EXHIBIT 99.J
THIS IS COUNTERPART NO. TWO (DUPLICATE) OF TWO COUNTERPARTS. TO THE EXTENT THIS
AGREEMENT CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM
COMMERCIAL CODE IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST
HEREIN MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART
OTHER THAN COUNTERPART NO. ONE.
MARINE SHIPPING CONTAINER
VARIABLE LEASE
(COMBINED CONTAINER SET IV)
THIS MARINE SHIPPING CONTAINER VARIABLE LEASE (the "AGREEMENT") made as of
the 17th day of April, 1995 by and between TRANS OCEAN CONTAINER CORPORATION, a
Delaware corporation, whose head office is located at 851 Traeger Avenue, San
Bruno, CA 94066 (hereinafter called the "Lessee") and Investors Asset Holding
Corp., a Massachusetts corporation, not in its individual capacity but solely as
Trustee of the "AFG/ICCU Trust," having a principal place of business c/o
American Finance Group, Exchange Place, Boston, MA 02109 (hereinafter called the
"Lessor").
W I T N E S S E T H:
WHEREAS, the Lessor has agreed to purchase from the Lessee approximately
2500 TEU's (as defined below) of maritime shipping containers, including dry
cargo, open top, and collapsible flat rack containers, which containers shall be
more fully described in Bills of Sale issued pursuant to that certain Purchase
and Sale Agreement of even date herewith (the "Purchase and Sale Agreement")
between the parties (said containers are hereafter called the "Containers");
WHEREAS, the Lessee is engaged in the business of leasing and operating
containers; and
WHEREAS, the Lessor desires to lease the Containers to the Lessee and the
Lessee is willing to lease the Containers from the Lessor, all on the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Lessor-Lessee Relationship
(a) The Lessor hereby leases the Containers to the Lessee, and the Lessee
hereby leases the Containers from the Lessor, in accordance with the terms and
conditions set forth below.
(b) In order to further evidence the relationship of lessor
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(1) the Lessor has and shall retain exclusive legal and beneficial
ownership of the Containers, and the Lessee shall not have any right, title or
interest in the Containers, except as provided in this Agreement;
(2) in the conduct of its business, the Lessee will not hold itself
out as an owner of the Containers or take any action that would be inconsistent
with the ownership of the Containers by the Lessor or that would otherwise be
inconsistent with, or outside the scope of, the lease created under this
Agreement; and
(3) Lessor and Lessee agree to treat the transactions provided for
in this Agreement as a lease of the Containers by the Lessor to the Lessee for
United States federal income tax purposes and to take positions consistent with
such treatment in filing the respective United States federal income tax
returns, if any, required to be filed thereby.
(c) The Lessee and the Lessor expressly recognize and acknowledge that
this Agreement does not create a partnership, joint venture or other entity
among or between the Lessor, the Lessee, and/or any other person, and is
intended only to set forth the terms and conditions of the lessor/lessee
relationship between the Lessor and the Lessee with respect to the matters
specifically contained herein.
(d) The Lessee acknowledges and agrees that:
(i) LESSOR IS NOT A MANUFACTURER OF THE CONTAINERS OR A MERCHANT OR
DEALER IN PROPERTY OF SUCH KIND;
(ii) ON OR BEFORE THE PURCHASE DATE OF EACH CONTAINER, THE LESSEE
WILL HAVE ACCEPTED THE CONTAINER INTO ITS FLEET OF MANAGED, OWNED AND LEASED
INTERMODAL MARINE CONTAINERS; AND
(iii) LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY
REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE
MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION, FITNESS FOR
USE, OR SUITABILITY OF THE CONTAINERS OR ANY COMPONENT THEREOF IN ANY RESPECT
WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF THE LESSEE, AND
THE LESSOR HAS NOT MADE AND DOES NOT HEREBY MAKE ANY OTHER REPRESENTATIONS,
WARRANTIES, OR COVENANTS OF ANY KIND AND CHARACTER, EXPRESS OR IMPLIED WITH
RESPECT THERETO, AND SHALL NOT BE LIABLE FOR ANY ACTUAL, INCIDENTAL,
CONSEQUENTIAL, OR OTHER DAMAGES OF OR TO ANY PERSON WHATSOEVER, WITH RESPECT
THERETO, AND THE LESSEE IS LEASING THE CONTAINERS "AS IS AND WITH ALL FAULTS."
(e) Lessee represents, warrants and certifies to the Lessor as of the date
of execution and delivery of this Agreement:
(i) Lessee is duly organized, validly existing and in
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good standing under the laws of the state of its incorporation, with full power
to enter into and to pay and perform its obligations under this Agreement, and
is duly qualified and in good standing in all other jurisdictions in the United
States in which the nature of its business or the ownership of its properties,
or both, make such qualification necessary and where failure to so qualify would
materially adversely affect its financial condition or the conduct of its
business or the performance of its obligations under or the enforceability of
this Agreement.
(ii) This Agreement and all related documents have been duly
authorized, executed and delivered by Lessee, are valid, legal and binding
obligations of Lessee, are enforceable against Lessee in accordance with their
terms and do not and will not contravene any provisions of or constitute a
default under Lessee's organizational documents or its by-laws, any agreement to
which it is a party or by which it or its property is bound, or any law,
regulation or order of any governmental authority;
(iii) Lessor's right, title and interest in and to this Agreement
and the Containers and the rentals therefrom will vest in Lessor on the Purchase
Date for such Containers and will not be affected or impaired by the terms of
any agreement or instrument by which Lessee or its property is bound except for
Lessee's rights under this Agreement and the rights of the sublessees under the
applicable subleases of such Containers;
(iv) no approval of, or filing with, any governmental authority or
other person is required in connection with Lessee's entering into, or the
payment or performance of its obligations under, this Agreement except for the
filing of UCC-l financing statements as contemplated by Section 4 of the
Purchase and Sale Agreement;
(v) there are no suits or proceedings pending or, to the knowledge
of Lessee, threatened, before any court or governmental agency against Lessee
which, if decided adversely to Lessee, would materially adversely affect
Lessee's business or financial condition or its ability to perform any of its
obligations under this Agreement;
(vi) there has been no material adverse change to the Lessee's
financial condition or results from its operations since the date of its most
recent audited financial statements delivered to Lessor; and
(vii) the address stated in the preamble to this Agreement as
Lessee's head office is the principal place of business and chief executive
office of Lessee; and Lessee does not conduct business under a trade, assumed or
fictitious name except as follows: Trans Ocean, Trans Ocean Leasing, and TOL.
