed Obligations are indefeasibly paid in full, if required (the
"Expiration Date"), the Pledgor, shall deliver, as SPC Share Collateral, to the
Agent, any and all additional shares of stock or any other property of any kind
distributable on or by reason of the SPC Share Collateral, whether in the form
of or by way of stock dividends, warrants, total or partial liquidation,
conversion, prepayments, redemptions or otherwise, with the sole exception of
cash or other property dividends. If any additional shares of capital stock,
instruments, or other property, a security interest in which can only be
perfected by possession by the Agent, which are distributable on or by reason of
the SPC Share Collateral pledged hereunder, shall come into the possession or
control of the Pledgor, the Pledgor shall forthwith transfer and deliver such
property to the Agent, as SPC Share Collateral hereunder.
Section 4. Delivery of Share Certificates; Stock Powers. Simultaneously
with the delivery of this Pledge Agreement, the Pledgor shall deliver to the
Agent all instruments and stock certificates representing the SPC Share
Collateral, together with stock powers duly executed in blank by the Pledgor.
The Pledgor shall promptly deliver to the Agent, or cause the Issuer or any
other entity issuing the SPC Share Collateral to deliver directly to the Agent,
share certificates or other instruments representing any SPC Share Collateral
acquired or received after the date of this Pledge Agreement with a stock or
bond power duly executed by the Pledgor. If at any time either the Agent or the
Noteholders notifies the Pledgor that it requires additional stock powers
endorsed in blank, the Pledgor shall promptly execute in blank and deliver the
requested power to the requesting party.
Section 5. Power of Attorney. The Pledgor hereby irrevocably appoints
the Agent with full power of substitution and revocation, as the Pledgor's true
and lawful attorney-in-fact, with the power, after the occurrence of an "Event
of Default" under and as defined in the Loan Agreement, to the fullest extent
permitted by law, to affix to any certificates and documents representing the
SPC Share Collateral the stock or bond powers delivered with respect thereto,
and to transfer or cause the transfer of the SPC Share Collateral, or any part
thereof, on the books of the Issuer or other entity issuing such SPC Share
Collateral, to the name of the Agent or the Noteholders or any nominee, and
thereafter to exercise with respect to such SPC Share Collateral, all the
rights, powers and remedies of an owner. The power of attorney granted pursuant
to this Pledge Agreement and all authority hereby conferred are granted and
conferred solely to protect the Noteholders' respective interests in the SPC
Share Collateral and shall not impose any duty upon the Agent or the Noteholders
to exercise any power. This power of attorney shall be irrevocable as one
coupled with an interest until the Expiration Date.
Section 6. Inducing Representations of the Pledgor. The Pledgor
represents and warrants to the Noteholders that:
2
<PAGE> 3
(a) The Pledged Shares are validly issued, fully paid for and
nonassessable.
(b) The Pledged Shares represent all of the issued and outstanding
capital stock of the Issuer.
(c) The Pledgor is the sole legal and beneficial owner of, and has good
and marketable title to, the Pledged Shares, free and clear of all pledges,
liens, security interests and other encumbrances other than the security
interest created by this Pledge Agreement, and the Pledgor has the unqualified
right and authority to execute and perform this Pledge Agreement.
(d) No options, warrants or other agreements with respect to the SPC
Share Collateral are outstanding.
(e) Any consent, approval or authorization of or designation or filing
with any authority on the part of the Pledgor which is required in connection
with the pledge and security interest granted under this Pledge Agreement has
been obtained or effected.
(f) Neither the execution and delivery of this Pledge Agreement by the
Pledgor, the consummation of the transaction contemplated hereby nor the
satisfaction of the terms and conditions of this Pledge Agreement:
(i) conflicts with or results in any breach or violation of any
provision of the articles of incorporation or bylaws of the Pledgor or
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award currently in effect having applicability to the
Pledgor or any of its properties, including regulations issued by an
administrative agency or other Governmental Authority having supervisory
powers over the Pledgor;
(ii) conflicts with, constitutes a default (or an event which
with the giving of notice or the passage of time, or both, would
constitute a default) by the Pledgor under, or a breach of or
contravenes any provision of, the Loan Agreement and any Transaction
Documents, any loan agreement, mortgage, indenture or other agreement or
instrument to which the Pledgor or any of its Subsidiaries is a party or
by which it or any of their properties is or may be bound or affected;
or
(iii) results in or requires the creation of any Lien upon or in
respect of any of the Pledgor's assets except the Lien created by this
Pledge Agreement.
(g) Upon the Pledgor's delivery of the Pledged Shares to the Agent, the
Agent, on behalf of the Noteholders, will have a valid, perfected first priority
Lien on the SPC Share Collateral, enforceable as such against all creditors of
the Pledgor and against all Persons purporting to purchase any of the SPC Share
Collateral from the Pledgor.
3
<PAGE> 4
Section 7. Obligations of the Pledgor. The Pledgor further represents,
warrants and covenants to the Noteholders that:
(a) The Pledgor will not sell, transfer or convey any interest in, or
suffer or permit any Lien or encumbrance to be created upon or with respect to,
any of the SPC Share Collateral (other than as created under this Pledge
Agreement) during the term of this Pledge Agreement.
(b) The Pledgor will, at its own expense, at any time and from time to
time at the reasonable request of the Agent or the Noteholders, do, make,
procure, execute and deliver all acts, things, writings, assurances and other
documents as may be proposed by the Agent or the Noteholders to preserve,
establish, demonstrate or enforce the Agent's rights, interests and remedies as
created by, provided in, or emanating from this Pledge Agreement.
(c) The Pledgor will not take any action which would cause the Issuer to
issue any other capital stock, without the prior written consent of the
Noteholders. Any such issuance shall be subject to this Pledge Agreement.
(d) The Pledgor will not consent to any amendment to the articles of
incorporation of the Issuer without the prior written consent of the
Noteholders.
Section 8. Dividends. The Pledgor agrees that it shall not cause the
Issuer to declare or make (i) payment of any dividend or other distribution on
any shares of its capital stock, or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of any option, warrant or other right to
acquire shares of its capital stock, unless (in each case) at the time of such
declaration or payment (and after giving effect thereto) no amount payable by
the Issuer or Pledgor under any Transaction Document is then due and owing but
unpaid.
Section 9. Voting Proxy. The Pledgor hereby grants to the Agent on
behalf of the Noteholders an irrevocable proxy to vote the Pledged Shares with
respect to the matters relating to insolvency which proxy shall continue until
the Expiration Date. The Pledgor represents and warrants that it has directed
the Issuer, to reflect the Agent's right to vote the Pledged Shares, on behalf
of the Noteholders, on the Issuer's books. Upon the request of the Agent or the
Noteholders, the Pledgor shall deliver to the Agent such further evidence of
such irrevocable proxy or such further irrevocable proxy to vote the Pledged
Shares as the Agent or the Noteholders may reasonably request. The Agent shall
exercise all such rights to vote the Pledged Shares granted hereunder in
accordance with the written directions given by the Noteholders or in the
Agent's discretion on behalf of the Noteholders.
