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Exhibit 10.12
CONFIRMATION, ACKNOWLEDGEMENT AND CONSENT
CONFIRMATION, ACKNOWLEDGEMENT AND CONSENT (this "Consent") dated as of March 5,
1999 of XXXXXXX BUSINESS INC., a Panamanian corporation ("Xxxxxxx"), in favor of
Fleet Bank, N.A., as Agent (the "Agent") under that certain Amended and Restated
Credit Agreement dated as of June 24, 1997, as amended (the "Credit Agreement ")
by and among CRONOS CONTAINERS, N.V., CRONOS CONTAINERS LTD., CRONOS EQUIPMENT
LTD., CRONOS CONTAINERS INC., CRONOS CAPITAL CORP., and CRONOS EQUIPMENT
(BERMUDA) LIMITED (collectively, the "Borrowers") and FLEET BANK, N.A.,
BANKBOSTON, N.A., FIRST UNION NATIONAL BANK (formerly known as CORESTATES BANK,
N.A.) and UNION BANK OF CALIFORNIA, N.A. (collectively, the "Banks") and the
Agent.
WITNESSETH:
WHEREAS, Xxxxxx X Xxxxxxx ("Palatin") beneficial owner of 45 outstanding shares
of stock of Xxxxxxx, issued that certain Promissory Note in the original
principal amount of $5,461,067 dated July 1, 1996 payable to the order of The
Cronos Group, (the "1996 Note"); and
WHEREAS, Xxxxxxx executed and delivered that certain Pledge Agreement between
Palatin and The Cronos Group dated July 1, 1996 (the "Pledge Agreement")
pursuant to which Palatin purported to pledge 1,030,303 shares of common stock
of The Cronos Group owned by Xxxxxxx (the "Xxxxxxx Xxxxxx Shares") to secure his
obligations under the 1996 Note; and
WHEREAS, pursuant to that certain Transfer Supplement between The Cronos Group
and Cronos Equipment (Bermuda) Limited "Cronos Bermuda") dated as of July 14,
1997 (the "Transfer Supplement"), The Cronos Group transferred all of its rights
and benefits under the 1996 Note and Pledge Agreement to Cronos Bermuda; and
WHEREAS, pursuant that certain Confirmation of Security Documents of Palatin
(the "Confirmation"), Palatin consented to such transfer of his 1996 Note and
Pledge Agreement; and
WHEREAS, Xxxxxxx issued that certain Secured Amended and Restated Promissory
Note in the original principal amount of $5,900,000 US. dated July 14, 1997 to
the order of Cronos Bermuda in amendment and restatement of the 1996 Note (the
"Amended Note"); and
WHEREAS, Xxxxxxx issued that certain Secured Promissory Note in the original
principal amount of $3,7000,000 U.S. dated July 14, 1997 to the order of Cronos
Bermuda (the "New Note"); and
WHEREAS, pursuant to that certain Collateral Assignment dated as of July 14,
1997 by Cronos Bermuda in favor of the Agent (the "Collateral Assignment"),
Cronos Bermuda assigned to the Agent as collateral, among other things, all of
its rights, privileges and benefits under the Amended Note, New Note, Pledge
Agreement, Transfer Supplement and Confirmation (the "Assigned Collateral"); and
WHEREAS, the Board of Directors and Shareholders (other than Palatin) did not
consent to the transactions contemplated by the Pledge Agreement, the Transfer
Supplement and the Confirmation (collectively, the "Pledge Documents") at the
date of execution and delivery thereof; and
WHEREAS, the Board of Directors and shareholders of Xxxxxxx have ratified and
approved in all respects the transactions contemplated by the Pledge Documents
and the Collateral Assignment, effective as of the date thereof, subject to the
redemption by Xxxxxxx of all the 55 shares of its capital stock (the
"Redemption") belonging to Xxxxxx X Xxxxxxxxxxxxx ("Xxxxxxxxxxxxx") in exchange
for 566.667 of the Xxxxxxx Xxxxxx shares (the "Redeemed Shares"); and
WHEREAS, the consent of Cronos Bermuda and the Agent are required to permit
release and delivery of the Redeemed Shares to Xxxxxxxxxxxxx; and
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WHEREAS, Xxxxxx Bermuda and the Agent are willing to consent to release of the
Redeemed Shares in order to permit the Redemption to occur provided that Xxxxxxx
execute and deliver this Consent, and Xxxxxxx desires to so execute and deliver
this Consent subject to the release and delivery of the 566.667 Redeemed Shares
to Xxxxxxxxxxxxx; and
WHEREAS, defaults have occurred under the amended Note and the New Note and
payment thereof has been accelerated.
