Exhibit 10.1
CRONOS FINANCE (BERMUDA) LIMITED
Issuer
FORTIS BANK (NEDERLAND) N.V.
Agent
FORTIS BANK (NEDERLAND) N.V.
Noteholder
HOLLANDSCHE BANK-UNIE N.V.
Noteholder
and
NIB CAPITAL BANK N.V.
Noteholder
-----------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Dated as September 23, 2003
-----------------------------
E1
Exhibit 10.1
Table of Contents
ARTICLE I
DEFINITIONS
Section 101. Defined Terms................................................................................. 8
Section 102. Other Definitional Provisions................................................................. 28
Section 103. Interpretation of Loan Agreement.............................................................. 28
Section 104. Payments, Computations, Etc................................................................... 29
ARTICLE II
COMMITMENT OF NOTEHOLDERS; THE NOTES
Section 201. Amounts and Terms of the Loan Noteholder Commitments.......................................... 29
Section 202. Interest Payments on the Notes and Commitment Fee............................................. 30
Section 203. Principal Payments on the Notes............................................................... 32
Section 204. The Notes..................................................................................... 33
Section 205. Registration; Registration of Transfer and Exchange of Notes.................................. 33
Section 206. Mutilated, Destroyed, Lost and Stolen Notes................................................... 35
Section 207. Delivery, Retention and Cancellation of Notes................................................. 35
Section 208. Taxes......................................................................................... 36
Section 209. Illegality.................................................................................... 38
Section 210. Increased Costs............................................................................... 38
Section 211. Inability to Determine Rates.................................................................. 38
Section 212. Capital Requirements.......................................................................... 39
Section 213. Place and Time of Payment..................................................................... 39
Section 214. Offset........................................................................................ 40
Section 215. Proration of Payments......................................................................... 40
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Exhibit 10.1
ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Trust Account................................................................................. 40
Section 302. Distributions from Trust Account.............................................................. 40
Section 303. Investment of Monies Held in the Trust Account and Restricted Cash Account.................... 42
Section 304. Reports to Noteholders........................................................................ 42
Section 305. Records....................................................................................... 42
Section 306. Restricted Cash Account....................................................................... 43
ARTICLE IV
COLLATERAL
Section 401. Collateral.................................................................................... 43
Section 402. Pro Rata Interest............................................................................. 46
Section 403. Agent's Appointment as Attorney-in-Fact....................................................... 46
Section 404. Release of Security Interest.................................................................. 47
Section 405. Administration of Collateral.................................................................. 47
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 501. Existence..................................................................................... 47
Section 502. Authorization................................................................................. 48
Section 503. No Conflict; Legal Compliance................................................................. 48
Section 504. Validity and Binding.......................................................................... 48
Section 505. Executive Offices............................................................................. 48
Section 506. No Agreements or Contracts.................................................................... 48
Section 507. Consents and Approval......................................................................... 49
Section 508. Margin Regulations............................................................................ 49
Section 509. Taxes......................................................................................... 49
Section 510. Other Regulations............................................................................. 49
Section 511. Solvency...................................................................................... 50
Section 512. Survival of Representations and Warranties.................................................... 50
Section 513. No Default.................................................................................... 50
Section 514. Litigation and Continent Liabilities.......................................................... 50
Section 515. Title; Liens.................................................................................. 50
Section 516. Subsidiaries.................................................................................. 50
Section 517. No Partnership................................................................................ 50
Section 518. Pension and Welfare Plans..................................................................... 50
Section 519. Ownership of Issuer........................................................................... 50
Section 520. Perfected Priority Lien....................................................................... 50
Section 521. Trademarks, Patents, Copyrights, Franchises and Liens......................................... 50
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Exhibit 10.1
ARTICLE VI
COVENANTS
Section 601. Payment of Principal and Interest; Payment of Taxes........................................... 51
Section 602. Maintenance of Office......................................................................... 51
Section 603. Existence..................................................................................... 51
Section 604. Protection of Collateral...................................................................... 51
Section 605. Performance of Obligations.................................................................... 52
Section 606. Negative Covenants............................................................................ 52
Section 607. Non-Consolidation of Issuer................................................................... 53
Section 608. No Bankruptcy Petition........................................................................ 53
Section 609. Liens......................................................................................... 53
Section 610. Other Debt.................................................................................... 53
Section 611. Guarantees, Loans, Advances and Other Liabilities............................................. 53
Section 612. Consolidation, Merger and Sale of Assets...................................................... 54
Section 613. Other Agreements.............................................................................. 54
Section 614. Charter Documents............................................................................. 54
Section 615. Capital Expenditures.......................................................................... 54
Section 616. Permitted Activities.......................................................................... 54
Section 617. Investment Company Act........................................................................ 54
Section 618. Payments of Collateral........................................................................ 55
Section 619. Notices....................................................................................... 55
Section 620. Books and Records............................................................................. 55
Section 621. Taxes......................................................................................... 55
Section 622. Subsidiaries.................................................................................. 55
Section 623. Investments................................................................................... 55
Section 624. Use of Proceeds............................................................................... 55
Section 625. Managerial Report............................................................................. 56
Section 626. Interest Rate Hedge Agreements................................................................ 56
Section 627. Quarterly Statements.......................................................................... 56
Section 628. Seller Notes.................................................................................. 56
Section 629. Maintenance of the Collateral................................................................. 56
Section 630. Insurance..................................................................................... 57
Section 631. Nonconsolidation Matters...................................................................... 57
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Exhibit 10.1
ARTICLE VII
DISCHARGE OF LOAN AGREEMENT
Section 701. Full Discharge................................................................................ 59
Section 702. Unclaimed Funds............................................................................... 59
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES
Section 801. Event of Default.............................................................................. 59
Section 802. Acceleration of Stated Maturity; Rescission and Annulment..................................... 61
Section 803. Collection of Indebtedness.................................................................... 62
Section 804. Remedies...................................................................................... 62
Section 805. Agent May Enforce Claims Without Possession of Notes.......................................... 63
Section 806. Allocation of Money Collected................................................................. 63
Section 807. Limitation on Suits........................................................................... 64
Section 808. Unconditional Right of Holders to Receive Principal and Interest.............................. 64
Section 809. Restoration of Rights and Remedies............................................................ 64
Section 810. Rights and Remedies Cumulative................................................................ 65
Section 811. Delay or Omission Not Waiver.................................................................. 65
Section 812. Control by Majority of Holders................................................................ 65
Section 813. Waiver of Past Defaults....................................................................... 65
Section 814. Undertaking for Costs......................................................................... 66
Section 815. Waiver of Stay or Extension Laws.............................................................. 66
Section 816. Reserved...................................................................................... 66
Section 817. Sale of Collateral............................................................................ 66
Section 818. Action on Notes............................................................................... 67
ARTICLE IX
THE AGENT
Section 901. Appointment and Authorization................................................................. 67
Section 902. Delegation of Duties.......................................................................... 67
Section 903. Liability of Agent............................................................................ 68
Section 904. Reliance by the Agent......................................................................... 68
Section 905. Notice of Default............................................................................. 68
Section 906. Credit Decision............................................................................... 69
Section 907. Indemnification............................................................................... 69
Section 908. Agent in Individual Capacity.................................................................. 70
Section 909. Successor Agent............................................................................... 70
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Exhibit 10.1
ARTICLE X
CONDITIONS OF EFFECTIVENESS AND SUBSEQUENT ADVANCES
Section 1001. Effectiveness................................................................................. 71
Section 1002. Subsequent Advances........................................................................... 72
Section 1003. [Reserved].................................................................................... 73
Section 1004. Incremental Amendments........................................................................ 73
ARTICLE XI
EARLY AMORTIZATION EVENT
Section 1101. Early Amortization Event...................................................................... 73
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. Compliance Certificates and Opinions.......................................................... 74
Section 1202. Form of Documents Delivered to Agent.......................................................... 75
Section 1203. Acts of Holders............................................................................... 75
Section 1204. Inspection.................................................................................... 76
Section 1205. Limitation of Rights.......................................................................... 77
Section 1206. Covenant Calculation.......................................................................... 77
Section 1207. Effect on Prior Agreement..................................................................... 77
Section 1208. Severability.................................................................................. 77
Section 1209. Notices....................................................................................... 77
Section 1210. Consent to Jurisdiction....................................................................... 77
Section 1211. Captions...................................................................................... 78
Section 1212. Governing..................................................................................... 78
Section 1213. No Petition................................................................................... 78
Section 1214. General Interpretive Principles............................................................... 78
Section 1215. Counterparts.................................................................................. 79
Section 1216. CONSENT TO JURISDICTION....................................................................... 79
Section 1217. Judgment Currency............................................................................. 79
Section 1218. WAIVER OF JURY TRIAL.......................................................................... 80
Section 1219. Waiver of Immunity............................................................................ 80
Section 1220. Confidentiality............................................................................... 80
Section 1221. Binding Effect; Assignability................................................................. 81
Section 1222. Authorization................................................................................. 81
Section 1223. No Restriction on Dividends................................................................... 81
Section 1224. Authorization to File Financing Statements.................................................... 82
E6
Exhibit 10.1
EXHIBIT A - Depreciation Methods by Type of Container
EXHIBIT B - [Reserved]
EXHIBIT C - Form of Note
EXHIBIT D - List of Agreed Upon Procedures
SCHEDULE 1 Trademarks, patents, franchises and licenses
SCHEDULE 2 Scheduled Targeted Principal Balance Percentage
SCHEDULE 3 Percentage of Initial Commitment
E7
Exhibit 10.1
This Second Amended and Restated Loan Agreement, dated as of July 30,
1999, amended and restated as of July 19, 2001, and second amended and restated
as of September 23, 2003 (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"), FORTIS BANK (NEDERLAND) N.V. (f/k/a MeesPierson N.V.), a
Naamloze Vennootschap, as agent on behalf of the Noteholders (in such capacity,
the "Agent") and itself, as the Noteholder (the "Initial Noteholder"), and NIB
CAPITAL BANK N.V. ("NIB"), a Naamloze Vennootschap, and HOLLANDSCHE BANK-UNIE
N.V. ("HBU"), a Naamloze Vennootschap, each as a Noteholder (a "Noteholder").