Section 10. Rights of the Agent and the Noteholders. At any time and
without notice, the Agent or the Noteholders may, upon providing the Agent with
the full amount necessary to carry out such direction, direct the Agent to
discharge any taxes, liens, security interests or other encumbrances levied or
placed on the SPC Share Collateral, pay for the maintenance and preservation of
the SPC Share Collateral, or pay for insurance on the SPC Share Collateral; the
amount of such payments, plus any and all fees, costs and expenses of the Agent
and the Noteholders (including
4
<PAGE> 5
reasonable attorneys' fees and disbursements) in connection therewith, shall, at
the option of the Agent or the Noteholders, as appropriate, be reimbursed by the
Pledgor on demand, with interest thereon from the date paid at the overdue rate.
Section 11. Remedies Upon Event of Default under the Loan Agreement.
(a) Upon the occurrence of an "Event of Default" under and as defined in
the Loan Agreement, Agent may, without notice to the Pledgor:
(i) cause the SPC Share Collateral to be transferred to the
Agent's name or the Noteholders' names or in the name of nominees of
either and thereafter exercise as to such SPC Share Collateral all of
the rights, powers and remedies of an owner;
(ii) collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now
or hereafter payable on account of the SPC Share Collateral, and hold
all such sums as part of the SPC Share Collateral, or apply such sums to
the payment of the Pledgor Obligations in such manner and order as Agent
may decide, in their sole discretion; or
(iii) enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement
relating to or affecting the SPC Share Collateral, and in connection
therewith deposit or surrender control of the SPC Share Collateral
thereunder, and accept other property in exchange therefor and hold and
apply such property or money so received in accordance with the
provisions hereof.
(b) In addition to all the rights and remedies of a secured party under
the Uniform Commercial Code, the Agent shall have the right, and without demand
of performance or other demand, advertisement or notice of any kind, except as
specified below, to or upon the Pledgor or any other person (all and each of
which demands, advertisements and/or notices are hereby expressly waived to the
extent permitted by law), to proceed forthwith, to collect, receive, appropriate
and realize upon the SPC Share Collateral, or any part thereof and to proceed
forthwith to sell, assign, give an option or options to purchase, contract to
sell, or otherwise dispose of and deliver the SPC Share Collateral or any part
thereof in one or more parcels in accordance with applicable securities laws and
in a manner designed to ensure that such sale will not result in a distribution
of the Pledged Shares in violation of Section 5 of the Securities Act of 1933,
as amended (the "Securities Act") or any other applicable law and on such terms
(including, without limitation, a requirement that any purchaser of all or any
part of the SPC Share Collateral shall be required to purchase any securities
constituting the SPC Share Collateral solely for investment and without any
intention to make a distribution thereof) as the Agent, in its sole and absolute
discretion, deems appropriate without any liability for any loss due to a
decrease in the market value of the SPC Share Collateral during the period held.
If any notification of intended disposition of the SPC Share Collateral is
required by law, such notification shall be deemed reasonable and properly given
if mailed to the Pledgor, postage prepaid, at least five (5) days before any
such disposition at the address indicated in Section 21 below.
5
<PAGE> 6
Any disposition of the SPC Share Collateral or any part thereof may be for cash
or on credit or for future delivery without assumption of any credit risk, with
the right of the Agent on behalf of the Noteholders to purchase all or any part
of the SPC Share Collateral so sold at any such sale or sales, public or
private, free of any equity or right of redemption in the Pledgor, which right
of equity is, to the extent permitted by applicable law, hereby expressly waived
or released by the Pledgor.
(c) The Agent, in its sole and absolute discretion, may elect to obtain
the advice of any independent nationally known investment banking firm, which is
a member firm of the New York Stock Exchange, with respect to the method and
manner of sale or other disposition of any of the SPC Share Collateral, the best
price reasonably obtainable therefor, the consideration of cash and/or credit
terms, or any other details concerning such sale or disposition; costs and
expenses of obtaining such advice shall be for the account of the Noteholders.
The Agent, in its sole and absolute discretion, may elect to sell, the SPC Share
Collateral on any credit terms which it deems reasonable; the out-of-pocket
costs and expenses of such sale shall be for the account of the Noteholders.
(d) The Pledgor recognizes that it may not be feasible to effect a
public sale of all or a part of the SPC Share Collateral by reason of certain
prohibitions contained in the Securities Act, and that it may be necessary to
sell privately to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire the SPC Share Collateral for their own account,
for investment and not with a view for the distribution or resale thereof. The
Pledgor agrees that private sales may be at prices and other terms less
favorable to the seller than if the SPC Share Collateral were sold at public
sale, and that neither the Agent nor the Noteholders have any obligation to
delay the sale of any SPC Share Collateral for the period of time necessary to
permit the registration of the SPC Share Collateral for public sale under the
Securities Act. The Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(e) If any consent, approval or authorization of any state, municipal or
other governmental department, agency or authority shall be necessary to
effectuate any sale or other disposition of the SPC Share Collateral, or any
partial disposition of the SPC Share Collateral, the Pledgor will execute all
such applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
reasonable best efforts to secure the same.
(f) Upon any sale or other disposition, the Agent shall have the right
to deliver, assign and transfer to the purchaser thereof the SPC Share
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition (including the Noteholders) shall hold the SPC Share Collateral free
from any claim or right of whatever kind, including any equity or right of
redemption of the Pledgor. The Pledgor specifically waives, to the extent
permitted by applicable law, all rights of redemption, stay or appraisal which
it may have under any rule of law or statute now existing or hereafter adopted.
(g) Neither the Agent nor the Noteholders shall be obligated to make any
sale or other disposition of the SPC Share Collateral, unless the terms thereof
shall be satisfactory to the
6
<PAGE> 7
Noteholders. The Agent may, without notice or publication, adjourn any private
or public sale, and, upon five (5) days prior notice to the Pledgor, hold such
sale at any time or place to which the same may be so adjourned. In case of any
sale of all or any part of the SPC Share Collateral on credit or future
delivery, the SPC Share Collateral so sold may be retained by the Agent until
the selling price is paid by the purchaser thereof, but the Agent shall not
incur any liability in case of the failure of such purchaser to take up and pay
for the SPC Share Collateral or any portion thereof so sold and, in case of any
such failure, such SPC Share Collateral may again be sold as herein provided.
(h) All of the rights and remedies granted to the Agent and the
Noteholders, including but not limited to the foregoing, shall be cumulative and
not exclusive and shall be enforceable alternatively, successively or
concurrently as the Agent may deem expedient.
