EXHIBIT 10.6
COLLATERAL AGREEMENT
THIS COLLATERAL AGREEMENT (the "Agreement") is made and entered into as of
November 16, 2001 by and among Cronos Equipment (Bermuda) Limited, a company
organized and existing under the laws of the Islands of Bermuda ("CEB"), Cronos
Finance (Bermuda) Limited, a company organized and existing under the laws of
the Islands of Bermuda ("CFL"), and Fortis Bank (Nederland) N.V. (f/k/a
MeesPierson N.V.), a Naamloze Vennootschap ("Secured Party").
W I T N E S S E T H:
WHEREAS, CFL, as Issuer, is a party to that certain Amended and Restated Loan
Agreement, dated as of July 19, 2001 (the "Loan Agreement") with Secured Party,
as the Agent and Initial Noteholder; and
WHEREAS, pursuant to the terms of the Loan Agreement, the Initial Noteholder has
agreed to lend CFL up to $60,000,000; and
WHEREAS, CFL's borrowings under the Loan Agreement are evidenced by one or more
Promissory Notes (the "Notes") in the form of Exhibit C to the Loan Agreement;
and
WHEREAS, the Notes are due and payable by no later than July 14, 2004 (the
"Final Payment Date"); and
WHEREAS, in order to secure the payment of all amounts due under the Notes and
the performance of CFL's covenants and agreements in the Loan Agreement
(collectively, the "Secured Obligations"), CFL has granted the Noteholders a
security interest in and to the "Collateral," as defined in Section 401 of the
Loan Agreement; and
WHEREAS, pursuant to Section 1003 of the Loan Agreement, CFL has agreed to
provide the Noteholders a security interest in the patents and trademarks held
by CEB with respect to cellular palletwide containers ("CPCs"), as additional
security for CFL's obligations under the Notes and the Loan Agreement; and
WHEREAS, Schedule 1 hereto lists the trademarks and patents held by CEB with
respect to CPCs; and
WHEREAS, CEB has engaged Deloitte & Touche LLP to perform a pricing analysis of
the risk assumed by CEB in providing a security interest in its patents and
trademarks for the benefit of the Noteholders under the Loan Agreement; and
WHEREAS, CEB is willing to grant a security interest in its patents and
trademarks for the benefit of the Noteholders under the Loan Agreement in
consideration of the payment of the Credit Enhancement Fee specified in Section
3 hereof.
NOW, THEREFORE, in consideration of the agreements herein contained, the parties
agree as follows:
Grant of Security Interest
As collateral security for the prompt and complete payment and performance of
the Secured Obligations, and in consideration of the payment by CFL of the
Credit Enhancement Fee (Section 3 hereof), CEB hereby grants to the Secured
Party, for the benefit of the Noteholders under the Loan Agreement, a security
interest in and to the following intellectual property (including all of its
rights therein), now owned or
E7
hereinafter acquired by CEB in connection with or related to the CPCs or in
which CEB now holds or hereinafter acquires any interest (all of which shall
collectively be called the "Intellectual Property" for purposes of this
Agreement):
the letters patent and
applications for letters patent
listed on Schedule 1 hereto, and all
rights corresponding thereto in the
United States and in each other
country listed on Schedule 1 hereto,
and in any other country, including,
without limitation, all reissues,
continuations,
continuations-in-part, or extensions
thereof; all xxxxx patents,
divisionals, and patents of
addition; and all patents to be
issued under any such applications,
now owned or hereinafter acquired by
CEB or in which CEB now holds or
hereinafter acquires any interest
(collectively, the "Patents");
All trademarks listed on
Schedule 1 hereto, and all
tradenames, corporate names,
business names, trade dress, trade
styles, service marks, logos, and
other source of business
identifiers, prints, including
labels on which any of the
trademarks listed on Schedule 1
hereto have appeared or appear,
designs and general intangibles of
like nature, now existing or
hereinafter adopted or acquired
relating to CPCs, all registrations
and recordings thereof, and any
applications made in connection
therewith, including, without
limitation, registrations,
recordings, and applications in the
United States Patent and Trademark
Office or in any similar office or
agency of the United States, any
state thereof, or any other country
or any political subdivision
thereof, and all reissues,
extensions, or renewals thereof, and
the entire goodwill therein and of
the business of CEB connected with
or symbolized by any such
trademarks, now owned or hereinafter
acquired by CEB or in which CEB now
holds or hereinafter acquires any
interest including, without
limitation, those listed on Schedule
1 hereto (collectively, the
"Trademarks");
Any and all claims for
damages by way of past, present, and
future infringement of any of the
rights included above, with the
right, but not the obligation, to
xxx for and collect such damages for
E8
said use or infringement of the
intellectual property rights
identified above;
All amendments, renewals,
and extensions of any of the
Patents or Trademarks; and
All income, royalties,
payments, proceeds, and products of
the foregoing, including, without
limitation, all payments under
insurance or any indemnity or
warranty payable in respect of any
of the foregoing.
