[LEGEND] Exhibit 10.1 to Form 8-K dated 12/28/95
PURCHASE AGREEMENT
PURCHASE AGREEMENT ("Agreement") dated as of November 30,
1995 by and between Liberty Equipment Investors L.P.-1984, a
limited partnership organized under the laws of Delaware and
having its office at World Financial Center, South Tower, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 ("Seller"), and
Trans Ocean Container Corporation, a Delaware corporation, as
successor in interest to Trans Ocean Ltd., a California
corporation, having its office at 000 Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000 ("Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of those (i) 494 standard 40-
foot dry cargo marine shipping containers, (ii) 4 40-foot high
cube dry cargo marine shipping containers, (iii) 71 standard 20-
foot refrigerated marine shipping containers and (iv) 72 standard
40-foot refrigerated marine shipping containers, all as described
in the Verification Certificate attached hereto as Schedule I
(collectively herein the "Containers" or the "Equipment"), which
are currently operated, or if heretofore destroyed were operated
at the time of such destruction, as part of Buyer's equipment
operating pools pursuant to a Pooling and Agency Agreement dated
December 12, 1984 between Buyer and Seller (the "Pooling and
Agency Agreement")(capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in
the Pooling and Agency Agreement); and
WHEREAS, Seller desires to sell and assign to Buyer and
Buyer desires to purchase from Seller all of Seller's right,
title and interest in and to the Equipment and any disposition
proceeds thereof and each party desires to terminate the Pooling
and Agency Agreement and that certain Container Sales Agency
Agreement dated December 12, 1984 between Seller and Buyer (the
"Container Sales Agency Agreement"), all upon the terms and
provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises hereinafter set forth, the parties hereto hereby
agree as follows:
1. Sale of Equipment: Seller hereby agrees to sell to
Buyer, effective as of November 30, 1995 (the "Purchase Date"),
and Buyer hereby agrees to accept, purchase and pay for, the
Equipment and any disposition proceeds thereof at the price and
upon all other terms and provisions herein provided.
2. Equipment Purchase Price: The aggregate purchase price
payable to Seller by Buyer hereunder for the Equipment is
$1,418,800, computed at the per Container prices set forth on
Schedule II attached hereto, which shall be paid on the Closing
Date (defined below) to Seller by Buyer to the account and in the
manner set forth in Section 5 below.
3. Termination of Management Agreement: Effective as of
the Purchase Date upon payment by Buyer and receipt by Seller of
the Purchase Price and the Settlement Amount (each as defined
below), the Pooling and Agency Agreement shall terminate as of
the Purchase Date and be of no further force or effect. In
settlement of (i) all amounts accrued in respect of the Equipment
or otherwise accrued against the account of Buyer under the
Pooling and Agency Agreement through the Purchase Date and
remaining unpaid as of the Closing Date, net of (ii) all amounts
accrued in respect of the Equipment or otherwise accrued against
the account of Seller under the Pooling and Agency Agreement
through the Purchase Date and remaining unpaid as of the Closing
Date, Buyer shall pay to Seller on the Closing Date an amount
equal to $54,896.88 (the "Settlement Amount"). The Settlement
Amount shall be paid to Seller by Buyer to the account and in the
manner set forth in Section 5 below.
4. No Sales Agency Fee: Buyer and Seller hereby agree
that no sales commission, fee or any amount whatsoever shall be
payable to Buyer pursuant to the Container Sales Agency
Agreement, or otherwise, in connection with the sale effected
pursuant to this Agreement, and that upon payment of the Purchase
Price and the Settlement Amount the Container Sales Agency
Agreement shall terminate as of the Purchase Date and be of no
further force or effect with no obligation on the part of any
party thereto to the other.
5. Terms of Payment: Buyer hereby agrees to make payment
of the Purchase Price and the Settlement Amount to Seller on
December 15, 1995 (the "Closing Date") by wire transfer of
immediately available funds to Seller's account indicated on
Schedule III attached hereto, provided that prior to such payment
Buyer's counsel shall have received, in escrow in substantially
the form annexed to this Agreement as Exhibit A, an original Xxxx
of Sale by Seller to Buyer covering each item of Equipment
described in the Verification Certificate (the "Xxxx of Sale").
The parties hereto acknowledge and agree that the
Purchase Price and the Settlement Amount, collectively,
constitute full satisfaction and settlement for the purchase of
the Equipment and, in addition, of any and all amounts payable by
Buyer to Seller and any and all amounts payable by Seller to
Buyer, in each case with respect to the Equipment and the
operation thereof under the Pooling and Agency Agreement and the
Container Sales Agency Agreement (the "Subject Agreements"), and
upon receipt of the Purchase Price and the Settlement Amount by
Seller, Buyer shall have no further liability or obligation to
Seller and Seller shall have no further liability or obligation
to Buyer for the purchase of the Equipment or for payments
arising under the Subject Agreements for any period whatsoever.