Section 12. Limitation on Liability.
(a) Neither the Agent nor the Noteholders, nor any of their respective
directors, officers or employees, shall be liable to the Pledgor or to the
Issuer for any action taken or omitted to be taken by it or them hereunder, or
in connection herewith, except that the Agent and the Noteholders shall each be
liable for its own gross negligence, bad faith or willful misconduct.
(b) The Agent shall incur no liability to the Noteholders except for the
Agent's negligence or willful misconduct in carrying out its duties hereunder.
(c) The Agent shall be protected and shall incur no liability to any
party in relying upon the accuracy, acting in reliance upon the contents, and
assuming the genuineness of any notice, demand, certificate, signature,
instrument or other document the Agent reasonably believes to be genuine and to
have been duly executed by the appropriate signatory, and (absent actual
knowledge to the contrary) the Agent shall not be required to make any
independent investigation with respect thereto. The Agent shall at all times be
free independently to establish to its reasonable satisfaction, but shall have
no duty to independently verify, the existence or nonexistence of facts that are
a condition to the exercise or enforcement of any right or remedy hereunder.
(d) The Agent may consult with qualified counsel, financial advisors or
accountants and shall not be liable for any action taken or omitted to be taken
by it hereunder in good faith and in accordance with the written advice of such
counsel, financial advisors or accountants.
(e) The Agent shall not be under any obligation to exercise any of the
rights, powers or duties vested in it by this Pledge Agreement unless it shall
have received reasonable security or indemnity satisfactory to the Agent against
the costs, expenses and liabilities which it might incur (the unsecured
indemnity of a Rated Institutional Noteholder being deemed sufficient for such
purpose).
Section 13. Performance of Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Pledge Agreement and
the Transaction
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<PAGE> 8
Documents or as directed by the Noteholders in accordance with this Pledge
Agreement or the Transaction Documents.
Section 14. Appointment of and Powers of Agent. The provisions of
Article IX of the Loan Agreement are hereby incorporated by reference.
Section 15. Termination. This Pledge Agreement shall continue in full
force and effect until the Expiration Date. Subject to any sale or other
disposition by the Agent or the Noteholders of the SPC Share Collateral or any
part thereof pursuant to and in accordance with this Pledge Agreement, the SPC
Share Collateral shall be returned to the Pledgor on the Expiration Date.
Section 16. Compensation and Reimbursement. The Pledgor agrees for the
benefit of the Agent and the Noteholders and as part of the Pledgor Obligations
to reimburse the Agent and the Noteholders upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Agent in accordance
with any provision of, or carrying out its duties and obligations under, this
Pledge Agreement (including the reasonable compensation and fees and the
expenses and disbursements of its agents, any independent certified public
accountants and independent counsel), except any expense, disbursement or
advances as may be attributable to negligence, bad faith or willful misconduct
on the part of the Agent.
Section 17. Foreclosure Expenses of the Agent and the Noteholders. All
expenses (including reasonable fees and disbursements of counsel) incurred by
the Agent or the Noteholders in connection with any actual or attempted sale,
exchange of, or any enforcement, collection, compromise or settlement
respecting, this Pledge Agreement or the SPC Share Collateral, or any other
action taken by the Agent hereunder whether directly or as attorney-in-fact
pursuant to a power of attorney or other authorization herein conferred, for the
purpose of satisfaction of the Pledgor Obligations shall be deemed an Obligation
for all purposes of this Pledge Agreement and the Agent (with the consent of the
Noteholders) and the Noteholders may apply the proceeds of the SPC Share
Collateral to payment of or reimbursement of itself or themselves for such
liability.
Section 18. Notices. Any notice or other communication given hereunder
shall be in writing and shall be sent by registered mail, postage prepaid, or
personally delivered or telecopied to the recipient as follows:
(a) To the Agent:
MeesPierson N.V.
Coolsingle 93/P.O. Box 749
3000 As Rotterdam
The Netherlands
Attention: Hans Hanegraaf
Telecopy No.: 31 10 401 6343
8
<PAGE> 9
(b) To The Noteholders:
MeesPierson N.V.
Coolsingle 93/P.O. Box 749
3000 As Rotterdam
The Netherlands
Attention: Hans Hanegraaf
Telecopy No.: 31 10 401 6343
- and-
First Union National Bank
One First Union Center
Charlotte, North Carolina 28288
Attention: Milton Anderson
Telecopy No.: (704) 374-3254
(c) To the Pledgor:
The Cronos Group
16 Allee Marconi
L-2120 Luxembourg
Attention: Chief Financial Officer
Telecopy No: (352)653-147
With a copy to Cronos Containers Ltd., Orchard Lea., Winkfield
Lane, Winkfield, Windsor, Berkshire, SL4 4RU, United Kingdom
(d) To the Issuer:
Cronos Finance (Bermuda) Limited
Clarendon House, Church Street
Hamilton HM 11 Bermuda
Attention: Secretary
Telecopy No: 411 292 4720
Section 19. General Provisions.
(a) None of Agent, the Noteholders or their respective successors and
assigns shall have any obligation in respect of the SPC Share Collateral,
except, in the case of the Agent to use reasonable care in holding the SPC Share
Collateral and to hold and dispose of the same in accordance with the terms of
this Pledge Agreement.
9
<PAGE> 10
(b) The failure of the Agent or the Noteholders to exercise, or delay in
exercising, any right, power or remedy hereunder, shall not operate as a waiver
thereof, nor shall any single or partial exercise by the Agent or the
Noteholders of any right, power or remedy hereunder preclude any other or future
exercise thereof, or the exercise of any other right, power or remedy. The
remedies herein provided are cumulative and are not exclusive of any remedies
provided by law or any other agreement.
(c) The representations, covenants and agreements of the Pledgor herein
contained shall survive the date hereof.
(d) Neither this Pledge Agreement nor the provisions hereof can be
changed, waived or terminated orally. This Pledge Agreement may be amended only
with the prior written consent of the Noteholders, the Pledgor and the Agent.
This Pledge Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, legal representatives and
assigns. If any provision of this Pledge Agreement shall be invalid or
unenforceable in any respect or in any jurisdiction, the remaining provisions
shall remain in full force and effect and shall be enforceable to the maximum
extent permitted by law.
(e) This Pledge Agreement may be executed in counterparts, each of which
shall constitute an original but all of which, when taken together, shall
constitute one instrument.
(f) EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS PLEDGE
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER. EACH
OF THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS PLEDGE AGREEMENT
AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY, BY AMONG OTHER
THINGS, THIS WAIVER.