Representations, Warranties, and Covenants
CEB represents, warrants, covenants, and agrees as follows:
E9
CEB is a company duly organized, validly existing, and in good standing
under the laws of Bermuda. CEB is in good standing and is duly qualified to do
business in each state or country where the nature of its activities or
properties require such qualification, except to the extent that the failure to
be so qualified would not, in the aggregate, materially and adversely affect the
ability of CEB to perform its obligations under and comply with the terms of
this Agreement.
CEB has the power and is duly authorized to execute, deliver, and
perform this Agreement. The execution, delivery and performance by CEB of this
Agreement does not and will not require any consent or approval of any
"Governmental Authority" (as defined in the Loan Agreement), or any other person
which has not already been obtained.
The execution, delivery and performance of this Agreement will not: (i)
contravene any provision of CEB's Memorandum of Association or Bye-laws or other
organizational document; (ii) 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 (iii) violate or result
in the breach of, or constitute a default under, any other agreement or
instrument to which CEB is a party or by which CEB or its property or assets may
be bound or affected in each case that would adversely affect CEB's ability to
execute, deliver and perform its obligations under this Agreement.
This Agreement, when duly executed and delivered, will be the legal,
valid and binding obligation of CEB, enforceable against CEB in accordance with
its terms, except as such 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.
CEB is the owner of, or has an interest in, the Intellectual Property
listed on Schedule 1 hereto, except for non-exclusive licenses granted by CEB to
its customers in the ordinary course of business, and has the full right, power
and authority to grant its rights in the Intellectual Property conveyed herein
to Secured Party, subject to the rights of licensees under licenses granted by
CEB to its customers in the ordinary course of business.
During the term of this Agreement, CEB will not transfer or otherwise
encumber the Intellectual Property, except for licenses granted in the ordinary
course of business.
The United States Patent identified on Schedule 1 hereto (no. 5755349) (the
"United States Patent") is valid and enforceable, and, to CEB's knowledge, each
of the other Patents and Trademarks listed on Schedule 1 hereto is valid and
enforceable, no part of the Patents or Trademarks has been adjudged invalid or
unenforceable, in whole or in part, and no claim has been made that any Patent
or Trademark violates the rights of any third party.
The security interest in the Intellectual Property created hereunder in
favor the Noteholders constitutes a valid security interest in the Intellectual
Property securing the payment of the Secured Obligations. Upon the due
recordation of a Grant of Security Interest (Patents) (the "Grant"),
substantially in the form of Exhibit A hereto, with respect to the United States
Patent, with the United States Patent and Trademark Office and the Companies
Registry of Bermuda, and upon the filing of a UCC Financing Statement in
E10
the Recorder of Deeds of the District of Columbia naming CEB as "debtor" and
naming Secured Party as "secured party" and describing the United States Patent,
the security interest in the United States Patent granted to the Noteholders
will constitute a perfected security interest therein.
CEB shall promptly
advise Secured Party, with a copy to
CFL, of any material change in the
composition of any Patent or
Trademark, including, but not
limited to, any subsequent ownership
right of CEB in or to any Patent or
Trademark not specified in this
Agreement.
(j) CEB shall (i) use reasonable commercial efforts to
protect, defend, and maintain the registration, validity, and enforceability of
the Intellectual Property, (ii) use reasonable commercial efforts to monitor the
use by its licensees of the Intellectual Property, (iii) use reasonable
commercial efforts to detect infringement of the Intellectual Property, and
promptly advise Secured Party in writing of infringements detected, and (iv) not
allow any Patent or Trademark that has been registered or for which
registrations have been applied to be abandoned, forfeited, or dedicated to the
public prior to their natural expiration dates (A) without delivery of written
notice to Secured Party, and (B) without exercising reasonable commercial
efforts to prevent such abandonment, forfeiture, or dedication.
CEB shall, from time to time, execute and file such other instruments, and
take such further actions Secured Party may reasonably request from time to
perfect or continue the perfection of Secured Party's interest in the
Intellectual Property.
Credit Enhancement Fee
In consideration of CEB's grant of a security interest in the Intellectual
Property pursuant to the provisions of Section 1 hereof, CFL agrees to pay CEB a
Credit Enhancement Fee of Fourteen Thousand Five Hundred Fifteen Dollars
($14,515), payable within three (3) business days of the date of this Agreement,
by wire transfer to CEB. CFL agrees to provide notice of payment of the Credit
Enhancement Fee to Secured Party concurrently with the payment thereof to CEB.
If the Credit Enhancement Fee is not paid as aforesaid, then this Agreement
shall become null and void.
Term
The term of this Agreement, and the grant of the security interest in the
Intellectual Property as provided by Section 1 hereof, shall expire on the later
of the Final Payment Date or such date as the Notes have been fully repaid and
CFL has fulfilled all of its other obligations under the Loan Agreement.
Attorney-in-Fact
CEB hereby irrevocably appoints Secured Party as CEB's attorney-in-fact, with
full authority in the place and stead of CEB, and in the name of CEB, from time
to time in Secured Party's discretion, to take any action and to execute any
instrument, as appropriate, which Secured Party may deem reasonably necessary or
advisable to accomplish the purposes of this Agreement, including to file, in
Secured Party's sole discretion, one or more financing or continuation
statements and amendments thereto, relative to any of the Patents or Trademarks,
without the signature of CEB, where
E11
permitted by law. With respect to the acts contemplated by this Section 5,
Secured Party agrees that it shall provide CEB notice thereof within ten (10)
days thereafter.
Events of Default
The occurrence of any of the following shall constitute an event of default
under this Agreement:
An "Event of Default" under the Loan Agreement; or
CEB breaches any warranty or agreement made by CEB in this Agreement which
breach has a material adverse effect upon the value of the Intellectual Property
and, as to any breach that is capable of cure, CEB fails to cure such breach
within thirty (30) days of the earlier of (x) knowledge thereof by CEB or (y)
CEB's receipt of notice of such breach; provided, however, that if such breach
is not capable of being cured within such 30-day period, and CEB timely notifies
Secured Party of such fact and diligently pursues such cure, then the cure
period shall be extended to the day requested in CEB's notice, but in no event
more than 90 days from the initial breach.
If an event of default hereunder or under the Loan Agreement shall occur and be
continuing, in addition to those other remedies available to it under applicable
law, Secured Party may exercise the remedies specified in Section 804 of the
Loan Agreement with respect to the Intellectual Property.
Miscellaneous
Further Assurances. Each party hereto agrees to do all acts and things and to
make, execute, and deliver such written instruments as shall from time to time
be reasonably required to carry out the terms and provisions of this Agreement.
Without limiting the generality of the foregoing, CEB agrees to cooperate with
CFL and Secured Party in perfecting the Noteholders' security interest in the
Intellectual Property as called for by Section 1 hereof, and CFL and Secured
Party agree to cooperate with CEB in reconveying and terminating the
Noteholders' security interest in the Intellectual Property at such time as this
Agreement expires pursuant to the provisions of Section 4 hereof.
Notices. Any notice, demand, or communication required or permitted to
be given by any provision of this Agreement shall be deemed properly given if
given in writing or by electronic mail and either delivered through a
commercially recognized overnight delivery service or, if sent by electronic
mail or telecopier, to the party or to an officer of the party to whom the same
is directed, addressed as follows:
E12
If to CFL, to: Cronos Finance (Bermuda) Limited
Clarendon Xxxxx
0, Xxxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Attn: Company Secretary
Fax: (000) 000-0000
With a copy to: Cronos Containers Limited
Orchard Lea, Xxxxxxxxx Xxxx
Xxxxxxxxx Windsor
Bershire SL4 4RU, England
Attn: Xxxxx X. Xxxxxxx
Fax: 00 0 000-000-000
Email: xxx@xxxxxx.xxx
And: Fortis Bank (Nederland) N.V.
