CONTAINER PURCHASE AGREEMENT Dated as of September 27, 2006 By and among PLM EQUIPMENT GROWTH FUND VI LIQUIDATING TRUST, PLM EQUIPMENT GROWTH & INCOME FUND VII LIQUIDATING TRUST, and PROFESSIONAL LEASE MANAGEMENT INCOME FUND I, L.L.C., a Delaware...
EXHIBIT
10.1
____________________________________________________________________________________________________________________________________________________________
Dated
as
of September 27, 2006
By
and
among
PLM
EQUIPMENT GROWTH FUND VI LIQUIDATING TRUST,
PLM
EQUIPMENT GROWTH & INCOME FUND VII LIQUIDATING TRUST, and
PROFESSIONAL
LEASE MANAGEMENT INCOME FUND I, L.L.C.,
a
Delaware limited liability company,
collectively
as “Seller”,
PLM
FINANCIAL SERVICES, INC., a Delaware corporation,
and
CAB
CONTAINER PARTNERS,
a
California general partnership,
as
“Buyer”
______________________________________________________________________________
______________________________________________________________________________
TABLE OF CONTENTS
| Page | |||
| 1. | DEFINITIONS | 1 | |
| 2. | SALE AND PURCHASE OF THE CONTAINERS | 2 | |
| 3. | CONSIDERATION FOR THE SALE; ADJUSTMENTS TO PURCHASE PRICE; REVENUE ALLOCATIONS. | 2 | |
| 3.01 | Consideration | 3 | |
| 3.02 | Purchase Price Adjustment | 3 | |
| 3.03 | Allocation of Revenues | 3 | |
| 4. | CLOSING | 4 | |
| 5. | REPRESENTATIONS AND WARRANTIES OF SELLER | 4 | |
| 5.01 | Existence, Power and Authority. | 4 | |
| 5.02 | Authorization. | 4 | |
| 5.03 | No Conflict. | 5 | |
| 5.04 | Consents. | 5 | |
| 5.05 | Legal Proceedings. | 5 | |
| 5.06 | Lease Agreements. | 5 | |
| 5.07 | Title. | 5 | |
| 5.08 | Compliance with Laws and Regulations. | 6 | |
| 5.09 | Revenue Distributions. | 6 | |
| 5.10 | Remarketing Arrangements; Bargain-Purchase Options. | 6 | |
| 5.11 | Notices. | 6 | |
| 5.12 | Full Disclosure. | 6 | |
| 6. | REPRESENTATIONS AND WARRANTIES OF BUYER. | 6 | |
| 6.01 | Existence, Power and Authority. | 6 | |
| 6.02 | Authorization. | 6 | |
| 6.03 | No Conflict. | 7 | |
| 6.04 | sents. | 7 | |
| 6.05 | Legal Proceedings. | 7 | |
| 6.06 | Compliance with Laws and Regulations. | 7 | |
| 7. | COVENANTS. | 7 | |
| 7.01 | Closing. | 7 | |
| 7.02 | Sales Tax. | 7 | |
| 8. | CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE. | 7 | |
| 8.01 | Representations, Warranties and Covenants. | 8 | |
| 8.02 | No Change in Applicable Law. | 8 | |
| 8.03 | Delivery of Documents | 8 | |
| 8.04 | Consents. | 9 | |
| 8.05 | Satisfaction of Statutory and Regulatory Requirements | 9 | |
| 8.06 | No Litigation | 9 | |
| 9. | CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO CLOSE. | 9 | |
| 9.01 | Representations, Warranties and Covenants | 9 | |
| 9.02 | Delivery of Funds and Documents. | 9 | |
| 9.03 | Satisfaction of Statutory and Regulatory Requirements. | 9 | |
| 9.04 | No Litigation. | 9 |
-i-
|
|
TABLE
OF CONTENTS
(Continued)
|
Page | |
| 10. | DISCLAIMER OF WARRANTIES BY SELLER | 10 | |
| 11. | SURVIVAL OF REPRESENTATIONS AND WARRANTIES | 10 | |
| 12. | FURTHER ASSURANCES; POST-CLOSING NOTICES | 10 | |
| 13. | EXPENSES. | 10 | |
| 14. | BROKERS’ FEES. | 10 | |
| 15. | NOTICES. | 11 | |
| 16. | WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION OF REMEDIES. | 11 | |
| 17. | GOVERNING LAW. | 12 | |
| 18. | BINDING EFFECT; ASSIGNMENT | 12 | |
| 19. | COUNTERPARTS. | 12 | |
| 20. | SEVERABILITY. | 12 | |
| 21. | INDEMNITIES. | 12 | |
| 22. | HEADINGS; TABLE OF CONTENTS | 14 | |
| EXHIBITS | |||
| LIST OF CONTAINERS | A | ||
| FORM OF XXXX OF SALE | B |
-ii-
This
CONTAINER PURCHASE AGREEMENT is entered into as of September 27, 2006, by and
among:
| · |
PLM
FINANCIAL SERVICES, INC., a Delaware corporation (“FSI”),
and
|
| · |
PLM
EQUIPMENT GROWTH FUND VI LIQUIDATING TRUST (as successor in interest
to
PLM Equipment Growth Fund VI, a California limited partnership),
PLM
EQUIPMENT GROWTH & INCOME FUND VII LIQUIDATING TRUST (as successor in
interest to PLM Equipment Growth & Income Fund VII, a California
limited partnership), and PROFESSIONAL LEASE MANAGEMENT INCOME FUND
I,
L.L.C., a Delaware limited liability company (referred to hereinafter
individually and collectively as “Seller”),
and
|
| · |
CAB
CONTAINER PARTNERS, a California general partnership (“Buyer”),
all of the general partners of which are shown on the signature pages
hereto.
|
Recitals
A. Seller
wishes to sell to Buyer, and Buyer wishes to purchase from Seller, certain
marine cargo shipping containers owned by Seller as more particularly described
on Exhibit
A
attached
hereto (the “Containers”),
all
upon and subject to the terms and conditions of this Agreement.