6. Pre-Closing Operations: Subject to the receipt by
Seller of the Purchase Price and the Settlement Amount on the
Closing Date, all revenues generated and operating expenses
incurred directly or indirectly in connection with the use and
operation of the Equipment after the Purchase Date shall be for
Buyer's account, and Seller hereby irrevocably assigns to Buyer
all of Seller's rights to payment arising in connection with such
use and operation of the Equipment for such period.
7. Delivery: The Equipment is hereby sold as is and where
is without being moved from the possession and use of the user
thereof.
8. Taxes: Buyer shall be responsible for the payment of
any sales, use or other taxes (other than income taxes of Seller)
on or in respect of the Equipment as a result of the sale
provided for herein or otherwise. In addition, Buyer shall be
responsible for any taxes imposed upon any rent, pooling payments
or similar payments due and payable under any agreement for the
possession or use of the Equipment, becoming due after the
Purchase Date. Buyer shall pay the foregoing taxes when due or,
to the extent payable by Seller, shall reimburse, indemnify and
hold Seller harmless for the amount thereof including any penalty
or interest payments thereon.
9. Warranties of Manufacturer: Seller hereby assigns to
Buyer, to the extent assignable, all of its rights in, to and
under the manufacturer's warranties in connection with the
Equipment and indemnities of the manufacturer against patent
infringement claims, including, without limitation, those that
the use of any patented article or design in the design or
manufacture of any item of Equipment constitutes an infringement
of any patent.
10. Seller's Representations and Warranties: Seller hereby
represents and warrants to Buyer as of this date as follows:
(a) Seller has full power and authority to enter into
this Agreement and consummate the transactions
contemplated hereby. This Agreement and the
consummation of the transactions contemplated hereby
have been duly authorized by all necessary action of
Seller, and this Agreement constitutes the legal, valid
and binding obligation of Seller enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
(b) The making and performance of this Agreement and
the transactions contemplated hereby do not contravene
any provision of law applicable to Seller and do not
conflict and are not inconsistent with, and will not
result (with or without the giving of notice or passage
of time or both) in a breach of or creation of any
lien, charge or encumbrance upon the Equipment pursuant
to the terms of any credit agreement, indenture, lease,
guarantee or other instrument to which Seller is a
party or by which Seller may be bound or to which it or
the Equipment may be subject.
(c) Seller is not party to, nor has it agreed to
enter into, any agreement, express or implied,
requiring the payment to any person or entity, either
directly or indirectly, of any broker's or finder's fee
in connection with this Agreement, the transaction
contemplated hereby or the Equipment.
(d) Seller shall have, and upon payment of the
Purchase Price and Settlement Amount hereunder, shall
convey to Buyer good and merchantable title to each
item of Equipment, free and clear of all liens,
encumbrances and security interests of any kind
whatsoever.
Each unit of Equipment sold to Buyer hereunder is sold "AS IS"
and "WHERE IS" and EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN THE XXXX OF SALE, SELLER MAKES NO EXPRESS OR
IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND AS TO THE
CONDITION OR QUALITY OF THE EQUIPMENT (INCLUDING REPRESENTATIONS
OR WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE) WHETHER KNOWN OR UNKNOWN, LATENT OR PATENT, ALL OF WHICH
SELLER HEREBY DISCLAIMS AND WITH BUYER HAVING HAD REASONABLE
OPPORTUNITY FOR INSPECTION OF THE EQUIPMENT.
11. Buyer's Representations and Warranties: Buyer hereby
represents and warrants to Seller as of this date as follows:
(a) Buyer has full power and authority to enter into
this Agreement and consummate the transactions
contemplated hereby. This Agreement and the
consummation of the transactions contemplated hereby
have been duly authorized by all necessary action of
Buyer, and this Agreement constitutes the legal, valid
and binding obligation of Buyer enforceable in
accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
(b) The making and performance of this Agreement and
the transactions contemplated hereby do not contravene
any provision of law applicable to Buyer and do not
conflict and are not inconsistent with, and will not
result (with or without the giving of notice or passage
of time or both) in a breach of any credit agreement,
indenture, lease, guarantee or other instrument to
which Buyer is a party or by which Buyer may be bound
or to which it may be subject.
(c) Buyer is not party to, nor has it agreed to enter
into, any agreement, express or implied, requiring the
payment to any person or entity, either directly or
indirectly, of any broker's or finder's fee in
connection with this Agreement, the transaction
contemplated hereby or the Equipment.