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2. The Lessee's Duties
In consideration of the right to use and operate the Containers as lessee
pursuant to this Agreement, the Lessee agrees that it will, during the term
hereof, perform the following duties, using a level or standard of care no less
than the Lessee would use with respect to containers it owns, leases or operates
for others:
(a) accept delivery of the Containers;
(b) place such marks upon the Containers, register the Containers in
accordance with such tariffs as required for their operation in marine shipping
service, paint the Containers any appropriate color, and place on the Containers
such markings or legends as the Lessee deems required or appropriate;
(c) take all reasonable and customary steps as may be required to provide
for the sublease of the Containers under short, medium and long term leases on
such terms and conditions as it may deem satisfactory, in its sole discretion
(except as otherwise specifically provided for in this Agreement);
(d) pay to the Lessor the Fixed Rent or the Variable Rent (as defined in
Section 6(c)(6)), as the case may be, on the last day of each calendar quarter
immediately following the calendar quarter for which such Fixed Rent or Variable
Rent is payable;
(e) pay all Operating Expenses (as defined below) and file all applicable
tax returns and other reports with respect to ad valorem, gross receipts and
property taxes attributable to the Set Containers (as defined below);
(f) on behalf of Lessor, sell or otherwise dispose of Containers that
become subject to Casualty Occurrences or Ordinary Disposal Occurrences, as
described in Section 4(b) below (for this purpose, a Casualty Occurrence shall
include a "Casualty Occurrence" (as defined below) that occurs prior to the
Purchase Date but that becomes known to Lessee after the Purchase Date);
(g) perform all administrative and related functions necessary for the
operation and subleasing of the Containers, including but not limited to:
(i) maintaining and servicing (or causing the sublessees to maintain
and service) the Containers in a condition that meets the then current general
interchange standards of the International Institute of Container Lessors, Guide
for Container Equipment Inspection, and in such condition as may be required by
any applicable law or the rules or regulations of any governmental body having
jurisdiction over the Containers and as maybe necessary or appropriate to make
the Containers suitable for rental in international commerce;
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(ii) supervising all maintenance and repair of each Container,
whether performed by the Lessee, an employee of a depot operator, or other third
party, to ensure such maintenance satisfies the highest of the following
standards:
(A) any standard required or set forth for the Containers or
equipment of a similar class under any applicable industry convention or
governmental law or regulation;
(B) any standard set by any insurance policy under which the
Containers shall from time to time be insured; and
(C) good commercial practice;
(iii) performing periodic inspections and surveys of the Containers
in the possession of depot operators to ensure maintenance of the Containers in
a seaworthy and safe operating condition;
(iv) maintaining records with respect to the rental of the
Containers, locations of the Containers when off-hire, repair and maintenance
history and repair and maintenance activity; and
(v) monitoring the location of the Containers while off-lease.
In performing such administrative and related functions hereunder, the
Lessee shall not knowingly discriminate against or in favor of the Containers
in seeking subleases; and
(h) defend, indemnify and hold the Lessor and any party or parties from
whom Lessor obtained financing for the Containers (the "Lenders") harmless from
and against any claims asserted against them arising out of the possession or
operation of the Containers (including, but not limited to, injury to persons or
loss of or damage to lading or other property), provided that the costs of such
defense, indemnification and holding harmless shall be an Operating Expense for
purposes of Section 6 (excluding, however, those costs or expenses that result
from the gross negligence or willful misconduct of the Lessee).
3. Covenant of Quiet Enjoyment
The Lessor shall not disturb the Lessee's quiet enjoyment of the
Containers provided Lessor is not entitled to terminate this Agreement pursuant
to Section 4(c).
4. Duration
(a) Initial Term; Extension Options. Except as provided below, the term of
this Agreement as to each of the Containers shall
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commence on the date such Container is included in the Container Set (as defined
below) as determined under Section 6(b)(4), and shall remain in full force and
effect until June 30, 2003 (the "Stated Term"), provided that the Lessor is
hereby granted an option to extend the Stated Term of this Agreement on the same
terms and conditions for up to four one-year renewal periods. The Lessor must
provide written notice to Lessee of its election to exercise this renewal option
not less than ninety (90) days prior to the expiration of the Stated Term of
this Agreement or each subsequent renewal period.
(b) Termination due to a Casualty Occurrence or an Ordinary Disposal
Occurrence. Notwithstanding Section 4(a), this Agreement shall terminate as to
any Container upon the total loss or destruction of that Container (a "Casualty
Occurrence") or upon an Ordinary Disposal Occurrence (as defined below) (an
"Ordinary Disposal Occurrence"), unless within ninety (90) days after the Lessee
receives notice of the Casualty Occurrence or within ninety (90) days after the
Ordinary Disposal Occurrence, the Lessee shall, in accordance with Section 9(b)
below, replace that Container with one of like size, type, age, and condition
and shall notify the Lessor of the replacement. The replacement container shall
be deemed to be a "Container" for all purposes of this Agreement from and after
the date of the Casualty Occurrence or the Ordinary Disposal Occurrence, as
applicable. Unless Lessee replaces a Container subject to a Casualty Occurrence
or an Ordinary Disposal Occurrence in accordance with Section 9(b) below,
Lessee will sell, lease or otherwise dispose of such Container, and will
distribute the net proceeds from such sale, lease or other disposition, in
accordance with said section.
For purposes hereof, an "Ordinary Disposal Occurrence" means the
determination by Lessee to dispose of a Container in the ordinary course of
business for one or both of the following reasons: (i) the Container is no
longer marketable, for example, due to technological obsolescence; or (ii) the
Container has suffered such damage that it is not economic to repair and
re-lease the Container as described in the remainder of this section. When a
Container is returned to the Lessee in damaged condition, the Lessee compares
the net cash value of repairing that Container to the net proceeds that would be
received if that Container were instead sold. If the net cash value is less than
the net proceeds, the Lessee will dispose of the Container as an Ordinary
Disposal Occurrence. The net cash value is obtained by subtracting the cost of
restoring that Container to a leasable condition from the estimated present
value of the future cash streams from leasing that Container over its remaining
useful life.
(c) Termination by the Lessor. Notwithstanding Section 4(a), but subject
to Section 4(d), the Lessor may terminate this Agreement as to any Container by
written notice effective upon delivery of the notice to Lessee (except that this
Agreement shall
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automatically terminate without notice in the event of the occurrence under
Section 4(c)(5) below), which notice may be given only in the event that:
(1) the Lessee shall fail to pay to the Lessor the Fixed Rent or the
Variable Rent required by Section 2(d) and such failure shall continue for a
period of ten (10) days after notice thereof by the Lessor to the Lessee;
(2) the Lessee shall assign or transfer any of its rights hereunder
without the prior written consent of the Lessor;
(3) the Lessee shall default in the performance or observance of any
other covenant, condition, agreement, or duty to be performed or observed by the
Lessee under this Agreement and such default shall continue unremedied for a
period of thirty (30) days after notice thereof by the Lessor to the Lessee;
(4) any representation or warranty made by the Lessee in Section
1(e) hereof, Section 5 of the Purchase and Sale Agreement, or in any Bill of
Sale (as defined in the Purchase and Sale Agreement) shall prove to have been
false in any material respect at the time made;
(5) the Lessee shall have (i) ceased doing business as a going
concern, (ii) made an assignment for the benefit of creditors, admitted in
writing its inability to pay its debts as they mature or generally failed to pay
its debts as they become due, (iii) initiated any voluntary bankruptcy or
insolvency proceeding, (iv) failed to obtain the discharge of any bankruptcy or
insolvency proceeding initiated against it by others within 60 days of the date
such proceedings were initiated, or (v) requested or consented to the
appointment of a trustee or receiver with respect to itself or for a substantial
part of its property; or
(6) the Lessee shall make two (2) or more Variable Rent payments in
amounts that, together with all other Variable Rent payments theretofore made,
fail to aggregate a cumulative annual return to the Lessor of fourteen percent
(14%) or more of the aggregate Container Cost of the Containers then under
lease hereunder.
The events described in Sections 4(c)(l), (2), (3), (4) and (5) above are
hereinafter collectively referred to as "Events of Default."
(d) Containers Subject to Sublease. Notwithstanding Sections 4(a) or 4(c),
if a Container is subject to sublease at a time when this Agreement would
otherwise terminate as to the Container, this Agreement shall remain in full
force and effect as to the Container until the last day of the calendar quarter
in which the Container comes off the sublease unless (x) such termination was as
a
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consequence of the Event of Default specified in Section 4(c) (5), or (y) such
termination was as a consequence of any other Event of Default and Lessor gives
the notice described in Section 5(c)(A); provided that, unless termination as to
the Container was pursuant to Section 4(c), the Lessee shall be entitled to
continue this Agreement as to a Container after the last day of the calendar
quarter in which the Container comes off the sublease if in its reasonable
judgment it is economically feasible to restore the Container to a leasable
condition and to re-lease the Container to an end-user, in which case this
Agreement shall continue as to that Container until the last day of the calendar
quarter in which the Container comes off a sublease or the last day of the
calendar quarter in which the Lessee determines that it is not economically
feasible to restore the Container to a leasable condition and to re-lease the
Container to an end-user. Notwithstanding the foregoing, unless Lessor exercises
its renewal option pursuant to Section 4(a), the Lessee shall not be entitled
pursuant to the foregoing proviso to continue this Agreement as to any Container
after the last day of the calendar quarter in which the Container comes off the
sublease without the prior written consent of the Lessor.