B. FSI
is
the Trustee of PLM Equipment Growth Fund VI Liquidating Trust and PLM Equipment
Growth & Income Fund VII Liquidating Trust. FSI is the manager of
Professional Lease Management Income Fund I, L.L.C. (“PLMI Fund”). PLMI Fund
intends to transfer all of its assets and liabilities on or about September
30,
2006 to a liquidating trust to be known as “Professional Lease Management Income
Fund I Liquidating Trust” (“PLMI Trust”) of which FSI will be the Trustee.
C. The
Containers are under lease by third party container lessees under equipment
leases arranged on behalf of Seller by Cronos Capital Corporation or one of
its
affiliates pursuant to the Lease Agreements (as defined herein).
NOW,
THEREFORE, in consideration of the mutual covenants, agreements, representations
and warranties herein contained, Seller, FSI, and Buyer agree as
follows:
1. Definitions.
For
all
purposes of this Agreement, the following terms shall have the following
meanings:
“Xxxx
of Sale”
means
a
xxxx of sale substantially in the form attached hereto as Exhibit
B.
-1-
“Business
Day”
means
any day except a Saturday, Sunday, or other day on which banks in New York
are
authorized by law to close.
“Cronos”
means
Cronos Capital Corp., a California corporation and Cronos Containers Limited,
an
English company.
“Closing”
means
the closing of the sale and purchase of the Containers contemplated by this
Agreement.
“Closing
Date”
means
the date on which the Closing shall occur as fixed pursuant to Section
4.
“Containers”
means
each of the cargo containers described on Exhibit A
hereto,
together with any and all appliances, parts, instruments, appurtenances,
accessories and other equipment and components of whatever nature which may
from
time to time be incorporated or installed in or attached to any thereof and
which become the property of the owner thereof under any applicable agreement
or
law.
“Cronos
Guaranties”
means
each guaranty of The Cronos Group, a Luxembourg corporation described on
Exhibit
“B”
attached
hereto, relating to obligations of Cronos under the Lease
Agreements.
“Effective
Date”
means
October 1, 2006.
“Lease
Agreements”
means
each of the Equipment Lease Agreements between Seller (or successor in interest
to FSI) and Cronos described on Exhibit
“B”
attached
hereto, and each other agreement supplemental thereto, all as relating to the
utilization of the Containers.
“Net
Revenues”
means
all revenues payable to the owner of the Containers periodically in arrears
based upon the utilization of such Containers (including, without limitation,
rental cash flows, sales proceeds and casualty proceeds), net of expenses of
operation and management fees allocated to such Containers, all such revenues
and expenses to be determined on an accrual basis and not a cash basis of
accounting.
“Seller”
is
defined in the preamble to this Agreement, and shall include PLMI Trust if
prior
to the Closing PLMI Fund has assigned and transferred to PLMI Trust all of
PLMI
Fund’s right, title and interest in and to the Containers theretofor owned by
PLMI Fund and each Lease Agreement(s) to which it is a party.
2. Sale
and Purchase of the Containers.
On
the
Closing Date, for the consideration provided in Section 3 and subject to the
terms and conditions set forth herein, (i) Seller shall sell to Buyer the
Containers, and shall assign, transfer and convey to Buyer all of its right,
title and interest relating thereto and under the Lease Agreements from and
after the Effective Date; and (ii) Buyer shall purchase the Containers from
Seller and assume all obligations under the Lease Agreements first arising
from
and after the Effective Date.
3. Consideration for
the Sale; Adjustments to Purchase Price; Revenue Allocations.
-2-
3.01 Consideration.
In
consideration for the sale of the Containers as contemplated in Section 2,
Buyer
shall, at the Closing, deliver to Seller by wire transfer of immediately
available funds the sum of $22,311,386.00 (the
“Purchase
Price”),
as
such sum may be reduced based in the difference between the number of Containers
reported by Cronos on or about September 30, 2006 (by type and pool) prior
to
the Closing, and the number of Containers shown on Exhibit
“A”
hereto, plus
interest on such sum (as may have been so reduced) at the daily rate of 0.019178
per cent from and including October 1, 2006, and to but not including the
Closing Date. Any such reduction shall be calculated in the manner described
in
Section 3.02.
3.02 Purchase
Price Adjustment.
(a) The
parties acknowledge that the stated Purchase Price has been determined based
on
an assumption that the portfolio of Containers being purchased hereunder
consists of (i) a certain number of 20-foot and 40-foot dry van containers
and
40-foot high cube containers shown on Exhibit
“A”
hereto,
comprising (as of September 18, 2006) 20,910.7 Container Equivalent Units
(“CEUs”) assigned an allocated unit price as set forth on Exhibit
“A”,
and
(ii) 423 refrigerated containers assigned allocated unit price as set forth
on
Exhibit
“A”.