(d) No default by Buyer exists under the Pooling and
Agency Agreement.
(e) The reports, schedules and information prepared
by Buyer and provided by Buyer to Seller pursuant to
the terms of the Pooling and Agency Agreement, or
describing the Equipment or the operation thereof under
the Pooling and Agency Agreement, have included all
information required to be presented therein to provide
true and correct information as to those matters
purported to be covered thereby, and any estimates
provided therein have been arrived at in a reasonable
manner consistent with Buyer's business practices
generally.
(f) Since the Equipment has been managed by Buyer for
Seller pursuant to the Pooling and Agency Agreement,
Buyer or its agents have had sufficient opportunity to
inspect each item of Equipment and to determine its
condition.
12. Miscellaneous: Seller and Buyer acknowledge that this
Agreement and the documents referred to herein contain the entire
agreement between Seller and Buyer, and that there are no
agreements or understandings between Seller and Buyer with
respect to the Equipment other than as set forth herein and in
such other documents. Neither Seller nor Buyer may assign this
Agreement without the prior written consent of the other party.
This Agreement may be executed in one or more counterparts, each
of which together shall constitute one agreement. This Agreement
shall be governed by and construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of
the day and year first above written.
SELLER:
LIBERTY EQUIPMENT INVESTORS L.P. - 1984
By: Whitehall Partners Inc.
Its General Partner
By: ______________________________
Name:
Title:
BUYER:
TRANS OCEAN CONTAINER CORPORATION
By: ______________________________
Name:
Title:
Schedule I
VERIFICATION CERTIFICATE
EQUIPMENT
TYPE POOL CONTAINER NUMBER
40' Dry Cargo CMB I See attached Exhibit A
40' Dry Cargo CMB II See attached Exhibit B
40' High Cube Dry CMB II See attached Exhibit C
Cargo
20' Reefer RFR I See attached Exhibit D
40' Reefer RFR I See attached Exhibit E
641 Containers
The foregoing 641 Containers identified by their respective
container numbers, are currently in service with Trans Ocean
Container Corporation, a Delaware corporation, and are hereby
verified as the items of Equipment currently managed by Trans
Ocean Container Corporation under the Pooling and Agency
Agreement dated December 12, 1984.
TRANS OCEAN CONTAINER CORPORATION
_______________________ By: ______________________________
Date Name:
Title:
Schedule II
Total
Equipment Number of Purchase Price Purchase
Type Pool Containers per Container Price
40' Dry CMB I 254 $1,200 $ 304,800
Cargo
40' Dry CMB 240 $1,340 321,600
Cargo II
40' High $1,680 6,720
Cube CMB 4
Dry II
Cargo
20' Reefer RFR I 71 $4,880 346,480
40' Reefer RFR I 72 $6,100 439,200
641
$1,418,800
EXHIBIT
XXXX OF SALE
Liberty Equipment Investors L.P.-1984 ("Seller"), in
consideration of the sum of One Dollar ($1.00) and other good and
valuable consideration, the receipt of which is hereby
acknowledged, does hereby grant, bargain, sell, transfer and set
over unto Trans Ocean Container Corporation, ("Buyer") the
following equipment ("Equipment"), upon the terms set forth in
the Purchase Agreement dated as of November 30, 1995, by and
between Seller and Buyer (the "Agreement"):
Description Serial Numbers
641 standard 40-foot dry cargo See attached Exhibits A, B, C,
and high cube dry cargo marine D and E
shipping containers and
standard 20-foot and 40-foot
refrigerated marine shipping
containers, and any
disposition proceeds thereof
TO HAVE AND TO HOLD the Equipment and any such disposition
proceeds thereof to the Buyer, its successors and assigns, for
its and their own use and behalf forever.
Seller hereby represents and warrants to Buyer, its successors
and assigns, that as of the date hereof:
1. Seller has good and merchantable title to each item of
Equipment and good and lawful right to sell such Equipment or as
to such Equipment as has heretofore been destroyed, the right to
assign the disposition proceeds thereof.
2. No item of Equipment is subject to any lien, encumbrance
or security interest of any nature whatsoever.
Seller agrees that all of Buyer's interest in and to this Xxxx of
Sale and any and all warranties relating to the Equipment may be
assigned by Buyer to any party with an interest therein,
including any party with a security interest.
IN WITNESS WHEREOF, Seller has caused this instrument to be
duly executed in its name by its officers thereunto duly
authorized this 30th day of November, 1995.
SELLER:
LIBERTY EQUIPMENT INVESTORS L.P. - 1984
By: Whitehall Partners Inc.
General Partner
By: ______________________________
Title:
