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Exhibit 10.21
FINANCE (BERMUDA) LIMITED
Issuer
and
FORTIS BANK (NEDERLAND) N.V.
Agent
FORTIS BANK (NEDERLAND) N.V.
Initial Noteholder
-----------------------------------
AMENDED AND RESTATED LOAN AGREEMENT
Dated as July 19, 2001
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 101. Defined Terms.............................................................1
Section 102. Other Definitional Provisions............................................19
Section 103. Interpretation of Loan Agreement.........................................20
Section 104. Payments, Computations, Etc..............................................20
ARTICLE II
COMMITMENT OF NOTEHOLDERS; THE NOTES
Section 201. Amounts and Terms of the Loan Noteholder Commitments.....................20
Section 202. Interest Payments on the Notes and Commitment Fee........................21
Section 203. Principal Payments on the Notes..........................................23
Section 204. The Notes................................................................23
Section 205. Registration; Registration of Transfer and Exchange of Notes.............24
Section 206. Mutilated, Destroyed, Lost and Stolen Notes..............................25
Section 207. Delivery, Retention and Cancellation of Notes............................26
Section 208. Taxes....................................................................26
Section 209. Illegality...............................................................28
Section 210. Increased Costs..........................................................29
Section 211. Inability to Determine Rates.............................................29
Section 212. Capital Requirements.....................................................29
Section 213. Place and Time of Payment................................................30
Section 214. Offset...................................................................30
Section 215. Proration of Payments....................................................30
ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Trust Account............................................................31
Section 302. Trust Account............................................................31
Section 303. Investment of Monies Held in the Trust Account and Restricted
Cash Account..........................................................33
Section 304. Reports to Noteholders...................................................33
Section 305. Records..................................................................33
Section 306. Restricted Cash Account..................................................33
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TABLE OF CONTENTS
(continued)
ARTICLE IV
COLLATERAL
Section 401. Collateral...............................................................34
Section 402. Pro Rata Interest........................................................36
Section 403. Agent's Appointment as Attorney-in-Fact..................................37
Section 404. Release of Security Interest.............................................38
Section 405. Administration of Collateral.............................................38
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 501. Existence................................................................38
Section 502. Authorization............................................................38
Section 503. No Conflict; Legal Compliance............................................39
Section 504. Validity and Binding Effect..............................................39
Section 505. Executive Offices........................................................39
Section 506. No Agreements or Contracts...............................................39
Section 507. Consents and Approval....................................................39
Section 508. Margin Regulations.......................................................40
Section 509. Taxes....................................................................40
Section 510. Section 510. Other Regulations...........................................40
Section 511. Solvency.................................................................40
Section 512. Survival of Representations and Warranties...............................40
Section 513. No Default...............................................................41
Section 514. Litigation and Contingent Liabilities....................................41
Section 515. Title; Liens.............................................................41
Section 516. Subsidiaries.............................................................41
Section 517. No Partnership...........................................................41
Section 518. Pension and Welfare Plans................................................41
Section 519. Ownership of Issuer......................................................41
Section 520. Perfected Priority Lien..................................................41
Section 521. Trademarks, Patents, Copyrights, Franchises and Liens....................41
ARTICLE VI
COVENANTS
Section 601. Payment of Principal and Interest; Payment of Taxes......................41
Section 602. Maintenance of Office....................................................42
Section 603. Existence................................................................42
Section 604. Protection of Collateral.................................................42
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TABLE OF CONTENTS
(continued)
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Section 605. Performance of Obligations...............................................43
Section 606. Negative Covenants.......................................................43
Section 607. Non-Consolidation of Issuer..............................................43
Section 608. No Bankruptcy Petition...................................................43
Section 609. Liens....................................................................44
Section 610. Other Debt...............................................................44
Section 611. Guarantees, Loans, Advances and Other Liabilities........................44
Section 612. Consolidation, Merger and Sale of Assets.................................44
Section 613. Other Agreements.........................................................44
Section 614. Charter Documents........................................................45
Section 615. Capital Expenditures.....................................................45
Section 616. Permitted Activities.....................................................45
Section 617. Investment Company Act...................................................45
Section 618. Payments of Collateral...................................................45
Section 619. Notices..................................................................45
Section 620. Books and Records........................................................45
Section 621. Taxes....................................................................46
Section 622. Subsidiaries.............................................................46
Section 623. Investments..............................................................46
Section 624. Use of Proceeds..........................................................46
Section 625. Managerial Report........................................................46
Section 626. Interest Rate Hedge Agreements...........................................46
Section 627. Seller Notes.............................................................46
Section 628. Maintenance of the Collateral............................................47
Section 629. Insurance................................................................47
