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Exhibit 10.3
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM.
CRONOS GLOBAL INCOME FUND XVI, L.P.
SECURED NOTE DUE 2006
CRONOS GLOBAL INCOME FUND XVI, L.P., a California limited partnership
(the "Company"), for value received, hereby promises to pay to the order of IBJ
WHITEHALL BUSINESS CREDIT CORPORATION, a New York corporation (the "Purchaser"),
or registered assigns, the principal amount of
_________________________________________ Dollars ($____________.00) (the
"Indebtedness"), together with interest thereon from the date hereof until the
Indebtedness and all interest thereon is paid in full in accordance with the
following:
The Indebtedness shall be repaid by the Company in twenty-four (24)
consecutive equal quarterly installments of principal each in an amount set
forth in Schedule 1 hereto commencing on the three month anniversary (the "First
Payment Date") of the date of the last purchase of Notes under the Purchase
Agreement (as defined below) and continuing thereafter on each three month
anniversary thereof, until repayment in full of the Indebtedness.
Interest on the unpaid balance of the Indebtedness shall be paid by the
Company on the last day of each Interest Period (as defined below) until the
repayment in full of the Indebtedness.
Unless accelerated, the unpaid balance of the Indebtedness, together
with interest accrued and unpaid thereon and all other fees and charges due
hereunder, shall be due and payable in full on the date that the 24th quarterly
installment of principal is due and payable hereunder.
If any date on which a payment of principal or interest is due hereunder
is not a Business Day (as defined below), then such payment shall be made on the
immediately succeeding Business Day and interest shall accrue until such payment
date. Payments of principal and interest on this Note shall be made in lawful
money of the United States of America by wire transfer to the registered holder
of this Note, as said holder shall have designated in writing to the Company
pursuant to the terms of the Note Purchase Agreement dated as of March 30, 2000
(the "Purchase Agreement") among the Company, Cronos Containers Limited (the
"Guarantor") and the Purchaser.
1. THE NOTE. This Note has been issued by the Company pursuant to the
Purchase Agreement, and, to the extent set forth in the Purchase Agreement, each
subsequent holder hereof is bound by and entitled to the benefits thereof and
may enforce each of the agreements of the
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Company and the Guarantor therein and may exercise each of the remedies provided
for thereby or otherwise in respect hereof. The principal of this Note may be
prepaid in whole or in part at the option of the Company at any time in
accordance with the provisions of the Purchase Agreement. This Note is entitled
to the benefits and security of the Security Agreement dated as of the date
hereof, between the Company and the Purchaser in substantially the form attached
as Exhibit B to the Purchase Agreement.
2. INTEREST RATE. The initial interest rate on this Note shall be _____%
per annum. Such interest rate shall be in effect until reset as hereinafter
provided. Interest on any overdue principal and on any overdue installment of
interest (to the extent that the payment of such interest shall be legally
enforceable) shall accrue at a rate equal to the lesser of (i) the maximum rate
per annum permitted by applicable law and (ii) the applicable rate per annum
payable on this Note plus 2.0% until paid. Such interest shall be payable upon
demand of the Noteholder.
(a) LIBOR Rate. The interest rate per annum payable on this Note
shall be reset as follows:
(i) The rate of interest will be reset on the first day of
each Interest Period (each such date, an "Interest Reset Date"). The interest
rate so reset will be LIBOR determined by the Noteholder as provided in clauses
(ii), (iii) or (iv) below plus 1.75% per annum.
(ii) On the Business Day prior to such Interest Reset Date
(a "LIBOR Interest Determination Date"), the Noteholder will determine LIBOR on
the basis of the London Interbank Offered Rate published in The Wall Street
Journal on such Business Day for the previous Business Day in respect of
deposits with a maturity date equal to the applicable Interest Period; provided,
however, that if no such offered rate is so published, LIBOR for such LIBOR
Interest Determination Date will be determined as provided in clause (iii)
below.
(iii) If on any LIBOR Interest Determination Date no
London Interbank Offered Rate is so published in The Wall Street Journal for
deposits with a maturity date equal to the applicable Interest Period, the
Noteholder will determine LIBOR on the basis of the offered rate for deposits of
not less than $1,000,000, having an index maturity equal to the applicable
Interest Period, appearing on the display designated as Page 3750 on the Dow
Jones Telerate Service (or such other page as may replace Page 3750 on that
service for the purpose of displaying London interbank offered rates for U.S.
Dollar deposits) ("Telerate Page 3750") at approximately 11:00 A.M., London
time, on such LIBOR Interest Determination Date; provided, however, that if no
such offered rate so appears, LIBOR for such LIBOR Interest Determination Date
will be determined as described in (iv) below.