W I T N E S S E T H:
WHEREAS, the parties hereto have agreed to amend and restate the terms
of this Agreement in order to, inter alia, (i) increase the amount of the
Initial Commitment from Fifty Million Dollars ($50,000,000) to Seventy Million
Dollars ($70,000,000), (ii) increase the portion of the Initial Commitment to be
provided by Fortis from Thirty Million Dollars ($30,000,000) to Forty Million
Dollars ($40,000,000), (iii) increase the portion of the Initial Commitment to
be provided by NIB from Fifteen Million Dollars ($15,000,000) to Twenty-Five
Million Dollars ($25,000,000), (iv) exchange the promissory notes issued under
the Amended and Restated Loan Agreement dated as of July 19, 2001, as previously
amended, for new Notes and (v) to make certain other amendments, all upon the
terms, and subject to the conditions, hereinafter set forth, and in reliance on
the representations and warranties of Issuer set forth herein; and
WHEREAS, HBU's portion of the Initial Commitment shall remain
Five Million Dollars ($5,000,000);
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 9-102(a)(3) of the UCC.
Accounts: Any "account," as such term is defined in Section
9-102(a)(2) of the UCC.
Accumulated Depreciation: As of any date of determination
shall mean the excess of (i) the Original Equipment Cost of the Containers, over
(ii) the Net Book Value of such Containers as of the end of the most recently
concluded fiscal quarter.
E8
Exhibit 10.1
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:
Adjusted LIBOR = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
The Adjusted LIBOR shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
Administration Agreement: The Amended and Restated
Administration Agreement, dated as of July 19, 2001, 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) Ltd., a company
organized under the laws of the Cayman Islands.
Advance: An advance made by the Noteholders pursuant to the
provisions of Section 201 of this Loan Agreement.
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, Fortis.
Agent-Related Persons: Fortis 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.
Aggregate Book Value of Net Finance Lease Receivables: As of
any date of determination an amount equal to the sum of the Book Values of Net
Finance Lease Receivables of all Eligible Containers that are subject to a
Finance Lease.
Article 2A: Article 2A (or its equivalent) of the UCC.
Asset Base: As of any date of determination, an amount equal
to the sum, without duplication:
E9
Exhibit 10.1
(1) the product of (x) one of the following: (A)
sixty-five percent (65%) so long as the Weighted
Average Age is less than 7.0 years or (B) fifty-five
percent at all times not covered by clause (A), and
(y) the sum of the Net Book Values (determined as of
the Effective Date or the last day of immediately
preceding Collection Period, as applicable) of all
Eligible Containers that are not subject to a Finance
Lease then owned by the Issuer that were manufactured
prior to January 1, 2000;
(2) the product of (x) eighty percent (80%) and (y) the
sum of the Net Book Values (determined as of the
Effective Date or the last day of the immediately
preceding Collection Period, as applicable) of all
Eligible Containers that are not subject to a Finance
Lease then owned by the Issuer that were manufactured
on and after January 1, 2000;
(3) the product of (x) eighty percent (80%) and (y) the
Aggregate Book Value of Net Finance Lease
Receivables;
(4) 100% of the amounts then on deposit in immediately
available funds in the Trust Account, plus, 100% of
the amounts then on deposit in immediately available
funds in the Restricted Cash Account in excess of the
Restricted Cash Account Requirement (such amounts to
be determined after giving effect to all withdrawals
from and deposits to the Trust Account and the
Restricted Cash Account on such date).
In determining the amount set forth in clause (y) of numbered
subparagraphs (1) and (2) above, 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.
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.
Authorized Signatory: Any person designated by written notice
delivered to the Agent as authorized to execute documents and instruments on
behalf of any Person.
Availability: As of any date of determination for any
Noteholder, the excess, if any, of (x) the Existing Commitment of such
Noteholder on such date of determination, over (y) the Principal Balance of the
Note owned by such Noteholder on such date of determination.
Bankruptcy Code: The United States Bankruptcy Reform Act of
1978, as amended.
Book Value of Net Finance Lease Receivable: With respect to
any Container subject to a Finance Lease as of any date of determination, an
amount equal to the book value of the net finance lease receivables as
determined in accordance with GAAP.
E10
Exhibit 10.1
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 an Advance (as reasonably
determined by such Noteholder) as a result of the failure of a requested Advance
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 Amsterdam, Xxx Xxxxxxxxxxx, Xxxxxxx, Xxx Xxxx
xx Xxx Xxxx 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: Any one or more of the following: (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 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.
E11
Exhibit 10.1
Chattel Paper: Any "chattel paper," as such term is defined in
Section 9-102(a)(11) 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.
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 Effective Date
and ending on the next succeeding Collection Period Date and thereafter each
successive calendar month 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 calendar month so
long as any Note issued hereunder is Outstanding.
Container: Any dry cargo, refrigerated, tank or special
purpose container (including, but not limited to, open top, bulk, flat rack,
high cube and cellular palletwide 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 Effective 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 Representations and Warranties: This term shall have
the meaning set forth in the Purchase Agreement.
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), any Interest Rate Hedge Agreements and any related
agreements, security interests or UCC or
E12
Exhibit 10.1
other financing statements and, with respect to an Account, any agreement
relating to the terms of payment or the terms of performance thereof.
Conversion Date: means the earlier to occur of (i) the Final
Payment Date or (ii) the date on which an Early Amortization Event occurs;
provided that in either case, if such date is not a Banking Date, the Banking
Day immediately preceding such date.
Debt Service Coverage Ratio: The ratio, measured at the end of
each calendar quarter, of (i) the sum of (a) the consolidated net earnings of
the twelve (12) month period immediately preceding each such quarter end date
and (b) depreciation and amortization for the twelve (12) month period
immediately preceding each such quarter end date and (c) non-cash charges
(including but not limited to deferred taxes) for the twelve (12) month period
immediately preceding each such quarter end date less (d) non-cash income for
the twelve (12) month period immediately preceding each such quarter end date,
divided by (ii) the aggregate principal portion of interest bearing consolidated
indebtedness due within the following twelve (12) months, in each case as
determined in accordance with United States generally accepted accounting
principles and as reported on the most recently available quarterly financial
statement of The Cronos Group.
Determination Date: The second 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
9-102(a)(30) 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.
Drawdown Date: Any Business Day on which an Advance is made.
Early Amortization Event: The occurrence of any of the events
or conditions set forth in Article XI hereof.
Effective Date: The date on which the second amendment and
restatement of the Original Loan Agreement occurs, which for purposes of this
Loan Agreement shall be deemed to be September 23, 2003.
Eligible Container: Any Container which, when considered with
all other Containers then owned by the Issuer, shall comply with each of the
following requirements:
E13
Exhibit 10.1
(i) Maximum Concentration of Refrigerated
Containers. After giving effect to the transfer of Containers
on any Transfer Date, the sum of the Net Book Values of all
Eligible Containers then owned by the Issuer which are
refrigerated Containers shall not be greater than an amount
equal to fifty percent (50%) of the aggregate Net Book Value
of all Eligible Containers on such Transfer Date; and
(ii) Maximum Concentration of Tank Containers.
