ASSET SALE AGREEMENT BETWEEN CRONOS GLOBAL INCOME FUND XVI, L.P. AND TRANSPORTATION CAPITAL PARTNERS, LLC Dated as of August 1, 2011
Exhibit 2.2
BETWEEN
CRONOS GLOBAL INCOME FUND XVI, L.P.
AND
TRANSPORTATION
CAPITAL PARTNERS, LLC
Dated as of ▇▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇ SALE AGREEMENT
TABLE OF CONTENTS
| Page | ||||
Recitals |
1 | |||
Agreement |
1 | |||
1. Closing of Transaction |
1 | |||
2. Assets and Liabilities to Be Transferred |
1 | |||
3. Purchase Price |
3 | |||
4. Representations and Warranties of Seller |
3 | |||
5. Representations and Warranties of Buyer |
5 | |||
6. Covenants of the Parties |
6 | |||
7. Conditions to Closing |
7 | |||
8. Disclaimer of Warranties by Seller |
8 | |||
9. Indemnification. |
8 | |||
10. Miscellaneous |
9 | |||
List of Exhibits |
13 | |||
Index of Definitions |
14 | |||
Seller Disclosure Schedule |
15 | |||
THIS ASSET SALE AGREEMENT is entered into as of this 1st day of August, 2011 by and between
Cronos Global Income Fund XVI, L.P., a limited partnership organized and existing under the laws of
the State of California (“Seller”), Transportation Capital Partners, LLC, a limited liability company organized and existing under the laws of the State of California (“Buyer”).
Recitals
A. Seller owns the refrigerated containers, tank containers, and containers subject to direct financing leases listed on Exhibit A attached
and made a part hereof (each, a “Container” and collectively, the “Containers”).
B. Seller is managed by its General Partner, Cronos Capital Corp., a California corporation
(“CCC”).
C. Seller desires to sell the Containers and certain related assets, and Buyer wishes to
purchase the same on the terms and conditions set forth below.
D. The Index of Definitions at the end of this Agreement sets forth an index of the defined
terms contained herein for the convenience of the parties, but is not incorporated into this
Agreement.
Agreement
1. Closing of Transaction. The closing (“Closing”) shall be held at, or directed
from, the offices of Seller, at 10:00 a.m., San Francisco time, on August 1, 2011 (the “Closing
Date”) or at such other time and place as the parties may mutually agree.
2. Assets and Liabilities to Be Transferred.
2.1 Assets to Be Sold. On the Closing Date, subject to the terms and conditions set
forth herein, Seller shall, provided that all of the conditions set forth in Section 7
hereto have been satisfied, sell, assign, transfer, convey and deliver to Buyer, and Buyer shall
purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective
Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a)
through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities,
debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the
“Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is
subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in
each case, to the extent (but only to the extent) of each Sale Container subject to the terms of
such Lease (it being acknowledged and agreed that containers owned by various persons may be
subject to the terms of a Lease);
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c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to
which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original
sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such
purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held
by Seller under a Lease to the extent (but only to the extent) that such security deposit relates
to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date,
including, without limitation, payments of rent, termination values, casualty values and insurance
payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other
documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller
by CCC in the ordinary course of business (the “Books and Records”); provided, however,
that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing
under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then
and in such event the Books and Records shall be maintained by and in the possession of CAY, except
as otherwise directed by Buyer as owner of the Sale Containers.
2.2 Seller / CCL Leasing Agent Agreement. Seller and an affiliate of CCC, Cronos
Containers Limited, a corporation organized and existing under the laws of England and Wales
(“CCL”), are parties to a Leasing Agent Agreement, dated as of October 9, 1995 (the
“Leasing Agent Agreement”), pursuant to which CCL provides lease management services to
Seller with respect to Seller’s marine cargo containers, including the Sale Containers. At the
Closing, Seller and CCL shall terminate the Leasing Agent Agreement with respect to the Sold
Assets, effective as of the Closing.
