exv10w1



 






Exhibit 10.1




 





CONTAINER PURCHASE AGREEMENT




Dated as of January 19, 2006




By and among




CRONOS CAPITAL CORP., a California corporation,




IEA INCOME FUND XI, L.P., a California limited partnership,




ACCESS SHIPPING CORPORATION, a California corporation,




ACCESS SHIPPING II CORPORATION, a California corporation,




and




ACCESS SHIPPING LIMITED PARTNERSHIP, a Connecticut limited partnership




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 

	 	 	 	Page        

	 
	 	 	 	 	 	 
	1.


	 	DEFINITIONS.

	 	 	1	 
	 
	 	 	 	 	 	 
	2.


	 	SALE AND PURCHASE OF THE CONTAINERS.
	 	 	2	 
	 
	 	 	 	 	 	 
	3.


	 	CONSIDERATION FOR THE SALE; ADJUSTMENTS TO PURCHASE PRICE; REVENUE ALLOCATIONS.

	 	 	2	 
	 
	 	 	 	 	 	 
	 

	 	3.01   Consideration.

3.02   Purchase Price Adjustment.

3.03   Allocation of Revenues.

	 	 	2

2

3	 
	 
	 	 	 	 	 	 
	4.


	 	CLOSING.

	 	 	3	 
	 
	 	 	 	 	 	 
	5.


	 	REPRESENTATIONS AND WARRANTIES OF SELLER.

	 	 	3	 
	 
	 	 	 	 	 	 
	 

	 	5.01   Existence, Power and Authority.

5.02   Authorization.

5.03   No Conflict.

5.04   Consents.

5.05   Legal Proceedings.

5.06   Prior Management Agreements.

5.07   Title.

5.08   Compliance with Laws and Regulations.

5.09   Revenue Distributions.

5.10   Remarketing Arrangements; Bargain-Purchase Options.

5.11   Notices.

	 	 	3

3

4

4

4

4

4

4

4

5

5	 
	 
	 	 	 	 	 	 
	6.


	 	REPRESENTATIONS AND WARRANTIES OF BUYER.

	 	 	5	 
	 
	 	 	 	 	 	 
	 

	 	6.01   Corporate Existence, Power and Authority.

6.02   Authorization.

6.03   No Conflict.

6.04   Consents.

6.05   Legal Proceedings.

6.06   Compliance with Laws and Regulations.

	 	 	5

5

5

6

6

6	 
	 
	 	 	 	 	 	 
	7.


	 	COVENANTS.

	 	 	6	 
	 
	 	 	 	 	 	 
	 

	 	7.01   Closing.

7.02   Sales Tax.

	 	 	6

6	 
	 
	 	 	 	 	 	 
	8.


	 	CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE.

	 	 	6	 
	 
	 	 	 	 	 	 
	 

	 	8.01   Representations, Warranties and Covenants.

8.02   No Change in Applicable Law.

8.03   Delivery of Documents.

8.04   Consents.

8.05   Satisfaction of Statutory and Regulatory Requirements.

8.06   No Litigation.
	 	 	6

6

7

7

7

7	 






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TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 

	 	 	 	Page        

	 
	 	 	 	 	 	 
	9.

	 	CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO CLOSE.
	 	 	7	 
	 
	 	 	 	 	 	 
	 

	 	9.01   Representations, Warranties and Covenants.

9.02   Delivery of Funds and Documents.

9.03   Satisfaction of Statutory and Regulatory Requirements.

9.04   No Litigation.

	 	 	8

8

8

8	 
	 
	 	 	 	 	 	 
	10.

	 	DISCLAIMER OF WARRANTIES BY SELLER.
	 	 	8	 
	 
	 	 	 	 	 	 
	11.

	 	SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
	 	 	8	 
	 
	 	 	 	 	 	 
	12.

	 	FURTHER ASSURANCES.
	 	 	9	 
	 
	 	 	 	 	 	 
	13.

	 	EXPENSES.
	 	 	9	 
	 
	 	 	 	 	 	 
	14.

	 	BROKERS’ FEES.
	 	 	9	 
	 
	 	 	 	 	 	 
	15.

	 	NOTICES.
	 	 	9	 
	 
	 	 	 	 	 	 
	16.

	 	WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION OF REMEDIES.
	 	 	10	 
	 
	 	 	 	 	 	 
	17.

	 	GOVERNING LAW; DISPUTE RESOLUTION.
	 	 	10	 
	 
	 	 	 	 	 	 
	18.

	 	BINDING EFFECT; ASSIGNMENT.
	 	 	10	 
	 
	 	 	 	 	 	 
	19.

	 	COUNTERPARTS.
	 	 	11	 
	 
	 	 	 	 	 	 
	20.

	 	SEVERABILITY.
	 	 	11	 
	 
	 	 	 	 	 	 
	21.

	 	INDEMNITIES.
	 	 	11	 
	 
	 	 	 	 	 	 
	22.