After giving effect to the transfer of Containers on any
Transfer Date, the sum of the Net Book Values of all Eligible
Containers then owned by the Issuer which are tank Containers
shall not be greater than an amount equal to twenty-five
percent (25%) of the aggregate Net Book Value of all Eligible
Containers on such Transfer Date; and
(iii) Maximum Concentration of Specialized
Containers. After giving effect to the transfer of Containers
on any Transfer Date, the sum of the Net Book Values of all
Eligible Containers then owned by the Issuer which are special
Containers (including, but not limited to, open top, flat
rack, bulk flat rack, cellular palletwide containers and roll
trailers) shall not be greater than twenty-five percent (25%)
of the aggregate Net Book Value of all Eligible Containers on
such Transfer Date; and
(iv) Maximum Concentration of Eligible R12
Equipment. After giving effect to the transfer of Containers
on or after the Effective Date, the sum of the Net Book Values
of all Eligible R12 Equipment shall not be greater than
$1,500,000; and
(v) Specifications. The Container conforms to
the applicable Seller's standard specifications for that
category of container and to any applicable standards
promulgated by applicable international standards
organizations; and
(vi) Container Representations and Warranties.
The Container complies with the Container Representations and
Warranties; and
(vii) Concentration of Finance Leases. After
giving effect to the transfer of Containers on any Transfer
Date, the Aggregate Book Value of Net Finance Lease
Receivables does not exceed an amount equal to the product of
(a) fifteen percent (15%) and (b) the Asset Base; and
(viii) Bankrupt Lessees. As of the related Transfer
Date, the Container is not then under lease to a lessee which,
to the best knowledge of the Manager, is the subject of an
Insolvency Proceeding; and
(ix) Casualty Losses. To the best knowledge of
the Manager, the Container shall not have been subject to a
Casualty Event.
Eligible R12 Equipment: Any R12 Equipment that is owned by or
transferred to the Issuer on or after the Effective date, provided that the
equipment is on lease on the Effective Date or on the Transfer Date and remains
on lease on each date of determination.
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Exhibit 10.1
Equipment: This term shall have the meaning set forth in
Section 9-102(a)(33) of the UCC.
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.
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 Advance, (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 Advance or (d) the
inability of such Noteholder to obtain United States dollars in the London
interbank market to make, fund or maintain any Advance.
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 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.
Exculpated Parties: This term shall have the meaning set forth
in Section 204(e) hereof.
Existing Commitment: With respect to any Noteholder, the
purchase limit or commitment set forth in the Note Purchase Agreement, as such
commitment may be reduced from time to time in accordance with the terms hereof
and the Note Purchase Agreement. As of the Effective Date, the Existing
Commitment of HBU will remain Five Million Dollars ($5,000,000), the Existing
Commitment of Fortis will be increased to Forty Million Dollars ($40,000,000)
and the Existing Commitment of NIB will be increased to Twenty-Five Million
Dollars ($25,000,000).
E15
Exhibit 10.1
Facility Fee: This shall be an amount set forth in the Fee
Letter, dated as of September 23, 2003, between Cronos Finance (Bermuda) Limited
and Fortis.
Federal Reserve Board: The Board of Governors of the United
States Federal Reserve System or any successor thereto.
Final Payment Date: September 23, 2004, or if such date is not
a Banking Date, the Banking Day immediately preceding such date.
Finance Lease: This term shall have the meaning set forth in
the Purchase Agreement.
Fortis: Fortis Bank (Nederland) N.V. (f/k/a MeesPierson N.V.),
and its successors and assigns.
Gearing Ratio: For The Cronos Group (on a consolidated basis),
means the ratio of (i) Total Debt and capital lease obligations to (ii) Tangible
Net Worth.
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 9-102(a)(42) 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, a Luxembourg societe anonyme
holding and its successors and permitted assigns.
E16
Exhibit 10.1
Guarantor Event of Default: The occurrence of any of the
events or conditions set forth in Section 7 of the Guaranty, after the
expiration of the applicable grace and cure periods.
Guaranty: The Guaranty, dated as of July 19, 2001, by the
Guarantor in favor of the Agent on behalf of the Noteholders, as such agreement
shall be amended, supplemented or modified from time to time in accordance with
its terms.
Holder: See Noteholder.
Indemnified Party: This term 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: Deloitte & Touche LLP 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.
Initial Commitment: Seventy Million Dollars ($70,000,000).
Instruments: Any "instrument," as such term is defined in
Section 9-102(a)(47) 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 insolvency,
reorganization or debtor's rights law of any applicable jurisdiction in each
case whether 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
E17
Exhibit 10.1
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 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 Coverage Ratio: For any Person on a consolidated
basis, as of any date of determination, the ratio of (a) the sum of (i) Net
Income for the four (4) immediately preceding fiscal quarters, (ii) the amount
of the provision for income taxes included in the determination of such Net
Income, and (iii) all interest expense (including amortized loan fees and
including interest on intercompany indebtedness) for borrowed money included in
the determination of such Net Income to (b) the sum of interest expense
(excluding amortized loan fees and, including to the extent paid, interest on
intercompany indebtedness) for the four (4) immediately preceding fiscal
quarters for borrowed money.
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 following the Effective Date, on the Effective Date),
after giving effect to any Principal Payments and Principal Arrearage paid on
such preceding Payment Date.
Interest Period: The one-month period, 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
Effective Date and shall end on October 14, 2003.
E18
Exhibit 10.1
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) Adjusted LIBOR for such Interest Period plus (ii) either (x) if
no Early Amortization Event is continuing or an Early Amortization Event has
occurred solely by reason of clause (6) of Section 1101, two and one quarter
percent (2.25%) per annum or (y) at all times not covered by clause (x), two and
three quarters percent (2.75%) or (B) during the continuation of a Eurodollar
Disruption Event, the sum of (i) the Prime Rate in effect for each Interest
Period and (ii) either (x) if no Early Amortization Event is continuing or an
Early Amortization Event has occurred solely by reason of clause (6) of Section
1101, two and one quarter percent (2.25%) per annum, or (y) at all times not
covered by clause (x), two and three quarters percent (2.75%).
Interest Rate Hedge Agreement: Any interest rate swap
agreement, cap agreement or other similar agreement entered into by the Issuer.
Interest Rate Hedge Provider: Any counterparty to an Interest
Rate Hedge Agreement entered into by the Issuer.
Inventory: Any "inventory," as such term is defined in Section
9-102(a)(48) of the UCC.
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;
E19
Exhibit 10.1
(iv) directors' fees and expenses;
(v) legal fees and expenses;
(vi) other professional fees; and
(vii) taxes (including personal or other property
taxes and all sales, value added, use and similar taxes).
Notwithstanding the foregoing, Issuer Expenses shall not
include (1) depreciation or amortization on the Containers and (2) payments of
the principal balance of, and 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.
Legal Final Payment Date: Five (5) years after the first
Payment Date immediately succeeding the Conversion Date.
Letter-of-Credit Rights: This term shall have the meaning set
forth in Section 9-102(a)(51) of the UCC.
LIBOR: The London Inter-Bank Offered Rate (determined solely
by the Agent), rounded upward to the nearest 1116th 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.
List of Containers: This term shall have the meaning set forth
in the Purchase Agreement.
Loan Agreement: This Second Amended and Restated Loan
Agreement, dated as of September 23, 2003, among the Issuer, the Agent and the
Noteholders, and all amendments hereof and supplements hereto.
Majority of Holders: 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.
E20
Exhibit 10.1
Management Agreement: The Amended and Restated Management
Agreement, dated as of July 19, 2001, 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 Fees 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.
Management Period: The period commencing on the Closing Date
and ending on the next succeeding Management Period Date and thereafter each
successive period of three consecutive months during the Term commencing on the
day after a Management Period Date and ending on the next succeeding Management
Period Date.
Management Period Date: The last day of each April, July,
October and January during the Term.
Manager: The Person performing the duties of the Manager under
the Management Agreement; initially, Cronos Containers (Cayman) Ltd., 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.
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
E21
Exhibit 10.1
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.
Net Income: For any Person, as calculated for any period of
determination, the net income (or net losses) for such period.
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.
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.
Original Equipment Cost: With respect to any Container, the
sum of (i) the vendor's or manufacturer's invoice price of such Container and
(ii) all reasonable and customary inspection, transport, and initial positioning
costs necessary to put such Container in service.