2.3 Assumed Liabilities. On the Closing Date, the Buyer shall, provided that all of
the conditions set forth in Section 7 hereto have been satisfied, assume, perform or
otherwise discharge all obligations arising on or after the Effective Date with respect to the Sale
Containers and the other Sold Assets. The Buyer shall not assume any liability or obligation of
the Seller occurring or arising prior to the Effective Date with respect to the Sale Containers and
the other Sold Assets, all of which are hereby disclaimed.
2.4 Correspondence and Payments. CCC, on behalf of Seller, shall forward to the Buyer
or its designee by overnight delivery service, no later than three (3) business days immediately
following the Seller’s receipt thereof, any and all checks, wire transfers and correspondence
related to any Sold Asset to the extent that such checks, wire transfers, or correspondence are
received by the Seller on or after the Closing Date and relate to proceeds of the Sale Containers
payable after the Effective Date for periods beginning on or after the Effective Date. It is
agreed that any cash payment received from and after the Effective Date from any lessee with
respect to the Lease of a Sale Container (to the extent that such cash payment relates to a Sale
Container) will be applied as designated by the lessee and that if the lessee does not designate
application of the cash payment, then such payment will be applied to the oldest outstanding
invoice(s). Any payments prepaid under any Lease with respect to a Sale Container will be prorated
as of the Effective Date.
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3. Purchase
Price.
3.1 Purchase Price and Payment. The purchase price (“Purchase Price”) for the
Sold Assets shall be Five Hundred Eighty-Seven Thousand One Hundred Thirty-Seven United States Dollars (US $587,137).
3.2 Manner of Payment. The Purchase Price will be payable by the Buyer to the Seller
on the Closing Date by wire transfer of same day funds to the following account:
| Bank: | Bank of America | |||
| Beneficiary: | Cronos Global Income Fund XVI, L.P. | |||
| Bank Address: | ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ | |||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| Swift Code: | ▇▇▇▇▇▇▇▇ | |||
| ABA Number: | 121 000 358 | |||
| Account Number: | 02956-03349 |
4. Representations and Warranties of Seller. As used in this Agreement, references
to Seller’s knowledge shall mean to the actual knowledge of the officers of CCC. Except as
disclosed in the Seller Disclosure Schedule, attached and a part hereof, or otherwise in a
writing, receipt of which Buyer has acknowledged, Seller hereby represents and warrants to Buyer,
as of the date hereof and as of the Closing Date (unless an earlier date is set forth below), that:
4.1 Existence, Power and Authority. Seller is a limited partnership duly formed,
validly existing and in good standing under the laws of the state of California and has all
requisite authority to enter into this Agreement and to consummate the transactions contemplated
hereby.
4.2 Authorization. The execution and delivery of this Agreement and the performance
by Seller hereunder have been duly authorized by all requisite partnership action and proceedings
of Seller, and in accordance with applicable provisions of its organizational documents and
applicable law. This Agreement has been duly executed and delivered by Seller, and this Agreement
is the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with
its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or
similar laws from time to time in effect which affect creditors’ rights generally.
4.3 No Conflict. The execution, delivery and performance of this Agreement by Seller
and the consummation of the transactions contemplated herein do not and will not (i) violate,
conflict with or constitute a default under any provision of Seller’s charter documents, (ii)
conflict with or result in a breach of any indenture or other agreement to which Seller is a party
or by which Seller or its properties are bound, (iii) violate any judgment, order, injunction,
decree or award of any court, administrative agency or governmental body against, or binding upon,
Seller or its properties, or (iv) constitute a violation by Seller of any law or regulation
applicable to it or its properties, except in any case where such violation would not have a
material adverse affect on the financial condition of Seller or its ability to perform its
obligations under this Agreement.
4.4 Consents. The execution, delivery and performance by Seller of, and the
consummation of the transactions contemplated by this Agreement do not require (i) any approval
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or notice to or consent of any person, or any holder of any indebtedness or obligation of Seller or
any other party to any agreement binding on the Seller, or (ii) any notice to or filing or
recording with, or any consent or approval of, any governmental body, except for approvals,
consents, notices, filings and recordings that will have been obtained or given or made on or prior
to the Closing.