(e) Termination by the Lessee. Notwithstanding Section 4(d), the Lessee
may terminate this Agreement as to any Container of a particular size and type
at the end of the Stated Term thereof and at any time thereafter, upon the
election of the Lessee, at the Lessee's sole and absolute discretion, if
Variable Rent specifically allocable to the Set Containers of that size and
type, calculated in a manner analogous to Section 6(c), for the most recent
calendar quarter that can be reasonably calculated by the Lessee, is less than
fourteen percent (14%) of the aggregate Container Cost of Containers of that
size and type then under lease hereunder multiplied by a fraction the numerator
of which is the number of days in that quarter and the denominator of which is
365.
(f) Treatment of Non-Terminated Containers. Notwithstanding the
foregoing, the termination of this Agreement with respect to any individual
Container shall not relieve the Lessee from performing its obligations hereunder
as to any Containers not subject to such termination.
5. Termination.
(a) Settlement of the Variable Rent. Upon any termination of this
Agreement as to any Container, the Lessee shall make a complete and final
settlement of the Fixed Rent and the Variable Rent for the Container as
determined in Section 6 no later than the last day of the calendar quarter
following the calendar quarter in which termination of this Agreement occurs as
to the Container.
(b) Remarketing of the Containers. Upon termination of this Agreement as
to any Container, other than as a consequence of one
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of the events specified in Section 4(b) or 4(c), the Lessor hereby authorizes
the Lessee to remarket the Containers on behalf of the Lessor, and the Lessee
shall, pursuant to such authorization:
(1) sell, lease or otherwise dispose of the Container, at the sole
and absolute discretion of the Lessee; provided that if the Lessee elects to
acquire the Container from the Lessor, the price to be paid for the Container
will be negotiated in an arm's length transaction and if the parties are unable
to agree on a price, Lessee will not be entitled to acquire the Container from
the Lessor. Lessee shall use its best efforts to maximize the net proceeds
received on account of any sale, lease or other disposition of a Container
pursuant to this Section 5(b) using a level or standard of care no less than the
Lessee would use with respect to containers it owns, leases or operates for
others. The net proceeds of the sale, lease or other disposition shall be
allocated between the Lessee and the Lessor as follows:
(A) the Lessor shall first receive an amount equal to the
lesser of (i) the amount of the net proceeds, or (ii) the value of the Container
pursuant to Exhibit A hereto; and
(B) any net proceeds remaining after the allocation to the
Lessor in subpart (A) shall be paid 50% to the Lessor and 5O% to the Lessee as
incentive compensation for handling the sale, lease or other disposition; and
(2) make payment of any share of the net proceeds to be paid the
Lessor pursuant to Section 5(b)(1) coincident with the final Variable Rent
payment for the Container, but in any event, not later than the last day of the
calendar quarter following the calendar quarter in which termination of this
Agreement occurs as to the Container.
For purposes of this Agreement, "net proceeds" means all proceeds
received by the Lessee as a result of the sale, lease or other disposition of a
Container (including without limitation damage recoveries and insurance
proceeds), less all costs of the sale, lease or other disposition (including
without limitation the cost of repairing and/or rehabilitating the Container to
prepare it for sale, sales commissions paid to vendors, and repositioning
costs).
If pursuant to this Section 5(b) the Lessee fails to sell, lease or
otherwise dispose of a Container on or prior to the last day of the calendar
quarter following the calendar quarter in which termination of this Agreement
occurs as to that Container, the Lessee shall, from and after such day, no
longer be entitled to sell, lease or otherwise dispose of that Container
pursuant to this Section 5(b) and the Lessee shall thereupon return that
Container to the Lessor's possession and control "AS IS, WHERE IS." The Lessor
shall thereupon retake possession and control of that
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Container and shall thereafter sell, lease or otherwise dispose of that
Container free from any right or interest of the Lessee but subject to the
matters set forth in the next succeeding paragraph.
On or before the last day of each calendar quarter, commencing with
the calendar quarter in which Lessee returns a Container to the Lessor's
possession and control pursuant to the preceding paragraph, provided no Event of
Default has occurred and is continuing since the commencement of the remarketing
period contained in this Section 5(b), the Lessor and the Lessee shall make a
complete and final settlement of the net proceeds received with respect to any
Container during such quarter. The net proceeds of the sale, lease or other
disposition shall be allocated between the Lessee and the Lessor as follows:
(A) the Lessor shall first receive an amount equal to the
lesser of (i) the amount of the net proceeds, or (ii) the value of the Container
pursuant to Exhibit A hereto; and
(B) any net proceeds remaining after the allocation to the
Lessor in subpart (A) shall be paid 50% to the Lessor and 50% to the Lessee.
(c) Return of the Containers (Event of Default).
(A) Upon termination of this Agreement as a consequence of an Event
of Default, the Lessor may, upon written notice to Lessee (except that no notice
is required with respect to the Event of Default specified in Section 4(c)(5)),
pursuant to the security interest granted under Section 10 below, direct any or
all sublessees of on-lease Containers to make payment directly to the Lessor and
to return the Containers to Lessor at the termination of the subleases and
otherwise exercise all rights and remedies of a secured creditor under the
Uniform Commercial Code in effect in the applicable jurisdiction.
(B) In the alternative, upon termination of this Agreement as a
consequence of an Event of Default (other than the Event of Default specified in
Section 4(c)(5)), if Lessor does not give the notice described in Section
5(c)(A), this Agreement will continue as to any Container subject to sublease at
the time when this Agreement would otherwise terminate as to that Container
until the last day of the calendar quarter in which the Container comes off the
sublease.
(C) In addition, upon termination of this Agreement as a consequence
of an Event of Default, the Lessee shall effect an orderly transition of any
Container that is off-lease at the time of termination, and of any Container
that is redelivered to Lessee by a sublessee (if this Agreement continues
pursuant to Section 5(c)(B)) to the Lessor for its own use or as lessor to a
container operator, all in accordance with the Lessor's directions. In the
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event that the Lessor chooses to continue operation of any such Container for
its own use or as lessor to a container operator, the Lessee shall redeliver
possession of such Container to the Lessor in sound operating condition, normal
wear and tear excepted, and arrange for the transport of such Container to any
of the depot location(s) described on Schedule I attached hereto (or such other
depot locations as may be mutually acceptable to Lessor and Lessee) (any
location described on said Schedule I or as so agreed by Lessor and Lessee being
hereinafter referred to as a "Schedule I Location"), it being understood that
the costs, if any, of transport of such Container to a Schedule I Location shall
be at the expense of the Lessee. Notwithstanding the foregoing, Lessee may
redeliver replacement containers of like size, type, age and condition if the
original Containers were re-delivered by Lessee's sublessees to non-Schedule I
Locations. The Lessee shall not arrange for the transport of more than 400 TEU's
of Containers (or replacement containers) to any of the following Schedule I
Locations: Bremen, Milan, Leghorn, Genoa, Marseille, Chicago or New Orleans,
except as agreed by the Lessor.
(d) Return of the Containers (Performance). Upon termination of this
Agreement as a consequence of the event specified in Section 4(c)(6), this
Agreement will continue as to any Container subject to sublease at the time when
this Agreement would otherwise terminate as to that Container until the last day
of the calendar quarter in which the Container comes off the sublease. The
Lessee shall thereupon effect an orderly transition of such Container, and of
any Container that is off-lease at the time of termination of this Agreement, to
the Lessor for its own use or as lessor to a container operator, all in
accordance with the Lessor's directions. In the event that the Lessor chooses to
continue operation of any such Container for its own use or as lessor to a
container operator, the Lessee shall redeliver possession of such Container to
the Lessor "AS IS, WHERE IS."