Other Taxes: This term 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;
E22
Exhibit 10.1
(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%).
Patents: This term shall have the meaning set forth in the
Collateral Agreement, dated as of November 16, 2001, by and among Cronos
Equipment (Bermuda) Limited, a company organized and existing under the laws of
the Island of Bermuda, Cronos Finance (Bermuda) Limited, a company organized and
existing under the laws of the Island of Bermuda, and Fortis Bank (Nederland)
N.V. (f/k/a MeesPierson N.V.), a Naamloze Vennootschap, as the secured party.
Payment Date: The fifteenth day of each month or, if such day
is not a Business Day, the immediately preceding Business Day.
Payment Intangible: Any "payment intangible," as such term is
defined in Section 9-102(a)(61) of the UCC, arising out of or in any way related
to the Containers and now owned or hereafter acquired by Issuer.
Permitted Liens: With respect to the Collateral, any or all of
the following: (i) Liens for taxes not yet delinquent or which are being
contested in good faith by appropriate Proceedings and for the payment of which
adequate reserves are provided by the Manager; (ii) with respect to the
Containers, carriers', warehousemen's, mechanics, or other like Liens arising in
the ordinary course of business and relating to amounts not yet due or which
shall not have been overdue for a period of more than sixty (60) days or which
are being contested in good faith by appropriate Proceedings and for the payment
of which adequate reserves are provided by the Manager; (iii) with respect to
the Containers, Leases entered into in the ordinary course of business providing
for the leasing of Containers; and (iv) Liens created by this Agreement;
provided that any Proceedings of the type described in clauses (i) and (ii)
above could not reasonably be expected to subject the Agent or any Noteholder to
any civil or criminal penalty or liability or involve any significant risk of
material loss, sale or forfeiture of all or any material portion of the
Collateral.
E23
Exhibit 10.1
Person: An individual, a partnership, a limited liability
company, 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.
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 any day, the weighted average of Fords' cost
of funds (as determined in good faith by Fords) for 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: With respect to any Note as of any date of
determination, an amount equal to the excess of (x) the sum of (A) the unpaid
principal balance of such Note on the Effective Date and (B) the sum of all
Advances made on or subsequent to the Effective Date, over (y) the cumulative
amount of all principal payments (including principal prepayments) actually paid
to such Noteholder subsequent to the Effective Date.
Proceeding: Any suit in equity, action at law, or other
judicial or administrative proceeding.
Proceeds: "Proceeds," as such term is defined in Section
9-102(a)(64) 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 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.
E24
Exhibit 10.1
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: When used in the singular, either of, and,
when used in the plural, both of (i) the Purchase Agreement, dated as of July
30, 1999, among Cronos Equipment (Bermuda) Limited, Cronos Containers Limited,
Cronos Capital Corp., and the Issuer as amended by amendment no. 1 thereto and
(ii) the Purchase Agreement, dated as of July 19, 2001, among Cronos Containers
Limited, Cronos Containers (Cayman) Ltd. and the Issuer, and all amendments and
supplements thereto.
R12 Equipment: Refrigerated container where the coolant is
refrigerant R12.
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 Xxxxx'x 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 quotient of (A) product of (x) the Principal Balance on such
Payment Date, after giving effect to all Advances and all principal payments to
be made on such date and (y) the Interest Rate then in effect divided by (B)
four (4).
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 Amount: On any Payment Date, one
of the following:
(1) for any Payment Date prior to the Conversion Date,
zero;
(2) for any Payment Date following the Conversion Date,
the excess, if any, of (x) the sum of the Principal
Balances of all Notes then Outstanding, over (y) the
Scheduled Targeted Principal Balance for the Notes
for such Payment Date.
E25
Exhibit 10.1
Scheduled Targeted Principal Balance: On any Payment Date
following the Conversion Date, an amount equal to the product of (x) the sum of
the unpaid Principal Balances of all Notes Outstanding on the Conversion Date
and (y) the percentage set forth opposite such Payment Date (based on the number
of months elapsed from the Conversion Date) on Schedule 2 hereto under the
column entitled "Scheduled Targeted Principal Balance." The Scheduled Targeted
Principal Balance will be based on a five (5) year schedule with monthly
installments totaling to 10%, 20%, 20%, 20%, and 30% of the unpaid Principal
Balance at the Conversion Date for the first, second, third, fourth, and fifth
year, respectively.
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, (iii) Cronos Capital Corp., a
corporation organized and existing under the laws of the State of California and
(iv) Cronos Containers (Cayman) Ltd., a company organized and existing under the
laws of the Cayman Islands.
Seller Notes: This term shall have the meaning given to such
term in the Purchase Agreement.
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 Amended and Restated Issuer Stock Pledge Agreement, dated
as of July 19, 2001, between The Cronos Group and the Agent with respect to the
shares of the Issuer and (ii) the Amended and Restated Stock Pledge Agreement,
dated as of July 19, 2001, between The Cronos Group and the Agent, with respect
to the shares of Cronos Holdings Investments (US) Inc.
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.
Supporting Obligations: This term shall have the meaning set
forth in Section 9-102(a)(77) of the UCC.
Tangible Net Worth: As of any date of determination, an amount
equal to the excess of:
(a) the total stockholders' equity of The Cronos Group
and its consolidated Subsidiaries, over
(b) all intangible assets included in the amount set
forth in clause (a), in each case as determined in
accordance with GAAP and as reported on the
E26
Exhibit 10.1
most recently available financial statements of The Cronos
Group delivered to the Agent in accordance with the terms of
the Transaction Documents;
provided, however, that for purposes of this definition, any
adjustments, both positive and negative, to either or both of the amounts set
forth in either clause (a) or clause (b) arising from the implementation of
Statement of Financial Accounting Standards No. 133 issued by the Financial
Accounting Standards Board shall be disregarded for purposes of this
calculation.
Tangible Net Worth Leverage Ratio: For The Cronos Group (on a
consolidated basis), means the ratio of (i) Total Liabilities to (ii) Tangible
Net Worth.
Taxes: Shall have the meaning set forth in Section 209 of this
Loan Agreement.
Term: For the Management Agreement, the period commencing on
the Closing Date and ending on the close of business on the date on which all
outstanding obligations under the Loan Agreement shall have been paid in full,
unless earlier terminated in accordance with the provisions hereof.
The Cronos Group: The Cronos Group, a societe anonyme holding
organized and existing under the laws of the Grand Duchy of Luxembourg.
Total Debt: At the end of each quarter, the sum of all debt,
as determined in accordance with GAAP and as reported on the most recently
available quarterly financial statements of The Cronos Group.
Total Liabilities: At the end of each quarter, the sum of all
liabilities, as determined in accordance with GAAP and as reported on the most
recently available quarterly financial statements of The Cronos Group.
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 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.
Transfer Date: This term shall have the meaning given to such
term in the Purchase Agreement.
Trust Account: The account or accounts established by the
Issuer for the benefit of the Agent pursuant to Section 302 of the Loan
Agreement.
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
E27
Exhibit 10.1
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.
Unused Commitment: With respect to any Noteholder as of any
date of determination, the excess of (i) the Existing Commitment then in effect
for such Noteholder, over (ii) the Principal Balance of the Note owned by such
Noteholder as of such date of determination after giving effect to all Advances
made and all principal payments to be received by such Noteholder on such date
of determination.
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 shall be equal to the quotient of (A) the sum for each Eligible
Container of the product of (i) the age of such Eligible Container and (ii) the
then Net Book Value of such Eligible Container, divided by (B) the sum of the
then Aggregate Net Book Values. The Weighted Average Age of the Equipment will
be calculated only with respect to Eligible Containers.
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 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
E28
Exhibit 10.1
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.
ARTICLE II
COMMITMENT OF NOTEHOLDERS; THE NOTES
Section 201. Amounts and Terms of the Loan Noteholder
Commitments.
(a) Commitments. Subject to the terms and conditions of
this Loan Agreement and in reliance upon the representations, warranties and
covenants set forth herein, each Noteholder shall make its portion of the
Initial Commitment available to the Issuer on the Effective Date. The portions
of the Initial Commitment attributable to Fortis, HBU and NIB on the Effective
Date are set forth in Schedule 3.
(b) Reduction of Commitments. The Issuer may on not less
than five (5) Business Days' prior written notice to the Agent, reduce
permanently the undrawn amount of the Existing Commitment, in whole or in part;
provided, however, that (i) each such reduction must be for an amount of not
less than five million Dollars ($5,000,000) and any reductions in excess thereof
must be in integral multiples of $1,000,000 and (ii) after giving effect to such
reduction, the sum of the Existing Commitments of all Noteholders must at least
equal the sum of the Principal Balances of all Notes then Outstanding. Each such
notice of reduction or termination of a commitment shall be irrevocable.