Section 630. Nonconsolidation Matters.................................................47
ARTICLE VII
DISCHARGE OF LOAN AGREEMENT
Section 701. Full Discharge...........................................................49
Section 702. Unclaimed Funds..........................................................49
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES
Section 801. Event of Default.........................................................50
Section 802. Acceleration of Stated Maturity; Rescission and Annulment................51
Section 803. Collection of Indebtedness...............................................52
Section 804. Remedies.................................................................52
Section 805. Agent May Enforce Claims Without Possession of Notes.....................53
Section 806. Allocation of Money Collected............................................53
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TABLE OF CONTENTS
(continued)
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Section 807. Limitation on Suits......................................................54
Section 808. Unconditional Right of Holders to Receive Principal and Interest.........54
Section 809. Restoration of Rights and Remedies.......................................54
Section 810. Rights and Remedies Cumulative...........................................55
Section 811. Delay or Omission Not Waiver.............................................55
Section 812. Control by Majority of Holders...........................................55
Section 813. Waiver of Past Defaults..................................................55
Section 814. Undertaking for Costs....................................................56
Section 815. Waiver of Stay or Extension Laws.........................................56
Section 816. Reserved.................................................................56
Section 817. Sale of Collateral.......................................................56
Section 818. Action on Notes..........................................................57
ARTICLE IX
THE AGENT
Section 901. Appointment and Authorization............................................57
Section 902. Delegation of Duties.....................................................58
Section 903. Liability of Agent.......................................................58
Section 904. Reliance by the Agent....................................................58
Section 905. Notice of Default........................................................58
Section 906. Credit Decision..........................................................59
Section 907. Indemnification..........................................................59
Section 908. Agent in Individual Capacity.............................................60
Section 909. Successor Agent..........................................................60
ARTICLE X
CONDITIONS OF EFFECTIVENESS AND SUBSEQUENT ADVANCES
Section 1001. Effectiveness............................................................61
Section 1002. Subsequent Advances......................................................62
Section 1003. Conditions Subsequent....................................................63
ARTICLE XI
EARLY AMORTIZATION EVENT
Section 1101. Early Amortization Event.................................................63
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TABLE OF CONTENTS
(continued)
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. Compliance Certificates and Opinions.....................................65
Section 1202. Form of Documents Delivered to Agent.....................................65
Section 1203. Acts of Holders..........................................................65
Section 1204. Inspection...............................................................66
Section 1205. Limitation of Rights.....................................................66
Section 1206. Severability.............................................................66
Section 1207. Notices..................................................................66
Section 1208. Consent to Jurisdiction..................................................67
Section 1209. Captions.................................................................67
Section 1210. Governing Law............................................................67
Section 1211. No Petition..............................................................67
Section 1212. General Interpretive Principles..........................................67
Section 1213. Counterparts.............................................................68
Section 1214. CONSENT TO JURISDICTION..................................................68
Section 1215. Judgment Currency........................................................69
Section 1216. WAIVER OF JURY TRIAL.....................................................69
Section 1217. Waiver of Immunity.......................................................69
Section 1218. Confidentiality..........................................................70
Section 1219. Binding Effect; Assignability............................................70
Section 1220. Authorization............................................................70
Section 1221. No Restriction on Dividends..............................................70
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This Amended and Restated Loan Agreement, dated as of July 19,
2001 (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").
W I T N E S S E T H :
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WHEREAS, the Issuer, the Agent and First Union National Bank
("FUNB") have entered into a Loan Agreement, dated as of July 30, 1999 (as
amended or supplemented prior to the date hereof, the "Original Loan
Agreement");
WHEREAS, simultaneously with the execution and delivery of the
amendment and restatement of the Original Loan Agreement, FUNB is withdrawing as
a Noteholder;
WHEREAS, the Issuer, the Agent and the Initial Noteholder have
agreed to amend and restate the Original Loan Agreement in its entirety, but
only upon the terms and subject to the conditions hereafter set forth and in
reliance on the representations, warranties and covenants of the Issuer set
forth herein;
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, 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 accounts receivable, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel Paper,
Documents or Instruments) now owned or hereafter received or acquired by or
belonging or owing to Issuer (including, without limitation, under any trade
name, style or division thereof) whether arising out of goods sold or services
rendered by Issuer or from any other transaction, whether or not the same
involves the sale of goods or services by Issuer (including, without limitation,
any such obligation which may be characterized as an account or contract right
under the UCC) and all of Issuer's rights in, to and under all purchase orders
or receipts now owned or hereafter acquired by it for goods or services, and all
of Issuer's rights to any goods represented by any of the foregoing (including,
without limitation, unpaid seller's rights of rescission, replevin, reclamation
and stoppage in transit and rights to returned, reclaimed or repossessed
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goods), and all monies due or to become due to Issuer under all purchase orders
and contracts for the sale of goods or the performance of services or both by
Issuer (whether or not yet earned by performance on the part of Issuer or in
connection with any other transaction), now in existence or hereafter occurring,
including, without limitation, the right to receive the proceeds of said
purchase orders and contracts, and all collateral security and guarantees of any
kind given by any Person with respect to any of the foregoing.