(g) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED,
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) THE PLEDGOR IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ANY COURT IN THE
STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS PLEDGE AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS OR THE
10
<PAGE> 11
TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT OR ACTION OR
PROCEEDING MAY BE HEARD OR DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS
A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION
OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS PLEDGE AGREEMENT OR ANY OF THE
OTHER TRANSACTION DOCUMENTS OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. THE PLEDGOR IRREVOCABLY APPOINTS AND DESIGNATES
CT CORPORATION SYSTEM, WHOSE ADDRESS IS 1633 BROADWAY, NEW YORK, NEW YORK, AS
ITS TRUE AND LAWFUL ATTORNEY AND DULY AUTHORIZED AGENT FOR ACCEPTANCE OF SERVICE
OF LEGAL PROCESS. THE PLEDGOR AGREES THAT SERVICE OF SUCH PROCESS UPON SUCH
PERSON SHALL CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS UPON IT. NOTHING
CONTAINED IN THIS PLEDGE AGREEMENT SHALL LIMIT OR AFFECT THE RIGHTS OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO START LEGAL
PROCEEDINGS RELATED TO ANY OF THE TRANSACTION DOCUMENTS AGAINST THE PLEDGOR OR
ITS RESPECTIVE PROPERTY IN THE COURTS OF ANY JURISDICTION.
(i) The Agent, by the execution hereof, acknowledges receipt of the
Pledged Shares on behalf of the Noteholders.
Section 20. Waiver of Jury Trial. Pledgor hereby irrevocably waives its
rights to a jury trial with respect to any action, claim or other proceeding
arising out of any dispute in connection with this Issuer Pledge Agreement, any
rights or obligations hereunder or thereunder or the performance of such rights
and obligations.
Section 21. Waiver of Immunity. To the extent that any party hereto or
any of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under
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<PAGE> 12
or arising out of or in connection with this Issuer Pledge Agreement, the other
Transaction Documents or the subject matter hereof or thereof, subject, in each
case, to the provisions of the Transaction Documents and mandatory requirements
of applicable law.
Section 22. Judgment Currency. This is an international financing
transaction in accordance with which the specification of Dollars is of the
essence, and Dollars shall be the currency of account in the case of all
obligations under the Transaction Documents. The payment obligations of any
Person under the Transaction Documents shall not be discharged by an amount paid
in a currency, or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to Dollars and transfer to the specified
place of payment under normal banking procedures does not yield the amount of
Dollars, in such place, due under the governing Transaction Documents. In the
event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer does not result in payment of such amount of Dollars in
the specified place of payment, the obligee of such payment shall have a
separate cause of action against the party making the same for the additional
amount necessary to yield the amount due and owing under such Transaction
Documents. If, for the purpose of obtaining a judgment in any court with respect
to any obligation of a party under any of the Transaction Documents or any of
the agreements contemplated thereby, it shall be necessary to convert to any
other currency any amount in Dollars due thereunder and a change shall occur
between the rate of exchange applied in making such conversion and the rate of
exchange prevailing on the date of payment of such judgment, the respective
judgment debtor agrees to pay such additional amounts (if any) as may be
necessary to insure that the amount paid on the date of payment is the amount in
such other currency which, when converted into Dollars and transferred to New
York, New York, in accordance with normal banking procedures will result in the
amount then due under the respective Transaction Document in Dollars. Any amount
due from the respective judgment debtor shall be due as a separate debt and
shall not be affected by or merged into any judgment being obtained for any
other sum due under or in respect of any Transaction Document. In no event,
however, shall the respective judgment debtor be required to pay a larger amount
in such other currency, at the rate of exchange in effect on the date of payment
than the amount of Dollars stated to be due under the respective Transaction
Document, so that in any event the obligations of the respective judgment debtor
under the Transaction Document will be effectively maintained as Dollar
obligations.
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<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Pledge Agreement on the date first above written.
THE CRONOS GROUP
By: /s/ DENNIS TIETZ
--------------------------------
Name: DENNIS TIETZ
------------------------------
Title: CEO
-----------------------------
MEESPIERSON N.V., AS AGENT FOR
NOTEHOLDERS
By: /s/ J.G.H.M. HANEGRAAF
--------------------------------
Name: J.G.H.M. HANEGRAAF
------------------------------
Title: Senior Account Manager
-----------------------------
Acknowledged and Agreed:
FIRST UNION NATIONAL BANK
By: /s/ JESSICA TISDALE
---------------------------------
Name: JESSICA TISDALE
-------------------------------
Title: VP
------------------------------
MEESPIERSON N.V.
By: /s/ J.G.H.M. HANEGRAAF
---------------------------------
Name: J.G.H.M. HANEGRAAF
-------------------------------
Title: Senior Account Manager
------------------------------
ISSUER STOCK PLEDGE AGREEMENT
<PAGE> 14
SCHEDULE A TO ISSUER STOCK PLEDGE AGREEMENT
PLEDGED SHARES
Certificate No. 1, 12,000 Shares of the ordinary shares of Cronos Finance
(Bermuda) Limited.
14
<PAGE> 1
Exhibit 10.25
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT dated as of July 30, 1999 (the "Pledge
Agreement") among THE CRONOS GROUP, a Luxembourg societe anonyme (the "Pledgor,"
or the "Guarantor," as applicable), as owner of all of the outstanding capital
stock in Cronos Finance (Bermuda) Limited, and MEESPIERSON N.V., as agent (the
"Agent") on behalf of itself and First Union National Bank ("FUNB"; collectively
with MeesPierson N.V., the "Noteholders," or the "Lenders," as applicable).
RECITALS
WHEREAS, the Pledgor is the sole shareholder of Cronos Holdings
Investments (US) Inc., a company organized and existing under the laws of the
State of Delaware ("CHI");
WHEREAS, Cronos Finance (Bermuda) Limited (the "Issuer"), Agent and
Lenders have entered into a certain Loan Agreement, dated as of July 30, 1999
(the "Loan Agreement"), pursuant to which the Issuer issued notes (the "Notes")
to the Noteholders;
WHEREAS, in consideration of the agreement of the Noteholders to
purchase the Notes, Guarantor will pursuant to the Guaranty, dated as of July
30, 1999 (the "Guaranty"), guarantee the obligations of the Issuer, under the
Notes, the Loan Agreement and the other Transaction Documents and the
performance of the obligations of the Sellers, the Administrator and the Manager
under the Transaction Documents, up to a maximum amount of $10,000,000;
WHEREAS, to secure the obligations of the Pledgor under the Guaranty
(the "Pledgor Obligations"), the Pledgor has agreed to pledge all of its
interest as a shareholder of CHI to the Agent and all such interest represented
by the stock certificate listed on attached Schedule A (the "Pledged Shares");
NOW, THEREFORE, in consideration of the foregoing recitals and of the
agreements contained herein and other good consideration, the receipt and
adequacy is hereby acknowledged, and intending to be legally bound, the parties
hereto do hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise defined
in this Pledge Agreement shall have the meanings specified therefor in the Loan
Agreement or, if such terms are not defined therein, as defined in the Guaranty.