4.5 Legal Proceedings. There are no actions, suits or proceedings pending, or to
Seller’s knowledge, threatened, against Seller or the Sale Containers and the other Sold Assets
before any court, arbitrator, administrative or governmental body that, if adversely determined,
would hinder or prevent Seller’s ability to carry out the transactions contemplated by this
Agreement or affect the right, title or interest of Seller in the Sale Containers or the other Sold
Assets, and, to Seller’s knowledge, there is no basis for any such suits or proceedings.
4.6 Title. Seller is the lawful and rightful owner of the Sale Containers and the
other Sold Assets and has good right and title to sell the same to Buyer. At the Closing, Seller
will convey title to the Sale Containers and the other Sold Assets to Buyer free and clear of all
liens, charges, security interests, or other encumbrances, subject only to the rights of lessees
under Leases of the Sale Containers and to the Equipment Management Agreement in the form of
Exhibit D hereto (the “Management Agreement”) to be entered into at Closing by and
between CAY, as manager of the Sale Containers, and Buyer, as owner of the Sale Containers.
4.7 No Agreements. Effective as of the Closing, there shall be no agreements,
letters, certificates or other documents of any kind relating to the Sale Containers or the other
Sold Assets which will be binding on Buyer or which will create a lien, charge, security interest
or other encumbrance (except as created by, or on behalf of, Buyer) in or on the Sale Containers or
any part thereof after the Closing Date.
4.8 Compliance with Laws and Regulations. To Seller’s knowledge, Seller’s ownership
of the Sale Containers has complied, in all material respects, with all applicable laws, orders or
regulations.
4.9 Brokers and Finders. Seller shall be solely responsible for the payment and
discharge of any broker’s or finder’s fee or any type of brokerage commission in relation to or in
connection with the transactions contemplated by this Agreement as a result of any agreement or
understanding with Seller.
4.10 UCC Information. The legal name of the Seller is as set forth on the signature
page hereof. The Seller does not utilize any trade names or doing business names. The chief
executive office of the Seller is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
4.11 No Violation of Leases. The transfer and conveyance to the Buyer of the Sold
Assets will not, to the knowledge of Seller, violate the terms or provisions of any Lease to which
a Sale Container is subject on the Closing Date or any other agreement to which the Seller then is
a party or by which it is bound.
4.12 Rights to Leases. The right, title and interest of Seller with respect to each
Lease (in each case, to the extent, but only to the extent, related to a Sale Container) are
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assignable by the Seller without the consent of any person other than consents which will have been
obtained on or before the Closing Date.
4.13 Registration. To the knowledge of Seller, each Sale Container has been
registered, by virtue of its container identification number which is included in a range of
container identification numbers registered in the name of CCL, as agent for container owners, in
the official register of the Bureau International des Containers (Paris).
4.14 Exclusive Warranties. The provisions of this Section 4 state the sole
and exclusive warranties made by Seller to Buyer with respect to the subject matter of this
Agreement and are in lieu of any and all other warranties, express or implied (except for the
implied warranty of good faith and fair dealing).
5. Representations and Warranties of Buyer. Buyer hereby represents and warrants to
Seller, as of the date hereof and as of the Closing Date (unless an earlier date is set forth
below), that:
5.1 Existence, Power and Authority. Buyer is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of California and has all
requisite authority to enter into this Agreement and to consummate the transactions contemplated
hereby.
5.2 Authorization. The execution and delivery by Buyer of this Agreement, and the
performance by Buyer hereunder and thereunder, have been duly authorized by all requisite
organizational action and proceedings of Buyer and in accordance with applicable provisions of its
organizational documents and applicable law. This Agreement has been duly executed and delivered
by Buyer, and this Agreement is the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its respective terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors’ rights generally.
5.3 No Conflict. The execution, delivery and performance of this Agreement by Buyer
and the consummation of the transactions contemplated hereby, do not and will not (i) violate,
conflict with or constitute a default under any provision of Buyer’s charter documents, (ii)
conflict with or result in a breach of any indenture or other agreement to which Buyer is a party
or by which Buyer or its properties are bound, (iii) violate any judgment, order, injunction,
decree or award of any court, administrative agency or governmental body against, or binding upon,
Buyer or its properties, or (iv) constitute a violation by Buyer of any law or regulation
applicable to Buyer or its properties, except in any case where such violation would not have a
material adverse affect on the financial condition of Buyer or its ability to perform its
obligations under this Agreement.