6. Fixed Rent; Variable Rent
(a) Payment. During the term of this Agreement, the Lessee shall pay to
the Lessor at a place designated by the Lessor in United States Dollars (1) the
Fixed Rent; and (2) the Variable Rent payment based on the Lessee's use of the
Containers. Because of the difficulty and complexity for the Lessee to account
for the use of each Container separately, the Lessor agrees that the Variable
Rent shall be based on the average use of a set of similar containers (the
"Container Set") and shall be calculated in accordance with the provisions of
this Section. All rentals and any other amounts to be remitted to the Lessor
under this Agreement shall be paid by wire transfer of funds in accordance with
payment instructions confirmed by the Lessor. All remittances due the Lessor
under this Agreement shall be paid without notice or demand, and without
abatement, set-off or deduction of any amounts whatsoever except as specifically
set forth in this Agreement. All
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remittances that become past due will bear interest at a floating rate per annum
equal to the lesser of (i) the "prime" rate of NatWest Bank N.A. as announced
from time to time at its head office in New York, New York, plus two percent
(2%) per annum (with each change in such prime rate to cause an equal and
corresponding change in the rate of interest payable hereunder) or (ii) the
highest rate allowed by California law, from the due date until paid.
(b) General.
(1) Container Set. The Container Set shall be denominated "Combined
Container Set IV" and shall consist of the Containers and such other containers
as are designated by the Lessee as included in the Container Set. The containers
in the Container Set (including the Containers) shall be referred to as "Set
Containers."
(2) Set Container Requirements. Each Set Container must satisfy the
following criteria:
(A) each Set Container must be a standard dry cargo or
special container (other than a refrigerated or tank container) or other
container-related equipment of similar classification and type;
(B) each Set Container must either be (i) owned by the Lessee
or an affiliate of the Lessee or a partnership of which the Lessee is a general
partner; (ii) leased by the Lessee from third parties, such as the Lessor; or
(iii) managed by the Lessee for the account of third parties; and
(C) each Set Container must either be acquired by the Lessee
or an affiliate of the Lessee or a partnership of which the Lessee is a general
partner or committed to the Container Set between January 1, 1992 and December
31, 1994.
(3) Notification to Lessor. The Lessee shall, after all the Set
Containers to be included in the Container Set have been identified, provide the
Lessor with a summary description, in writing, of the Set Containers included in
the Container Set.
(4) Inclusion in the Container Set. A Container shall be considered
to be included in the Container Set on the date that payment for such Container
is received in accordance with the Purchase and Sale Agreement (the "Purchase
Date").
(5) Container Cost. The Container Cost of each Container shall equal
US $2,350 per TEU or as otherwise mutually agreed to by the parties.
(6) Exchange Rate. If the Container Cost is not paid in
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United States dollars, the amount in such dollars shall be calculated based on
the exchange rate prevailing on the date of payment.
(7) TEUs. Each Set Container shall equal the following number of
twenty (20) foot equivalent units ("TEUs"):
(i) Each twenty (20)-foot dry cargo container shall
equal one (l) TEU;
(ii) Each forty (40)-foot dry cargo container shall equal
one and one-half (1.50) TEUs;
(iii) Each twenty (20)-foot open top container shall equal
one and fifty-four hundredths (1.54) TEUs;
(iv) Each forty (40)-foot open top container shall equal two
and forty-eight hundredths (2.48) TEUs;
(v) Each forty (40)-foot collapsible end flat rack container
shall equal two and seventy-six hundredths (2.76) TEUs; and
(vi) Each forty (40)-foot jumbo high cube container shall
equal one and sixty-eight hundredths (l.68) TEUs.
(c) Fixed Rent; Determination of Variable Rent.
(1) Adjusted Gross Revenues of the Container Set. Adjusted gross
revenues of the Container Set ("Adjusted Gross Revenues of the Container Set")
for any particular calendar quarter shall equal (x) the Gross Revenues of the
Container Set for that quarter less (y) the Operating Expenses of the Container
Set for that quarter.
(i) Gross revenues of the Container Set ("Gross Revenues")
for any particular quarter shall equal all revenues of the Lessee relating to
the Container Set accrued during that quarter from leasing or subleasing all Set
Containers, including but not limited to ancillary and all other related
charges, such as pickup and drop off charges, special handling fees, and late
payment fees, less uncollectible accounts receivable with respect to the Set
Containers for the same quarter, as recorded on the books of account of the
Lessee in accordance with generally accepted accounting principles.
(ii) Operating expenses of the Container Set ("Operating
Expenses") for any particular quarter shall equal all operating costs and
expenses incurred in connection with the operation and leasing of the Set
Containers during that quarter, including but not limited to, costs and expenses
related to the following: maintaining, repairing, or refurbishing the Set
13
Containers; inspection, handling and storage; transporting the Set Containers
other than to the point of origin of the initial leases or subleases; legal fees
incurred in enforcing lease obligations; insurance; third-party claims arising
out of the possession or operation of the Set Containers (including, but not
limited to, injury to persons and loss of or damage to lading or other
property), including legal fees incurred in defending against such third-party
claims; charges, assessments or levies of any kind against the Set Containers;
and ad valorem, gross receipts and property taxes attributable to the Set
Containers. Notwithstanding the foregoing, the Operating Expenses shall not
include: (w) those costs and expenses that would be considered costs or expenses
associated with ownership of containers (as opposed to those associated with
operation and maintenance of containers), such as costs and expenses incurred by
the Lessee or Lessor in connection with the purchase and sale of the Set
Containers; (x) any taxes incurred by the Lessor in respect of the Lessor's
acquisition of the Containers or any income, capital or franchise taxes imposed
on the Lessor which are based on or measured by its net income, gross receipts
(other than gross receipts attributable to the Set Containers), or net worth
(all of which taxes shall be paid by the Lessor individually); (y) any income,
capital or franchise taxes imposed on the Lessee which are based on or measured
by its net income, gross receipts (other than gross receipts attributable to the
Set Containers), or net worth (all of which taxes shall be paid by the Lessee
individually); or (z) costs and expenses incurred by the Lessee in connection
with the leasing, management, and administration of the Set Containers as would
generally be considered to be a part of the Lessee's own marketing, general and
administrative expenses, including but not limited to, salaries, travel and
entertainment expenses of the Lessee's personnel; rent; and bookkeeping and
accounting charges.
(2) Container Set TEU-Days. For all Set Containers in the Container
Set for any particular calendar quarter, the number of Container Set TEU-days
("Container Set TEU-Days") shall equal the sum of the Monthly Container Set
TEU-Days for each of the months of that quarter. The Monthly Container Set
TEU-Days for any particular month shall equal (x) the number of TEU's of Set
Containers on the first day of the month and the number of TEU's of Set
Containers on the last day of the month, divided by two; multiplied by (y) the
number of days in that month.
(3) Container Set Daily Adjusted Gross Revenues. The "Container Set
Daily Adjusted Gross Revenues" for any particular calendar quarter shall equal
the Adjusted Gross Revenues of the Container Set for that quarter divided by the
number of Container Set TEU-Days for the same quarter.
(4) Lessor Container TEU-Days. For all Containers in the Container
Set for any particular calendar quarter, the number of Lessor Container TEU-days
("Lessor Container TEU-Days") shall equal
14
the sum of the Individual Container TEU-Days for each Container for that
quarter. The Individual Container TEU-Days for any particular Container, for any
particular quarter shall equal (x) the applicable TEU factor for a Container of
that size and type (as set forth in Section 6(b)(7) above) multiplied by (y) the
actual number of days during the quarter that the Container was included in the
Container Set; provided that, if in any quarter a Container is subject to a
Casualty Occurrence or an Ordinary Disposal Occurrence (and the Lessee does not
replace that Container pursuant to Section 9(b)), that Container shall be deemed
to be removed from the Container Set at the midpoint of that quarter.