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.
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.
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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:
(1) the product of (x) sixty-seven percent (67%) 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 purchased by the Issuer in the ordinary course
of its business at any time prior to January 1, 2000,
(2) the product of (x) eighty-five percent (85%) 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 purchased by the Issuer in
the ordinary course of its business at any time on and
after January 1, 2000, and
(3) the product of (x) eighty-five percent (85%) and (y) the
Aggregate Book Value of Net Finance Lease Receivables.
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.
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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.
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, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ 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
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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.
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
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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 other financing statements and, with
respect to an Account, any agreement relating to the terms of payment or the
terms of performance thereof.
Determination Date: The fifth 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.
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 amendment and restatement
of the Original Loan Agreement occurs, which for purposes of this Loan Agreement
shall be deemed to be July 19, 2001.
Eligible Container: Any Container which, when considered with all other
Containers then owned by the Issuer, shall comply with each of the following
requirements:
(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
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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) 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
(v) Container Representations and Warranties. The
Container complies with the Container Representations and
Warranties; and
(vi) 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
(vii) 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
(viii) Casualty Losses. To the best knowledge of the
Manager, the Container shall not have been subject to a Casualty
Event.
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
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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
Fortis is Sixty Million Dollars ($60,000,000).
Facility Fee: $375,000.00.
Federal Reserve Board: The Board of Governors of the United
States Federal Reserve System or any successor thereto.
Final Payment Date: July 15, 2004, or if such date is not a
Banking Day, the Banking Day immediately preceding such date.
Fortis: Fortis Bank (Nederland) N.V. (f/k/a MeesPierson N.V.),
and its successors and assigns.
Finance Lease: This term shall have the meaning set forth in the
Purchase Agreement.
Gearing Ratio: For The Cronos Group, means the ratio of (i) Total
Debt 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
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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.
Guaranty: The Guaranty, dated as of July 19, 2001, by the
Guarantor in favor of the Agent on behalf of the Noteholders.
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.
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
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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 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
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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 August 14, 2001.
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) two and one quarter
percent (2.25%) per annum 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) two and one quarter percent (2.25%) per annum.
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, wherever located, arising out of or in any way related
to the Containers and now or hereafter owned or acquired (whether as lessee or
otherwise) by Issuer and, in any event, shall include, without limitation, all
Containers, intermodal containers, trailers and other container related
transportation equipment, all inventory, merchandise, goods and other personal
property which are held by or on behalf of Issuer for sale or lease or are
furnished or are to be furnished under a contract of service or which constitute
raw materials, work in process or materials used or consumed or to be used or
consumed in Issuer's business, or the processing, packaging, promotion, delivery
or shipping of the same, and all furnished goods whether or not such inventory
is listed on any schedules, assignments or reports furnished to Agent from time
to time and whether or not the same is in transit or in the constructive, actual
or exclusive occupancy or possession of Issuer or is held by Issuer or by others
for Issuer's account, including, without limitation, all goods covered by
purchase orders and contracts with suppliers and all goods billed and held by
suppliers and all inventory which may be located on premises of Issuer or of any
carriers, forwarding agents, truckers, warehousemen, vendors, selling agents or
other persons.
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
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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.
Initial Commitment: Sixty Million Dollars ($60,000,000).
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;
(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.
Letter-of-Credit Rights: This term shall have the meaning set
forth in Section 9-102(a)(51) of the UCC.
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LIBOR: The London Inter-Bank Offered Rate (determined solely by
the Agent), rounded upward to the nearest l/16th 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 Amended and Restated Loan Agreement, dated
as of July 19, 2001, 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.
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.
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
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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 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
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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;
(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%).
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
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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.
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 Fortis' cost of
funds (as determined in good faith by Fortis) 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 the 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
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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.
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.
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 ▇▇▇▇▇'▇ 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) six
(6).