5.4 Consents. The execution, delivery and performance by Buyer of this Agreement do
not require (i) the approval or consent of or notice to any person, or any holder of any
indebtedness or obligation of Buyer or any other party to any agreement binding on the Buyer, or
(ii) any notice to or filing or recording with, or any consent or approval of, any governmental
body, except for approvals, consents, notices, filings and recordings that will have been obtained
or given or made prior to the Closing.
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5.5 Legal Proceedings. There are no actions, suits or proceedings pending, or to
Buyer’s knowledge, threatened, against Buyer before any court, arbitrator or administrative or
governmental body that, if adversely determined, would hinder or prevent Buyer’s ability to carry
out the transactions contemplated by this Agreement, and, to Buyer’s knowledge, there is no basis
for any such suits or proceedings.
5.6 Brokers and Finders. Buyer shall be solely responsible for the payment and
discharge of any broker’s or finder’s fee or any type of brokerage commission in relation to or in
connection with the transactions contemplated by this Agreement as a result of any agreement or
understanding with Buyer.
5.7 Exclusive Warranties. The provisions of this Section 5 state the sole and
exclusive warranties made by Buyer to Seller with respect to the subject matter of this Agreement
and are in lieu of any and all other warranties, express or implied (except for the implied
warranty of good faith and fair dealing).
6. Covenants of the Parties.
6.1 Closing. Each of the parties shall use all commercially reasonable efforts to
fulfill or obtain the fulfillment of conditions set forth herein as they relate to such party on or
prior to the Closing.
6.2 Information; Further Assurances. Buyer and Seller each covenants to the other
that (i) if any event should occur, either within or without the knowledge or control of Buyer or
Seller, that would prevent fulfillment of the conditions to the obligations of any party hereto to
consummate the transactions contemplated by this Agreement, Buyer and Seller shall use its or their
good faith efforts to cure the same as expeditiously as possible, and (ii) such party will execute
and deliver such instruments and take such other action as the other party may reasonably require
in order to carry out this Agreement and the transactions contemplated hereby.
6.3 Sales Tax. It is the expectation of the parties that the transfer contemplated by
this Agreement shall be exempt from state and local sales, use, transfer or similar taxes. If,
however, any such sales, use, transfer or similar tax is imposed by any state, local authority or
jurisdiction on the transfer of the Sale Containers as contemplated herein, Buyer shall bear and be
responsible for the payment of the amount of such tax (including any related interest or
penalties). Upon receipt of notice of any such tax or imposition, the party receiving the notice
shall promptly provide a copy to the other party. Either party may, at its own cost and expense,
commence and participate in a contest of the validity, applicability or amount of any such tax or
other imposition.
6.4 Acceptance/Inspection Certificates. As soon as practicable after the Closing,
Seller shall deliver to Buyer true and correct copies of the Acceptance/Inspection Certificates
from the certification organization selected by Seller to inspect the Sale Containers.
6.5 Seller’s Maintenance and Operating Covenant. Seller will cause the Sold Assets to
be maintained, operated and managed in accordance with the terms of the Leasing Agent Agreement
until the Closing Date.
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7. Conditions to Closing.
7.1 Conditions to the Obligations of Buyer. The obligations of Buyer to purchase the
Sold Assets and otherwise to effect the transactions contemplated hereby shall be subject to
satisfaction, as of the Closing Date, of the following conditions (except to the extent any of the
following conditions shall have been expressly waived in writing by Buyer):
a. The representations and warranties of Seller contained in this Agreement shall be true in
all material respects on and as of the Closing Date with the same force and effect as though made
on and as of such Closing Date, other than representations and warranties limited to a specific
date.
b. Seller shall have performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by it on or prior to the
Closing.
c. Buyer shall have received from Seller a certificate duly executed by Seller certifying
as to the fulfillment of the conditions set forth in the foregoing subsections of this Section 7.1.
d. The following documents shall have been delivered to Buyer: (i) a ▇▇▇▇ of Sale, in the form
attached hereto as Exhibit B hereto, for the Sale Containers, executed by Seller; (ii) a counterpart of the Management Agreement signed
by CAY, as manager of the Sale Containers, to be effective as of the Closing Date; and (iii) all
other agreements, instruments, certificates and other documents reasonably requested by Buyer prior
to the Closing Date to effect the transactions contemplated by this Agreement.