(5) Lessor Adjusted Gross Revenues. The "Lessor Adjusted Gross
Revenues" for any particular calendar quarter shall equal the Container Set
Daily Adjusted Gross Revenues for that quarter multiplied by the number of
Lessor Container TEU-Days for the same quarter.
(6) Fixed Rent and Variable Rent.
(i) Lessee shall pay Lessor "Fixed Rent" with respect to the
Containers included in the Container Set for the period commencing on the
Purchase Date therefor and ending on March 31, 1996 (the "Fixed Rent Period").
Fixed Rent for any particular calendar quarter shall equal the product obtained
by multiplying (x) the number of Lessor Container TEU-Days for that quarter,
divided by the number of days in that quarter, by (y) $98.81.
(ii) Lessee shall pay Lessor "Variable Rent" with respect to
the Containers included in the Container Set for the period commencing on April
1, 1996 and ending on the day this Agreement terminates in accordance with
Section 4 above (the "Variable Rent Period"). Subject to subparts (iii) and (iv)
below, the Variable Rent for any particular calendar quarter shall equal
seventy-five percent (75.0%) of the Lessor Adjusted Gross Revenues for that
quarter.
(iii) If the Variable Rent otherwise payable pursuant to
subpart (ii) for any calendar quarter during the first year of the Variable Rent
Period is less than the product obtained by multiplying (x) the number of Lessor
Container TEU-Days for that quarter, divided by the number of days in that
quarter, by (y) $98.81 (the "first Year Threshold Amount"), the Variable Rent
for that quarter shall be increased by an amount equal to the lesser of: (x)
fifteen percent (15%) times the Lessor Adjusted Gross Revenues for that quarter;
or (y) the amount by which the First Year Threshold Amount exceeds the Variable
Rent otherwise payable pursuant to subpart (ii) for that quarter without the
adjustment provided by this subpart (iii). If the Variable Rent otherwise
payable pursuant to subpart (ii) for any calendar quarter during the second year
of the Variable Rent Period is less than the product obtained by multiplying (x)
the number of Lessor Container
15
TEU-Days for that, quarter, divided by the number of days in that quarter, by
(y) $91.69 (the "Second Year Threshold Amount"), the Variable Rent payable with
respect to such Container shall be increased by an amount equal to the lesser
of: (x) fifteen percent (15%) times the Lessor Adjusted Gross Revenues for that
quarter; or (y) the amount by which the Second Year Threshold Amount exceeds the
Variable Rent otherwise payable pursuant to subpart (ii) for that quarter
without the adjustment provided by this subpart (iii). The amount by which
Variable Rent is increased pursuant to this subpart (iii) shall hereinafter be
referred to as "Additional Variable Rent."
(iv) Commencing with the third year of the Variable Rent
Period, the Variable Rent otherwise payable pursuant to subpart (ii) for any
calendar quarter shall be decreased by an amount equal to the lesser of: (x)
one-twelfth of the aggregate Additional Variable Rent; or (y) the amount by
which the Variable Rent otherwise payable pursuant to subpart (ii) for that
quarter without the adjustment provided by this subpart (iv) exceeds the product
obtained by multiplying (A) the number of Lessor Container TEU-Days for that
quarter, divided by the number of days in that quarter, by (B) $80.
Notwithstanding the foregoing, the aggregate deductions from Variable Rent made
pursuant to this subpart (iv) shall in no event exceed the aggregate Additional
Variable Rent.
(7) Carry-Forward of Operating Deficit. If Variable Rent for any
particular calendar quarter is less than zero, the amount by which Variable Rent
is less than zero (the "Operating Deficit") shall be carried forward and offset
against and to the extent of Lessor's positive Variable Rent in subsequent
calendar quarters, without interest, until the Operating Deficit is fully
offset; provided that, no offset pursuant to this Section shall be made for any
quarter for which Additional Variable Rent is payable. In no event shall the
Lessor be obligated to make any direct payment to the Lessee to reimburse the
Lessee for any Operating Deficit.
7. Withholding Taxes; Arthur Andersen Review; Reports.
(a) Withholding Taxes.
(i) If at any time during the term of this Agreement, the Lessee is
required by law to make any deduction or withholding on account of any tax,
assessment or other governmental charge, which is currently in force or may in
the future come into force as a result of the action of any tax authority, with
respect to the Containers, the Fixed Rent, the Variable Rent, or any other
amount payable by the Lessee to the Lessor hereunder, other than any taxes
imposed on the Lessee which are based on or measured by its net income, gross
receipts (other than gross receipts attributable to the Set Containers), or net
worth, the Lessee shall, thereupon be
16
entitled to deduct or withhold, or to offset against the Fixed Rent, the
Variable Rent, or any other amount otherwise payable by the Lessee to the Lessor
hereunder, the amount of such tax, assessment or other governmental charge
(together with interest, additions to tax, penalties or other liabilities
related thereto), irrespective of whether such tax, assessment or other
governmental charge is imposed with respect to the then current or a previous
taxable period, and any amount so deducted, withheld, or offset by the Lessee
and paid by the Lessee to the applicable taxing authority pursuant to and in
accordance with the deduction or withholding requirement shall be deemed to have
been paid by the Lessee to Lessor in satisfaction of the requirements of this
Agreement
(ii) The Lessee agrees to execute and deliver all such documents and
instruments, and to take all such action, as the Lessor shall reasonably request
to minimize amounts to be deducted or withheld pursuant to the tax deduction or
withholding requirement or to obtain an exemption from the deduction or
withholding requirement and to effect any necessary compliance therewith.
(iii) If the Lessor is organized under the laws of a jurisdiction
outside the United States, then, on or prior to the date it becomes entitled to
the receipt of any payment hereunder and from time to time thereafter if
requested in writing by the Lessee, the Lessor shall, if and for so long as the
Lessor is lawfully able to do so, provide the Lessee with (i) an accurate,
complete and duly executed Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that the Lessor is entitled to benefits under an income tax treaty to
which the United States is a party that reduces the rate of withholding tax on
payments under this Agreement or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct of a trade or
business in the United States; or (ii) in the event that, by virtue of a change
in law or regulations, such forms are no longer valid, such other evidence of
the Lessor's exemption from withholding (if and for so long as the Lessor is
legally able to provide such evidence) as is reasonably requested by the Lessee.
(iv) If the Lessee makes any deduction or pays any withholding tax
pursuant to this Section, the Lessee shall promptly give the Lessor written
evidence of payment of such tax.
(b) Arthur Andersen Review. Arthur Andersen & Company or such other
independent public accounting firm as may be satisfactory to the Lessor will
review the calculations of the Adjusted Gross Revenues of the Container Set for
each calendar quarter during the Variable Rent Period in the course of
performing the annual audit of the Lessee's financial statements and will
confirm by a written report to the Lessor to accompany the Variable Rent payment
to be paid on or about June 30th of each year during the Variable Rent
17
Period that the calculations made by the Lessee during the preceding year were
made in accordance with this Agreement. The Lessee will bear the cost of the
review. Any adjustments in the Variable Rent resulting from the review shall be
reflected in the payment that accompanies the written report.
(c) Reports, Inspection.
(i) Concurrently with payment of the Variable Rent for each calendar
quarter, Lessee shall provide to Lessor a report substantially in the form of
Schedule II hereto showing the calculation of the Lessor Adjusted Gross Revenues
for that quarter.
(ii) During the term of this Agreement and for a period of one year
following termination of this Agreement for any reason whatsoever, for the
purpose of verifying the amount of Variable Rent due under this Agreement for
any one or more calendar quarters, Lessor shall have the right on five business
days notice, at Lessor's expense, to examine during the Lessee's. normal
business hours the business records relating to the Containers.
8. Utilization and Other Matters.
(a) The Lessee agrees to use the Containers in accordance with the
standards accepted in the container leasing industry. The Lessor retains the
right to have the Containers inspected at any time, so long as any inspection
does not interfere with normal utilization of the Containers.