	 	HEADINGS; TABLE OF CONTENTS.
	 	 	12	 






	 	 	 	 	 
	EXHIBITS

	 	 	 	 
	 
	 	 	 	 
	LIST OF CONTAINERS

	 	 	 	A
	 
	 	 	 	 
	FORM OF BILL OF SALE

	 	 	 	B






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CONTAINER PURCHASE AGREEMENT




          This CONTAINER PURCHASE AGREEMENT is entered into as of January 19, 2006, by and among CRONOS
CAPITAL CORP., a California corporation (“CCC”), IEA INCOME FUND XI, L.P., a California
limited partnership (“Seller”), ACCESS SHIPPING CORPORATION, a California corporation
(“Access Shipping”), ACCESS SHIPPING II CORPORATION (“Access Shipping II”) and
ACCESS SHIPPING LIMITED PARTNERSHIP, a Connecticut limited partnership (“Buyer”).




Recitals




     A.     Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, certain marine
cargo shipping containers owned by Seller as more particularly described on Exhibit A
attached hereto (the “Containers”), all upon and subject to the terms and conditions of
this Agreement.



     B.      CCC is the general partner of Seller.



     C.      Access Shipping and Access Shipping II are the general partners of Buyer.



     D.      The Containers are under lease by one or more third party container lessees under equipment
leases arranged on behalf of Seller by CCC or one of its affiliates.



     NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and
warranties herein contained, Seller, CCC, Access Shipping, Access Shipping II and Buyer agree as
follows:



     1.      Definitions. For all purposes of this Agreement, the following terms shall have
the following meanings:



          “Bill of Sale” means a bill of sale substantially in the form attached hereto as
Exhibit B.




          “Business Day” means any day except a Saturday, Sunday, or other day on which banks in
New York are authorized by law to close.




          “Closing” means the closing of the sale and purchase of the Containers contemplated by
this Agreement.




          “Closing Date” means the date on which the Closing shall occur as fixed pursuant to
Section 4.




          “Containers” means each of the cargo containers described on Exhibit A hereto,
together with any and all appliances, parts, instruments, appurtenances, accessories and other
equipment and components of whatever nature which may from time to time be incorporated or
installed in or attached to any thereof and which become the property of the owner thereof under
any applicable agreement or law.




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          “CCL” means Cronos Containers Limited, an English company.




          “Effective Date” means January 1, 2006.




          “Net Revenues” means the revenues payable to the owner of the Containers periodically
in arrears based upon the utilization of such Containers, net of expenses of operation and
management fees allocated to such Containers, all such revenues and expenses to be determined on an
accrual basis and not a cash basis of accounting.




          “Prior Management Agreements” means any and all lease or management agreements between
Seller and CCC, CCL, or any affiliated person relating to the utilization of the Containers.




     2.      Sale and Purchase of the Containers. On the Closing Date, for the consideration
provided in Section 3 and subject to the terms and conditions set forth herein, (i) Seller shall
sell to Buyer the Containers, and shall assign, transfer and convey to Buyer all of its right,
title and interest relating thereto from and after the Closing Date; and (ii) Buyer shall purchase
the Containers from Seller. Effective as of Closing, the Prior Management Agreements shall cease
to be applicable as to future periods to the Containers acquired by Buyer, and Buyer shall neither
assume nor have any liability under the Prior Management Agreements.



     3.     Consideration for the Sale; Adjustments to Purchase Price; Revenue
Allocations.



          3.01      Consideration. In consideration for the sale of the Containers as contemplated
in Section 2, Buyer,




               (a)      delivered to Seller on January 5, 2006, a non-refundable sum of $10,000 (the
“Deposit”); and




               (b)      shall, at the Closing, deliver to Seller by wire transfer of immediately available funds
the sum of $1,030,579 (together with the Deposit, the “Purchase Price”).




          3.02      Purchase Price Adjustment. If the number of Containers sold by Seller to Buyer
is less than the number of Containers listed on Exhibit A hereto, then and in such event
Seller (or, if Seller is no longer in existence, CCC) shall refund the amount of any overpayment of
the Purchase Price to Buyer within five (5) business days after CCC or CCL becomes aware of the
shortfall. Upon the return of any overpayment as called for herein, Seller or CCC, as the case may
be, shall be entitled to all casualty payments and sale proceeds attributable to any casualty loss
or sale of a Container reported as part of a shortfall hereunder.




          3.03      Allocation of Revenues.




               (a)      The parties acknowledge that all Net Revenues accrued for all periods prior to the
Effective Date shall be for the account of and belong to Seller and that all Net Revenues accrued
for all periods commencing on and after the Effective Date shall be for the account of and belong
to Buyer.