Section 2. Pledge of Stock and Grant of Security Interest. As security
for the full and complete performance of all of the Pledgor Obligations, the
Pledgor hereby delivers, pledges
<PAGE> 2
and assigns to the Agent on behalf of the Noteholders, and grants in favor of
the Agent on behalf of the Noteholders, a first priority security interest in
all of the Pledgor's right, title and interest in and to (i) the Pledged Shares,
(ii) all of the Pledgor's rights and privileges with respect to the Pledged
Shares and (iii) all proceeds, income and profits thereof and all property
received in exchange thereof or in substitution therefor (all of the foregoing
collectively, the "CHI Share Collateral").
Section 3. Stock Dividends, Options, or Other Adjustments. Until the
date on which (i) the Outstanding Obligations are indefeasibly paid in full and
(ii) the Guaranteed Obligations are indefeasibly paid in full, if required (the
"Expiration Date"), the Pledgor, shall deliver, as CHI Share Collateral, to the
Agent, any and all additional shares of stock or any other property of any kind
distributable on or by reason of the CHI Share Collateral, whether in the form
of or by way of stock dividends, warrants, total or partial liquidation,
conversion, prepayments, redemptions or otherwise, with the sole exception of
cash dividends. If any additional shares of capital stock, instruments, or other
property, a security interest in which can only be perfected by possession by
the Agent, which are distributable on or by reason of the CHI Share Collateral
pledged hereunder, shall come into the possession or control of the Pledgor, the
Pledgor shall forthwith transfer and deliver such property to the Agent, as CHI
Share Collateral hereunder.
Section 4. Delivery of Share Certificates; Stock Powers. Simultaneously
with the delivery of this Pledge Agreement, the Pledgor shall deliver to the
Agent all instruments and stock certificates representing the CHI Share
Collateral, together with stock powers duly executed in blank by the Pledgor.
The Pledgor shall promptly deliver to the Agent, or cause CHI or any other
entity issuing the CHI Share Collateral to deliver directly to the Agent, share
certificates or other instruments representing any CHI Share Collateral acquired
or received after the date of this Pledge Agreement with a stock or bond power
duly executed by the Pledgor. If at any time either the Agent or the Noteholders
notifies the Pledgor that it requires additional stock powers endorsed in blank,
the Pledgor shall promptly execute in blank and deliver the requested power to
the requesting party.
Section 5. Power of Attorney. The Pledgor hereby irrevocably appoints
the Agent with full power of substitution and revocation, as the Pledgor's true
and lawful attorney-in-fact, with the power, after the occurrence of an "Event
of Default" under and as defined in the Loan Agreement, to the fullest extent
permitted by law, to affix to any certificates and documents representing the
CHI Share Collateral the stock or bond powers delivered with respect thereto,
and to transfer or cause the transfer of the CHI Share Collateral, or any part
thereof, on the books of CHI or other entity issuing such CHI Share Collateral,
to the name of the Agent or the Noteholders or any nominee, and thereafter to
exercise with respect to such CHI Share Collateral, all the rights, powers and
remedies of an owner. The power of attorney granted pursuant to this Pledge
Agreement and all authority hereby conferred are granted and conferred solely to
protect the Noteholders' respective interests in the CHI Share Collateral and
shall not impose any duty upon the Agent or the Noteholders to exercise any
power. This power of attorney shall be irrevocable as one coupled with an
interest until the Expiration Date.
2
<PAGE> 3
Section 6. Inducing Representations of the Pledgor. The Pledgor
represents and warrants to the Noteholders that:
(a) The Pledged Shares are validly issued, fully paid for and
nonassessable.
(b) The Pledged Shares represent all of the issued and outstanding
capital stock of CHI.
(c) The Pledgor is the sole legal and beneficial owner of, and has good
and marketable title to, the Pledged Shares, free and clear of all pledges,
liens, security interests and other encumbrances other than the security
interest created by this Pledge Agreement, and the Pledgor has the unqualified
right and authority to execute and perform this Pledge Agreement.
(d) No options, warrants or other agreements with respect to the CHI
Share Collateral are outstanding.
(e) Any consent, approval or authorization of or designation or filing
with any authority on the part of the Pledgor which is required in connection
with the pledge and security interest granted under this Pledge Agreement has
been obtained or effected.
(f) Neither the execution and delivery of this Pledge Agreement by the
Pledgor, the consummation of the transaction contemplated hereby nor the
satisfaction of the terms and conditions of this Pledge Agreement:
(i) conflicts with or results in any breach or violation of any
provision of the articles of incorporation or bylaws of the Pledgor or
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award currently in effect having applicability to the
Pledgor or any of its properties, including regulations issued by an
administrative agency or other Governmental Authority having supervisory
powers over the Pledgor;
(ii) conflicts with, constitutes a default (or an event which
with the giving of notice or the passage of time, or both, would
constitute a default) by the Pledgor under, or a breach of or
contravenes any provision of, the Loan Agreement and any Transaction
Documents, any loan agreement, mortgage, indenture or other agreement or
instrument to which the Pledgor or any of its Subsidiaries is a party or
by which it or any of their properties is or may be bound or affected;
or
(iii) results in or requires the creation of any Lien upon or in
respect of any of the Pledgor's assets except the Lien created by this
Pledge Agreement.
(g) Upon the Pledgor's delivery of the Pledged Shares to the Agent, the
Agent, on behalf of the Noteholders, will have a valid, perfected first priority
Lien on the CHI Share
3
<PAGE> 4
Collateral, enforceable as such against all creditors of the Pledgor and against
all Persons purporting to purchase any of the CHI Share Collateral from the
Pledgor.
Section 7. Obligations of the Pledgor. The Pledgor further represents,
warrants and covenants to the Noteholders that:
(a) The Pledgor will not sell, transfer or convey any interest in, or
suffer or permit any Lien or encumbrance to be created upon or with respect to,
any of the CHI Share Collateral (other than as created under this Pledge
Agreement) during the term of this Pledge Agreement.
(b) The Pledgor will, at its own expense, at any time and from time to
time at the reasonable request of the Agent or the Noteholders, do, make,
procure, execute and deliver all acts, things, writings, assurances and other
documents as may be proposed by the Agent or the Noteholders to preserve,
establish, demonstrate or enforce the Agent's rights, interests and remedies as
created by, provided in, or emanating from this Pledge Agreement.
(c) The Pledgor will not take any action which would cause CHI to issue
any other capital stock, without the prior written consent of the Noteholders.
Any such issuance shall be subject to this Pledge Agreement.
(d) The Pledgor will not consent to any amendment to the articles of
incorporation of CHI without the prior written consent of the Noteholders.