(b) The Lessee agrees not to grant or suffer to exist a lien of any kind
on the Containers, or to permit any sublessee to grant or suffer to exist a lien
of any kind on the Containers, except for the following liens or encumbrances
("Permitted Liens"):
(i) liens or encumbrances that result from acts or omissions of the
Lessor;
(ii) liens or charges for current taxes, assessments or other
governmental charges which are either not yet due or are being contested in good
faith and by appropriate proceedings so long, as such proceedings do not involve
any danger of the sale, forfeiture or loss of any Container or any interest
therein;
(iii) materialmen's, mechanics', workmen's, repairmen's, employees'
and other like liens arising in the ordinary course of business which are either
inchoate and relate to an obligation which is not yet due or which are being
contested in good faith and by appropriate proceedings so long as such
proceedings do not involve any danger of the sale, forfeiture or loss of any
Container or any interest therein; and
(iv) the rights of the sublessees of the Containers under
18
their respective subleases with the Lessee.
Lessor may enter into a financing arrangement with one or more Lenders;
provided that such Lenders acknowledge in writing that they take subject to this
Agreement.
(c) The Lessee will not permit any sublessee to sell or otherwise transfer
title to any Container to any third party.
(d) The Lessee agrees to give the Lessor, within one hundred and eighty
(180) days of the end of each calendar year, an inventory of the Containers as
of year end. This inventory will specify the name of the lessee of each
Container then on lease.
9. Insurance; Total Loss or Destruction.
(a) The Lessee agrees during the term of this Agreement to insure the
Containers against all risks of physical loss and to maintain comprehensive
general liability insurance covering the Containers against bodily injury or
property damage, in each case subject to normal terms and conditions of a
comprehensive insurance policy, the cost of which insurance shall be an
Operating Expense of the Container Set for purposes of Section 6. The Lessee
will provide the Lessor with a Certificate of Insurance evidencing the insurance
for all Containers covered by this Agreement and naming Lessor and Lenders as an
additional insured and loss payee as their interests may appear. If the Lessee,
through its own negligence, does not maintain the insurance in effect, any loss
or expense due to the failure to maintain the insurance in effect shall be the
responsibility of the Lessee and, notwithstanding the provisions of Section 6,
shall not be an Operating Expense of the Container Set for purposes of Section
6.
(b) (i) In the case of a Casualty Occurrence or an Ordinary Disposal
Occurrence as to a Container, the Lessee agrees to replace the Container within
ninety (90) days after Lessee receives notice of the Casualty Occurrence or
within ninety (90) days after the Ordinary Disposal Occurrence with one of like
size, type, age, and condition and to deliver to the Lessor with respect thereto
concurrently with the replacement of such Container a Certificate of Replacement
in the form of Exhibit B attached hereto, a Bill of Sale in substantially the
form attached to the Purchase and Sale Agreement, and an amendment to the
Uniform Commercial Code financing statements originally filed with respect to
this transaction.
(ii) In the alternative, until the last day of the calendar quarter
following the calendar quarter in which there occurs a Casualty Occurrence or an
Ordinary Disposal Occurrence, Lessee may, on behalf of the Lessor, and Lessor
hereby authorizes Lessee to, sell, lease or otherwise dispose of a Container
subject to a Casualty Occurrence or an Ordinary Disposal Occurrence, at the
19
sole and absolute discretion of the Lessee; provided that, if (x) a Container is
subject to a Casualty Occurrence or an Ordinary Disposal Occurrence during the
period commencing on the Purchase Date and ending on June 30, 1999; and (y) the
total number of Containers included in the Container Set on the Purchase Date
and theretofore sold, leased or otherwise disposed of pursuant to this Section
(calculated on a TEU basis as of the last day of the most recent calendar
quarter during such period) exceeds five percent (5%) of the total number of
Containers (calculated on a TEU basis as of the Purchase Date), Lessee shall
replace such Container in accordance. with the preceding Section and shall not
be entitled to sell, lease or otherwise dispose of such Container pursuant to
this Section. The net proceeds of the sale, lease or other disposition shall be
allocated between the Lessor and the Lessee as follows:
(1) the Lessor shall first receive an amount equal to the
lesser of:
(A) the amount of the net proceeds; or
(B) the value of the Container according to Exhibit A
attached hereto; and
(2) any net proceeds remaining after the allocation to the
Lessor in subpart (1) shall be paid 50% to the Lessor and 50% to the Lessee as
incentive compensation for handling the sale, lease or other disposition.
(iii) The cost of the replacement or the payment shall not be an
Operating Expense of the Container Set for purposes of Section 6.
(iv) If the Lessee elects to replace the Container, it shall be
entitled to retain the net proceeds of the Casualty Occurrence or Ordinary
Disposal Occurrence for its own account, and the Lessor shall transfer all of
its right, title and interest in and to the original Container to the Lessee.
Lessor agrees to execute or to cause to be executed all necessary documents,
including a bill of sale and a Uniform Commercial Code release, to evidence such
transfer to Lessee.
(v) If the Lessee elects to pay the Lessor the amount described in
Section 9(b) (ii) above, the Lessor shall be entitled to Fixed Rent or Variable
Rent on account of the Container subject to the Casualty Occurrence or Ordinary
Disposal Occurrence in accordance with Section 6 and shall be entitled to
receive such amount on or prior to the last day of the calendar quarter
following the calendar quarter in which termination of this Agreement occurs as
to such Container.
10. Security Interest. To secure the prompt and full payment and
performance of any and all of Lessee's obligations hereunder,
20
Lessee hereby assigns, transfers, sets over, and grants to Lessor a security
interest in all of Lessee's right, title and interest in and to any and all
present or future subleases, leases, chattel paper, agreements for use, or other
similar agreements relating to the Containers, all accounts, rents, payments and
other rights to receive moneys relating thereto, all other general intangibles
thereunder, all books and records and other documents relating thereto, and all
proceeds of the foregoing (in each case to the extent the same relates to the
Containers) (collectively, the "Collateral"). Upon the occurrence and during the
continuance of an Event of Default (provided that the Lessor shall have
delivered to the Lessee written notice of termination of this Agreement
pursuant to Section 4(c) and the written notice described in Section 5 (c) (A),
except that no notices are required with respect to the Event of Default
specified in Section 4(c) (5)), Lessee agrees that Lessor shall have the right
from and after the effective date of termination to receive and collect all
rent and other sums payable to or receivable by Lessee under any such subleases,
and the right to make all waivers and agreements, to give all notices, consents
and releases and to do any and all other things whatsoever which the Lessee is
or may become entitled to do under any sublease (in each case to the extent such
sublease relates to the Containers).
Anything herein to the contrary notwithstanding, nothing contained
in this Section 10 may be interpreted as permitting the Lessor or any Lender,
and no right or remedy may be exercised by the Lessor or any Lender, which would
result in the derogation of any covenant of quiet enjoyment made to any
sublessee under any sublease of a Container.
11. Sale or Transfer by Lessor. The Lessor may at any time sell or
transfer any Container or any interest therein subject to this Agreement,
provided that:
(a) the party to whom the Container is sold or transferred
acknowledges in writing that the sale or transfer is subject to this Agreement;
(b) the Lessor shall not be entitled to offer or sell any Container
or any interest therein or assign or transfer this Agreement or any interest
therein to any resident, domiciliary or citizen of the United States unless the
offer, sale, assignment or transfer is made in compliance with all applicable
United States and state securities laws; and
(c) the Lessor shall not be entitled to sell or transfer any
Container or any interest therein during the term of this Agreement to any
person engaged in the business of operating and leasing ocean-going marine
shipping containers to end-users, or any affiliates thereof (other than PLM
International, Inc. and its affiliates).