2









 








               (b)     Except as otherwise provided in this Section 3.03, (i) if Seller shall at any time receive
any distribution, payment or other amount in respect of a Container acquired by Buyer which has
become, or which may become, due and payable with respect to any period of time commencing on or
after the Effective Date, or which may arise from any act, event or circumstance which occurred
after that date, then Seller agrees to hold such amount in trust for the benefit of the Buyer and
promptly to deliver said amount to Buyer at Closing, if received for periods after the Effective
Date and on or before the Closing, or promptly after receipt if received by Seller for periods
prior to the Effective Date after the Closing; and (ii) if Buyer shall receive any distribution,
payment or other amount which was due and payable with respect to any period of time prior to the
Effective Date, then Buyer agrees to hold such amount in trust for the benefit of Seller and
promptly to deliver said amount to Seller. If CCL determines in its final reconciliation for
periods ended on or prior to December 31, 2005, that Seller has received pursuant to the Prior
Management Agreements an excess distribution or otherwise owes CCL any amount for such periods (any
such excess or debt being referred to as a “Deficiency”), and CCL asserts against or
attempts to collect from Buyer any such Deficiency, through offset or otherwise, then Seller or if,
at such time, Seller has dissolved or liquidated, CCC shall, upon demand by Buyer, pay such
Deficiency to CCL or reimburse Buyer if and to the extent such Deficiency is paid by or assessed
against Buyer.




     4.      Closing. The Closing shall take place at the offices of Greene Radovsky Maloney &
Share LLP, Four Embarcadero Center, Suite 4000, San Francisco, California, on January 19, 2006, or
at such other dates, times and places as Seller and Buyer shall mutually agree. Immediately upon
the Closing, Seller shall be deemed to have delivered the Containers to Buyer and Buyer shall be
deemed to have accepted the Containers from Seller without any further action on the part of Buyer
or Seller.



     5.      Representations and Warranties of Seller. Each of CCC and Seller represents and
warrants to each of Buyer, Access Shipping and Access Shipping II as follows:



          5.01      Existence, Power and Authority. Seller is a limited partnership, duly organized
and validly existing under the laws of California, and has all requisite partnership authority to
enter into this Agreement, the Bill of Sale, and to consummate the transactions contemplated hereby
and thereby; and CCC is a corporation validly existing and in good standing under the laws of
California, and, as its general partner, has the full authority to bind Seller to this Agreement by
execution hereof on its behalf.




          5.02      Authorization. The execution and delivery of this Agreement and the Bill of Sale
by Seller, and the performance by Seller hereunder and thereunder, have been duly authorized by all
requisite partnership or corporate action and proceedings of Seller and CCC, and in accordance with
applicable provisions of their organizational documents or applicable law. This Agreement has been
duly executed and delivered by Seller, and this Agreement is, and the Bill of Sale when executed
and delivered will be, the legal, valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws from time to time in effect which affect
creditors’ rights generally.




3









 








          5.03      No Conflict. Neither the execution and delivery of this Agreement and the Bill
of Sale by Seller, nor the performance by it hereunder or thereunder, will (i) violate, conflict
with or constitute a default under any provision of its limited partnership agreement or other
applicable charter documents, (ii) conflict with or result in a breach of any indenture or other
agreement to which Seller is a party or by which it or its properties are bound, (iii) violate any
judgment, order, injunction, decree or award of any court, administrative agency or governmental
body against, or binding upon, it or its properties, or (iv) constitute a violation by Seller of
any law or regulation applicable to it or its properties, except in any case where such violation
would not have a material adverse affect on the financial condition of Seller or its ability to
perform its obligations under this Agreement.




          5.04      Consents. The execution, delivery and performance by Seller of, and the
consummation of the transactions contemplated by this Agreement and the Bill of Sale do not require
(i) any approval or notice to or consent of any person, or any holder of any indebtedness or
obligation of any of Seller or any other party to any agreement binding on the Seller, or (ii) any
notice to or filing or recording with, or any consent or approval of, any governmental body.




          5.05      Legal Proceedings. There are no actions, suits or proceedings pending, or to the
knowledge of Seller or CCC, threatened, against Seller or the Containers before any court,
arbitrator, administrative or governmental body that, if adversely determined, would hinder or
prevent Seller’s ability to carry out the transactions contemplated by this Agreement or the Bill
of Sale or affect the right, title or interest of Seller in the Containers, and, to their
knowledge, there is no basis for any such suits or proceedings.




          5.06      Prior Management Agreements. Effective as of the Closing Date, there shall be no
Prior Management Agreements and no other agreements, letters, certificates or other documents of
any kind, relating to the Containers which will be binding on Buyer or which will create a lien,
charge, security interest or other encumbrance in or on the Containers or any part thereof after
the Closing. To Seller’s knowledge, there are no set-offs, defenses or counterclaims available
against amounts owed to Seller in respect of the operation of the Containers prior to the Effective
Date. No prepayment of rent or prepayment of casualty value under the Prior Management Agreements
has been made by CCL or any other party for any period subsequent to the Effective Date.




          5.07      Title. Seller is the lawful and rightful sole owner of the Containers and has
good right and title to sell the same to Buyer. Seller holds, and on the Closing Date will hold,
title to its Containers free and clear of all liens, charges, security interests, or other
encumbrances other than the use and possessory interests of CCL and lessees in the ordinary course
of business. Seller has not previously assigned any rights, title or interests of Seller in the
Containers to be conveyed to Buyer pursuant hereto.




          5.08      Compliance with Laws and Regulations. The sale of the Containers by Seller will
not violate any provision of any applicable laws, orders or regulations.