NOW THEREFORE, the undersigned xxxxxx agrees as follows:
(a) Xxxxxxx hereby, effective as of the date thereof, CONFIRMS, RATIFIES AND
CONSENTS to execution and delivery of the Pledge Documents and the
Collateral Assignment and the transactions contemplated therein,
including without limitation, the granting of a lien and security
interest in the Assigned Collateral and assignment by Cronos Bermuda to
the Agent of its right, title and interest in, to the Assigned
Collateral, and agrees to the terms and conditions thereof and that, in
accordance with such assignment, all right, title and interest in, to and
under the Assigned Collateral, including, without limitation, the right
of Cronos Bermuda to require performance each of the Palatin Loan
Documents, and rights of indemnification, shall inure to the benefit of
the Agent.
(b) Xxxxxxx hereby CONFIRMS, ADOPTS AND AGREES that it shall he bound by, the
terms and provisions of the Pledge Agreement, Transfer Supplement and
Confirmation as if it were in the place and stead of Xxxxxx Xxxxxxx
thereunder and certifies that it is not in breach of any provision of any
such documents.
(c) Xxxxxxx hereby ACKNOWLEDGES, CONFIRMS AND AGREES to the assignment
effected by the Collateral Assignment and agrees that physical possession
of the Xxxxxxx Shares (as hereinafter defined) shall be delivered to the
Agent, authorizes and instructs Xxxxxx Bermuda to so deliver the Xxxxxxx
Xxxxxx, and agrees that the Agent may take all actions with respect
thereto as it is permitted to take with respect to the Xxxxxxxx Xxxxx,
notwithstanding any restrictions to the contrary set forth in the
Collateral Assignment.
(d) Xxxxxxx hereby ACKNOWLEDGES and AGREES that, notwithstanding any
provision of any Palatin Document to the contrary, no agreement or
activity with respect to the Palatin Loans, the Palatin Documents or the
Palatin Collateral (including, without limitation, any amendment,
modification, supplement, surrender, waiver, release, satisfaction,
termination or cancellation of the Palatin Loans, the Palatin Collateral,
the Palatin Documents or any of the Bermuda or any obligations of Xxxxxxx
thereunder) shall be effective without the prior written consent of the
Agent.
(e) Xxxxxxx hereby represents and warrants as follows:
(i) it is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Panama and has
corporate power and authority to own its properties and to
transact the business in which it is engaged and to execute,
deliver and perform this Consent;
(ii) it is the sole record and beneficial owner of 463,636 shares of
common stock of The Cronos Group (the "Xxxxxxx Shares") and such
Shares are free and clear of all liens and encumbrances of any
kind whatsoever;
(iii) it has no assets other than the Xxxxxxx Shares and no liabilities;
(iv) this Consent has been duly executed and delivered and constitutes
the valid and binding obligation of Xxxxxxx, enforceable in
accordance with its terms;
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(v) after giving effect to this Consent, the Agent has a duly
perfected first priority Lien on the Xxxxxxx Shares;
(vi) it has the right, power and authority to assign its right, title
and interest in and to the Assigned Collateral to the Agent, it
shall not sell, assign, mortgage, pledge, grant a security
interest in, charge or otherwise transfer or encumber, the
Assigned Collateral to any person other than the Agent and any
such sale, assignment, mortgage, pledge, security interest,
charge, or other transfer or encumbrance without Agent's prior
written consent shall be void ab initio and of no force and
effect;
(vii) the execution, delivery and performance of this Consent by Xxxxxxx
does not violate any law or regulation, or any order or decree of
any court or governmental instrumentality, or any provision of the
charter or by-laws of, or any securities issued by Xxxxxxx, and
will not conflict with, or result in the breach of, or constitute
a default under, any indenture, mortgage, deed of trust, agreement
or other instrument to which the Xxxxxxx is a party or by which it
is bound, and will not result in the creation or imposition of any
lien, charge or encumbrance upon any of the property of Xxxxxxx
pursuant to the provisions of any of the foregoing other than a
lien in favour of Cronos Bermuda and the Agent.
(f) Xxxxxxx acknowledges that a Palatin Note Default has occurred and is
continuing and that the Agent is entitled to and has stated its intention
to foreclose on he Notes and the Klamath Shares and the Xxxxxxx Shares
and acknowledges that such statement by the Agent constitutes adequate
notice of foreclosure for purposes of the Uniform Commercial Code.
(g) Xxxxxxx hereby consents to the performance of any term of the Palatin
Loans, the Palatin Documents and the Palatin Collateral by the Agent (or
any nominee or assignee of the Agent) and the assignment thereof by the
Agent, upon exercise by the Agent of its rights under the Loan Documents,
including under the Assignment, and agrees to continue to abide by and
perform its obligations under the Palatin Loans, the Palatin Documents
and the Palatin Collateral in the event of such exercise of rights, but
confirms and agrees that the Agent (or its nominee or assignee) shall not
assume, nor be liable for, any of the obligations or liabilities of any
party under the Palatin Loan, the Palatin Documents and the Palatin
Collateral unless the same shall have been expressly assumed by it in
writing.
