EXHIBIT 10.3
AMENDED AND RESTATED AGREEMENT
This Amended and Restated Agreement ("Agreement") is executed on June 25,
2001 ("Execution Date") but effective as of January 1, 2001 ("Effective Date"),
by and between Mobile Storage Group, Inc., a California corporation ("Mobile")
and Textainer Equipment Management (U.S.) Limited, a Bermuda corporation
("Textainer").
R E C I T A L S
A. Mobile is in the business of purchasing and refurbishing used marine
cargo containers and renting or selling the same to customers for storage
purposes in the United States and the United Kingdom.
B. Textainer, on behalf of various owners, leases marine cargo
containers to shipping lines, and when such containers are no longer suitable
for shipping, sells them to other persons.
C. Mobile and Textainer entered into (1) an Agreement, dated February
28, 2000, as amended by Amendment to Agreement, dated June 2, 2000, (2) an
Amendment, effective as of September 15, 2000, and (3) Second Amendment to
Agreement, dated as of November 9, 2000 (collectively, the "Original
Agreement"). The Original Agreement set forth the terms under which Mobile would
purchase all of the used marine cargo containers it required from Textainer to
the extent Textainer could furnish the same.
D. The parties now wish to amend and restate the Original Agreement in
its entirety as hereinafter set forth.
AGREEMENT
1. This Agreement amends and restates the Original Agreement in its
entirety as of the Effective Date.
2. Purchase and Sale of Containers.
2.1 Containers. The term "Containers" means used marine cargo
containers, which are cargo worthy containers and containers less than 5 years
old, of any of the following types: 20' standard dry freight, 40' standard dry
freight, 40' high cube dry freight containers and special containers specified
on a Purchase Request (as defined below).
2.2 Purchase Obligation. Mobile will purchase all of the
Containers it needs from Textainer to the extent Textainer is able to provide
the same and shall pay for such Containers in accordance with Section 3 hereof.
The Containers to be purchased will be delivered to Mobile at locations in the
United States and United Kingdom specified on each Purchase Request.
2.3 Purchase Requests. On the first day of each calendar quarter,
Mobile will furnish to Textainer a list of its container needs, specifying the
types of
Containers and locations where they are to be delivered and the month in which
they are to be delivered, in the form attached hereto as Exhibit A (a "Purchase
Request"). Mobile may change its quarterly Purchase Request during a calendar
quarter by giving Textainer at least one (1) month's prior written notice.
Without waiving the requirements of this Section 2.3, Textainer may accommodate
changes to the quarterly Purchase Request on less than one (1) month's prior
written notice.
2.4 Sale and Delivery of Containers. Commencing on the Effective
Date, to the extent that it has Containers available for sale to Mobile,
Textainer will sell to Mobile all of the Containers listed in Mobile's then
Current Purchase Request at the times and locations listed in such Purchase
Request. If by the [ * ] of any calendar month, Textainer has not either
delivered to or placed in transit to Mobile all the Containers listed in the
then current Purchase Request to be delivered for such month, Mobile may
purchase the Containers not so delivered from other persons. [ * ]
3. Purchase Price [ * ]
3.1 Purchase Price.
a. Calculation of Purchase Price. The total purchase price
for each Container ("Purchase Price") will have two components: (a) a pre-agreed
price for the Container which will vary depending on the location of the
Container ("Container Price"), and (b) a preagreed trucking charge which will
vary depending on the location of the Container and the destination to which it
is to be sent ("Trucking Charge"). The pre-agreed Container Prices and Trucking
Charges in effect as of the Execution Date are shown in Exhibit B. To the extent
Textainer is able to avoid Trucking Charges In the delivery of a Container to a
location (e.g., by having a lessee turn in the Container at the location in
question), the applicable Purchase Price of such Container shall be reduced by [
* ] of the Trucking Charge so avoided. If it so desires, Mobile may arrange its
own trucking, thereby avoiding incurring Trucking Charges. Prior to the end of
each calendar quarter, while this Agreement is in effect, the parties shall
agree on adjusted Container Prices and Trucking Charges for the next calendar
quarter and shall amend Exhibit B to reflect such adjustment. The Trucking
Charges shall also be subject to adjustment by agreement of the parties during a
calendar quarter if trucking costs increase or decreased by [ * ] or more during
such quarter. If the parties are unable to agree on such price adjustments, this
Agreement shall terminate at the end of the last calendar quarter for which
agreed Container Prices and Trucking Charges are in effect.