Such
assumption is based upon a report prepared by Cronos prior to Closing as to
container inventory as of September 18, 2006, and will be updated prior to
Closing with the report from Cronos on or about September 30, 2006 (referred
to
in Section 3.01 above). If the actual number of Containers of any type sold
by
Seller to Buyer differs from the number and type of Containers listed on
Exhibit
“A”
hereto
(as updated at Closing by the September 30 report), then and in such event
Seller or Buyer, as the case may be, shall either (i) in case the actual number
is lower, Seller shall refund the per unit amount of any overpayment of the
Purchase Price to Buyer within five (5) business days after Buyer and/or Seller
becomes aware of the shortfall, or (ii) in case the actual number is higher,
Buyer shall pay the additional purchase price per Container as applicable
pursuant to Exhibit “A” also within five (5) business days after Buyer and/or
Seller becomes aware of the overage. Upon the return of any overpayment or
payment of any shortfall, as called for herein, Seller or Buyer, as the case
may
be, shall be entitled to all casualty payments and sale proceeds attributable
to
any casualty loss or sale of a Container reported as part of a shortfall or
overage hereunder. A party shall be deemed aware of a shortfall or overage
in
the number of Containers actually purchased hereunder when Cronos provides
notice(s) thereof
3.03 Allocation
of Revenues.
(a) The
parties further acknowledge that the Purchase Price has been determined based
on
an agreement that all Net Revenues of the Containers accrued for the
quarter-annual periods October 1 through December 31, 2006, are for the
sole account of Buyer. Accordingly, all Net Revenues accrued for all periods
prior to October 1,
2006,
shall be
for the account of and belong to Seller, and all Net Revenues accrued for all
periods commencing on and after October 1, 2006,
shall be
for the account of and belong to Buyer.
(b) Except
as
otherwise provided in this Section 3.03, (i) if Seller shall at any time receive
any distribution, payment or other amount in respect of a Container acquired
by
Buyer which has become, or which may become, due and payable with respect to
any
period of time commencing on or after October 1, 2006, or which may arise from
any act, event or circumstance which occurred after that date, then Seller
agrees to hold such amount in trust for the benefit of the Buyer and promptly
to
deliver said amount to Buyer at Closing, if received on or before the Closing,
or promptly after receipt if received by Seller after the Closing; and (ii)
if
Buyer shall receive any distribution, payment or other amount which was due
and
payable with respect to any period of time prior to October 1, 2006, then Buyer
agrees to hold such amount in trust for the benefit of Seller and promptly
to
deliver said amount to Seller. If Cronos determines for any period ended prior
to October 1, 2006, that Seller has received pursuant to the
Lease
Agreements an excess distribution or otherwise owes Cronos any amount for any
period (any such excess or debt being referred to as a “Deficiency”),
and
Cronos asserts against or attempts to collect from Buyer any such Deficiency,
through offset or otherwise, then Seller shall, upon demand by Buyer, pay such
Deficiency to Cronos or reimburse Buyer if and to the extent such Deficiency
is
paid by or assessed against Buyer. Buyer has no obligation to pay any such
Deficiency, and agrees to notify Seller of any such demand by Cronos prior
to
paying the same, if it should elect to do so.
-3-
4. Closing.
The
Closing shall take place at the offices of ____________________________, on
October 2, 2006, or at such other date, time and place as Seller and Buyer
shall
mutually agree. Immediately upon the Closing, Seller shall be deemed to have
delivered the Containers to Buyer and Buyer shall be deemed to have accepted
the
Containers from Seller without any further action on the part of Buyer or
Seller.
5. Representations
and Warranties of Seller.
Each
of
FSI and Seller represents and warrants to Buyer as follows:
5.01 Existence,
Power and Authority.
PLMI
Fund
is a limited liability company, duly organized and validly existing under the
laws of Delaware, and has all requisite company authority to enter into this
Agreement, the Xxxx of Sale, and to consummate the transactions contemplated
hereby and thereby. Each of PLM Equipment Growth Fund VI Liquidating Trust
and
PLM Equipment Growth & Income Fund VII Liquidating Trust is a trust governed
under the laws of Delaware, and of which FSI is the sole trustee. FSI is a
corporation validly existing and in good standing under the laws of California,
and as the trustee of both PLM Equipment Growth Fund VI Liquidating Trust and
PLM Equipment Growth & Income Fund VII Liquidating Trust has the power and
authority to bind each such Seller to this Agreement by execution hereof on
its
behalf. IF PLMI Trust is a Seller, then as of the Closing it is a trust formed
under the laws of Delaware, and FSI as its sole trustee has the authority to
execute and deliver the Xxxx of Sale on its behalf, and to consummate the
transactions contemplated hereby and thereby.
5.02 Authorization.
The
execution and delivery of this Agreement and the Xxxx of Sale by Seller, and
the
performance by Seller hereunder and thereunder, have been duly authorized by
all
requisite trust or corporate action and proceedings of Seller and FSI, and
in
accordance with applicable provisions of their organizational documents or
applicable law. This Agreement has been duly executed and delivered by Seller,
and this Agreement is, and the Xxxx of Sale when executed and delivered will
be,
the legal, valid and binding obligations of Seller, enforceable against Seller
in accordance with their respective terms, except as such enforceability may
be
limited by applicable bankruptcy, insolvency or similar laws from time to time
in effect which affect creditors’ rights generally.