(h) Xxxxxxx hereby agrees at all times to pay any and all amounts payable to
Cronos Bermuda under the Assigned Collateral directly to the Agent (or
its nominee), to the following account of the Agent:
New York, New York
ABA: (0213000191
G/L Number; 15 1035 1 -CIC 03102
Attention. Xxxxxx Xxxxxx
Loan Department (000) 000-0000
Reference: Cronos
or to such other account or at such address as the Agent (or such
nominee) shall direct, any and all payments due to Cronos Bermuda under
the Assigned Collateral, and to send to the Agent at the address for the
Agent set forth in section 11.09 of the Credit Agreement above,
concurrently with delivery thereof to Cronos Bermuda, copies of all
notices and other communications (other than routine communications)
given by Xxxxxxx to Cronos, Bermuda pursuant to the Assigned Collateral.
(i) Xxxxxxx hereby consents that any legal action or proceeding against it
under, arising out of or in any manner relating to this Consent or the
Assignment or to the Palatin Documents or Palatin Loans, or for
recognition and enforcement of any judgement in respect thereof, is
subject to the exclusive general jurisdiction of the any court of the
State of New York, sitting in the County of New York or in
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the United States District Court for the Southern District of New York
and appellate courts from any Court. Xxxxxxx by the execution and
delivery of this Consent, expressly and irrevocably assents and submits
to the personal jurisdiction of any of such courts in any such action or
proceeding. Xxxxxxx further irrevocably consents to the service of any
complaint, summons notice or other process relating to any such action or
proceeding by delivery of the same to Palatin. Xxxxxxx hereby expressly
and irrevocably waives any claim or defense in any such action or
proceeding to assert any defense given or allowed under the laws of any
state other than the State of New York. Nothing in this paragraph 6 shall
affect, or impair in any manner or to any extent the right of the Agent
or the Banks to commence legal proceedings or otherwise proceed against
Xxxxxxx or Cronos Bermuda or any other party in any jurisdiction or to
serve process in any manner permitted by law.
Capitalized terms used in this Consent are not defined herein shall have
the meaning given thereto in the Collateral Assignment.
IN WITNESS WHEREOF, the undersigned has executed this Consent as of the
date first above written.
Dated: March 5, 1999
XXXXXXX BUSINESS INC.
BY: /s/ X Xxxxxxxxxxxxx
Name: X X Xxxxxxxxxxxxx
Title: Proxy
The undersigned acknowledges, consents and agrees to the above Consent,
including, without limitation, the provisions of Sections (c) and (e)
thereof, and that the Agent shall have physical possession of the share
of common stock of The Cronos Group which are registered in the name of
Xxxxxxx Business Inc., together with a stock power duly executed in blank
by Xxxxxxx. The undersigned hereby consents to the release and delivery
of the Redeemed Cronos Shares to Xxxxxxxxxxxxx, subject to receipt by the
Agent of certificates representing the remaining 463,636 shares of stock
of The Cronos Group owned by Xxxxxxx, together with a stock power duly
executed in blank by Xxxxxxx.
Cronos Equipment (Bermuda) Limited
By: /s/ X X Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Director
Based upon the representations and warranties and covenants hereinabove
set forth, the undersigned hereby consents to the release and the
delivery of the Redeemed Cronos Shares to Xxxxxxxxxxxxx, subject to
receipt by the undersigned of certificates (and related stock powers duly
executed in blank by Xxxxxxx) representing the remaining 463,636 shares
of stock of The Cronos Group owned by Xxxxxxx.
Fleet Bank, N.A., as secured party
Under the Collateral Assignment
By: /s/ Xxxxxx X Xxxxx
Name: Xxxxxx X Xxxxx
Title: Senior Vice President
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Exhibit 10.13
AMENDMENT
From: China International Marine Containers (Group) Company Limited (the
"Lender")
To: Cronos Containers Limited (the "Borrower")
Dear Sirs
Ref: Our $million Revolving Credit Facility with yourselves dated August 1997
1. We hereby confirm that the "Final Repayment Date" as defined in Section
1.1 of the Facility Letter is hereby amended to be 30th November 1999.
2. Cronos will make the following repayments of the facility, in accordance
with Section 6 of the Revolving Credit Facility-
i. on or before 5th April, 1999, a repayment of not less than
$1,000,000, and
ii. on or before 5th May, 1999, a repayment of not less than
$1,000,000, and
iii. on or before 5th July, 1999, a repayment of not less than
$3,000,000, and
iv. on or before 5th October, 1999, a repayment of not less than
$3,000,000, and
v. the remaining balance on the facility by no later than 30th
November 1999
All other terms and conditions under the facility Letter remain unchanged.
For and on behalf of China International Marine Containers (Group) Company
Limited
/s/ Xxx Xx Xxxxx March 24,1999
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Accepted Date
Name: XXX XX XXXXX
Title: PRESIDENT
For and on behalf of Cronos Containers Limited
/s/ X X Xxxxxxx March 23, 1999
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Accepted Date
Name: Xxxxx X Xxxxxxx
Title: Director
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