3.2 Payment of Purchase Price. Textainer shall invoice Mobile at
the end of each calendar month for all of the Containers purchased by Mobile
during such month. Each invoice shall show separately the Container Price and
the Trucking Charges for each Container. In addition, Textainer may, in its
discretion, submit invoices for Trucking Charges once during the calendar month.
Mobile shall pay Textainer for all Trucking Charges by check or wire transfer
within [ * ] after the date of each invoice
* Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
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therefor, Mobile shall a Textainer the entire amount shown as Container Price on
each invoice within [ * ] after the date of each invoice therefor.
3.2 [ * ]
3.3 General. Any amounts not paid hereunder when due shall bear
interest at the rate of [ * ] per annum, compounded annually, from the date due
until paid. All payments to be made to either party hereto shall be made to it
at the address designated for notices to such party under Section 7 hereof and
shall be made in lawful money of the United States of America.
4. Amounts Owed as of Execution Date. As of the Execution Date, Mobile
owes Textainer be sum of [ * ], not including accrued interest, for Containers
purchased under the Original Agreement (the "Trade Payables Amount" ). The
Tables Amount bear interest, payable quarterly in arrears at the rate of [ * ]
per annum, computed on the basis of a 360-day year. The principal balance of the
Trade Payables Amount and the interest due thereon shall be payable in
accordance with the schedule attached hereto as Exhibit C and made a part
hereof; notwithstanding the foregoing, the principal balance of the Trade
Payables Amount and all interest due thereon shall be paid in full upon a
default by Mobile under this Agreement. If Mobile is unable to make any payment
of the Trade Payables Amount and interest thereon in full when due, such unpaid
Trade Payables Amount and accrued and unpaid interest shall bear interest at the
rate of [ * ] per annum, compounded annually, until such amounts are paid in
full. So long as any Trade Payables Amount is outstanding, Mobile shall also
deliver to Textainer, within [ * ] after the end of each calendar quarter,
Mobile's balance sheet and statement of income and expense for such quarter,
which shall true and correct and prepared in accordance with generally accepted
accounting principles, fairly representing the financial condition and results
of operation of Mobile.
5. Default and Remedies. Mobile shall be in default hereunder upon (a)
Mobile's failure to make any payment hereunder when due if such failure remains
uncured for more than [ * ] after notice of such default by Textainer; (b)
Mobile's failure to observe or perform any of Mobile's other obligations
hereunder unless such failure is curable and Mobile has cured the same within [
* ] after delivery of notice of such failure by Textainer; or (c) Mobile's
breach a any other provision of this agreement which breach is not curable.
Textainer shall be in default of this Agreement if Textainer fails to observe or
perform any of Textainer's obligations hereunder unless such failure is curable
and Textainer has cured the same within [ * ] after delivery of notice of such
failure by Mobile or if Textainer breaches a provision of this agreement which
breach is not curable. Upon the occurrence of any default by either party
hereunder, the nondefaulting party may terminate this Agreement forthwith, in
addition to any and all other rights and remedies it may have at law or in
equity; provided, however, in no event shall either party hereto be liable to
the other for indirect or consequential damages or damages for lost profits.
* Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
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6. Term. Subject to earlier termination by mutual agreement or as
herein provided, this Agreement shall expire five (5) years from the Effective
Date.
7. Notices. All notices, demands or other communications given
hereunder shall be in writing and Shall be sufficiently given if delivered by
overnight delivery service or sent by registered or certified mail, first class,
postage prepaid, or by telegram, telecopy or similar written means Of
communication, addressed as follows:
If to Mobile: Mobile Storage Company, Inc.