-4-
5.03 No
Conflict.
Neither
the execution and delivery of this Agreement and the Xxxx of Sale by Seller,
nor
the performance by it hereunder or thereunder, will (i) violate, conflict with
or constitute a default under any provision of such Seller’s trust agreement or
other organizational or charter documents, (ii) conflict with or result in
a
breach of any indenture or other agreement to which Seller is a party or by
which it or its properties are bound, (iii) violate any judgment, order,
injunction, decree or award of any court, administrative agency or governmental
body against, or binding upon, it or its properties, or (iv) constitute a
violation by Seller of any law or regulation applicable to it or its properties,
except in any case where such violation would not have a material adverse affect
on the financial condition of Seller or its ability to perform its obligations
under this Agreement.
5.04 Consents.
The
execution, delivery and performance by Seller of, and the consummation of the
transactions contemplated by this Agreement and the Xxxx of Sale do not require
(i) any approval or notice to or consent of any person, or any holder of any
indebtedness or obligation of any of Seller or any other party to any agreement
binding on the Seller, or (ii) any notice to or filing or recording with, or
any
consent or approval of, any governmental body.
5.05 Legal
Proceedings.
There
are
no actions, suits or proceedings pending, or to the knowledge of Seller or
FSI,
threatened, against Seller or the Containers before any court, arbitrator,
administrative or governmental body that, if adversely determined, would hinder
or prevent Seller’s ability to carry out the transactions contemplated by this
Agreement or the Xxxx of Sale or affect the right, title or interest of Seller
in the Containers, and, to their knowledge, there is no basis for any such
suits
or proceedings.
5.06 Lease
Agreements.
Effective
as of the Closing Date, other than the Lease Agreements, there are no
agreements, letters, certificates or other documents of any kind, relating
to
the Containers created by or through Seller which are binding on Buyer or which
create a lien, charge, security interest or other encumbrance in or on the
Containers or any part thereof after the Closing. No event has occurred and
is
continuing on the part of Seller which constitutes an event of default by it
under any of the Lease Agreements, or which would constitute such an event
with
the giving of notice or the lapse of time, or both. To the knowledge of Seller,
no event has occurred and is continuing on the part of Cronos which constitutes
an event of default by Cronos under any of the Lease Agreements, or which would
constitute such an event with the giving of notice or the lapse of time, or
both. As to Seller, each of the Lease Agreements remains in full force and
effect. To Seller’s knowledge, there are no set-offs, defenses or counterclaims
available against amounts owed to Seller in respect of the operation of the
Containers prior to the Effective Date. No prepayment of rent or prepayment
of
casualty value under the Lease Agreements has been made by Cronos or any other
party for any period subsequent to the Effective Date.
5.07 Title.
Seller
is
the lawful and rightful sole owner of the Containers and has good right and
title to sell the same to Buyer. Seller holds, and on the Closing Date will
hold, title to its Containers free and clear of all liens, charges, security
interests, or other encumbrances created by or through Seller other than the
use
and possessory interests of Cronos under the Lease Agreements and of lessees
in
the ordinary course of business.
Seller
has not previously assigned any rights, title or interests of Seller in the
Containers to be conveyed to Buyer pursuant hereto.
-5-
5.08 Compliance
with Laws and Regulations.
The
sale
of the Containers by Seller will not violate any provision of any applicable
laws, orders or regulations.
5.09 Revenue
Distributions.
Seller
shall be entitled to all Net Revenues earned (on an accrual basis) as called
for
under the Lease Agreements for all periods prior to October 1, 2006. Seller
has
not directly or indirectly received any prepayment or distribution of Net
Revenues or other distributions (including casualty payments) for any period
on
or after October 1, 2006. Seller has no liability under the Lease
Agreements for any operating deficit balances relating to periods prior to
the
Effective Date, and there are no accrued deficits which could be offset against
Net Revenues allocable to Buyer hereunder.
5.10 Remarketing
Arrangements; Bargain-Purchase Options.
Except
as
expressly provided in each of the Lease Agreements and as shown on Schedule 5.10
attached
hereto, the Containers are not subject to any remarketing, residual sharing
or
similar agreement which would be binding upon or enforceable against Buyer
or,
following the sale of such Containers to Buyer hereunder, against the Containers
or against the proceeds of any sale, leasing or other disposition of the
Containers; and neither Cronos nor any other lessee of the Containers has an
option to purchase any Containers.
5.11 Notices.
Seller
will immediately provide to Buyer any notice received from Cronos, including
without limitation notice that any of the Containers has sustained an event
of
loss, and any notice received from Cronos or any other party delivered under
any
Lease Agreement.
5.12 Full
Disclosure.
None
of
the representations or warranties made by Seller in this Agreement as of the
date such representations and warranties are made or deemed made, and none
of
the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of Seller in connection with the Containers (including
offering and disclosure materials delivered by or on behalf of Seller to
Purchaser or its representatives prior to the execution of this Agreement,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading as
of
the time when made or delivered.
6. Representations
and Warranties of Buyer.
Buyer
represents and warrants to Seller, as of the date hereof, as
follows:
6.01 Existence,
Power and Authority.
Buyer
is
a general partnership duly formed and validly existing under the laws of
California, and has the power and authority to enter into this Agreement and
to
consummate the transactions contemplated hereby and thereby.