(c) Advances. Prior to the Conversion Date, each Note
shall be a revolving note with a maximum principal amount equal to the Existing
Commitment then in effect for the related Noteholder and the Issuer, subject to
the terms and conditions of this Agreement, may borrow, repay and reborrow
amounts in respect of the Commitments. After the Conversion Date, the unpaid
Principal Balance shall become due and payable in accordance with Schedule 2
attached hereto as long as no Early Amortization Event has occurred. The Agent
shall maintain a record of all Advances and repayments made on the Notes and
absent manifest error such records shall be conclusive.
(d) Funding of Advance. On the Drawdown Date requested by
the Issuer and presuming that the Issuer shall have satisfied all applicable
conditions precedent set forth in
E29
Exhibit 10.1
Article X hereof, each Noteholder shall, subject to the terms and conditions of
this Loan Agreement, deposit with the account designated by the Issuer by wire
transfer of same day funds not later than 1:00 p.m. (Amsterdam time) an amount
equal to its Pro Rata share of the requested Advance; provided, however, that
each Advance by each Noteholder shall be for an amount (A) not less than the
lesser of (x) its then unused Existing Commitment and (y) such Noteholder's Pro
Rata share of Five Hundred Thousand Dollars ($500,000), and (B) not greater than
the lesser of (x) the Availability of such Noteholder on such Business Day and
(z) such Noteholder's Pro Rata share of the Asset Base; provided, further, that
in the event that any Noteholder fails to make an Advance in accordance with its
Existing Commitment, then the other Noteholder(s) shall not be obligated to fund
their Pro Rata share of the defaulted Noteholder(s).
(e) Request for Advance. Each request for an Advance
shall be submitted in writing to the Agent by not later than 1:00 p.m.
(Amsterdam time) on the third Business Day prior to the date of the requested
Advance. Such notice shall include (i) a calculation of the Asset Base
(calculated to include any containers to be acquired with the proceeds of such
Advance and (ii) the amount of such Advance to be funded by each Noteholder. The
Issuer's request shall be irrevocable when given and shall be in a minimum
aggregate amount equal to the lesser of (i) Five Hundred Thousand Dollars
($500,000) and (ii) the then unused Existing Commitment. Issuer shall pay
interest on the Notes at the rates and in the manner set forth in Section 202
hereof. Each request for an Advance shall constitute a reaffirmation by Issuer
that (1) no Event of Default, Early Amortization Event or Manager Default has
occurred and is continuing and (2) the representations and warranties contained
in the Transaction Documents are true, correct and complete in all material
respects to the same extent as though made on and as of the date of the request,
except to the extent such representations and warranties specifically relate to
an earlier date, in which event they shall be true, correct and complete in all
material respects as of such earlier date.
If (i) any Advance requested by the Issuer is not, for any
reason whatsoever related to a default or nonperformance by the Issuer, made or
effectuated on the date specified therefor or (ii) any optional prepayment of
the Notes is not made when specified by notice in writing by the Issuer to the
Agent, the Issuer shall pay Breakage Costs.
Section 202. Interest Payments on the Notes and Commitment
Fee.
(a) Interest on Notes. Each Note 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 unpaid Principal Balance
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 Legal
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
E30
Exhibit 10.1
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
one month 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 one month 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 one month commencing on that day.
(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.
(d) Commitment Fee. On each Payment Date occurring in the
months of March, June, September and December, the Issuer shall pay a commitment
fee (the "Commitment Fee") to each Noteholder in an amount equal to the sum for
each day during the three immediately preceding Collection Periods of (x) 0.50%,
(y) a fraction (expressed as percentage) the numerator of which is one and the
denominator of which is equal to the actual number of days in the applicable
year and (z) the Availability of such Noteholder on such date. Such Commitment
Fee shall be payable from amounts then on deposit in the Trust Account in
accordance with Section 302 hereof.
(e) Renewal Fee. In the event that the Conversion Date is
extended without restructuring any material terms of this Agreement for a period
of 364 days, or some portion thereof, on the Final Payment Date, the Issuer
shall pay or cause to be paid a renewal fee (the
E31
Exhibit 10.1
"Renewal Fee") to each Noteholder in an amount equal to the product of (x) 0.15%
and (y), the final commitment of each respective Noteholder as shall be
determined by the Agent. In the event that the Conversion Date is extended with
restructuring of material terms for a period of 364 days, or some portion
thereof, the Noteholders shall be entitled to an arrangement fee, to be
determined at that time by the Noteholders. No such extension of the Conversion
Date shall be effective unless the same shall be in writing and consented to by
all of 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 from amounts on
deposit in the Trust Account in an amount equal to (i) so long as no Early
Amortization Event is continuing, the Scheduled Principal Payment Amount for
such Payment Date, or (ii) if an Early Amortization Event is then continuing,
the then aggregate Note Principal Balance shall be payable in full to the extent
that funds are available for such purposes in accordance with the provisions of
clause (7) of Section 302(a) hereof. The unpaid Principal Balance of each Note
together with all unpaid interest (including any overdue interest), fees,
expenses, costs and other amounts payable by the Issuer to the Noteholders
pursuant to the terms hereof, shall be due and payable in full on the earlier to
occur of (x) the date on which an Event of Default shall occur and the Notes
have been accelerated in accordance with the provisions of Section 802 hereof
and (y) the Legal Final Payment Date.
(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 (i) any
partial prepayment of principal shall be in a minimum amount of Two Hundred
Fifty Thousand Dollars ($250,000) and (ii) the Issuer may not utilize any funds
on deposit in the Restricted Cash Account for such purposes. 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 and (ii) 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 Redemption Upon Change of Control. If a
Change of Control occurs with respect to the Manager or The Cronos Group, the
Issuer shall at the direction of the Agent (acting at the written direction of
the Noteholders) redeem the Notes 60 days after receipt of notice requesting
such redemption 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 and the other Transaction Documents.
(d) Mandatory Prepayment of Notes Due to Asset Base
Imbalance. If the then unpaid principal balance of the Notes exceeds the Asset
Base, the Issuer shall promptly (but in any event no later than the time
required by Section 1101(2)) make a mandatory prepayment of the principal
balance of the Notes in an amount equal to such excess; provided, however, if
such Asset Base imbalance is caused solely by the reduction in the advance rate
from 65% to 55% due
E32
Exhibit 10.1
to the Weighted Average Age of the Containers exceeding seven (7) years, then
the period of ten (10) consecutive days provided to remedy such condition shall
be extended to six (6) months thereafter.
Section 204. The Notes.
(a) The Advances made by each Noteholder shall be
evidenced by a grid 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." The Agent shall maintain a record of
all Advances and repayments made on the Notes and absent manifest error such
records shall be conclusive.
(b) The Payment Date with respect to the Notes shall be
the fifteenth day of each month, 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. All payments of principal and interest on the Notes shall be paid to
the Noteholders reflected in the Note Register as of the related Record Date by
wire transfer of immediately available funds for receipt prior to 11:00 a.m.
(Amsterdam time) on the related Payment Date. Any payments received by a
Noteholder after 11:00 a.m. (Amsterdam time) on any day shall be considered to
have been received on the next succeeding Business Day.
(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.
(e) 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
E33
Exhibit 10.1
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 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, (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
E34
Exhibit 10.1
qualification and (iv) an acknowledgment by the transferee that it is bound by
the terms and conditions of this Agreement, including its obligation to make
Advances. 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 participating
interests in any Note issued hereunder to one or more commercial banks or other
Persons; provided, however, that (i) such Noteholder's obligations under the
Transaction Documents shall remain unchanged, (ii) such 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 206, 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 Legal 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
E35
Exhibit 10.1
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.
(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,
E36
Exhibit 10.1
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;
(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
E37
Exhibit 10.1
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.
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
E38
Exhibit 10.1
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 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 and Time 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
E39
Exhibit 10.1
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 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.
ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Trust Account. On or prior to Effective Date, the
Issuer shall establish the Trust Account with, and in the name of, the Agent for
the benefit of the Noteholders; such account to be entitled "Cronos Finance
(Bermuda) Limited/Fortis Trust Account". The Trust Account shall be under the
sole dominion and control of the Agent for the benefit of the Noteholders. The
Issuer shall cause the Manager to deposit in the Trust Account all Net Container
Revenues for the immediately preceding Collection Period by not later than the
Determination Date immediately succeeding such Collection Period. The Issuer
shall not establish any additional accounts, other than the Restricted Cash
Account, without the prior written consent of the Agent.