(iv) If on any LIBOR Interest Determination Date no
offered rate for an index maturity equal to the applicable Interest Period
appears on Telerate Page 3750 as described in clause (iii) above, the Noteholder
will determine LIBOR on the basis of the rates at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date at which deposits of not
less than $1,000,000, having an index maturity equal to the applicable Interest
Period, are offered to prime banks in the London interbank market by four major
banks selected by the Noteholder. The
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Noteholder will request the principal London office of each such bank to provide
a quotation of its rate. If at least two such quotations are provided, LIBOR for
such LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., New York City time, on such LIBOR Interest
Determination Date by three major banks in The City of New York selected by the
Noteholder for loans of not less than $1,000,000 to leading European banks
having an index maturity equal to the applicable Interest Period; provided,
however, that if fewer than three banks selected as aforesaid are quoting as
mentioned in this sentence, LIBOR will be the LIBOR in effect on the next
preceding LIBOR Interest Determination Date (or, if the initial interest rate is
then in effect, the initial interest rate).
(b) Unavailability of Rate. If at any time the Noteholder (or,
without duplication, the bank holding company of which the Noteholder is a
Subsidiary) determines that either adequate and reasonable means do not exist
for ascertaining LIBOR, or it becomes impractical for the Noteholder to obtain
funds to make or maintain the financing hereunder with interest at LIBOR, or the
Noteholder shall have determined that LIBOR will not adequately and fairly
reflect the cost to the Noteholder of making, maintaining, or funding the
transaction hereunder at LIBOR, or the Noteholder reasonably determines that, as
a result of changes to applicable law after the date of execution of this Note,
or the adoption or making after such date of any interpretations, directives or
regulations (whether or not having the force of law) by any court, governmental
authority or reserve bank charged with the interpretation or administration
thereof, it shall be or become unlawful or impossible to make, maintain, or fund
the financing hereunder at LIBOR, then the Noteholder promptly shall give notice
to the Company of such determination, and the Noteholder and the Company shall
negotiate in good faith a mutually acceptable alternative method of calculating
the interest rate payable on this Note and shall execute and deliver such
documents as reasonably may be required to incorporate such alternative method
of calculating such interest rate in this Note, within thirty (30) days after
the date of the Noteholder's notice to the Company. If the parties are unable
mutually to agree to such alternative method of calculating the interest rate
payable on this Note in a timely fashion, on the interest payment date next
succeeding the expiration of such thirty (30) day period, the Company shall pay
the Noteholder the unpaid balance of the Indebtedness, together with interest
accrued and unpaid thereon and all other fees and charges due hereunder.
(c) Increased Cost and Reduced Return. If at any time after the
date hereof, the Noteholder (or, without duplication, the bank holding company
of which the Noteholder is a Subsidiary) determines that the adoption or
modification of any applicable law regarding taxation, the Noteholder's required
levels of reserves, deposits, insurance or capital (including any allocation of
capital requirements or conditions), or similar requirements, or any
interpretation or administration thereof by any court or other governmental
authority or compliance of the Noteholder with any of such requirements, has or
would have the effect of (a) increasing the Noteholder's costs relating to the
Indebtedness, or (b) reducing the yield or rate of return of the Noteholder on
the Indebtedness, to a level below that which the Noteholder could have achieved
but for the adoption or modification of any such requirements, the Company
shall, within fifteen (15) days of any request by the Noteholder, pay to the
Noteholder such additional amounts as (in the Noteholder's sole judgment, after
good faith and reasonable computation) will compensate the Noteholder for such
increase in costs or reduction in yield or rate of return of the Noteholder. No
failure by the
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Noteholder to immediately demand payment of any additional amounts payable
hereunder shall constitute a waiver of the Noteholder's right to demand payment
of such amounts at any subsequent time. Nothing herein contained shall be
construed or so operate as to require the Company to pay any interest, fees,
costs or charges greater than is permitted by applicable law.
(d) Indemnity. Within fifteen (15) days after request by the
Noteholder (or at the time of any prepayment), the Company shall pay to the
Noteholder such amount or amounts as will compensate the Noteholder for any
loss, cost, expense, penalty, claim or liability, including any loss incurred in
obtaining, prepaying, liquidating or employing deposits or other funds from
third parties and any loss of yield, as determined by the Noteholder in its
judgment reasonably exercised (together, "Consequential Loss") incurred by it
with respect to the funding of the Indebtedness evidenced by this Note as a
result of: (i) the failure of the Company to make payments on the date specified
under this Note or in any notice from Company to Noteholder, (ii) the payment or
prepayment of any amount on a date other than the date such amount is required
or permitted to be paid or prepaid, or (iii) any Change in Control; provided
that the Noteholder delivers to the Company a certificate as to the amounts of
the Consequential Loss, which certificate shall be conclusive in the absence of
manifest error. The Noteholder shall have no obligation to purchase, sell and/or
match funds in connection with the funding or maintaining of the Indebtedness or
any portion thereof. The obligations of the Company under this Section shall
survive any termination of the Purchase Agreement and payment of this Note and
shall not be waived by any delay by the Noteholder in seeking such compensation.