Section 8. Dividends. The Pledgor agrees that it shall not cause CHI to
declare or make (i) payment of any dividend or other distribution on any shares
of its capital stock, or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of any option, warrant or other right to
acquire shares of its capital stock, unless (in each case) at the time of such
declaration or payment (and after giving effect thereto) no amount payable by
CHI or Pledgor under any Transaction Document is then due and owing but unpaid.
Section 9. Voting Proxy. The Pledgor hereby grants to the Agent on
behalf of the Noteholders an irrevocable proxy to vote the Pledged Shares with
respect to the matters relating to insolvency which proxy shall continue until
the Expiration Date. The Pledgor represents and warrants that it has directed
CHI to reflect the Agent's right to vote the Pledged Shares, on behalf of the
Noteholders, on CHI's books. Upon the request of the Agent or the Noteholders,
the Pledgor shall deliver to the Agent such further evidence of such irrevocable
proxy or such further irrevocable proxy to vote the Pledged Shares as the Agent
or the Noteholders may reasonably request. The Agent shall exercise all such
rights to vote the Pledged Shares granted hereunder in accordance with the
written directions given by the Noteholders or in the Agent's discretion on
behalf of the Noteholders.
Section 10. Rights of the Agent and the Noteholders. At any time and
without notice, the Agent or the Noteholders may, upon providing the Agent with
the full amount necessary to carry out such direction, direct the Agent to
discharge any taxes, liens, security interests or other
4
<PAGE> 5
encumbrances levied or placed on the CHI Share Collateral, pay for the
maintenance and preservation of the CHI Share Collateral, or pay for insurance
on the CHI Share Collateral; the amount of such payments, plus any and all fees,
costs and expenses of the Agent and the Noteholders (including reasonable
attorneys' fees and disbursements) in connection therewith, shall, at the option
of the Agent or the Noteholders, as appropriate, be reimbursed by the Pledgor on
demand, with interest thereon from the date paid at the overdue rate.
Section 11. Remedies Upon Event of Default under the Loan Agreement.
(a) Upon the occurrence of an "Event of Default" under and as defined in
the Loan Agreement, Agent may, without notice to the Pledgor:
(i) cause the CHI Share Collateral to be transferred to the
Agent's name or the Noteholders' names or in the name of nominees of
either and thereafter exercise as to such CHI Share Collateral all of
the rights, powers and remedies of an owner;
(ii) collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now
or hereafter payable on account of the CHI Share Collateral, and hold
all such sums as part of the CHI Share Collateral, or apply such sums to
the payment of the Pledgor Obligations in such manner and order as Agent
may decide, in their sole discretion; or
(iii) enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement
relating to or affecting the CHI Share Collateral, and in connection
therewith deposit or surrender control of the CHI Share Collateral
thereunder, and accept other property in exchange therefor and hold and
apply such property or money so received in accordance with the
provisions hereof.
(b) In addition to all the rights and remedies of a secured party under
the Uniform Commercial Code, the Agent shall have the right, and without demand
of performance or other demand, advertisement or notice of any kind, except as
specified below, to or upon the Pledgor or any other person (all and each of
which demands, advertisements and/or notices are hereby expressly waived to the
extent permitted by law), to proceed forthwith, to collect, receive, appropriate
and realize upon the CHI Share Collateral, or any part thereof and to proceed
forthwith to sell, assign, give an option or options to purchase, contract to
sell, or otherwise dispose of and deliver the CHI Share Collateral or any part
thereof in one or more parcels in accordance with applicable securities laws and
in a manner designed to ensure that such sale will not result in a distribution
of the Pledged Shares in violation of Section 5 of the Securities Act of 1933,
as amended (the "Securities Act") or any other applicable law and on such terms
(including, without limitation, a requirement that any purchaser of all or any
part of the CHI Share Collateral shall be required to purchase any securities
constituting the CHI Share Collateral solely for investment and without any
intention to make a distribution thereof) as the Agent, in its sole and absolute
discretion, deems appropriate without any
5
<PAGE> 6
liability for any loss due to a decrease in the market value of the CHI Share
Collateral during the period held. If any notification of intended disposition
of the CHI Share Collateral is required by law, such notification shall be
deemed reasonable and properly given if mailed to the Pledgor, postage prepaid,
at least five (5) days before any such disposition at the address indicated in
Section 21 below. Any disposition of the CHI Share Collateral or any part
thereof may be for cash or on credit or for future delivery without assumption
of any credit risk, with the right of the Agent on behalf of the Noteholders to
purchase all or any part of the CHI Share Collateral so sold at any such sale or
sales, public or private, free of any equity or right of redemption in the
Pledgor, which right of equity is, to the extent permitted by applicable law,
hereby expressly waived or released by the Pledgor.
(c) The Agent, in its sole and absolute discretion, may elect to obtain
the advice of any independent nationally known investment banking firm, which is
a member firm of the New York Stock Exchange, with respect to the method and
manner of sale or other disposition of any of the CHI Share Collateral, the best
price reasonably obtainable therefor, the consideration of cash and/or credit
terms, or any other details concerning such sale or disposition; costs and
expenses of obtaining such advice shall be for the account of the Noteholders.
The Agent, in its sole and absolute discretion, may elect to sell, the CHI Share
Collateral on any credit terms which it deems reasonable; the out-of-pocket
costs and expenses of such sale shall be for the account of the Noteholders.
(d) The Pledgor recognizes that it may not be feasible to effect a
public sale of all or a part of the CHI Share Collateral by reason of certain
prohibitions contained in the Securities Act, and that it may be necessary to
sell privately to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire the CHI Share Collateral for their own account,
for investment and not with a view for the distribution or resale thereof. The
Pledgor agrees that private sales may be at prices and other terms less
favorable to the seller than if the CHI Share Collateral were sold at public
sale, and that neither the Agent nor the Noteholders have any obligation to
delay the sale of any CHI Share Collateral for the period of time necessary to
permit the registration of the CHI Share Collateral for public sale under the
Securities Act. The Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(e) If any consent, approval or authorization of any state, municipal or
other governmental department, agency or authority shall be necessary to
effectuate any sale or other disposition of the CHI Share Collateral, or any
partial disposition of the CHI Share Collateral, the Pledgor will execute all
such applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
reasonably best efforts to secure the same.
(f) Upon any sale or other disposition, the Agent shall have the right
to deliver, assign and transfer to the purchaser thereof the CHI Share
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition (including the Noteholders) shall hold the CHI Share Collateral free
from any claim or right of whatever kind, including any equity or right of
redemption
6
<PAGE> 7
of the Pledgor. The Pledgor specifically waives, to the extent permitted by
applicable law, all rights of redemption, stay or appraisal which it may have
under any rule of law or statute now existing or hereafter adopted.