6.02 Authorization.
The
execution and delivery by Buyer of this Agreement, and the performance by Buyer
hereunder and thereunder, have been duly authorized by all requisite company
action and proceedings of Buyer. This Agreement has been duly executed and
delivered by Buyer, and this Agreement is the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws from time to time in effect which affect creditors’
rights generally. Buyer has, and as of the Closing Date shall have, the
requisite financial ability or third party financing commitment to enable it
to
pay the Purchase Price hereunder.
-6-
6.03 No
Conflict.
Neither
the execution and delivery of this Agreement by Buyer, nor the performance
by
Buyer hereunder, will (i) violate, conflict with or constitute a default under
any provision of Buyer’s partnership agreement, (ii) conflict with or result in
a breach of any indenture or other material agreement to which Buyer is a party
or by which Buyer or its properties are bound, (iii) violate any judgment,
order, injunction, decree or award of any court, administrative agency or
governmental body against, or binding upon, Buyer or its properties, or (iv)
constitute a violation by Buyer of any law or regulation applicable to Buyer
or
its properties.
6.04 Consents.
The
execution, delivery and performance by Buyer of this Agreement do not require
(i) the approval or consent of or notice to any person, or any holder of any
indebtedness or obligation of Buyer or any other party to any agreement binding
on the Buyer, or (ii) any notice to or filing or recording with, or any consent
or approval of, any governmental body.
6.05 Legal
Proceedings.
There
are
no actions, suits or proceedings pending, or to the knowledge of Buyer,
threatened, against Buyer that, if adversely determined, would materially hinder
or prevent Buyer’s ability to carry out the transactions contemplated by this
Agreement, and, to their knowledge, there is no basis for any such suits or
proceedings.
6.06 Compliance
with Laws and Regulations.
The
purchase of the Containers by Buyer will not violate any applicable laws, orders
or regulations.
7. Covenants.
7.01 Closing.
Each
of
the parties shall use all reasonable efforts to fulfill or obtain the
fulfillment of conditions set forth herein as they relate to such party on
or
prior to the Closing.
7.02 Sales
Tax.
The
parties acknowledge that the Containers are being transferred by Seller to
Buyer
with the intention that they remain leased by Buyer to Cronos for sublease
to
third party container lessees for use in interstate and foreign commerce under
Cronos’ management supervision, and not used by Buyer. Accordingly, it is the
expectation of the parties that the transfer contemplated by this Agreement
shall be exempt from state and local sales, use, transfer or similar taxes.
If,
however, any such sales, use, transfer or similar tax is imposed by any state
or
local authority on the transfer of the Containers as contemplated herein, other
than taxes based on income of Buyer, Seller shall bear and be responsible for
the payment of the amount of such tax. Upon receipt of notice of any such tax
or
imposition, the party receiving the notice shall promptly provide a copy to
all
other parties. Any party may, at its own cost and expense, commence and
participate in a contest of the validity, applicability or amount of any such
tax or other imposition.
8. Conditions
Precedent to the Obligation of Buyer to Close.
The
obligation of Buyer to purchase the Containers pursuant to this Agreement is
subject to the fulfillment on or prior to the Closing of the following
conditions, any one or more of which may be waived by it; provided,
however, that,
to
the extent that a condition waived would constitute a breach of a provision
of
this Agreement, the waiver of such condition shall, in addition, constitute
a
waiver of the breach of such provision:
-7-
8.01 Representations,
Warranties and Covenants.
The
representations and warranties of each of FSI and Seller contained in this
Agreement shall be true in all material respects on and as of the Closing with
the same force and effect as though made on and as of such Closing. Each of
FSI
and Seller shall have performed and complied with all covenants and agreements
required by this Agreement and the Lease Agreements to be performed or complied
with by it on or prior to the Closing.
8.02 No
Change in Applicable Law.
No
change
shall have occurred after the date of execution and delivery of this Agreement
in applicable law or regulations or interpretations thereof by appropriate
regulatory authorities which, in the opinion of Buyer or its counsel, would
make
it illegal for Buyer to perform fully its obligations hereunder.
8.03 Delivery
of Documents.
The
following documents shall have been delivered to Buyer:
(a) A
report
from Cronos showing the number of Containers, by pool and type, that are subject
to the Lease Agreements as of September 30, 2006;
(b) a
Xxxx of
Sale for the Containers being sold by Seller on the Closing Date (in the form
of
Exhibit
“C”
attached
hereto), executed by such Seller;
(c) an
Assignment and Assumption Agreement with Buyer executed by Seller (in the form
of Exhibit
“D”),
assigning to Buyer Seller’s rights under the Lease Agreements and
Guaranties;
(d) an
Estoppel Agreement executed by Cronos (in the form of Exhibit
“E”),
acknowledging and consenting to Seller’s assignment and Buyer’s assumption of
the Lease Agreements and providing certain representations to Buyer regarding
the Containers covered thereby;
(e) a
Ratification of Guaranties executed by (i) The Cronos Group (in the form of
Exhibit
“F”),
consenting to the assignment of the Cronos Guaranties to Buyer and confirming
that each of the Cronos Guaranties remains in effect, and (ii) by Seller as
to
the Acknowledgement and Release attached thereto;
(f) if
prior
to the Closing Date PLMI Fund has assigned and transferred to PLMI Trust all
of
PLMI Fund’s right, title and interest in and to the Containers and each Lease
Agreement(s) to which it is a party, evidence of such transfer, such as an
executed xxxx of sale, assignment and assumption agreement between PLMI Fund,
as
assignor, and PLMI Trust, as assignee, together with a complete copy of the
trust agreement of PLMI Trust;
(g) documents
evidencing the release of any liens, encumbrances and security interests in
the
Containers, in form and substance satisfactory to Buyer; and
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(h) all
other
agreements, instruments, certificates and other documents reasonably requested
by Buyer prior to the Closing Date to effect the transactions contemplated
by
this Agreement.
