AMENDMENT NUMBER 1 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.1
AMENDMENT NUMBER 1
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NUMBER 1, dated as of January 17, 2006 (the “Amendment”) to the Third
Amended and Restated Loan Agreement, dated as of August 1, 2005 (as amended, modified, restated or
supplemented from time to time as permitted thereby, the “Loan Agreement”), is among CRONOS
FINANCE (BERMUDA) LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (together with its successors and permitted assigns, the “Issuer”), FORTIS BANK
(NEDERLAND) N.V. (f/k/a MeesPierson N.V.), a Naamloze Vennootschap, as agent on behalf of the
Noteholders (in such capacity, the “Agent”) and itself, as a Noteholder (the “Initial
Noteholder”), and NIBC BANK N.V. (f/k/a NIB CAPITAL BANK N.V.) (“NIB”), a Naamloze
Vennootschap, and HOLLANDSCHE BANK-UNIE N.V. (“HBU”), a Naamloze Vennootschap, each as a
Noteholder (together with the Initial Noteholder, the “Noteholders” and each a
“Noteholder”).
W I T N E S S E T H:
WHEREAS, the Issuer, the Agent and the Noteholders have previously entered into the Loan
Agreement;
WHEREAS, the parties desire to amend the Loan Agreement in order to modify certain provisions
of the Loan Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants herein contained, the
parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings assigned in the Loan Agreement.
SECTION 2. Full Force and Effect. Other than as specifically modified hereby, the Loan
Agreement shall remain in full force and effect in accordance with the terms and provisions thereof
and is hereby ratified and confirmed by the parties hereto.
SECTION 3. Amendment to the Loan Agreement. Effective upon the execution and delivery
hereof,
(a) Exhibit A to the Loan Agreement is hereby amended to read in its entirety as Exhibit A
attached to this Amendment.
SECTION 4. Representations and Warranties. The Issuer hereby confirms that each of the
representations and warranties set forth in Article V of the Loan Agreement are true and correct as
of the date first written above with the same effect as though each had been made as of such date,
except to the extent that any of such representations and warranties expressly relate to earlier
dates.
SECTION 5. Effectiveness of Amendment.
(a) This Amendment shall become effective as of the date first written above.
Exhibit 10.1
(b) This Amendment shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
(c) On and after the execution and delivery hereof, (i) this Amendment shall be a part of the
Loan Agreement, and (ii) each reference in the Loan Agreement to “this Agreement” or “hereof”,
“hereunder” or words of like import, and each reference in any other document to the Loan Agreement
shall mean and be a reference to the Loan Agreement as amended or modified hereby.
SECTION 6. Execution in Counterparts. This Amendment may be executed by the parties
hereto in separate counterparts (including by facsimile), each of which shall be deemed to be an
original and all of which shall constitute together but one and the same agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES; PROVIDED THAT
SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION 8. Consent to Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE
AGENT ARISING OUT OF OR RELATING TO THIS AMENDMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XXX XXXXXX XX XXX XXXX, XXXXX OF NEW YORK AND
THE AGENT AND THE ISSUER EACH HEREBY WAIVE ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OF ENFORCING
THIS AMENDMENT, THE AGENT, EACH LENDER AND THE ISSUER EACH HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING. THE AGENT AND THE ISSUER
HEREBY EACH IRREVOCABLY APPOINTS AND DESIGNATES CT CORPORATION SYSTEM, HAVING AN ADDRESS AT 000
XXXXXX XXXXXX, XXX XXXX, XXX XXXX, 00000, ITS TRUE AND DULY AUTHORIZED AGENT FOR THE LIMITED
PURPOSE OF RECEIVING AND FORWARDING LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE
AGENT AND THE ISSUER EACH AGREE THAT SERVICE OF PROCESS UPON SUCH PARTY SHALL CONSTITUTE PERSONAL
SERVICE OF SUCH PROCESS ON SUCH PERSON. PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION
5-1402, THE AGENT AND THE ISSUER SHALL EACH MAINTAIN THE DESIGNATION AND APPOINTMENT OF SUCH
AUTHORIZED AGENT UNTIL ALL AMOUNTS PAYABLE UNDER THE LOAN AGREEMENT SHALL HAVE BEEN PAID IN FULL.
IF SUCH AGENT SHALL CEASE TO SO ACT, THE AGENT OR THE ISSUER, AS THE CASE MAY BE, SHALL IMMEDIATELY
DESIGNATE AND APPOINT ANOTHER SUCH AGENT SATISFACTORY TO THE AGENT
AND SHALL PROMPTLY DELIVER TO THE AGENT EVIDENCE IN WRITING OF SUCH OTHER AGENT’S ACCEPTANCE OF SUCH APPOINTMENT.
SECTION 9. No Novation. Notwithstanding that the Loan Agreement is hereby amended by
this Amendment as of the date hereof, nothing contained herein shall be deemed to cause a novation
or discharge of any existing indebtedness of the Issuer under the Loan Agreement, or the security
interest in the Collateral created thereby.
[Signature pages follow.]
Exhibit 10.1
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment on the date
first above written.
CRONOS FINANCE (BERMUDA) LIMITED | ||
By: /s/ XXXXXX X. XXXXX | ||
Name: Xxxxxx X. Xxxxx | ||
Title: Director |
Exhibit 10.1
FORTIS BANK (NEDERLAND) N.V., as Agent and Noteholder | ||||
By: | /s/ H.P. DE KOOL | |||
Name: | H.P. de Kool | |||
Title: | Senior Manager | |||
By: | /s/ P. R. G. ZAMAN | |||
Name: | P. R. G. Zaman | |||
Title: | Deputy Director |
Exhibit 10.1
NIBC BANK N.V., as Noteholder | ||||
By: | /s/ XXXXXXX X. WIJMANS | |||
Name: | Xxxxxxx X. Wijmans | |||
Title: | Associate Director | |||
By: | /s/ X.XX. VAN DER MAST | |||
Name: | X.XX. van der Mast | |||
Title: | Managing Director |
Exhibit 10.1
HOLLANDSCHE BANK-UNIE N.V., as Noteholder | ||||
By: | /s/ R.A.C. COENRAADTS | |||
Name: | R.A.C. Coenraadts | |||
Title: | Proxy | |||
By: | /s/ X.X. XXXXXX | |||
Name: | X.X. Xxxxxx | |||
Title: | Proxy |
Exhibit 10.1
EXHIBIT A
DEPRECIATION METHODS BY TYPE OF CONTAINER
1. | Refrigerated Containers |
7.08% (Seven and eight hundredths percent) per annum, over 12 years, to a 15% (Fifteen percent)
residual value.
2. | Tanks, Rolltrailers & Flatracks |
4.5% (Four and a half per cent) per annum, over 20 years, to 10% (Ten percent) residual value.
3. | All Other Container Types |
6% (Six percent) per annum, over 15 years, to a 10% (Ten percent) residual value.