          5.09      Revenue Distributions. Seller shall be entitled to all Net Revenues earned (on
an accrual basis) as called for under the Prior Management Agreements for all periods prior to the
Effective Date. Seller has not directly or indirectly received any prepayment or

4









 








distribution of Net Revenues or other distributions (including casualty payments) for any
period on or after the Effective Date. As of the Effective Date, Seller has paid or satisfied all
prior operating deficit balances relating to periods of allocated expenses in excess of allocated
revenues, and there are no accrued deficits which could be offset against Net Revenues allocable to
Buyer hereunder.




          5.10      Remarketing Arrangements; Bargain-Purchase Options. The Containers are not
subject to any remarketing, residual sharing or similar agreement which would be binding upon or
enforceable against Buyer or, following the sale of such Containers to Buyer hereunder, against the
Containers or against the proceeds of any sale, leasing or other disposition of the Containers. No
lessee of the Containers has an option to purchase the Containers.




          5.11      Notices. Seller will immediately provide to Buyer any notice received from CCL,
including without limitation notice that any of the Containers has sustained an event of loss, and
any notice received from CCL or any other party delivered under any Prior Management Agreement.




     6.      Representations and Warranties of Buyer. Each of Access Shipping, Access Shipping
II and Buyer represents and warrants to each of Seller and CCC, as of the date hereof, as follows:



          6.01      Corporate Existence, Power and Authority. Buyer is a limited partnership duly
formed and validly existing under the laws of Connecticut, and has the power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby and thereby; and each of
Access Shipping and Access Shipping II is a corporation duly organized and validly existing under
the laws of California, and, as general partner of Buyer, has the full authority to bind Buyer to
this Agreement by the execution hereof on its behalf.




          6.02      Authorization. The execution and delivery by Buyer of this Agreement, and the
performance by Buyer hereunder and thereunder, have been duly authorized by all requisite company
action and proceedings of Access Shipping, Access Shipping II and Buyer. This Agreement has been
duly executed and delivered by Buyer, and this Agreement is the legal, valid and binding obligation
of Buyer, enforceable against Buyer in accordance with its respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to
time in effect which affect creditors’ rights generally. Buyer has, and as of the Closing Date
shall have, the requisite financial ability or third party financing commitment to enable it to pay
the Purchase Price hereunder.




          6.03      No Conflict. Neither the execution and delivery of this Agreement by Buyer, nor
the performance by Buyer hereunder, will (i) violate, conflict with or constitute a default under
any provision of Buyer’s certificate of limited partnership or limited partnership agreement, (ii)
conflict with or result in a breach of any indenture or other material agreement to which Buyer is
a party or by which Buyer or its properties are bound, (iii) violate any judgment, order,
injunction, decree or award of any court, administrative agency or governmental body against, or
binding upon, Buyer or its properties, or (iv) constitute a violation by Buyer of any law or
regulation applicable to Buyer or its properties.




5









 








          6.04      Consents. The execution, delivery and performance by Buyer of this Agreement do
not require (i) the approval or consent of or notice to any person, or any holder of any
indebtedness or obligation of Buyer or any other party to any agreement binding on the Buyer, or
(ii) any notice to or filing or recording with, or any consent or approval of, any governmental
body.




          6.05      Legal Proceedings. There are no actions, suits or proceedings pending, or to the
knowledge of Access Shipping, Access Shipping II or Buyer, threatened, against Buyer that, if
adversely determined, would materially hinder or prevent Buyer’s ability to carry out the
transactions contemplated by this Agreement, and, to their knowledge, there is no basis for any
such suits or proceedings.




          6.06      Compliance with Laws and Regulations. The purchase of the Containers by Buyer
will not violate any applicable laws, orders or regulations.




     7.      Covenants.



          7.01      Closing. Each of the parties shall use all reasonable efforts to fulfill or
obtain the fulfillment of conditions set forth herein as they relate to such party on or prior to
the Closing.




          7.02      Sales Tax. The parties acknowledge that the Containers are being transferred by
Seller to Buyer with the intention that they be concurrently or subsequently leased by Buyer to CCC
for sublease to third party container lessees under CCL’s management supervision and not used by
Buyer. Accordingly, it is the expectation of the parties that the transfer contemplated by this
Agreement shall be exempt from state and local sales, use, transfer or similar taxes. If, however,
any such sales, use, transfer or similar tax is imposed by any state or local authority on the
transfer of the Containers as contemplated herein, other than taxes based on income of Seller,
Buyer shall bear and be responsible for the payment of the amount of such tax; provided, that any
related interest and penalties payable with respect thereto shall be paid by Seller or by CCC if
Seller has been dissolved and liquidated. Upon receipt of notice of any such tax or imposition,
the party receiving the notice shall promptly provide a copy to all other parties. Any party may,
at its own cost and expense, commence and participate in a contest of the validity, applicability
or amount of any such tax or other imposition.