8.04 Consents.
Any
required consent or approval of Cronos and any other third person to the sale
and transfer of the Containers to Buyer shall have been obtained, and Buyer
shall have received evidence satisfactory to it of the same.
8.05 Satisfaction
of Statutory and Regulatory Requirements.
All
statutory and other legal requirements for the valid consummation of the
transactions contemplated by this Agreement shall have been
fulfilled.
8.06 No
Litigation.
No
action
or proceedings shall have been instituted nor shall any action be threatened
before any court or governmental agency, nor shall any order, judgment or decree
have been issued or proposed to be issued by any court or governmental agency,
at the time of the Closing questioning the validity or legality of this
Agreement or the transactions contemplated hereby or the ability of the parties
hereto to consummate the transactions contemplated hereby.
9. Conditions
Precedent to the Obligation of Seller to Close.
The
obligation of Seller to sell its Containers pursuant to this Agreement is
subject to the fulfillment on or prior to the Closing of the following
conditions, any one or more of which may be waived by it; provided,
however,
that,
to the extent that a condition waived would constitute a breach of a provision
of this Agreement, the waiver of such condition shall, in addition, constitute
a
waiver of the breach of such provision:
9.01 Representations,
Warranties and Covenants.
The
representations and warranties of Buyer contained in the Agreement shall be
true
in all material respects on and as of the Closing with the same force and effect
as though made on and as of such Closing. Buyer shall have performed and
complied with all covenants and agreements required by this Agreement to be
performed or complied with by it on or prior to the Closing.
9.02 Delivery
of Funds and Documents.
The
Purchase Price required by Section 3.01 (as adjusted based on the inventory
report from Cronos referred to in Section 8.03 (a) above) shall have been duly
delivered to FSI for the account of Seller; and Buyer shall have duly executed
and delivered to FSI a counterpart of the Assignment and Assumption Agreement,
and all other agreements, instruments, certificates and other documents
reasonably requested by Seller prior to the Closing Date to effect the
transactions contemplated by this Agreement.
9.03 Satisfaction
of Statutory and Regulatory Requirements.
All
statutory and other legal requirements for the valid consummation of the
transactions contemplated by the Agreement shall have been
fulfilled.
9.04 No
Litigation.
No
action
or proceeding shall have been instituted nor shall any governmental action
be
threatened before any court or governmental agency, nor shall any order,
judgment or decree have been issued or proposed to be issued by any court or
governmental agency, at the time of the Closing questioning the validity or
legality of this Agreement or the transactions contemplated hereby or the
ability of the parties hereto to consummate the transactions contemplated
hereby.
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10. Disclaimer
of Warranties by Seller.
EXCEPT
AS
EXPRESSLY SET FORTH HEREIN, NEITHER FSI NOR SELLER SHALL BE DEEMED TO HAVE
MADE
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOW OR HEREAFTER, AS TO
THE
CONDITION, DESIGN, OPERATION, MAINTENANCE, VALUE, MARKETABILITY, MERCHANTABILITY
OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OF ANY OF THE CONTAINERS OR
AS TO
THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY OF THE CONTAINERS AND ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OF THE
TRADE. Except as expressly set forth herein, each of Seller and FSI disclaims
any liability to Buyer with respect to the Containers’ condition, including,
without limitation, any liability in tort or arising from negligence, strict
liability or for loss or interruption of use, profit or business or other
consequential injury, and Buyer waives, releases, renounces and disclaims
expectation of or reliance upon any such warranty or warranties.
11. Survival
of Representations and Warranties.
All
representations and warranties made herein, and the agreements set forth herein,
shall survive the Closing.
12. Further
Assurances; Post-Closing Notices.
Each
of
Seller and Buyer agrees to execute, acknowledge, deliver, file and record,
or
cause to be executed, acknowledged, delivered, filed and recorded, such further
documents or other papers, and to do all such things and acts, as the other
parties may reasonably request in order to carry out the provisions and purposes
of this Agreement and the transactions contemplated hereby. Seller shall send
Buyer, upon its receipt thereof, all payments relating to a period after the
Effective Date, notices, communications and any other documents with respect
to
the Containers which any of them receives subsequent to the Closing Date.
Without limiting the generality of the foregoing, Seller shall promptly notify
Buyer of any payment or other default of which it becomes aware with respect
to
the collection or payment by Cronos of Net Revenues for the quarter-annual
period ending September 30, 2006 (whether or not the same first becomes due
and
payable after that date).
13. Expenses.
Each
party shall bear its expenses incurred in connection with the preparation,
execution and performance of this Agreement and the transactions contemplated
hereby, including, without limitation, all fees and expenses of its agents,
representatives, counsel and accountants. Buyer shall bear all costs associated
with its own inspection and appraisal of the Containers prior to the Closing.