Section 302. Distributions from 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, (2) amounts deposited in the
Trust Account from the Restricted Cash Account in accordance with Section 306(b)
of this Loan Agreement, (3) payments received from an Interest Rate Hedge
Provider pursuant to an Interest Rate Hedge Agreement and (4) any earnings on
investments pursuant to Section 303 of this Loan Agreement (the sum of (1), (2),
(3) and (4), the
E40
Exhibit 10.1
"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 Event of Default 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 an Interest Rate Hedge Provider, any payments
owing under an Interest Rate Hedge Agreement other
than termination payments;
(3) on the Payment Dates occurring in the months of
March, June, September and December, to the Agent by
wire transfer of immediately available funds, the
amount of the product of (x) one-quarter and (y)
$35,000 and any other fees and expenses of the Agent
then due and payable;
(4) 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;
(5) 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 (A)
the sum of (x) the Interest Payment and (y) Interest
Arrearage, if any and (B) the sum of (x) the
Commitment Fees then owing and (y) any unpaid
Commitment Fees from all prior Payment Dates;
(6) To each Noteholder, any Scheduled Principal Payment
Amount then due and payable to such Noteholder;
(7) on the Legal Final Payment Date or any Payment Date
on which an Event of Default or Early Amortization
Event is then continuing, to the Noteholders, pro
rata, the unpaid Principal Balance of the Notes;
(8) 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;
(9) 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 (after
giving effect to withdrawals on such Payment Date) to
the Restricted Cash Account Requirement;
(10) to an Interest Rate Hedge Provider, any termination
payments owing under any Interest Rate Hedge
Agreement;
E41
Exhibit 10.1
(11) if an Event of Default 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;
(12) to the Manager, any Disposition Fees then due and
payable;
(13) to the Manager, any indemnification payments owing by
the Issuer to the Manager pursuant to Section 18 of
the Management Agreement;
(14) to the Administrative Agent, any indemnification
payment owed by the Issuer pursuant to Section 109 of
the Administration Agreement; and
(15) to the Issuer or its designee the excess, if any, of
(i) any remaining Distributable Cash Flow over (ii)
the sum of the estimated amounts of Subparagraphs
(4), (5), if applicable, and (6) of this Section
302(a) that will be due on the immediately succeeding
Payment Date (which amounts shall be retained in the
Trust Account until the immediately succeeding
Payment Date).
(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, 2004, 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.
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
E42
Exhibit 10.1
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
Effective Date, the Issuer shall establish the Restricted Cash Account with, and
be in the name of the Agent for the benefit of the Noteholder; such account to
be entitled "Cronos Finance (Bermuda) Limited Restricted Cash Account". The
Restricted Cash Account shall under the sole dominion and control of the Agent
for the benefit of the Noteholders. 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 monies on deposit in the Trust Account which are 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
perfected first priority 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 entitlements credited thereto;
(iii) the Purchase Agreement and any Container Sale Agreements; (iv) the
Management Agreement; (v) the Administration Agreement;
(vi) All Accounts;
(vii) All Chattel Paper;
(viii) All Contracts;
(ix) All Documents;
(x) All General Intangibles;
(xi) All Payment Intangibles;
E43
Exhibit 10.1
(xii) All Instruments;
(xiii) All Inventory;
(xiv) All Supporting Obligations:
(xv) All Equipment;
(xvi) All Letter-of-Credit Rights;
(xvii) All other property of the Issuer 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;
(xviii) All insurance proceeds of the Collateral,
all proceeds of the voluntary or involuntary disposition of
the Collateral or such proceeds;
(xix) 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
(xx) 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 is collectively called the "Collateral". In
furtherance of the foregoing, the Issuer hereby grants to the Agent, for the
benefit of the Noteholders, (i) a fixed charge over the Containers, the
Management Agreement and the Purchase Agreement and (ii) a floating charge over
all of the other assets of the Issuer.
(b) 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.
(c) 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 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
E44
Exhibit 10.1
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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
E45
Exhibit 10.1
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, 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.
E46
Exhibit 10.1
(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.
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.
E47
Exhibit 10.1
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 Loan Agreement 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. 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.
Section 505. Executive Offices. The current location of
Issuers registered office and its only "place of business" (within the meaning
of Section 9-307 of the UCC) is located at Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx XX 11 Bermuda, Attn: Secretary, Telephone: 000 000-0000, Telefax: 441
292-4720. The books and records (including those regarding the Collateral) of
the Issuer are maintained at Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX 11
Bermuda. The Issuer does not have or transact business under any trade names or
other names.
Section 506. No Agreements or Contracts. The Issuer has not
transacted any business on or prior to the Effective Date, except as
contemplated by the "Transaction Documents" entered into in connection with the
original Loan Agreement, dated as of July 30, 1999, among the Issuer, the Agent
and First Union National Bank. The Issuer is not and has not been a party to any
contract or agreement (whether written or oral), other than the Transaction
Documents, except for the "Transaction Documents" entered into in connection
with the Loan Agreement, dated as of July 30, 1999, among the Issuer, the Agent
and First Union National
E48
Exhibit 10.1
Bank, and in connection with the Amended and Restated Loan Agreement, dated as
of July 19, 2001, among the Issuer, the Agent and Fortis.
Section 507. Consents and Approval. Except for any approval,
authorization or consent to be obtained on or prior to the Effective Date, 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 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.
E49
Exhibit 10.1
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, Manager Default or event or condition that with the giving of notice
or the passage of time or both would become a Manager Default has occurred and
is continuing.
Section 514. Litigation and Continent 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
Effective 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 Effective 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. Perfected Priority Lien. On the Effective Date,
all filing and other actions have been made or taken in order to perfect the
Lien in the Collateral created pursuant to the terms of the Transaction
Documents. On the Effective Date, the Agent, on behalf of the Noteholders, will
have a legal, valid and binding perfected Lien on the Collateral which Lien is
prior to all other Liens.
Section 521. Trademarks, Patents, Copyrights, Franchises and
Liens. The Issuer possesses and owns all necessary trademarks, trade names,
copyrights, patents (including those listed on Schedule 1 hereto), patent
rights, franchises and licenses which are material to the conduct of its
business as now operated.
E50
Exhibit 10.1
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:
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
and its only "place of business" (within the meaning of Section 9-307 of the
revised UCC) is located at Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX 11,
Bermuda. The Issuer shall not establish a new location for its "place of
business" (within the meaning of Section 9-307 of the UCC) 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:
E51
Exhibit 10.1
(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;
(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 Persons
covenants or obligations under any agreement or instrument included in the
Collateral (excluding any Interest Rate Hedge Agreement), 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
(excluding any Interest Rate Hedge Agreement).
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; provided that, the
Issuer (or the Manager on its behalf) may make sales of Containers in the
ordinary course of business so long as all of the following conditions are
fulfilled with respect to each such sale:
(i) no Early Amortization Event or Event of Default is
continuing or would result from such sale,
(ii) the number of Containers sold is a size consistent
with the Manager's normal course of operations, and
(iii) all Sales Proceeds from such sale are deposited into
the Trust Account.
Upon fulfillment of all the above conditions, the sold Containers shall be
released from the Lien of the 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;
E52
Exhibit 10.1
(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;
(d) permit the Lien of the Agent, on behalf of the Noteholders,
not to constitute a valid first priority perfected Lien in the Collateral; or
(e) transact any business within the United States of America;
provided, however, that the Issuer may lease one or more of the Containers to a
Person located or operating in the United States of America.
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.
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, the Seller Notes issued pursuant to the
Purchase Agreement and any indebtedness incurred pursuant to any Interest Rate
Hedge Agreement required pursuant to Section 626 hereof, 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
E53
Exhibit 10.1
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, any Interest
Rate Hedge Agreement required or permitted pursuant to Section 626 hereof 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), without the prior, written approval of the Agent;
provided, however, that if the then aggregate amount advanced to the Issuer
pursuant to this Loan Agreement shall be in compliance with the Asset Base
requirements set forth herein, no such prior, written approval of the Agent
shall be required.
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.
E54
Exhibit 10.1
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.
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.