     8.      Conditions Precedent to the Obligation of Buyer to Close. The obligation of Buyer
to purchase the Containers pursuant to this Agreement is subject to the fulfillment on or prior to
the Closing of the following conditions, any one or more of which may be waived by it; provided,
however, that, to the extent that a condition waived would constitute a breach of a provision of
this Agreement, the waiver of such condition shall, in addition, constitute a waiver of the breach
of such provision:



          8.01      Representations, Warranties and Covenants. The representations and warranties of
each of CCC and Seller contained in this Agreement shall be true in all material respects on and as
of the Closing with the same force and effect as though made on and as of such Closing. Each of
CCC and Seller shall have performed and complied with all covenants and agreements required by this
Agreement and the Prior Management Agreements to be

6









 








performed or complied with by it on or prior to the Closing. At the Closing, CCC and Seller
shall deliver to Buyer a certificate, dated the Closing Date and signed by an officer of CCC, on
behalf of Seller, to the foregoing effect.




          8.02      No Change in Applicable Law. No change shall have occurred after the date of
execution and delivery of this Agreement in applicable law or regulations or interpretations
thereof by appropriate regulatory authorities which, in the opinion of Buyer or its counsel, would
make it illegal for Buyer to perform fully its obligations hereunder.




          8.03      Delivery of Documents. The following documents shall have been delivered to
Buyer:




               (a)      a Bill of Sale for the Containers being sold by Seller on the Closing Date (in the form of
Exhibit B attached hereto), executed by such Seller;




               (b)      (i) an Equipment Lease Agreement with Buyer executed by CCC, and (ii) an Agency and
Guaranty Agreement executed by and among Buyer, CCC and CCL, both in form acceptable to Buyer
governing the utilization of the Containers after the Closing Date, confirming the termination of
all Prior Management Agreements, and guaranteeing CCC’s performance of the Equipment Lease
Agreement;




               (c)      documents evidencing the release of any liens, encumbrances and security interests in the
Containers, in form and substance satisfactory to Buyer; and




               (d)      all other agreements, instruments, certificates and other documents reasonably requested
by Buyer prior to the Closing Date to effect the transactions contemplated by this Agreement.




          8.04      Consents. Any required consent or approval of CCL and any other third person to
the sale and transfer of the Containers to Buyer shall have been obtained, and Buyer shall have
received evidence satisfactory to it of the same, including the written consent of CCC to any
collateral assignment by Buyer of its rights under the Equipment Lease Agreement in substantially
the form of consent attached thereto.




          8.05      Satisfaction of Statutory and Regulatory Requirements. All statutory and other
legal requirements for the valid consummation of the transactions contemplated by this Agreement
shall have been fulfilled.




          8.06      No Litigation. No action or proceedings shall have been instituted nor shall any
action be threatened before any court or governmental agency, nor shall any order, judgment or
decree have been issued or proposed to be issued by any court or governmental agency, at the time
of the Closing questioning the validity or legality of this Agreement or the transactions
contemplated hereby or the ability of the parties hereto to consummate the transactions
contemplated hereby.




     9.      Conditions Precedent to the Obligation of Seller to Close. The obligation of
Seller to sell its Containers pursuant to this Agreement is subject to the fulfillment on or prior
to the Closing of the following conditions, any one or more of which may be waived by it;



7









 




provided, however, that, to the extent that a condition waived would constitute a breach of a
provision of this Agreement, the waiver of such condition shall, in addition, constitute a waiver
of the breach of such provision:




          9.01      Representations, Warranties and Covenants. The representations and warranties of
each of Access Shipping, Access Shipping II and Buyer contained in the Agreement shall be true in
all material respects on and as of the Closing with the same force and effect as though made on and
as of such Closing. Each of Access Shipping, Access Shipping II and Buyer shall have performed and
complied with all covenants and agreements required by this Agreement to be performed or complied
with by it on or prior to the Closing. At the Closing, Access Shipping and Access Shipping II, on
behalf of Buyer, shall deliver to CCC, on behalf of Seller, a certificate, dated the Closing Date
and signed by an officer of each of Access Shipping and Access Shipping II, to the foregoing
effect.




          9.02      Delivery of Funds and Documents. The Purchase Price required by Section 3.01
shall have been duly delivered to CCC for the account of Seller; and Buyer shall have duly executed
and delivered to CCC all other agreements, instruments, certificates and other documents reasonably
requested by Seller prior to the Closing Date to effect the transactions contemplated by this
Agreement.




          9.03      Satisfaction of Statutory and Regulatory Requirements. All statutory and other
legal requirements for the valid consummation of the transactions contemplated by the Agreement
shall have been fulfilled.




          9.04      No Litigation. No action or proceeding shall have been instituted nor shall any
governmental action be threatened before any court or governmental agency, nor shall any order,
judgment or decree have been issued or proposed to be issued by any court or governmental agency,
at the time of the Closing questioning the validity or legality of this Agreement or the
transactions contemplated hereby or the ability of the parties hereto to consummate the
transactions contemplated hereby.




     10.      Disclaimer of Warranties by Seller. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER
CCC NOR SELLER SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, NOW
OR HEREAFTER, AS TO THE CONDITION, DESIGN, OPERATION, MAINTENANCE, VALUE, MARKETABILITY,
MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OF ANY OF THE CONTAINERS OR AS TO
THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY OF THE CONTAINERS AND ANY IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OF THE TRADE. Except as expressly set forth
herein, each of Seller and CCC disclaims any liability to Buyer with respect to the Containers’
condition, including, without limitation, any liability in tort or arising from negligence, strict
liability or for loss or interruption of use, profit or business or other consequential injury, and
Buyer waives, releases, renounces and disclaims expectation of or reliance upon any such warranty
or warranties.