Seller shall bear all costs associated with filing and recording any necessary
termination statements, assignments, releases and terminations described in
Section 8.03(c) of this Agreement.
14. Brokers’
Fees.
Except
as
disclosed by a party in writing to the other parties prior to the Closing or
disclosed herein, each of FSI and Seller (jointly and severally), on the one
hand, and Buyer, on the other, represents and warrants to the other that neither
it nor any of its affiliates have incurred any obligation or liability, directly
or indirectly, for brokerage or finders’ fees or agents’ commissions or like
payment in connection with this Agreement or the transactions contemplated
hereby, and hereby indemnifies and each holds the other harmless therefor.
The
parties acknowledge that Buyer or certain of its partners have agreed to pay
a
transaction fee to Xxxxxxx X. Xxxx in connection with the consummation of this
transaction.
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15. Notices.
Any
notice, demand, or communication required or permitted to be given by any
provision of this Agreement shall be in writing or transmitted electronically
and shall be deemed to have been duly given when received, if personally
delivered; upon confirmation of receipt (by use of “confirmation to sender” or
other means), if transmitted by telecopy or by electronic or digital
transmission method; or on the next business day after it is sent, if sent
for
overnight delivery by a recognized overnight delivery service, charges prepaid,
addressed as follows:
If
to
Buyer, to: CAB
Container Partners
c/o
Access Leasing Corporation
000
Xxxxx
Xxxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxxx X.X. Xxxxxx
Phone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
Email:
xxxxxxx@xxxxxxxx.xxx
With
a
copy to :
Cypress
Equipment Management Corporation III
Bayside
Plaza
000
Xxx
Xxxxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxxx Xxxxxxx
Phone
No.: 000-000-0000
Facsimile
No.: 000-000-0000
If
to FSI
or Seller, to:
PLM Financial Services, Inc.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Phone
No.: 000-000-0000
Facsimile
No.: 000-000-0000
Attention:
Xxxx Xxxxx, Chief Financial Officer
Email:
xxxxxx@xxxx.xxx
Any
party
by notice given in accordance with this Section to the other parties may
designate another address or person for receipt of notices
hereunder.
16. Waivers
and Amendments; Non-Contractual Remedies; Preservation of
Remedies.
This
Agreement may be amended, superseded, modified, supplemented or terminated,
and
the terms hereof may be waived, only by written instrument signed by the parties
or, in the case of a waiver, by the party waiving compliance. No delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof. No waiver on the part of any party of any such
right, power or privilege, nor any single or partial exercise of any such right,
power or privilege, shall preclude any further exercise thereof or the exercise
of any other such right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that
any
party may otherwise have at law or in equity.
-11-
17. Governing
Law;
Forum.
This
Agreement will be governed by and construed under the laws of the State of
New
York without regard to its conflicts or choice of law provisions. Any legal
action or proceeding with respect to this Agreement may be brought in the courts
of the State of California or of the United States for the Northern District
of
California, and by execution and delivery of this Agreement, each party
consents, for itself and in respect of its property, to the non-exclusive
jurisdiction of those courts. Each party waives any objection, including any
objection to the laying of venue or based on the grounds of forum
non conveniens,
which
it may now or hereafter have to the bringing of any action or proceeding in
such
jurisdiction in respect of this Agreement or any document related hereto.
18. Binding
Effect; Assignment.
No
party
shall assign this Agreement to any other person without the prior written
consent of all other parties. This Agreement shall be binding upon and inure
to
the benefit of the parties and their respective successors and permitted
assigns. No assignment of this Agreement or of any rights hereunder shall
relieve the assigning party of any of its obligations or liabilities hereunder.
This Agreement, the Xxxx of Sale, and the certificates, schedules, annexes
and
other documents executed and delivered at or before the Closing in connection
herewith are the complete agreement of the parties regarding the subject matter
hereof and thereof and supersede all prior understandings (written or oral),
communications and agreements.
19. Counterparts.
This
Agreement may be executed by the parties in separate counterparts, each of
which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute one and the same instrument.
20. Severability.
Whenever
possible, each provision of this Agreement will be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be effective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement, and the remainder of such provision
and
the remaining provisions of this Agreement shall be interpreted, to the maximum
extent possible, so as to conform to the original intent of this
Agreement.
21. Indemnities.
(a) Buyer
will indemnify and hold Seller and
FSI
harmless from any liability, loss, cost or expense (“Claim”),
including reasonable attorneys’ fees, which shall result from (i) the
incorrectness of any representation or breach of any warranty of Buyer contained
in this Agreement or in any other agreement, instrument, certificate or other
document delivered by Buyer pursuant hereto; or (ii) a breach by Buyer of any
of
its covenants or agreements contained in this Agreement, any other agreement,
instrument, certificate or other document delivered by Buyer in connection
with
the transactions contemplated by this Agreement. Upon payment of such indemnity,
Buyer shall be subrogated to the indemnitee’s rights against any third parties
respecting the Claims. Anything contained in this Agreement to the contrary
notwithstanding, Buyer shall not be required to indemnify Seller if and to
the
extent Seller is indemnified and fully compensated for its Claim by a third
party.