Xxxxxxxxxx 00/0
X.X. Xxx 000
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Attn: Menno van Lacum
Fax: 00 00 000 0000
Email: xxxxx.xxx.xxxxx@xx.xxxxxxxxxx.xxx
If to CEB, to: Cronos Equipment (Bermuda) Limited
Clarendon Xxxxx
0, Xxxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Attn: Company Secretary
Fax: (000) 000-0000
With a copy to: Cronos Capital Corp.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
Email: xxx@xxxxxx.xxx
E13
Fortis Bank (Nederland) N.V.
If to Secured Party, to: Xxxxxxxxxx 00/0
X.X. Xxx 000
0000 XX Rotterdam, The Netherlands
Attn: Menno van Lacum
Fax: 00 00 000 0000
Email: xxxxx.xxx.xxxxx@xx.xxxxxxxxxx.xxx
All notices, demands, and requests shall be deemed to be given on the business
day on which it is delivered by hand or commercial messenger or air courier
service to such party at its address specified above, or, if sent by facsimile
or email, when electronically confirmed. Any facsimile or email transmission not
sent on a business day, or not sent before 5:30 p.m. (recipient's time) on a
business day, shall be deemed sent on the next business day.
Any party identified above may change the address to which notices are to be
given hereunder by giving notice to the other party in the manner herein
provided.
E14
Amendment of Agreement. This Agreement may not be amended except by written
agreement signed by all three parties hereto.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law.
Consent to Jurisdiction. Any legal suit, action, or proceeding against any
party arising out of or relating to this Agreement, or any transaction
contemplated hereby, may be instituted in any federal or state court in the City
and County of New York, State of New York, and each of CFL, CEB, and Secured
Party hereby waives any objection which it may now or hereinafter have to the
laying of venue of any such suit, action or proceeding, and, solely for the
purposes of enforcing this Agreement, each of CFL, CEB, and Secured Party hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action, or proceeding. Each of CFL and CEB 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 service of legal process, and each of
CFL and CEB agree that service of process upon such party shall constitute
personal service of such process on such person. Secured Party hereby agrees
that service of legal process in any suit, action, or proceeding arising out of
or relating to this Agreement, or any transaction contemplated thereby, may be
made in the matter for providing notices to Secured Party pursuant to the
provisions of Section 7(b) herein, and that any such service shall be deemed to
constitute personal service of process on Secured Party hereunder. Pursuant to
New York General Obligations Law Section 5-1402, each of CFL and CEB shall
maintain the designation and appointment of such authorized agent until all
amounts payable under the Notes and the Loan Agreement are paid in full. Should
such agent shall cease to so act, then the parties shall promptly designate and
appoint another agent satisfactory to Secured Party, and shall promptly deliver
to the agent evidence in writing of such other agent's acceptance of such
appointment.
Execution in Counterparts. This Agreement may be executed by the parties
hereto in counterparts, each of which shall be deemed to be an original, but all
such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
/ / /
/ / /
/ / /
E15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
CRONOS EQUIPMENT (BERMUDA) LIMITED
By /s/ XXXXX X XXXXXXX
Xxxxx X Xxxxxxx
Its Director
-------------------------
CRONOS FINANCE (BERMUDA) LIMITED
By /s/ XXXXXX X XXXXX
Xxxxxx X Xxxxx
Its Director
-------------------------
FORTIS BANK (NEDERLAND) N.V.
By /s/ MERIJN ZONDAG
Merijn Zondag
/s/ MENNO VAN LACUM
Menno Van Lacum
Its
-------------------------------
E16
SCHEDULE 1
CRONOS EQUIPMENT (BERMUDA) LIMITED
LIST OF TRADEMARKS AND PATENTS
FOR
CELLULAR PALLETWIDE CONTAINER
E17