     11.      Survival of Representations and Warranties. All representations and warranties
made herein, and the agreements set forth herein, shall survive the Closing.



8









 





     12.      Further Assurances. Each of CCC, Seller, Access Shipping, Access Shipping II and
Buyer agrees to execute, acknowledge, deliver, file and record, or cause to be executed,
acknowledged, delivered, filed and recorded, such further documents or other papers, and to do all
such things and acts, as the other parties may reasonably request in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated hereby. Seller shall
send Buyer, upon its receipt thereof, all payments, notices, communications and any other documents
with respect to the Containers which any of them receives subsequent to the Closing Date.



     13.      Expenses. Each party shall bear its expenses incurred in connection with the
preparation, execution and performance of this Agreement and the transactions contemplated hereby,
including, without limitation, all fees and expenses of its agents, representatives, counsel and
accountants. Buyer shall bear all costs associated with its own inspection and appraisal of the
Containers prior to the Closing. Seller shall bear all costs associated with filing and recording
the termination statements, assignments, releases and terminations described in Section 8.03(c) of
this Agreement.



     14.      Brokers’ Fees. Except as disclosed by a party in writing to the other parties
prior to the Closing, each of CCC and Seller (jointly and severally), on the one hand, and each of
Access Shipping, Access Shipping II and Buyer, on the other, represents and warrants to the other
that neither it nor any of its affiliates have incurred any obligation or liability, directly or
indirectly, for brokerage or finders’ fees or agents’ commissions or like payment in connection
with this Agreement or the transactions contemplated hereby, and hereby indemnifies and each holds
the other harmless therefor.



     15.      Notices. Any notice, demand, or communication required or permitted to be given
by any provision of this Agreement shall be in writing or transmitted electronically and shall be
deemed to have been duly given when received, if personally delivered; upon confirmation of receipt
(by use of “confirmation to sender” or other means), if transmitted by telecopy or by electronic or
digital transmission method; or on the next business day after it is sent, if sent for overnight
delivery by a recognized overnight delivery service, charges prepaid, addressed as follows:



	 	 	 
	If to Access Shipping,

Access Shipping II, or

Buyer, to:


	 	Access Shipping Limited Partnership

c/o Access Shipping Corporation

220 Juana Avenue

San Leandro, California 94577

Attention: Charles R.F. Kremer


	 
	 	 
	If to CCC or Seller, to:

	 	Cronos Capital Corp.

One Front Street, Suite 925

San Francisco, California 94111

Attention: John Kallas, Chief Financial Officer







9









 





Any party by notice given in accordance with this Section to the other parties may designate
another address or person for receipt of notices hereunder.




     16.      Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies. This
Agreement may be amended, superseded, modified, supplemented or terminated, and the terms hereof
may be waived, only by written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. No waiver on the part of any party of any
such right, power or privilege, nor any single or partial exercise of any such right, power or
privilege, shall preclude any further exercise thereof or the exercise of any other such right,
power or privilege. The rights and remedies herein provided are cumulative and are not exclusive
of any rights or remedies that any party may otherwise have at law or in equity.



     17.      Governing Law; Dispute Resolution. This Agreement will be governed by and
construed under the laws of the State of California. Should any dispute or controversy arising
from or relating to this Agreement arise between the parties that the parties are incapable of
resolving themselves through good faith negotiation, then such dispute or controversy shall be
submitted for resolution by JAMS in San Francisco, California, or at such other location as is
agreed upon by the parties. Any dispute shall first be submitted to JAMS for mediation pursuant to
the mediation services provided by JAMS. Should the dispute between the parties not be
successfully mediated by JAMS within sixty (60) days of its submission (subject to any extension
agreed to by the parties) then and in such event the dispute shall be submitted for binding
arbitration by JAMS pursuant to the rules and practices of JAMS. Unless agreed to by the parties,
the representative of JAMS who attempts to mediate any dispute between the parties shall not be the
representative of JAMS who arbitrates the dispute. Judgment upon any award by the arbitrator(s)
may be entered in the superior court in and for the County of San Francisco or the federal district
for the Northern District of California. It is agreed that the prevailing party in any such
arbitration or other action arising from or relating to this Agreement shall be entitled to
reimbursement of its reasonable costs and expenses, including its attorneys’ fees. Each party
consents to the exercise over it or personal jurisdiction by the arbitrator(s) selected by JAMS to
resolve any dispute hereunder, and by the superior court in and for the County of San Francisco and
the federal district court for the Northern District of California.



     18.      Binding Effect; Assignment. No party shall assign this Agreement to any other
person without the prior written consent of all other parties. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and permitted assigns.
No assignment of this Agreement or of any rights hereunder shall relieve the assigning party of
any of its obligations or liabilities hereunder. This Agreement, the Bill of Sale, and the
certificates, schedules, annexes and other documents executed and delivered at or before the
Closing in connection herewith are the complete agreement of the parties regarding the subject
matter hereof and thereof and supersede all prior understandings (written or oral), communications
and agreements.