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.
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
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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: The excess of (A) the total stockholder's
equity of The Cronos Group, over (B) all intangible assets included in the
amount set forth in clause (A), in each case as determined in accordance with
generally accepted accounting principles and as reported on the most recently
available financial statements of The Cronos Group delivered to the Agent in
accordance with the terms of the Transaction Documents.
Tangible Net Worth Leverage Ratio: For The Cronos Group, 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.
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.
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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.
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 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: For any date of
determination shall be equal to (A) the product of (i) the age of each Container
and (ii) the Net Book Value of each Container, divided by (B) the total Net Book
Value of the Containers. 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.
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(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 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. On the Effective Date, Fortis'
portion of the Initial Commitment shall be $60,000,000, representing 100% of the
Initial Commitment.
(b) Reduction of Commitments. The Issuer may on not less than
thirty (30) Business Days' prior written notice to the Agent, reduce permanently
the undrawn amount of the Existing Commitment; provided, however, that 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. Each such notice of reduction or termination of a commitment
shall be irrevocable.
(c) Advances. Prior to the earlier to occur of (x) Final Payment
Date and (y) the date on which an Event of Default or Early Amortization Event
first occurs, each Note shall be a revolving note with a maximum principal
amount equal to the Existing Commitment then in
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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. 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 any Business Day requested by the
Issuer and presuming that the Issuer shall have satisfied all applicable
conditions precedent set forth in 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. The Notes 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
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Prime Rate. Subject to the terms of this Loan Agreement relating to the
prepayments of the Notes, the principal 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 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 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
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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.
Section 203. Principal Payments on the Notes
(a) Scheduled Amortization of Notes. Prior to the Final Payment
Date, there will be no scheduled amortization of the principal balance of the
Note. The unpaid principal amount of the Notes shall be due and payable in full
on the Final Payment Date, together with all unpaid interest, fees, expense,
costs and other amounts payable by the Issuer pursuant to the terms of the
Notes.
(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.
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."
(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.
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(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 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.
(a) 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
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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.
(b) 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.
(c) 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.
(d) 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 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.
(e) 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. (b) If
(i) any mutilated Note is surrendered to the Agent, or the Agent receives
evidence to its satisfaction of
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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.
(a) 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 therefore to the extent of any loss, damage, cost or expense incurred
by the Issuer or the Agent in connection therewith.
(b) The Agent may, for each new Note delivered under the
provisions of this Section 205, 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 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
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
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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
therefore. 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, 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.
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(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 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
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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.
(a) 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.
(b) 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 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
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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 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
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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. 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
"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 Early Amortization Event or 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) $25,000 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;
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(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) on the 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;
(7) 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;
(8) 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;
(9) to an Interest Rate Hedge Provider, any termination
payments owing under any Interest Rate Hedge Agreement;
(10) if an Event of Default or Early Amortization Event 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;
(11) to the Manager, any Disposition Fees then due and payable;
(12) to the Manager, any indemnification payments owing by the
Issuer to the Manager pursuant to Section 18 of the
Management Agreement;
(13) to the Administrative Agent, any indemnification payment
owed by the Issuer pursuant to Section 109 of the
Administration Agreement; and
(14) 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
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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, 2002, 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 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.
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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
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 income, payments and
proceeds of the foregoing, and (vii) all of the following which arise out of or
in any way relate to the Containers:
(a) All Accounts;
(b) All Chattel Paper;
(c) All Contracts;
(d) All Documents;
(e) All General Intangibles;
(f) All Payment Intangibles;
(g) All Instruments;
(h) All Inventory;
(i) All Supporting Obligations;
(j) All Equipment;
(k) All Letter-of-Credit Rights;
(l) 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;
(m) To the extent not included above and without limiting the
foregoing, all Chattel Paper, all Leases and all schedules, supplements,
amendments, modifications, renewals, extensions, and guarantees thereof
in every case whether now owned or
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hereafter acquired and all amounts, rentals, proceeds and other sums of
money due and to become due under the Container Related Agreements,
including, without limitation, (i) all rentals, payments and other
moneys, including all insurance payments and claims for losses due and
to become due to the Issuer under, and all claims for damages arising
out of the breach of, any Container Related Agreement; (ii) the right of
the Issuer to terminate, perform under, or compel performance of the
terms of the Container Related Agreements; and (iii) any guarantee of
the Container Related Agreements and any rights of the Issuer in respect
of any subleases or assignments permitted under the Container Related
Agreements;
(n) All insurance proceeds of the Collateral, all proceeds of the
voluntary or involuntary disposition of the Collateral or such proceeds;
(o) 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
(p) 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 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 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.