(g) Neither the Agent nor the Noteholders shall be obligated to make any
sale or other disposition of the CHI Share Collateral, unless the terms thereof
shall be satisfactory to the Noteholders. The Agent may, without notice or
publication, adjourn any private or public sale, and, upon five (5) days prior
notice to the Pledgor, hold such sale at any time or place to which the same may
be so adjourned. In case of any sale of all or any part of the CHI Share
Collateral on credit or future delivery, the CHI Share Collateral so sold may be
retained by the Agent until the selling price is paid by the purchaser thereof,
but the Agent shall not incur any liability in case of the failure of such
purchaser to take up and pay for the CHI Share Collateral or any portion thereof
so sold and, in case of any such failure, such CHI Share Collateral may again be
sold as herein provided.
(h) All of the rights and remedies granted to the Agent and the
Noteholders, including but not limited to the foregoing, shall be cumulative and
not exclusive and shall be enforceable alternatively, successively or
concurrently as the Agent may deem expedient.
Section 12. Limitation on Liability.
(a) Neither the Agent nor the Noteholders, nor any of their respective
directors, officers or employees, shall be liable to the Pledgor or to CHI for
any action taken or omitted to be taken by it or them hereunder, or in
connection herewith, except that the Agent and the Noteholders shall each be
liable for its own gross negligence, bad faith or willful misconduct.
(b) The Agent shall incur no liability to the Noteholders except for the
Agent's negligence or willful misconduct in carrying out its duties hereunder.
(c) The Agent shall be protected and shall incur no liability to any
party in relying upon the accuracy, acting in reliance upon the contents, and
assuming the genuineness of any notice, demand, certificate, signature,
instrument or other document the Agent reasonably believes to be genuine and to
have been duly executed by the appropriate signatory, and (absent actual
knowledge to the contrary) the Agent shall not be required to make any
independent investigation with respect thereto. The Agent shall at all times be
free independently to establish to its reasonable satisfaction, but shall have
no duty to independently verify, the existence or nonexistence of facts that are
a condition to the exercise or enforcement of any right or remedy hereunder.
(d) The Agent may consult with qualified counsel, financial advisors or
accountants and shall not be liable for any action taken or omitted to be taken
by it hereunder in good faith and in accordance with the written advice of such
counsel, financial advisors or accountants.
(e) The Agent shall not be under any obligation to exercise any of the
rights, powers or duties vested in it by this Pledge Agreement unless it shall
have received reasonable
7
<PAGE> 8
security or indemnity satisfactory to the Agent against the costs, expenses and
liabilities which it might incur (the unsecured indemnity of a Rated
Institutional Noteholder being deemed sufficient for such purpose).
Section 13. Performance of Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Pledge Agreement and
the Transaction Documents or as directed by the Noteholders in accordance with
this Pledge Agreement or the Transaction Documents.
Section 14. Appointment of and Powers of Agent. The provisions of
Article IX of the Loan Agreement are hereby incorporated by reference.
Section 15. Termination. This Pledge Agreement shall continue in full
force and effect until the Expiration Date. Subject to any sale or other
disposition by the Agent or the Noteholders of the CHI Share Collateral or any
part thereof pursuant to and in accordance with this Pledge Agreement, the CHI
Share Collateral shall be returned to the Pledgor on the Expiration Date.
Section 16. Compensation and Reimbursement. The Pledgor agrees for the
benefit of the Agent and the Noteholders and as part of the Pledgor Obligations
to reimburse the Agent and the Noteholders upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Agent in accordance
with any provision of, or carrying out its duties and obligations under, this
Pledge Agreement (including the reasonable compensation and fees and the
expenses and disbursements of its agents, any independent certified public
accountants and independent counsel), except any expense, disbursement or
advances as may be attributable to negligence, bad faith or willful misconduct
on the part of the Agent.
Section 17. Foreclosure Expenses of the Agent and the Noteholders. All
expenses (including reasonable fees and disbursements of counsel) incurred by
the Agent or the Noteholders in connection with any actual or attempted sale,
exchange of, or any enforcement, collection, compromise or settlement
respecting, this Pledge Agreement or the CHI Share Collateral, or any other
action taken by the Agent hereunder whether directly or as attorney-in-fact
pursuant to a power of attorney or other authorization herein conferred, for the
purpose of satisfaction of the Pledgor Obligations shall be deemed an Obligation
for all purposes of this Pledge Agreement and the Agent (with the consent of the
Noteholders) and the Noteholders may apply the proceeds of the CHI Share
Collateral to payment of or reimbursement of itself or themselves for such
liability.
Section 18. Notices. Any notice or other communication given hereunder
shall be in writing and shall be sent by registered mail, postage prepaid, or
personally delivered or telecopied to the recipient as follows:
(a) To the Agent:
MeesPierson N.V.
8
<PAGE> 9
Coolsingle 93/P.O. Box 749
3000 As Rotterdam
The Netherlands
Attention: Hans Hanegraaf
Telecopy No.: 31 10 401 6343
(b) To The Noteholders:
MeesPierson N.V.
Coolsingle 93/P.O. Box 749
3000 As Rotterdam
The Netherlands
Attention: Hans Hanegraaf
Telecopy No.: 31 10 401 6343
- and-
First Union National Bank
One First Union Center
Charlotte, North Carolina 28288
Attention: Milton Anderson
Telecopy No.: (704) 374-3254
(c) To the Pledgor:
The Cronos Group
16 Allee Marconi
L-2120 Luxembourg
Attention: Chief Financial Officer
Telecopy No: (352)653-147
With a copy to Cronos Containers Ltd., Orchard Lea, Winkfield Lane,
Winkfield, Windsor, Berkshire, SL4 4RU, United Kingdom
(d) To CHI:
Cronos Holdings Investments (US) Inc.
444 Market Street
San Francisco, California
Attention: Secretary
Telecopy No: 411 292 4720
9
<PAGE> 10
Section 19. General Provisions.
(a) None of Agent, the Noteholders or their respective successors and
assigns shall have any obligation in respect of the CHI Share Collateral,
except, in the case of the Agent to use reasonable care in holding the CHI Share
Collateral and to hold and dispose of the same in accordance with the terms of
this Pledge Agreement.
(b) The failure of the Agent or the Noteholders to exercise, or delay in
exercising, any right, power or remedy hereunder, shall not operate as a waiver
thereof, nor shall any single or partial exercise by the Agent or the
Noteholders of any right, power or remedy hereunder preclude any other or future
exercise thereof, or the exercise of any other right, power or remedy. The
remedies herein provided are cumulative and are not exclusive of any remedies
provided by law or any other agreement.
(c) The representations, covenants and agreements of the Pledgor herein
contained shall survive the date hereof.