e. All other permits, approvals, authorizations and consents of third parties necessary for
the consummation of the transactions contemplated herein, as set forth in the Seller Disclosure
Schedule, shall have been obtained.
f. No preliminary or permanent injunction or other order issued by any court of competent
jurisdiction or regulatory body which restrains, enjoins or otherwise prohibits the transactions
contemplated by this Agreement shall be in effect, nor shall any request for any such injunction be
pending.
7.2 Conditions to the Obligations of Seller. The obligations of Seller to sell the
Sold Assets and otherwise to effect the transactions contemplated hereby shall be subject to the
satisfaction, as of the Closing, of the following conditions (except to the extent any of the
following conditions shall have been expressly waived in writing by Seller):
a. The representations and warranties of Buyer contained in this Agreement shall be true and
correct in all material respects at and as of the Closing Date as if made on the Closing Date.
b. Buyer shall have performed and complied in all material respects with the covenants
and agreements required by this Agreement to be performed or complied with
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by it hereunder on or prior to the Closing Date (including, without limitation, the payment of the
Purchase Price).
c. Seller shall have received from Buyer a certificate duly executed by Buyer certifying
as to the fulfillment of the conditions set forth in foregoing subsections of this Section
7.2.
d. The following documents shall have been delivered to Seller: (i) a counterpart of the
Management Agreement, signed by Buyer, as owner of the Sale Containers, effective as of the Closing
Date; and (ii) all other agreements, instruments, certificates and other documents reasonable, as
requested by Seller prior to the Closing Date to effect the transactions contemplated by this
Agreement.
e. All other permits, approvals, authorizations and consents of third parties necessary for
the consummation of the transactions contemplated herein, as set forth in the Seller Disclosure
Schedule, shall have been obtained.
f. No preliminary or permanent injunction or other order issued by any court of competent
jurisdiction or regulatory body which restrains, enjoins or otherwise prohibits the transactions
contemplated by this Agreement shall be in effect, nor shall any request for any such injunction be
pending.
8. Disclaimer of Warranties by Seller. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SELLER
SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOW OR
HEREAFTER, AS TO THE CONDITION, DESIGN, OPERATION, MAINTENANCE, VALUE, MARKETABILITY,
MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OF ANY OF THE SOLD ASSETS OR AS TO
THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY OF THE SOLD ASSETS AND ANY IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OF THE TRADE. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, SELLER DISCLAIMS ANY LIABILITY TO BUYER WITH RESPECT TO THE CONDITION OF THE SOLD ASSETS,
INCLUDING, WITHOUT LIMITATION, ANY LIABILITY IN TORT OR ARISING FROM NEGLIGENCE, STRICT LIABILITY
OR FOR LOSS OR INTERRUPTION OF USE, PROFIT OR BUSINESS OR OTHER CONSEQUENTIAL INJURY, AND BUYER
WAIVES, RELEASES, RENOUNCES AND DISCLAIMS EXPECTATION OF OR RELIANCE UPON ANY SUCH WARRANTY OR
WARRANTIES.
9. Indemnification.
9.1 Subject to the provisions of Section 9.3 below, Seller and CCC, jointly and
severally, agree to indemnify, defend and hold Buyer and its officers, directors, partners,
employees and agents harmless from and against any and all losses, liabilities, claims, damages,
compromises, settlements, judgments, or expenses (including costs of investigation and defense and
reasonable attorneys’ fees), arising, directly or indirectly, from or in connection with any
material inaccuracy in or material breach of any representation or warranty of Seller or Seller’s
breach or failure to perform any covenant or obligation made by Seller in this Agreement or in any
document, certificate or schedule delivered by Seller hereunder (collectively, the “Seller
Liabilities”).