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(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.
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
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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. (h) 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.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
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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.
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.
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Section 503. No Conflict; Legal Compliance. The execution,
delivery and performance of this Supplement 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 Effect. 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 Issuer's
registered office and its only "place of business" (within the meaning of
Section 9-307 of the UCC) is located at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇ 11 Bermuda, Attn: Secretary, Telephone: ▇▇▇ ▇▇▇-▇▇▇▇, Telefax: ▇▇▇ ▇▇▇-▇▇▇▇.
The books and records (including those regarding the Collateral) of the Issuer
are maintained at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 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 Bank.
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,
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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. 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.
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.
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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 Contingent 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.
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.
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(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 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 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:
(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
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(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 Person's 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;
(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;
(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
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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 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
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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 Borrowing 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.
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
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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, repayment, in full, of First
Union National Bank, 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.
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, to the extent commercially practicable, enter into Interest Rate Hedge
Agreements, reasonably satisfactory to the Agent, with respect to the aggregate
Book Value of Net Finance Lease Receivables in order to 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. In addition, the long-term senior unsecured
indebtedness of any proposed Interest Rate Hedge Provider shall be rated not
less than "A-1" by S&P and "A3" by ▇▇▇▇▇'▇.
(b) All payments received from an Interest Rate Hedge Provider
shall be deposited by the Issuer directly into the Trust Account.
Section 627. 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,
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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 628. 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 operating condition in accordance with the manufacturer's
specifications therefor and in accordance with international conventions
regarding Containers.
Section 629. 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 630. 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;
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(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;
(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;
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(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 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.
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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 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, the premium, if
any, and interest on the Notes or Commitment Fees within 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;
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(v) any Transaction Document ceases to be in full force
and effect;
(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
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(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 this
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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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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.
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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
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(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
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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.
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Section 902. Delegation of Duties.
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
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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 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,
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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 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
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the Agent hereunder until such time, if any, as the Majority of Holders appoint
a successor agent as provided for above.
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 ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Sapte, ▇▇▇▇▇▇ & 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.
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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.
(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 July 19, 2001 (which calculation shall be based on the
actual Container statistics as of June 30, 2001, adjusted to reflect one
month of depreciation).
(i) 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.
(j) [Reserved.]
(k) Facility Fee. The Issuer shall have paid or arranged for the
payment of the Facility Fee to the Initial Noteholder.
(l) 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.
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.
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(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.
(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) Final Payment Date. The Final Payment Date shall not have
occurred.
Section 1003. Conditions Subsequent. Within twenty (20) days
following the Effective Date, the Agent shall 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.
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:
(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;
(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;
(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 in excess of 5:1;
(8) The Cronos Group shall have a Gearing Ratio in excess of
4:1;
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(9) 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 within the time frame set forth
in Section 1003 hereof; or
(10) 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 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;
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(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) 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.
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(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 Issuer's 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 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. 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 1207. 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
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following address: Fortis Bank (Nederland) N.V. at the following address:
Coolsingel 93/1 ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, and (b) in the
case of the Issuer, at the following address: Cronos Finance (Bermuda) Limited,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 11 Bermuda, Attn: Secretary,
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇, Telefax: ▇▇▇ ▇▇▇-▇▇▇▇. 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 1208. Consent to Jurisdiction. Any legal suit, action or
proceeding against the Issuer arising out of or relating to this Loan Agreement,
or any transaction 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, 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 1209. 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 1210. Governing Law. 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 1211. 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 1212. 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;
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(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;
(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 1213. 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 1214. 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 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, 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.
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Section 1215. 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 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 1216. 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 1217. 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
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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 1218. 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 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 1219. 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 1220. 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 1221. 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.
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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/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Chief Executive Officer
FORTIS BANK (NEDERLAND) N.V., as Agent and Noteholder
By: /s/ MENNO VAN LACUM
Name: Menno van Lacum
Title: Senior Manager
By: /s/ BIRGITTE KOOL
Name: Birgitte Kool
Title: Senior Manager
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AMENDED AND RESTATED LOAN AGREEMENT
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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% (Seven and eight hundredths 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.
Exhibit A-1
80
EXHIBIT B
[RESERVED]
Exhibit B-1
81
EXHIBIT C
Form of Note
Exhibit C-1
82
EXHIBIT D
List of Agreed Upon Procedures
Exhibit D-1
83
SCHEDULE 1
Trademarks, Patents, Franchises and Licenses
Schedule 1-1