10









 





     19.      Counterparts. This Agreement may be executed by the parties in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.



     20.      Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision will
be effective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement, and the remainder of
such provision and the remaining provisions of this Agreement shall be interpreted, to the maximum
extent possible, so as to conform to the original intent of this Agreement.



     21.      Indemnities.



               (a)      Access Shipping, Access Shipping II and Buyer jointly and severally will indemnify and
hold Seller and CCC harmless from any liability, loss, cost or expense (“Claim”), including
reasonable attorneys’ fees, which shall result from (i) the incorrectness of any representation or
breach of any warranty of Access Shipping, Access Shipping II or Buyer contained in this Agreement
or in any other agreement, instrument, certificate or other document delivered by Access Shipping,
Access Shipping II or Buyer pursuant hereto; or (ii) a breach by Access Shipping, Access Shipping
II or Buyer of any of its covenants or agreements contained in this Agreement, any other agreement,
instrument, certificate or other document delivered by Access Shipping, Access Shipping II or Buyer
in connection with the transactions contemplated by this Agreement. Upon payment of such
indemnity, Access Shipping, Access Shipping II or Buyer, as the case may be, shall be subrogated to
the indemnitee’s rights against any third parties respecting the Claims. Anything contained in
this Agreement to the contrary notwithstanding, neither Access Shipping, Access Shipping II or
Buyer shall be required to indemnify Seller if and to the extent Seller is indemnified and fully
compensated for its Claim by a third party.




               (b)      CCC and Seller jointly and severally will indemnify and hold Buyer, Access Shipping and
Access Shipping II harmless from any Claim, including reasonable attorneys’ fees, which shall
result from (i) the incorrectness of any representation or breach of any warranty of CCC or Seller
contained in this Agreement or in any certificate or other document delivered by CCC or Seller
pursuant hereto; (ii) a breach by CCC or Seller of any of its covenants or agreements contained in
this Agreement, any other agreement, instrument, certificate or other document delivered by CCC or
Seller in connection with the transactions contemplated by this Agreement; or (iii) any Claim or
legal proceedings with respect to any Containers (or any part thereof) arising or relating to any
period prior to and including the Closing Date, including Claims of limited partners in Seller or
other third parties based upon or arising out of Seller’s ownership, management, disposition or
sale of the Containers. Upon payment of such indemnity, CCC or Seller, as the case may be, shall
be subrogated to Buyer’s rights against any third parties respecting the Claims.




               (c)      A party seeking indemnification pursuant to Sections 21(a) or (b) above (an
“Indemnified Party”) shall give prompt notice to the party from whom such indemnification
is sought (the “Indemnifying Party”) of the assertion of any Claim, or the commencement of
any action, suit or proceeding, in respect of which indemnification may be

11









 








sought hereunder and will give the Indemnifying Party such information with respect thereto as
the Indemnifying Party may reasonably request; but no failure to give such notice shall relieve the
Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has
suffered actual prejudice thereby). The Indemnifying Party may, at its expense, participate in or
assume the defense of any such action, suit or proceeding involving a third party; provided,
however, that such defense is conducted with counsel mutually satisfactory to the Indemnified Party
and the Indemnifying Party. The Indemnified Party and the Indemnifying Party shall consult with
each other regarding the conduct of such defense. The Indemnified Party shall have the right (but
not the duty) to participate in the defense thereof, and to employ counsel, at its own expense
(except that the Indemnifying Party shall pay the fees and expenses of such counsel to the extent
the Indemnified Party reasonably concludes that there is a conflict of interest between the
Indemnified Party and the Indemnifying Party), separate from counsel employed by the Indemnifying
Party in any such action. The Indemnifying Party shall be liable for the fees and expenses of
counsel employed by the Indemnified Party if the Indemnifying Party has not assumed the defense
thereof. Whether or not the Indemnifying Party chooses to defend or prosecute any Claim involving
a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and
shall furnish such records, information and testimony, and attend at such conferences, discovery
proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.
The Indemnifying Party shall not be liable under Sections 21(a) or 21(b) for any settlement
effected without its written consent (as contemplated above) for any Claim, litigation or
proceeding in respect of which indemnity may be sought hereunder. No Claim for indemnification,
except Claims based on (i) a breach of the representations contained in Section 5.07 hereof or (ii)
the assessment of taxes, interests or penalties contemplated in Section 7.02 hereof, may be first
initiated or asserted by any Indemnified Party against any Indemnifying Party (including CCC) after
the second anniversary of the Closing Date; notwithstanding the foregoing, no Claim for
indemnification may be initiated or asserted against Seller after the Closing Date.




               (d)      Each of the parties (i) acknowledges that under the Prior Management Agreements the owner
of the Containers may be indemnified and insured for various liabilities, casualties and losses,
and (ii) agrees that (as between Seller and Buyer) each party hereto shall be entitled to enforce
and collect such indemnities and insurance directly from the indemnitor or insurer to the extent
arising from a loss suffered by such party because of its interest, or prior interest, as owner of
the Containers.