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9.2 Subject to the provisions of Section 9.3 below, Buyer agrees to indemnify, defend and hold
Seller and CCC and their officers, directors, partners, employees and agents harmless from and
against any and all losses, liabilities, claims, damages, compromises, settlements, judgments, or
expenses (including costs of investigation and defense and reasonable attorneys’ fees), arising,
directly or indirectly, from or in connection with any material inaccuracy in or material breach of
any representation or warranty of Buyer or Buyer’s failure to perform any covenant or obligation
made by Buyer in this Agreement or in any document, certificate or schedule delivered by Buyer
hereunder (collectively, the “Buyer Liabilities”)
9.3 Except for Claims (as defined below) resulting from the fraud of an indemnifying party or
breach of the Parties’ covenants set forth in Section 6, (a) all of the representations,
warranties, covenants and obligations made by Seller and Buyer herein shall survive the Closing
only for a period expiring at midnight on December 31, 2011 (the “Claim Period”) and (b)
the obligations of Seller and CCC to indemnify Buyer, on the one hand, and Buyer to indemnify
Seller and CCC, on the other hand, under this Section 9 shall survive Closing only with respect to
Claims made during the Claim Period; provided, however, that, notwithstanding the foregoing, no
Claim may be initiated or asserted by Buyer against Seller after the Closing Date. The term
“Claim” shall mean any matter with respect to one or more of the Seller Liabilities or
Buyer Liabilities for which indemnification is sought by Buyer or Seller and CCC hereunder,
respectively. Any Claim not made during the Claim Period shall be the sole responsibility of Buyer
or Seller and CCC, as the case may be, and Buyer or Seller and CCC, as the case may be, shall have
no recourse against the other party with respect thereto. No indemnification shall be required to
be made pursuant to Section 9.1 or Section 9.2 until the extent that the aggregate unsatisfied
Seller Liabilities or Buyer Liabilities arising under Section 9.1 or Section 9.2, as the case may
be, exceed, individually or in the aggregate, the sum of Ten Thousand U.S. Dollars (US $10,000),
respectively; if Seller Liabilities or Buyer Liabilities exceed such sum, then any indemnification
required to be made pursuant to Section 9.1 or Section 9.2 shall include all unsatisfied Seller or
Buyer liabilities, as the case may be. Except for Claims resulting from the fraud of an
indemnifying party, the indemnification obligations under Section 9.1 and Section 9.2 shall not
apply to any Seller Liabilities or Buyer Liabilities, as the case may be, in excess of an amount
equal to the Purchase Price.
10. Miscellaneous.
10.1 Further Assurances. Each of Seller and Buyer agrees to execute, acknowledge,
deliver, file and record, or cause to be executed, acknowledged, delivered, filed and recorded,
such further documents or other papers, and to do all such things and acts, as the other party may
reasonably request in order to carry out the provisions and purposes of this Agreement and the
transactions contemplated hereby. Seller shall send Buyer, upon its receipt thereof, all payments,
notices, communications and any other documents with respect to the Sale Containers which any of
them receives subsequent to the Closing Date.
10.2 Expenses. Except as provided otherwise in this Agreement, each party shall bear
such party’s respective costs and expenses (including all legal and accounting expenses) relating
to this Agreement, the negotiations leading up to this Agreement, and the performance of this
Agreement and the consummation of the transactions contemplated hereby.
10.3 Notices. All notices hereunder shall be in writing and shall be sufficiently
given if delivered personally or sent by overnight delivery service, by registered or certified
mail, first class, postage prepaid, or by telecopy or similar written means of
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communication, to the receiving party at the address shown below or such other address of which the
receiving party has given notice hereunder. Any notice shall be deemed to have been given and
received if: (a) sent by registered or certified mail, as of the close of the third (3rd) business
day following the date so mailed; (b) if personally delivered, on the date delivered; (c) on the
date sent if sent by telecopy on a business day; and (d) on the next business day after the date
sent in all other cases. Addresses for notices are as follows:
| Seller: | Cronos Global Income Fund XVI, L.P. | |||||
| c/o Cronos Capital Corp. | ||||||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇ | ||||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| ▇▇▇ | ||||||
| Attention: | ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Telephone: | ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ | |||||
| Email: | ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ | |||||
| Buyer: | Transportation Capital Partners, LLC | |||||
| c/o Hakman Capital Corporation | ||||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||||||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| ▇▇▇ | ||||||
| Attention: | ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Telephone: | ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ | |||||
| Fax: | ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ | |||||
| Email: | ▇▇@▇▇▇▇▇▇.▇▇▇ | |||||
10.4 Waivers and Amendments. This Agreement may be amended, superseded,
modified, supplemented or terminated, and the terms hereof may be waived, only by written
instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof. No waiver on the part of any party of any such right, power or privilege, nor
any single or partial exercise of any such right, power or privilege, shall preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
10.5 Assignment, Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors, heirs and
administrators, and permitted assigns. No party shall assign any of its rights or obligations
hereunder without the prior written consent of the other parties. The Seller hereby agrees that
Buyer may assign Buyer’s rights under this Agreement to a financial institution providing financing
to Buyer for all or any portion of the Purchase Price.