21
With respect to paragraph (b) above, the Lessor agrees that it will not
authorize discussions concerning the sale or transfer of any Container or any
interest therein, or the assignment or transfer of this Agreement or any
interest therein, within the United States. If an agency or court of the United
States or any State thereof makes a legitimate request for information to
evidence compliance with the matters stated in this Section 11, the Lessor
shall, upon notice from the Lessee that such request has been made, disclose
such information or the evidence verifying such information so as to comply with
such request.
12. Assignment or Transfer by Lessee. No assignment hereof by Lessee or
transfer of any of the rights of Lessee hereunder shall be valid or effective as
against the Lessor unless in conformity with the prior written consent of the
Lessor (which consent shall not be unreasonably withheld).
13. Governing Law. This Agreement is to be interpreted and enforced in
accordance with the laws of the State of California.
14. Securities Laws Representation. For the purpose of the United States
and state securities laws, Lessor represents and warrants to the Lessee that the
following are true and correct on the date the Lessor executes this Agreement:
(a) The Lessor has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in containers and of protecting its own interests in connection with
such investment.
(b) The Lessor is entering into this Agreement and acquiring the
Containers or an interest therein for its own account and not with a view to or
for sale in connection with any distribution of a security.
Lessor acknowledges that this transaction has not been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities law. Therefore, if this transaction is deemed a security under
federal or state securities laws, an interest in this Agreement or in the
Containers may not be resold unless it is registered under the Act and all
applicable state securities laws or an exemption from such registration is
available.
15. Amendment.
No modification or amendment of this Agreement shall be valid unless in
writing and executed by the parties hereto.
16. Integration.
This Agreement represents the entire agreement and understand-
22
ing between the parties hereto and supersedes all prior or contemporaneous
agreements, whether written or oral, with respect to the subject matter hereof.
17. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
18. Title and Headings; Sections.
Title and headings of the sections and subsections of this Agreement are
for convenience of reference only and do not form a part of this Agreement and
shall not in any way affect the interpretation thereof. References to sections
and subsections without further attribution mean sections and subsections of
this Agreement.
19. Successors and Assigns.
The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective permitted successors and assigns of each
party hereto.
20. Further Assurances.
The parties hereto agree to execute and deliver, or cause to be executed
and delivered, such further instruments or documents and take such further
action as may be reasonably required effectively to carry out the transactions
contemplated herein.
21. Waiver of Jury Trial.
LESSEE AND LESSOR EACH IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEEDING UPON,
ARISING OUT OF, OR RELATED TO THIS AGREEMENT.
22. Chattel Paper.
Only one counterpart of this Agreement shall be marked "Counterpart No.
One" ("Counterpart No. One"), and all other counterparts hereof shall be marked
as, and shall be duplicates. To the extent this Agreement constitutes chattel
paper (as such term is defined in the Uniform Commercial Code in effect in any
applicable jurisdiction), no security interest herein may be created through the
transfer or possession of any counterpart other than Counterpart No. One.
23
23. Effectiveness.
This Agreement shall be effective, only when it has been executed and
delivered by each of the parties hereto.
EXECUTED as of the 17th day of April, 1995.
TRANS OCEAN CONTAINER CORPORATION,
the Lessee
851 Traeger Avenue
San Bruno, CA. 94066
Telecopy No. (415) 873-6764
By: /s/ [ILLEGIBLE]
------------------------------------
Its: TREASURER
-----------------------------------
INVESTORS ASSET HOLDING CORP., not in its
individual capacity but solely as Trustee
of the "AFG/ICCU Trust," the Lessor
Exchange Place
Boston, MA 02109
Telecopy No. (617) 523-1410
By:
------------------------------------
Its:
-----------------------------------
24
23. Effectiveness.
This Agreement shall be effective, only when it has been executed and
delivered by each of the parties hereto.
EXECUTED as of the 17th day of April, 1995.
TRANS OCEAN CONTAINER CORPORATION,
the Lessee
851 Traeger Avenue
San Bruno, CA. 94066
Telecopy No. (415) 873-6764
By:
------------------------------------
Its:
-----------------------------------
INVESTORS ASSET HOLDING CORP., not in its
individual capacity but solely as Trustee
of the "AFG/ICCU Trust," the Lessor
Exchange Place
Boston, MA 02109
Telecopy No. (617) 523-1410
By: /s/ [ILLEGIBLE]
------------------------------------
Its: Vice-President
-----------------------------------
24
EXHIBIT A
VALUE IN THE EVENT OF A CASUALTY OCCURRENCE
OR AN ORDINARY DISPOSAL OCCURRENCE
(As % of Container Cost)
After After
Quarter* Value Quarter* Value
-------- ----- -------- -----
0 103.75% 31 64.77%
1 103.00% 32 62.76%
2 102.23% 33 60.68%
3 101.43% 34 58.53%
4 100.61% 35 56.31%
5 99.76% 36 54.02%
6 98.89% 37 51.66%
7 97.98% 38 49.22%
8 97.05% 39 46.70%
9 96.08% 40 44.10%
10 95.08% 41 41.41%
11 94.05% 42 38.64%
12 92.99% 43 35.77%
13 91.90% 44 32.82%
14 90.76% 45 29.77%
15 89.59% 46 26.61%
16 88.39% 47 23.36%
17 87.14% 48 20.00%
18 85.85% 49 18.61%
19 84.52% 50 17.18%
20 83.15% 51 15.70%
21 81.73% 52 14.17%
22 80.27% 53 12.59%
23 78.76% 54 10.96%
24 77.20% 55 9.28%
25 75.59% 56 7.54%
26 73.93% 57 5.74%
27 72.21% 58 3.89%
28 70.44% 59 1.98%
29 68.61% 60 0.00%
30 66.72%
- ----------
* Quarters begin to be counted as of the beginning of the first calendar quarter
after the calendar quarter in which the Container is included in the Container
Set.
26
EXHIBIT B
SAMPLE
Certificate of Replacement Number ______
A. Description of the Container(s)
Trans Ocean Container Corporation (the "Lessee") certifies that the
Container(s) listed below in Column 1 (the "Affected Container(s)") that
heretofore were subject to the Marine Shipping Container Variable Lease dated as
of April _____, 1995 (the "Agreement") with Investors Asset Holding Corp., a
Massachusetts corporation, not in its individual capacity but solely as Trustee
of the "AFG/ICCU Trust" (the "Lessor") have been subject to a Casualty
Occurrence or an Ordinary Disposal Occurrence (as such terms are defined in the
Agreement). Therefore, in accordance with Section 9(b) of the Agreement, the
Lessee elects to provide replacement container(s) therefor and certifies that:
(i) the container(s) listed below in Column 2 (the "Replacement Container (s)")
are of like size, type, age and condition as the Affected Container(s), and (ii)
effective on the date indicated below, the Replacement Container(s) shall, for
purposes of the Agreement, replace the Affected Container(s), and (iii) the
Replacement Container(s) are, as of such date, "Containers" for purposes of the
Agreement.
COLUMN 1 COLUMN 2
-------- --------
1. Designation of Containers 1. Designation of Containers
2. Type: 2. Type:
3. Quantity: 3. Quantity:
4. Container 4. Container
Numbers: Numbers:
B. Date Replacement Container(s)
Are Effective Under The Agreement:
C. Lease of the Replacement Containers(s)
The Lessee shall lease the above-designated Replacement Container(s) in
accordance with the terms and conditions of the Agreement.
D. Restriction on Transfer of the Replacement Container(s)
The Lessor may not sell or transfer the above designated Replacement
Container(s) or any interest therein except in accordance with the Agreement.
TRANS OCEAN CONTAINER CORPORATION
By:
-------------------------------
Title:
----------------------------
27
SCHEDULE I
Specified Depot Locations
for Redelivery of the Containers
Pusan New York
Hong Kong London
Kaohsiung Le Havre
Kobe Antwerp
Nagoya Rotterdam
Yokohama Bremen
Seattle Hamburg
San Francisco/Oakland Marseille
Los Angeles/Long Beach Genoa
Houston Leghorn
New Orleans Milan
Chicago
28
SCHEDULE II
TRANS OCEAN LTD
CALCULATION OF DAILY ADJUSTED GROSS REVENUE
COMBINED CONTAINER SET IV
? QUARTER 199?