3. PREPAYMENT; TRANSFER. Prepayment and transfer of this Note are
subject to certain restrictions set forth in the Purchase Agreement.
4. REGISTERED HOLDERS. Prior to due presentment for registration of
transfer of this Note, the Company may deem and treat the registered holder
hereof as the absolute owner hereof for the purposes of receiving payments of
principal, premium, if any, and interest hereon and for the purposes of any
notices, waivers or consents.
5. PAYMENT AFTER EVENT OF DEFAULT. In case an Event of Default shall
occur and be continuing, the principal of this Note may be declared due and
payable in the manner and with the effect provided in the Purchase Agreement.
6. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
ITS CONFLICT OF LAWS RULES (EXCEPT TITLE 14, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
7. DEFINED TERMS. The terms used in this Note which are defined in the
Purchase Agreement shall have the meanings specified therein unless the context
otherwise requires or unless such terms are otherwise defined herein. For
purposes of this Note, the following terms shall have the following meanings:
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banks in California or New York are
authorized or obligated by law or executive order to close and, relative to the
determination of the interest rate provided for in the Notes, "Business Day"
also means a day on which dealings in U.S. Dollars are carried on in the
interbank eurodollar market in which the Purchaser participates.
"Interest Period" means, relative to the setting of the initial interest
rate of this Note or the rate to be determined on any LIBOR Interest
Determination Date, the period which begins on the date of this Note or the
Interest Reset Date, as applicable, and ends on the date which is (i) with
respect to periods commencing prior to the First Payment Date, the day of the
immediately succeeding month that numerically corresponds to such date of
issuance or Interest Reset Date, or (ii) with respect to periods commencing on
and after the First Payment Date, the day of the immediately succeeding third
month that numerically corresponds to such Interest Reset Date; provided,
however, that:
(a) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
(b) if any Interest Period commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period), such Interest Period
shall end on the last Business Day of the last calendar month of such Interest
Period; and
(c) no Interest Period shall end later than the maturity date of
this Note.
8. HEADINGS. The headings of the sections and subsections of this Note
are inserted for convenience only and do not constitute a part of this Note.
9. CURRENCY. Payments hereunder shall be made in lawful money of the
United States of America.
10. ENTIRE AGREEMENT. This Note and the other Purchase Documents
constitute the entire understanding between the Purchaser and the Company with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
11. SUCCESSORS AND ASSIGNS. This Note shall be binding upon the Company
and its successors and permitted assigns and shall inure to the benefit of the
Purchaser and its successors and assigns. This Note may not be assigned by the
Company.
12. SUBMISSION TO JURISDICTION. The Company hereby irrevocably submits
to the nonexclusive jurisdiction of any New York state or federal court sitting
in the Borough of Manhattan in the City of New York, U.S.A., in any action or
proceeding arising out of or relating to this Note or the other Purchase
Documents, and the Company hereby irrevocably agrees that all claims in
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respect of such action or proceeding may be heard and determined in such New
York state or federal court. The Company hereby irrevocably waives, to the
fullest extent that it may legally do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding and agrees that a final judgment
in any such action or proceeding shall be conclusive to the fullest extent
permitted by law and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. The Company hereby irrevocably
designates and appoints Dennis J. Tietz, President of the general partner of the
Company (and the successors in such office) as its agent to receive on its
behalf service of all process brought against it with respect to any such
proceeding in any such court in the State of New York, such service being hereby
acknowledged to be effecting and binding upon it in every respect. If for any
reason such agent shall cease to be available to act as such, then the Company
shall promptly designate a new agent for such purpose in New York, New York.
13. SEVERABILITY. Any provision of this Note that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Note, which shall remain in full force and effect,
or affecting the validity or enforceability of such provision in any other
jurisdiction.
14. REDUCTION IN INTEREST RATE. The interest rate required hereby or by
any of the Purchase Documents shall not exceed the maximum rate permissible
under applicable law, and any amounts paid in excess of such rate shall be
applied to reduce the unpaid balance of the Indebtedness or shall be refunded to
the Company at the sole option of the Purchaser.
15. WAIVERS OF JURY TRIAL. EACH OF THE PURCHASER AND THE COMPANY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING
UNDER OR RELATED TO THIS NOTE OR THE OTHER PURCHASE DOCUMENTS AND AGREES THAT
ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
[SIGNATURE ON NEXT PAGE]
IN WITNESS WHEREOF, CRONOS GLOBAL INCOME FUND XVI, L.P. has caused this
Note to be executed by the manual signature of an officer thereunto duly
authorized.
Dated: _________, 2000 CRONOS GLOBAL INCOME FUND XVI, L.P.
New York, New York
By: CRONOS CAPITAL CORP., as General
Partner
By: /s/ Dennis J. Tietz
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Dennis J. Tietz
President
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