10.6 Applicable Laws. This Agreement shall be construed and governed by the
internal laws, and not the law of conflicts, of the state of California.
10.7 Dispute Resolution. Should any dispute or controversy arising from or relating
to this Agreement arise between the parties that the parties are incapable of resolving themselves
through good faith negotiation, then such dispute or controversy shall be submitted for resolution
by JAMS in San Francisco, California, or at such other location as is agreed upon by the parties.
Any dispute shall first be submitted to JAMS for mediation pursuant to the mediation services
provided by JAMS. Should the dispute between the parties not be successfully mediated by JAMS
within sixty (60) days of its submission (subject to any extension agreed to by the parties) then
and in such event the dispute shall be submitted for binding arbitration by JAMS pursuant to the
rules and practices of JAMS. Unless agreed to by the
10
parties, the representative of JAMS who attempts to mediate any dispute between the parties
shall not be the representative of JAMS who arbitrates the dispute. Judgment upon any award by the
arbitrator(s) may be entered in the superior court in and for the County of San Francisco or the
federal district for the Northern District of California. It is agreed that the prevailing party
in any such arbitration or other action arising from or relating to this Agreement shall be
entitled to reimbursement of its reasonable costs and expenses, including its attorneys’ fees.
Each party consents to the exercise over it of personal jurisdiction by the arbitrator(s) selected
by JAMS to resolve any dispute hereunder, and by the superior court in and for the County of San
Francisco and the federal district court for the Northern District of California.
10.8 Attorneys’ Fees; Prejudgment Interest. In the event of commencement of
either arbitration or suit by either party to enforce the provisions of this Agreement, the
prevailing party shall be entitled to receive such attorneys’ fees and costs as may be adjudged
reasonable in addition to any other relief granted. Any award of damages as a result of the breach
of this Agreement or any of its provisions shall include an award of prejudgment interest from the
date of the breach at the maximum rate of interest allowed by law.
10.9 Entire Agreement. This Agreement, together with the Schedules and Exhibits
attached hereto, constitutes the entire agreement among the parties hereto, and no party hereto
shall be bound by any communications between them on the subject matter hereof unless such
communications are in writing and bear a date contemporaneous with or subsequent to the date
hereof. Any prior written agreements or letters of intent among the parties relating to the
subject matter hereof shall, upon the execution of this Agreement, be null and void.
10.10 Severability. Any provision of this Agreement which is unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof, and any such unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto hereby waive any
provision of law now or hereafter in effect which renders any provision hereof unenforceable in any
respect.
10.11 Headings. The headings in the sections of this Agreement are inserted for
convenience only and shall not constitute a part hereof or affect the meaning or interpretation
hereof.
10.12 Construction. No provision of this Agreement shall be construed against any
party on the ground that such party or such party’s counsel drafted the provision.
10.13 Counterparts. This Agreement may be executed in two (2) or more facsimile
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same document.
10.14 Time of Essence. Time is of the essence.
10.15 No Third Party Beneficiaries. This Agreement is solely for the benefit of
Seller and Buyer and shall create no rights of any nature in any person or entity not a party
hereto.
[Signature page follows.]