     22.      Headings; Table of Contents. The headings and the Table of Contents contained in
this Agreement are for convenience of reference only, and shall not effect in any way the meaning
or interpretation of this Agreement.



12









 





     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
first above written.



	 	 	 
	Buyer:	 	Access Shipping II:
	 
	 	 
	ACCESS SHIPPING LIMITED PARTNERSHIP, a

Connecticut limited partnership

	 	ACCESS SHIPPING II CORPORATION, a

California corporation
	 
	 	 
	By: ACCESS SHIPPING CORPORATION,

its general partner
	 	 
	 
	 	 
	  By: /s/ Charles R. F. Kremer

	 	By: /s/ Charles R. F. Kremer
	 

	 	 
	Charles R. F. Kremer, President

	 	Charles R. F. Kremer, President
	 
	 	 
	 

	 	By: /s/ Andrew Loft
	 

	 	 
	 

	 	Andrew Loft, Secretary
	 
	 	 
	  By: /s/ Andrew Loft
	 	 
	 
	 	 
	Andrew Loft, Secretary

	 	Seller:
	 

	 	IEA INCOME FUND XI, L.P.
	 
	 	 
	By: ACCESS SHIPPING II CORPORATION,

its general partner

	 	By: CRONOS CAPITAL CORP., its
general partner
	 
	 	 
	  By: /s/ Charles R. F. Kremer

	 	  By: /s/ Dennis J. Tietz
	 

	 	 
	Charles R. F. Kremer, President

	 	Dennis J. Tietz, President
	 
	 	 
	  By: /s/ Andrew Loft

	 	  By: /s/ John Kallas
	 

	 	 
	Andrew Loft, Secretary

	 	John Kallas, Chief Financial Officer
	 
	 	 
	Access Shipping:
	 	 
	 
	 	 
	ACCESS SHIPPING CORPORATION, a California

	 	CCC:
	corporation
	 	 
	 
	 	 
	 

	 	CRONOS CAPITAL CORP.
	By: /s/ Charles R. F. Kremer

	 	By: /s/ Dennis J. Tietz
	 

	 	 
	Charles R. F. Kremer, President

	 	Dennis J. Tietz, President
	 
	 	 
	By: /s/ Andrew Loft

	 	By: /s/ John Kallas
	 

	 	 
	Andrew Loft, Secretary

	 	John Kallas, Chief Financial Officer






13









 






Exhibit A




List of Containers




[omitted pursuant to Item 601(b)(2) of Regulation S-K]




 









 








Exhibit B




Bill of Sale




 









 








Exhibit B




Form of Bill of Sale




     For valuable consideration, the receipt and sufficiency of which is hereby acknowledged, IEA
INCOME FUND XI, L.P., a California limited partnership (“Seller”) does hereby sell, assign
and transfer unto ACCESS SHIPPING LIMITED PARTNERSHIP, a Connecticut limited partnership
(“Buyer”), and its successors and assigns, all right, title and interest of Seller in and
to the marine cargo containers and related equipment listed on Schedule 1 attached hereto
(the “Equipment”) to have and to hold the same unto Buyer, its successors and assigns,
forever.



     Seller hereby warrants that it has good and marketable title to the Equipment, and that
Seller’s title thereto is free and clear of all liens, charges, security interests, or other
encumbrances other than the use and possessory rights of third party lessees as contemplated under
Seller’s lease or management agreements with Cronos Containers Limited, an English company.



     This Bill of Sale is being delivered in connection with the Container Purchase Agreement
between Seller, Cronos Capital Corp., a California corporation, Access Shipping Corporation, a
California corporation, Access Shipping II Corporation, a California corporation and Buyer dated as
of January 19, 2006 (the “Purchase Agreement”). EXCEPT FOR THE WARRANTY OF TITLE SET FORTH
IN THIS BILL OF SALE AND THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN THE PURCHASE
AGREEMENT, THE EQUIPMENT IS BEING SOLD TO BUYER BY SELLER “AS-IS” “WHERE-IS”, WITHOUT ANY OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, AND SELLER SHALL NOT, BY VIRTUE
OF HAVING SOLD THE EQUIPMENT HEREWITH, BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTY,
EXPRESS OR IMPLIED, NOW OR HEREAFTER, AS TO THE CONDITION, DESIGN, OPERATION, MAINTENANCE, VALUE,
MARKETABILITY, MERCHANTABILITY, OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OF ANY OF THE
CONTAINERS OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY OF THE CONTAINERS AND ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OR THE TRADE.



[Signature page follows.]




1









 








     IN WITNESS WHEREOF, the undersigned has executed this Bill of Sale as of the ___ day of
January, 2006.



	 	 	 	 	 
	 	Seller:

IEA INCOME FUND XI, L.P.,



By: CRONOS CAPITAL CORP., its

      general partner

 	 
	 	By:  	 	 
	 	 	Dennis J. Tietz, President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 	And:  	
 	 
	 	 	John Kallas, Chief Financial Officer 	 
	 	 	 	 



2









 






	 	 	 	 	 



Schedule 1

to

Bill of Sale

List of Equipment