E55
Exhibit 10.1
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. Interest Rate Hedge Agreements. (a) The Issuer shall enter
into and maintain on or prior to the thirtieth (30th) day following September
23, 2003, and, upon any subsequent acquisition of Containers, within thirty (30)
days thereafter, Interest Rate Hedge Agreements, with one or more Interest Rate
Hedge Providers having a long-term senior unsecured indebtedness rated not less
than "A-1" by S&P or "A3" by Xxxxx'x and which is reasonably satisfactory to the
Agent, having aggregate notional principal balances of not less than
seventy-five percent (75%), and not more than one hundred percent (100%), of
Advances allocated (on a Net Book Value basis) to Eligible Containers subject to
Finance Leases with a remaining tenor of more than three (3) years. Such
Interest Rate Hedge Agreements shall protect the Issuer from fluctuations in
interest rates which would increase the interest payments of the Issuer on Notes
issued under this Loan Agreement; provided, however, this provision shall not
require the Issuer to enter into any Interest Rate Hedge Agreement having an
original notional value of less than Five Million Dollars ($5,000,000). All
Interest Rate Hedge Providers shall be required to enter into agreements not to
commence any case, proceeding or other action under any existing or future
insolvency law seeking to have an order for relief entered with respect to the
Issuer.
(b) All payments received from an Interest Rate Hedge Provider
shall be deposited by the Issuer directly into the Trust Account.
Section 627. Quarterly Statements. Within sixty (60) days after the end
of each fiscal quarter of the Issuer, one copy of:
(i) consolidated balance sheet of the Issuer, at the end
of such fiscal quarter; and
(ii) consolidated statement of income of the Issuer for
the fiscal quarter and consolidated statements of income, retained
earnings and cash flows of the Issuer for that portion of the fiscal
year then ended, set forth in each case in comparative form the figures
for the equivalent timeframe for the previous year.
Section 628. Seller Notes. Issuer shall only make any payments on the
Seller Notes from amounts distributed to the Issuer pursuant to clause (12) of
Section 302; provided, however, that on the Effective Date the Issuer may make
payments on the Seller Notes from any amounts then on deposit in the Trust
Account (after giving effect to the provisions of Clause (12) of Section
312(a)).
Section 629. 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
E56
Exhibit 10.1
operating condition in accordance with the manufacturer's specifications
therefor and in accordance with international conventions regarding Containers.
Section 630. 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 631. 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;
(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;
E57
Exhibit 10.1
(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;
(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
E58
Exhibit 10.1
interests other than such activities as are expressly
permitted pursuant to any provision of the Transaction
Documents; and
(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, the 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 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
E59
Exhibit 10.1
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 (including,
without limitation, any Scheduled Principal Payment Amount), the
premium, if any, and interest on the Notes or Commitment Fees within
five (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 801 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 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;
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Exhibit 10.1
(vi) the continuation of a Manager Default for two
consecutive Payment Dates following the date on which such Manager
Default occurred;
(vii) 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;
(ix) the Issuer shall have failed to redeem the Notes as
and when required by Section 203(c) hereof;
(x) the Agent shall fail to have a first priority
perfected security interest in the Collateral and such condition
remains unremedied for ten days.
Section 802. Acceleration of Stated Maturity; Rescission and Annulment.
(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
E61
Exhibit 10.1
(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 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;
(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
E62
Exhibit 10.1
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; and
(v) terminate the Commitments of the Noteholders.
(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 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
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Exhibit 10.1
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;
(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.
E64
Exhibit 10.1
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.
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
E65
Exhibit 10.1
(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 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
E66
Exhibit 10.1
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.
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.
ARTICLE IX
THE AGENT
Section 901. Appointment and Authorization.
Each Noteholder, by acceptance of its Note, hereby irrevocably
appoints, designates and authorizes Fortis 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.
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Exhibit 10.1
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 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
E68
Exhibit 10.1
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 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 Advances 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
E69
Exhibit 10.1
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.
Fortis 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 Fortis were not the
Agent hereunder and without notice to or consent of the Noteholders. With
respect to its Notes, Fortis 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
Fortis in its individual capacity.
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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Exhibit 10.1
ARTICLE X
CONDITIONS OF EFFECTIVENESS AND SUBSEQUENT ADVANCES
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 Effective 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 Effective 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 Effective 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 Effective 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 "bring down" opinion letters or opinion letters
from Xxxxxxx, Xxxx & Xxxxxxx, Xxxxxx Xxxxx Sapte, Xxxxxx & Calder, 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, Cronos Capital Corp. and Cronos Containers (Cayman) Ltd., 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.
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Exhibit 10.1
(f) Deposit in Restricted Cash Account. The Issuer shall have
deposited $445,000 in the Restricted Cash Account on or prior to the Effective
Date.
(g) Default. No Event of Default, Potential Event of Default or
Manager Default 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 September 23, 2003 (which calculation shall be based on the actual Container
statistics as of August 31, 2003, 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
Agent, created pursuant to the terms of the Transaction Documents. In addition,
the Agent shall have received evidence of the release and termination of the
security interests of any Person in any Containers to be acquired with the
proceeds of such Advance.
(k) [Reserved.]
(l) Facility Fee. The Issuer shall have paid or arranged for the
payment of the Facility Fee to the Initial Noteholder.
(m) 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.
(n) Pledge of Patents. The Issuer shall have caused to be granted
to the Agent, on behalf of the Noteholders, a security interest in the Patents.
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.
Section 1002. Subsequent Advances. The obligation of each of the
Noteholders to advance any additional principal on the Notes pursuant to its
Commitment under this Loan Agreement is subject to the following further
conditions precedent:
(a) Default. Before and after giving effect to such Advance, no
Potential Event of Default, Event of Default, Early Amortization Event or
Manager Default shall have occurred and be continuing.
(b) Certification. Issuer shall have delivered to the agent a
compliance certificate, signed by a financial officer of Issuer, as to the
matters set out in this Section 1002.
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Exhibit 10.1
(c) Asset Base Certificate. Issuer shall have delivered to the
Agent a duly completed and executed Asset Base Certificate, determined as of the
last day of the immediately preceding Collection Period, which complies with the
requirements therefor set forth in the Indenture and this Supplement.
(d) Conversion Date. The Conversion Date shall not have occurred.
Section 1003. [Reserved]
Section 1004. Incremental Amendments. No incremental amendment,
modification or waiver of this Agreement shall be effective unless the same
shall be in writing and signed by the Noteholders, the Issuer and the Agent, and
accompanied by opinions of counsel regarding enforceability and corporate
matters, the appropriate resolutions and corporate documents of the Issuer and
such other documents as the parties hereto may deem to be reasonably necessary
to give effect to such amendment, modification or waiver contemplated thereby.
For the avoidance of doubt, the parties hereto agree that all other conditions
precedent to the effectiveness of this Agreement shall be deemed to be satisfied
as of the September 23, 2003.
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 and any undrawn amount of the Initial Commitment
shall be cancelled:
(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; provided, however, if
such Asset Base imbalance is caused solely by the reduction in
the advance rate from 65% to 55% due to the Weighted Average
Age of the Containers exceeding seven (7) years, then the
period of ten (10) consecutive days provided to remedy such
condition shall be extended to six (6) months thereafter.
(3) A Manager Default shall have occurred and then be continuing;
(4) The Interest Coverage Ratio of the Issuer determined as of any
Payment Date occurring on or after the Effective 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;
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Exhibit 10.1
(6) The Weighted Average Age of the Equipment as of any Payment
Date is greater than eight (8) years; or
(7) The Cronos Group shall have a Tangible Net Worth Leverage
Ratio of greater than 4.5:1;
(8) The Cronos Group shall have a Gearing Ratio of greater than
3.5:1;
(9) The Cronos Group shall fail to maintain a Tangible Net Worth
of at least an amount equal to the sum of (x) Forty-five
Million Dollars ($45,000,000) plus (y) fifty percent (50%) of
all consolidated net income (but no reduced for losses) for
all periods beginning after December 31, 2002.
(10) The Cronos Group shall have an Interest Coverage Ratio of less
than 1.1 to 1.0.
(11) The Cronos Group shall have a Debt Service Coverage Ratio of
less than 1.25 to 1.0.
(12) The Agent shall not have received all such documentation that
it considers necessary or desirable to perfect the security
interest of the Agent on behalf of the Noteholders in the
Patents; or
(13) The Agent shall not have received all opinions set forth in
Section 1001(e) hereof in form and substance satisfactory to
it within five (5) Business Days after the Effective Date.
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), (6) or (7) of this Section 1101, the Agent
shall have the right to conduct an annual audit of the Issuer at Issuer's
expense.
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
E74
Exhibit 10.1
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.
(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)
E75
Exhibit 10.1
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 Issuers 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 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
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Exhibit 10.1
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. Covenant Calculation. The financial covenant calculations
or definitions in this Agreement will be amended to exclude non-recurring
accounting adjustments that may arise from the implementation of recent and
future accounting rule changes.