-12-
(b) FSI
and
Seller jointly and severally will indemnify and hold Buyer harmless from any
Claim, including reasonable attorneys’ fees, which shall result from (i) the
incorrectness of any representation or breach of any warranty of FSI or Seller
contained in this Agreement or in any certificate or other document delivered
by
FSI or Seller pursuant hereto; (ii) a breach by FSI or Seller of any of its
covenants or agreements contained in this Agreement, any other agreement,
instrument, certificate or other document delivered by FSI or Seller in
connection with the transactions contemplated by this Agreement; or (iii) any
Claim or legal proceedings with respect to any Containers (or any part thereof)
arising or relating to any period prior to and including the Closing Date,
including Claims of limited partners in Seller or other third parties based
upon
or arising out of Seller’s ownership, management, disposition or sale of the
Containers. Upon payment of such indemnity, FSI or Seller,
as
the
case may be, shall
be
subrogated to Buyer’s rights against any third parties respecting the Claims.
(c) A
party
seeking indemnification pursuant to Sections 21(a) or (b) above (an
“Indemnified
Party”)
shall
give prompt notice to the party from whom such indemnification is sought (the
“Indemnifying
Party”)
of the
assertion of any Claim, or the commencement of any action, suit or proceeding,
in respect of which indemnification may be sought hereunder and will give the
Indemnifying Party such information with respect thereto as the Indemnifying
Party may reasonably request; but no failure to give such notice shall relieve
the Indemnifying Party of any liability hereunder (except to the extent the
Indemnifying Party has suffered actual prejudice thereby). The Indemnifying
Party may, at its expense, participate in or assume the defense of any such
action, suit or proceeding involving a third party; provided,
however,
that
such defense is conducted with counsel mutually satisfactory to the Indemnified
Party and the Indemnifying Party. The Indemnified Party and the Indemnifying
Party shall consult with each other regarding the conduct of such defense.
The
Indemnified Party shall have the right (but not the duty) to participate in
the
defense thereof, and to employ counsel, at its own expense (except that the
Indemnifying Party shall pay the fees and expenses of such counsel to the extent
the Indemnified Party reasonably concludes that there is a conflict of interest
between the Indemnified Party and the Indemnifying Party), separate from counsel
employed by the Indemnifying Party in any such action. The Indemnifying Party
shall be liable for the fees and expenses of counsel employed by the Indemnified
Party if the Indemnifying Party has not assumed the defense thereof. Whether
or
not the Indemnifying Party chooses to defend or prosecute any Claim involving
a
third party, all the parties hereto shall cooperate in the defense or
prosecution thereof and shall furnish such records, information and testimony,
and attend at such conferences, discovery proceedings, hearings, trials and
appeals, as may be reasonably requested in connection therewith. The
Indemnifying Party shall not be liable under Sections 21(a) or 21(b) for any
settlement effected without its written consent (as contemplated above) for
any
Claim, litigation or proceeding in respect of which indemnity may be sought
hereunder. No Claim for indemnification, except Claims based on (i) a breach
of
the representations contained in Section 5.07 hereof or (ii) the assessment
of
taxes, interests or penalties contemplated in Section 7.02 hereof, may be first
initiated or asserted by any Indemnified Party against any Indemnifying Party
after December 31, 2006.
(d) Each
of
the parties (i) acknowledges that under the Lease Agreements the owner of the
Containers may be indemnified and insured for various liabilities, casualties
and losses, and (ii) agrees that (as between Seller and Buyer) each party hereto
shall be entitled to enforce and collect such indemnities and insurance directly
from the indemnitor or insurer to the extent arising from a loss suffered by
such party because of its interest, or prior interest, as owner of the
Containers.
-13-
22. Headings;
Table of Contents.
The
headings and the Table of Contents contained in this Agreement are for
convenience of reference only, and shall not effect in any way the meaning
or
interpretation of this Agreement.
[Signature
Pages Follow]
-14-
[Signature
Page to Container Purchase Agreement]
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of
the date first above written.
|
Seller:
PLM
EQUIPMENT GROWTH FUND VI LIQUIDATING TRUST
and
PLM
EQUIPMENT GROWTH FUND VII LIQUIDATING TRUST
By: PLM
FINANCIAL SERVICES, INC.,
as
to both, solely in its capacity as Trustee and not
individually
By:
Xxxxxxx
X. Xxxxx,
its
Chief Financial Officer
PROFESSIONAL
LEASE MANAGEMENT INCOME FUND I, L.L.C.
By: PLM
FINANCIAL SERVICES, INC.,
as
its Manager
By:
Xxxxxxx
X. Xxxxx,
its
Chief Financial Officer
|
Buyer:
CAB
CONTAINER PARTNERS,
a
California general partnership
By: Cypress
Containers 2006, LLC, a California limited liability company, as
a general
partner
By
Cypress Equipment Management Corporation III
By: ____________________
Name: Xxxxxxx
X. Xxxxxxx
Title: President
and
By: Access
Shipping Limited Partnership, a Connecticut limited partnership,
as a
general partner
By
Access Shipping Corporation, its general partner
By: ____________________
Name: Xxxxxxx
X.X. Xxxxxx
Title: President
and
By: 1727
Investments LLC, a California limited liability company, as a general
partner
By: ____________________
Name: Xxxxxxx
X. Xxxx
Title: Managing
Member
|
|
FSI:
PLM
FINANCIAL SERVICES, INC.
By:
__________________________
Xxxxxxx
X. Xxxxx,
its
Chief Financial Officer
|
-15-