I. CONTAINER SET RESULTS
DRY CARGO DRY CARGO HIGH CUBE OPEN TOP OPEN TOP COLLAPSIBLE
20' 40' DRY 40' 20' 40' FLAT 40' TOTAL
--------- --------- --------- -------- -------- ----------- -----
GROSS REVENUE $5 $5 $5 $5 $5 $5 $30
BAD DEBT WRITE-OFFS ($1) ($1) ($1) ($1) ($1) ($1) ($6)
--------- --------- --------- -------- -------- ----------- -----
TOTAL GROSS REVENUE $4 $4 $4 $4 $4 $4 $24
REPAIR AND MAINTENANCE EXPENSE $1 $1 $1 $1 $1 $1 $6
OTHER OPERATING EXPENSES $1 $1 $1 $1 $1 $1 $6
--------- --------- --------- -------- -------- ----------- -----
TOTAL EXPENSES $2 $2 $2 $2 $2 $2 $12
--------- --------- --------- -------- -------- ----------- -----
ADJUSTED GROSS REVENUE $2 $2 $2 $2 $2 $2 $12
========= ========= ========= ======== ======== =========== =====
II. CONTAINER SET TEU DAYS
BEGINNING ENDING AVERAGE DAYS IN CONTAINER SET
MONTH TEUS TEUS TEUS MONTH TEU DAYS
- ---------- --------- ------ ------- ------- -------------
Month 1 6.00 6.00 6.00 31 186.00
Month 2 6.00 6.00 6.00 30 180.00
Month 3 6.00 6.00 6.00 31 186.00
-------------
TOTAL CONTAINER SET TEU DAYS 552.00
=============
III. DAILY ADJUSTED GROSS REVENUE PER TEU
DRY CARGO DRY CARGO HIGH CUBE OPEN TOP OPEN TOP COLLAPSIBLE
20' 40' DRY 40' 20' 40' FLAT 40' TOTAL
--------- --------- --------- -------- -------- ----------- ------
AVERAGE # OF CONTAINER TEU DAYS 92.00 138.00 154.56 92.00 33.44 42.00 552.00
GROSS REVENUE $0.05 $0.04 $0.03 $0.05 $0.15 $0.12 $0.05
BAD DEBT WRITE-OFFS ($0.01) ($0.01) ($0.01) ($0.01) ($0.03) ($0.02) ($0.01)
--------- --------- --------- -------- -------- ----------- ------
TOTAL GROSS REVENUE $0.04 $0.03 $0.03 $0.04 $0.12 $0.10 $0.04
REPAIR AND MAINTENANCE EXPENSE $0.01 $0.01 $0.01 $0.01 $0.03 $0.02 $0.01
OTHER OPERATING EXPENSES $0.01 $0.01 $0.01 $0.01 $0.03 $0.02 $0.01
--------- --------- --------- -------- -------- ----------- ------
TOTAL EXPENSES $0.02 $0.01 $0.01 $0.02 $0.06 $0.05 $0.02
--------- --------- --------- -------- -------- ----------- ------
ADJUSTED GROSS REVENUE $0.02 $0.01 $0.01 $0.02 $0.06 $0.05 $0.02
========= ========= ========= ======== ======== =========== ======
TRANS OCEAN LTD
CALCULATION OF LESSOR'S VARIABLE RENT
COMBINED CONTAINER SET IV
? QUARTER 199?
LESSOR: ?
I. LESSOR'S CONTAINER TEU DAYS
40' HIGH
40' DRY CUBE
CARGO DRY CARGO TOTAL
------- --------- ------
NUMBER OF CONTAINER DAYS
IN THE CONTAINER SET: 92 92
TEU FACTOR: 1.50 1.68
------- ---------
LESSOR'S CONTAINER TEU DAYS: 138.00 154.56 292.56
------- --------- ======
II LESSOR'S ADJUSTED GROSS REVENUE
DAILY ADJUSTED GROSS REVENUE PER TEU: $0.02
LESSOR'S CONTAINER TEU DAYS: 292.56
--------
LESSOR'S ADJUSTED GROSS REVENUE $5.85
--------
VARIABLE RENT PERCENTAGE: 75.00%
--------
VARIABLE RENT DUE TO LESSOR: $4.39
========
CONTAINER TEU DAYS CALCULATION
? QUARTER 199?
LESSOR
TOTAL
UNIT TOTAL
CONTAINER ACTIVITY NUMBER DAYS IN TEU TEU
TYPE DATE OF UNITS QUARTER FACTOR DAYS
- ------------ -------- -------- ------- ------ -------
C40 Month 1 1 92 1.50 138.00
-------- ------- -------
1 92 138.00
J40 Month 1 1 92 1.68 154.56
-------- ------- -------
1 92 154.56
LLR00D LOAN AMORTIZATION SCHEDULE 9/29/97 10:34:50 PAGE 1
EQUITY OWNER: 8801 AFG TRUST 88-1
PERCENT OWNED: 100.000000%
LESSEE: AMOCO RENTAL SCHEDULE: B-O-9
LENDER NAME: KANSALLIS FINANCE LTD LOAN CODE: KFNL052
PRINCIPAL PRINCIPAL
PAYMENT PMT BALANCE TOTAL INTEREST PRINCIPAL BALANCE
DATE # BEFORE PMT PAYMENT PAYMENT PAYMENT AFTER PMT
- -------------------------------------------------------------------------------------------------
2/01/1989 1 119,033.61 9,808.71 3,228.79 6,579.92 112,453.69
8/01/1989 2 112,453.69 9,808.71 5,903.82 3,904.89 108,548.80
2/01/1990 3 108,548.80 9,808.71 5,698.81 4,109.90 104,438.90
8/01/1990 4 104,438.90 9,808.71 5,483.04 4,325.67 100,113.23
2/01/1991 5 100,113.23 9,808.71 5,255.94 4,552.77 95,560.46
8/01/1991 6 95,560.46 9,808.71 5,016.92 4,791.79 90,768.67
2/01/1992 7 90,768.67 9,808.71 4,765.36 5,043.35 85,725.32
8/01/1992 8 85,725.32 9,808.71 4,500.58 5,308.13 80,417.19
2/01/1993 9 80,417.19 9,808.71 4,221.90 5,586.81 74,830.38
8/01/1993 10 74,830.38 9,808.71 3,928.60 5,880.11 68,950.27
2/01/1994 11 68,950.27 9,808.71 3,619.89 6,188.82 62,761.45
8/01/1994 12 62,761.45 9,808.71 3,294.98 6,513.73 56,247.72
8/01/1994 56,247.72 17,975.55 .00 17,975.55 38,272.17
2/01/1995 13 38,272.17 6,674.24 2,009.29 4,664.95 33,607.22
8/01/1995 14 33,607.22 6,674.24 1,764.38 4,909.86 28,697.36
2/01/1996 15 28,697.36 6,674.24 1,506.61 5,167.63 23,529.73
8/01/1996 16 23,529.73 6,674.24 1,235.31 5,438.93 18,090.80
2/01/1997 17 18,090.80 6,674.24 949.77 5,724.47 12,366.33
8/01/1997 18 12,366.33 6,674.24 649.23 6,025.01 6,341.32
8/02/1997 6,341.32 6,341.32 .00 6,341.32 .00
2/01/1998 19 .00 .00 .00 .00 .00
182,066.83 63,033.22 119,033.61
YEARLY RATE OF RETURN: 10.50000%
** END OF REPORT **
Exhibit A - Value in the Event of a Casualty Occurrence or an Ordinary Disposal
Occurrence
Exhibit B - Certificate of Replacement
Schedule I - Specified Depot Locations
Schedule II - Form of Report re: Lessor Adjusted Gross Revenues