11
IN WITNESS WHEREOF, the parties have executed these presents as of the day and year first
herein written.
| SELLER: CRONOS GLOBAL INCOME FUND XVI, L.P. |
||||
| By: | CRONOS CAPITAL CORP. | |||
| General Partner | ||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
| BUYER: Transportation Capital Partners, LLC |
||||
| By: | /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | J. ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | President/CEO | |||
12
List of Exhibits
A
|
List of Containers | |
B
|
Form of ▇▇▇▇ of Sale | |
C
|
Form of Equipment Management Agreement |
13
Index of Definitions
This Index of Definitions is included with this Agreement for the convenience of the parties. It
is not intended to be a part of this Agreement.
| Term | Location in Agreement | |||
Books and Records
|
2.1.e | |||
Buyer
|
Preamble | |||
Buyer Liabilities
|
9.2 | |||
CAY
|
2.1e | |||
CCL
|
2.2 | |||
Claim
|
9.3 | |||
Claim Period
|
9.3 | |||
Closing
|
1 | |||
Closing Date
|
1 | |||
Containers
|
Recital A | |||
Effective Date
|
2.1 | |||
Leases
|
2.1.b | |||
Management Agreement
|
4.6 | |||
Purchase Price
|
3.1 | |||
Sale Containers
|
2.1.a | |||
Seller
|
Preamble | |||
Seller Disclosure Schedule
|
4 | |||
Seller Liabilities
|
9.1 | |||
Sold Assets
|
2.1 | |||
Termination Agreement
|
2.2 | |||
14
Seller Disclosure Schedule
Seller’s Disclosures: None
15
Exhibit A
List of Containers
[Omitted; To be made Available to the Commission
Supplementally Upon Request of the Commission]
Supplementally Upon Request of the Commission]
Exhibit B
Form of ▇▇▇▇ of Sale
1
▇▇▇▇ OF SALE
For valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
CRONOS GLOBAL INCOME FUND XVI, L.P., a California limited partnership (“Seller”) does hereby
sell, assign and transfer unto Transportation Capital Partners LLC, a
limited liability company organized and existing under the laws of
the State of California (“Buyer”), and its successors and assigns,
all right, title and interest of Seller in and to the marine cargo containers and related equipment
listed on Schedule 1 attached hereto (the “Containers”) to have and to hold the
same unto Buyer, its successors and assigns, forever.
Seller hereby warrants that it has good and marketable title to the Containers, and that
Seller’s title thereto is free and clear of all liens, charges, security interests, or other
encumbrances originating by, through, or under Seller, except for the use and possessory interests
of third party lessees of the Containers.
This ▇▇▇▇ of Sale is being delivered in connection with the Asset Sale Agreement between
Seller and Buyer dated as of August 1, 2011 (the “Asset Sale Agreement”). EXCEPT FOR THE
WARRANTY OF TITLE AS EXPRESSLY SET FORTH IN THIS ▇▇▇▇ OF SALE AND THE REPRESENTATIONS AND
WARRANTIES OF SELLER SET FORTH IN THE ASSET SALE AGREEMENT, THE CONTAINERS ARE BEING SOLD TO BUYER
BY SELLER “AS-IS” “WHERE-IS”, WITHOUT ANY OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN,
ORAL OR IMPLIED, AND SELLER SHALL NOT, BY VIRTUE OF HAVING SOLD THE CONTAINERS HEREWITH, BE DEEMED
TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOW OR HEREAFTER, AS TO THE
CONDITION, DESIGN, OPERATION, MAINTENANCE, VALUE, MARKETABILITY, MERCHANTABILITY, OR FITNESS FOR
USE OR FOR A PARTICULAR PURPOSE OF THE CONTAINERS OR AS TO THE QUALITY OF THE MATERIAL OR
WORKMANSHIP OF THE CONTAINERS AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING
OR USAGE OR THE TRADE.
[Signature page follows.]
2
IN
WITNESS WHEREOF, the undersigned has executed this ▇▇▇▇ of Sale as of
the first day of
August, 2011.
| SELLER: CRONOS GLOBAL INCOME FUND XVI, L.P. |
||||
| By: | CRONOS CAPITAL CORP. | |||
| General Partner | ||||
| By: | ||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
3
Schedule 1
to
▇▇▇▇ of Sale
to
▇▇▇▇ of Sale
List of Equipment
4
Exhibit C
Form of
Equipment Management Agreement
Equipment Management Agreement