2540 Foothill Blvd., Second Floor
La Crescenta, CA 91214
Attn: Ron Valenta
[ * ]
If to Textainer: Textainer Equipment Management (U.S.) Limited
650 California Street, 16th Floor
San Francisco, CA 94108
Attn: Phil Brewer
[ * ]
or such other address with respect to any party hereto as such party may from
time to time notify (as provided above) to the other party hereto. Any such
notice, demand or communication shall be deemed to have been given (i) if so
mailed, as of the close of the third business day following the date so mailed,
and (ii) if personally delivered or otherwise sent as provided above, on the
date delivered or sent if sent by telecopy and on the next business day after
the date sent in all other cases.
8. General Provisions.
8.1 Time of Essence. Time is of the essence.
8.2 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California
as such laws are applied to agreements between California residents entered into
and to be performed entirely within California. The parties hereto agree to
submit to the jurisdiction of the federal and state courts of the State of
California with respect to the breach or interpretation of this Agreement or the
enforcement of any and all rights, duties, liabilities, obligations, powers, and
other relations between the parties arising under this Agreement, and agree that
venue shall lie exclusively in San Francisco County, California.
8.3 Entire Agreement. This Agreement, and the exhibits and
schedules hereto and the documents referred to herein constitute the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral
* Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
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agreements relating to the subject matter hereof existing between the parties
hereto are expressly canceled.
8.4 Amendment. This Agreement shall not be amended except by the
written agreement of the parties.
8.5 Waiver. No delay or omission to exercise any right, power or
remedy accruing to either party hereto, upon any breach or default of the other
party, shall impair any such right, power or remedy of such non-breaching or
nondefaulting party nor shall it be construed to be a waiver of any such breach
or default, nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, and any waiver by either
party of any provisions or conditions of this Agreement, must be in writing
signed by such party.
8.6 Successors and Assigns. Neither party shall assign this
Agreement or its rights or duties hereunder without the prior written consent of
the other party. Any dissolution, merger, consolidation, reorganization or
transfer of more than 50% of the capital stock or of the value of the assets of
either party (except for any transaction between Mobile and Windward Capital
Management, LLC) shall constitute an assignment by such party for purposes of
this Section 8.6. Subject to the foregoing, this Agreement shall inure to the
benefit of the successors and assigns of the parties.
8.7 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof (including, without
limitation, a controversy or claim for which an equitable remedy is sought),
shall be settled by arbitration in San Francisco, California, by a panel of
three (3) arbitrators (unless the parties mutually agree to accept a single
arbitrator) in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
Arbitrator(s) may be entered in any Court having jurisdiction thereof. The cost
of any such arbitration shall be borne equally by the parties involved unless
the arbitrator(s) may allocate the costs of arbitration among the parties
thereto as they deem just and equitable under the circumstances. The parties
hereto specifically agree that the provisions of Section 1283.05 of the Code of
Civil Procedure of the State of California are incorporated into, made a part
of, and made applicable to any arbitration pursuant to this Section where the
aggregate amount in controversy exceeds $10,000, exclusive of costs, expenses
and fees.
8.8 Attorney's Fees. 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.
* Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
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8.9 Severability. Any provision of this Agreement which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such unenforceabilty 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.
8.10 Further Assurances. Every party agrees to cooperate fully in
taking all such further actions and executing all such further instruments and
documents as either party may reasonably require in order to carry out the
transactions contemplated by this Agreement.
8.11 Construction. The headings in this Agreement are inserted for
convenience only and shall not be deemed to constitute a part of this Agreement.
No provisions of this Agreement shall be construed against any party on the
ground that such party or its counsel drafted the provision.
8.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"MOBILE" MOBILE STORAGE GROUP, INC.,
a California corporation
By: /s/ RONALD F. VALENTA
-----------------------------------
Ronald F. Valenta
-----------------------------------
[Print name and title]
"TEXTAINER" TEXTAINER EQUIPMENT MANAGEMENT
(U.S.) LIMITED, a Delaware corporation
By: /S/ PHILIP K. BREWER
-----------------------------------
Sr. Vice President
-----------------------------------
[Print name and title]
* Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
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