(d) Neither this Pledge Agreement nor the provisions hereof can be
changed, waived or terminated orally. This Pledge Agreement may be amended only
with the prior written consent of the Noteholders, the Pledgor and the Agent.
This Pledge Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, legal representatives and
assigns. If any provision of this Pledge Agreement shall be invalid or
unenforceable in any respect or in any jurisdiction, the remaining provisions
shall remain in full force and effect and shall be enforceable to the maximum
extent permitted by law.
(e) This Pledge Agreement may be executed in counterparts, each of which
shall constitute an original but all of which, when taken together, shall
constitute one instrument.
(f) EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS PLEDGE
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER. EACH
OF THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS PLEDGE AGREEMENT
AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY, BY AMONG OTHER
THINGS, THIS WAIVER.
(g) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED,
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10
<PAGE> 11
(h) THE PLEDGOR IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ANY COURT IN THE
STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS PLEDGE AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
SUIT OR ACTION OR PROCEEDING MAY BE HEARD OR DETERMINED IN SUCH NEW YORK STATE
COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH
COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM,
THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS PLEDGE
AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR THE SUBJECT MATTER HEREOF
OR THEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS. THE PLEDGOR IRREVOCABLY
APPOINTS AND DESIGNATES CT CORPORATION SYSTEM, WHOSE ADDRESS IS 1633 BROADWAY,
NEW YORK, NEW YORK, AS ITS TRUE AND LAWFUL ATTORNEY AND DULY AUTHORIZED AGENT
FOR ACCEPTANCE OF SERVICE OF LEGAL PROCESS. THE PLEDGOR AGREES THAT SERVICE OF
SUCH PROCESS UPON SUCH PERSON SHALL CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS
UPON IT. NOTHING CONTAINED IN THIS PLEDGE AGREEMENT SHALL LIMIT OR AFFECT THE
RIGHTS OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO START LEGAL PROCEEDINGS RELATED TO ANY OF THE TRANSACTION DOCUMENTS
AGAINST THE PLEDGOR OR ITS RESPECTIVE PROPERTY IN THE COURTS OF ANY
JURISDICTION.
(i) The Agent, by the execution hereof, acknowledges receipt of the
Pledged Shares on behalf of the Noteholders.
Section 20. Waiver of Jury Trial. Pledgor hereby irrevocably waives its
rights to a jury trial with respect to any action, claim or other proceeding
arising out of any dispute in connection with this Issuer Pledge Agreement, any
rights or obligations hereunder or thereunder or the performance of such rights
and obligations.
11
<PAGE> 12
Section 21. Waiver of Immunity. To the extent that any party hereto or
any of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Issuer Pledge Agreement, the
other Transaction Documents or the subject matter hereof or thereof, subject, in
each case, to the provisions of the Transaction Documents and mandatory
requirements of applicable law.
Section 22. Judgment Currency. This is an international financing
transaction in accordance with which the specification of Dollars is of the
essence, and Dollars shall be the currency of account in the case of all
obligations under the Transaction Documents. The payment obligations of any
Person under the Transaction Documents shall not be discharged by an amount paid
in a currency, or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to Dollars and transfer to the specified
place of payment under normal banking procedures does not yield the amount of
Dollars, in such place, due under the governing Transaction Documents. In the
event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer does not result in payment of such amount of Dollars in
the specified place of payment, the obligee of such payment shall have a
separate cause of action against the party making the same for the additional
amount necessary to yield the amount due and owing under such Transaction
Documents. If, for the purpose of obtaining a judgment in any court with respect
to any obligation of a party under any of the Transaction Documents or any of
the agreements contemplated thereby, it shall be necessary to convert to any
other currency any amount in Dollars due thereunder and a change shall occur
between the rate of exchange applied in making such conversion and the rate of
exchange prevailing on the date of payment of such judgment, the respective
judgment debtor agrees to pay such additional amounts (if any) as may be
necessary to insure that the amount paid on the date of payment is the amount in
such other currency which, when converted into Dollars and transferred to New
York, New York, in accordance with normal banking procedures will result in the
amount then due under the respective Transaction Document in Dollars. Any amount
due from the respective judgment debtor shall be due as a separate debt and
shall not be affected by or merged into any judgment being obtained for any
other sum due under or in respect of any Transaction Document. In no event,
however, shall the respective judgment debtor be required to pay a larger amount
in such other currency, at the rate of exchange in effect on the date of payment
than the amount of Dollars stated to be due under the respective Transaction
Document, so that in any event the obligations of the respective judgment debtor
under the Transaction Document will be effectively maintained as Dollar
obligations.
12
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Pledge Agreement on the date first above written.
THE CRONOS GROUP
By: /s/ DENNIS TIETZ
---------------------------------
Name: Dennis Tietz
-------------------------------
Title: CEO
------------------------------
MEESPIERSON N.V., AS AGENT FOR
NOTEHOLDERS
By: /s/ J.G.H.M. HANEGRAAF
---------------------------------
Name: J.G.H.M. Hanegraaf
-------------------------------
Title: Senior Account Manager
------------------------------
Acknowledged and Agreed:
FIRST UNION NATIONAL BANK
By: /s/ BILL A. SHIRLEY
---------------------------------
Name: Bill A. Shirley
-------------------------------
Title: Senior Vice President
------------------------------
MEESPIERSON N.V.
By: /s/ J.G.H.M. HANEGRAAF
---------------------------------
Name: J.G.H.M. Hanegraaf
-------------------------------
Title: Senior Account Manager
------------------------------
ISSUER STOCK PLEDGE AGREEMENT
<PAGE> 14
SCHEDULE A TO STOCK PLEDGE AGREEMENT
PLEDGED SHARES
Certificate No.5, 550 Shares of the ordinary shares of Cronos Holdings
Investments (US) Inc.
14
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheet at June 30, 1999 and the consolidated income
statement for the six months ended June 30, 1999 and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 5,566
<SECURITIES> 1,403
<RECEIVABLES> 33,153
<ALLOWANCES> 4,091
<INVENTORY> 175
<CURRENT-ASSETS> 51,533
<PP&E> 226,396
<DEPRECIATION> 70,775
<TOTAL-ASSETS> 234,107
<CURRENT-LIABILITIES> 109,476
<BONDS> 114,494
0
0
<COMMON> 17,717
<OTHER-SE> 38,174
<TOTAL-LIABILITY-AND-EQUITY> 234,107
<SALES> 66,832
<TOTAL-REVENUES> 70,120
<CGS> 0
<TOTAL-COSTS> 47,636
<OTHER-EXPENSES> 16,524
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,156
<INCOME-PRETAX> (196)
<INCOME-TAX> 0
<INCOME-CONTINUING> (196)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (196)
<EPS-BASIC> (0.02)
<EPS-DILUTED> (0.02)
</TABLE>