Section 1207. Effect on Prior Agreement. Notwithstanding that this
Agreement is amended and restated as of September 23, 2003, nothing contained
herein shall be deemed to cause a novation of any transfers, conveyances or
transactions which were effected under the Agreement that was executed on July
30, 1999, as first amended and restated on July 19, 2001. All indebtedness
evidenced by the Notes issued pursuant to the Prior Agreement and the security
interests granted pursuant to the related Transaction Documents will remain in
full force and effect.
Section 1208. 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 1209. 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: Fortis Bank
(Nederland) N.V. at the following address: Coolsingel 93/1 XX Xxx 000 0000 Xx
Xxxxxxxxx, Xxx Xxxxxxxxxxx, and (b) in the case of the Issuer, at the following
address: Cronos Finance (Bermuda) Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx XX 11 Bermuda, Attn: Secretary, Telephone: 441295-1422, Telefax:
441292-4720. 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 1210. Consent to Jurisdiction. Any legal suit, action or
proceeding against the Issuer arising out of or relating to this Loan Agreement,
or any transaction
E77
Exhibit 10.1
contemplated hereby, may be instituted in any federal or state court in The
County 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 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, 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 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 1211. 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 1212. Governing. 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 1213. 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 1214. 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;
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Exhibit 10.1
(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 1215. 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, but all of which shall constitute one and the same
instrument.
Section 1216. 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 XXX XXXX XXX XXXXXX XX XXX XXXX, XXXXX 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 000 XXXXXX XXXXXX, XXX
XXXX, XXX XXXX, 00000, 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 1217. 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
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Exhibit 10.1
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 1218. 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 1219. 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 1220. 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
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Exhibit 10.1
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 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 1221. 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.
Section 1222. Authorization. The Issuer hereby authorizes Agent to file
UCC financing statements or documents of similar import on its behalf to
perfect, and maintain the perfection of, the security interest granted
hereunder.
Section 1223. No Restriction on Dividends. Notwithstanding anything to
the contrary in this Loan Agreement, the Issuer shall be permitted to pay
dividends to the shareholders from amounts on deposit in the Trust Account (but
not from the Restricted Cash Account) that are otherwise payable to it pursuant
to Section 302(a)(12) hereof so long as after giving effect to such dividend it
remains Solvent and no Potential Event of Default, Event of Default or Early
Amortization Event would occur or be contrary.
E81
Exhibit 10.1
Section 1224.
Section 1225. Authorization to File Financing Statements. In connection
with the grant of the security interest contained in Section 401 hereof, the
Issuer hereby irrevocably authorizes the Agent at any time, and from time to
time, to file in any filing office in any UCC jurisdiction reasonably necessary
by any applicable law to perfect the security interest granted herein or in any
other Transaction Document, any initial financing statements, continuation
statements and amendments thereto that (a) indicate Collateral, regardless of
whether any particular asset comprised in the Collateral falls within the scope
of Article 9 of the UCC, and (b) provide any other information required by
Article 9 of the UCC for the sufficiency or filing office acceptance of any
financing statements, continuation statements or amendments, including whether
the Issuer is an organization, the type of organization and any organizational
identification number issued to the Issuer. The Issuer agrees to furnish any
such information to the Agent promptly upon request. The Issuer also ratifies
its authorization for the Agent to have filed in any UCC jurisdiction any like
initial financing statements, continuation statements or amendments thereto if
filed prior to September 23, 2003. Nothing in the foregoing shall be deemed to
create an obligation of the Agent to file any financing statement or amendment
thereto except as directed by the Noteholders.
[Signatures to Follow]
E82
Exhibit 10.1
IN WITNESS WHEREOF, the Issuer, the Agent and the Initial Noteholder 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/ XXXXX X XXXXXXX
-------------------
Name: Xxxxx X Xxxxxxx
Title: Director
E83
Exhibit 10.1
FORTIS BANK (NEDERLAND) N.V., as Agent and
Noteholder
By: /s/ MENNO A.N. VAN LACUM
-------------------------
Name: Menno A.N. van Lacum
Title: Account Manager
By: /s/ XXXX X.X. XXXXX
------------------
Name: Xxxx X.X. Xxxxx
Title: Deputy Director
E84
Exhibit 10.1
NIB CAPITAL BANK N.V., as Noteholder
By: /s/ XXXXXX X. XXXXXXX By: /s/XXXXX XXXXXX
--------------------- ---------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxx
Title: Vice President Title: Legal Counsel
By: /s/ J.B.J. XXXXXXXX
-----------------------
Name: J.B.J. Xxxxxxxx
Title: Managing Director
E85
Exhibit 10.1
HOLLANDSCHE BANK-UNIE N.V., as
Noteholder
By: /s/ L.J.M. BLOEMHEUVEL
----------------------
Name: L.J.M. Bloemheuvel
Title: Proxy
By: /s/ R.A.C. COENRAADTS
----------------------------
Name: R.A.C. Coenraadts
Title: Proxy
E86
Exhibit 10.1
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% (rounded; Seven and one twelfths 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.
E87
Exhibit 10.1
EXHIBIT B
[RESERVED]
E88
Exhibit 10.1
EXHIBIT C
Form of Note
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
$_____________ No. ____
KNOW ALL PERSONS BY THESE PRESENTS that CRONOS FINANCE (BERMUDA)
LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (the "Company"), for value received, hereby promises to pay to
_____________________, or its registered assigns, at the principal office of the
Agent named below, the principal sum of up to ____________ Dollars ($________),
which sum shall be payable on the dates and in the amounts set forth in the
Second Amended and Restated Loan Agreement, dated as of September __, 2003 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Loan Agreement"), among the Company, Fortis Bank (Nederland) N.V., as
agent (the "Agent"), and Fortis Bank (Nederland) N.V., NIB Capital Bank N.V. and
Hollandsche Bank-Unie N.V. (each a "Noteholder" and together the "Noteholders").
The actual unpaid principal balance of this Note shall be determined by
reference to the records of the Agent. 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.
E89
Exhibit 10.1
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. Payments of principal on this Note shall be made as provided 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 19, 2001 (as amended, modified or supplemented from time to
time, 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.
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 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
E90
Exhibit 10.1
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 1213 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.
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, including Sections 5-1401 and 5-1402 of the General Obligations
Laws, but otherwise without giving effect to the principles of conflicts of
laws.
[Signature page follows.]
E91
Exhibit 10.1
IN WITNESS WHEREOF, Cronos Finance (Bermuda) Limited has caused this
Note to be duly executed by its duly authorized representative, on this ___ day
of _________, 2003.
CRONOS FINANCE (BERMUDA) LIMITED
By: ____________________________
Its: ___________________________
E92
Exhibit 10.1
EXHIBIT D
List of Agreed Upon Procedures
NONE
E93
Exhibit 10.1
SCHEDULE 1
Trademarks, Patents, Franchises and Licenses
E94
Exhibit 10.1
SCHEDULE 2
Scheduled Targeted Principal Balance Percentage
SCHEDULED TARGETED
PERIOD PRINCIPAL BALANCE PERCENTAGE
---------- ----------------------------
0 100.00%
1 99.17%
2 98.33%
3 97.50%
4 96.67%
5 95.83%
6 95.00%
7 94.17%
8 93.33%
9 92.50%
10 91.67%
11 90.83%
12 90.00%
13 88.33%
14 86.67%
15 85.00%
16 83.33%
17 81.67%
18 80.00%
19 78.33%
20 76.67%
21 75.00%
22 73.33%
23 71.67%
24 70.00%
25 68.33%
26 66.67%
27 65.00%
28 63.33%
29 61.67%
30 60.00%
31 58.33%
32 56.67%
33 55.00%
34 53.33%
35 51.67%
36 50.00%
37 48.33%
38 46.67%
E95
Exhibit 10.1
SCHEDULED TARGETED
PERIOD PRINCIPAL BALANCE PERCENTAGE
--------- ----------------------------
39 45.00%
40 43.33%
41 41.67%
42 40.00%
43 38.33%
44 36.67%
45 35.00%
46 33.33%
47 31.67%
48 30.00%
49 27.50%
50 25.00%
51 22.50%
52 20.00%
53 17.50%
54 15.00%
55 12.50%
56 10.00%
57 7.50%
58 5.00%
59 2.50%
60 0.00%
E96
Exhibit 10.1
SCHEDULE 3
Percentage of Initial Commitment
Noteholder Dollar Amount Percentage
---------- ------------- ----------
FORTIS $40,000,000 57%
NIB $25,000,000 36%
HBU $ 5,000,000 7%
E97
