EXHIBIT 10.7
AMENDMENT NUMBER 4
TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NUMBER 4, dated as of March 5, 2003 (this
"Amendment") to the Amended and Restated Loan Agreement, dated as of July 19,
2001 (as previously amended or supplemented from time to time as permitted
thereby, the "Loan Agreement"), each among CRONOS FINANCE (BERMUDA) LIMITED, a
company organized and existing under the laws of the Islands of Bermuda (the
"Issuer"), FORTIS BANK (NEDERLAND) N.V. (f/k/a MeesPierson N.V.) ("Fortis"), a
Naamloze Vennootschap, as agent on behalf of the Noteholders (in such capacity,
the "Agent"), and Fortis, as the Noteholder (the "Initial Noteholder").
W I T N E S S E T H:
WHEREAS, the Issuer, the Agent and the Initial Noteholder have
previously entered into (i) the Loan Agreement, (ii) Amendment Number 1 thereto,
dated as of ▇▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇▇) Amendment Number 2 thereto, dated as of
November 20, 2001, and (iv) Amendment Number 3 thereto, dated as of September
18, 2002;
WHEREAS, in connection with the sale of the Notes on the date
hereof, the parties desire to further 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:
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EXHIBIT 10.7
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
date hereof, following the execution and delivery hereof,
(a) The definition of "Asset Base" in Section 101 of the
Loan Agreement is hereby amended to read in its
entirety as follows:
" Asset Base: As of any date of determination, an amount equal
to the sum, without duplication:
(1) the product of (x) sixty-seven percent (67%) and (y)
the sum of the Net Book Values (determined as of the
Effective Date or the last day of immediately
preceding Collection Period, as applicable) of all
Eligible Containers that are not subject to a Finance
Lease then owned by the Issuer that were purchased by
the Issuer in the ordinary course of its business at
any time prior to January 1, 2000,
(2) the product of (x) eighty percent (80%) and (y) the
sum of the Net Book Values (determined as of the
Effective Date or the last day of the immediately
preceding Collection Period, as applicable) of all
Eligible Containers that are not subject to a Finance
Lease then owned by the Issuer that were purchased by
the Issuer in the ordinary course of its business at
any time on and after January 1, 2000,
(3) the product of (x) eighty percent (80%) and (y) the
Aggregate Book Value of Net Finance Lease
Receivables,
plus, 100% of the amounts then on deposit in immediately available funds in the
Trust Account, plus, any amount then on deposit in immediately available funds
in the Restricted Cash Account
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EXHIBIT 10.7
in excess of the Restricted Cash Account Requirement (such amounts to be
determined after giving effect to all withdrawals from and deposits to the Trust
Account and the Restricted Cash Account on such date). In determining the amount
set forth in clause (y) of numbered subparagraphs (1) and (2) above, the Net
Book Value of any Container that has been sold by the Issuer or that has
suffered a Casualty Event shall be equal to zero."; and
(b) The Loan Agreement is hereby amended to include
Schedule 2 attached hereto as Schedule 2 to the Loan Agreement.
SECTION 4. Representations, Warranties and Covenants.
(a) The Issuer hereby confirms that each of the
representations, warranties and covenants set forth in Articles V and VI 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.
(b) The Issuer hereby covenants that should this
Amendment cause the unpaid principal balances of all Notes then Outstanding to
exceed the Asset Base, the Issuer shall pay, or cause to be paid, the amount of
such excess and Breakage Costs (if any) to the Holders of the Notes, pro rata
based on the unpaid principal balances of such Notes, as provided in Section
203(d) of the Loan Agreement and Section 5(d) hereof.
SECTION 5. Effectiveness of Amendment; Terms of this
Amendment.
(a) This Amendment shall become effective as of the date
first written above.
(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
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EXHIBIT 10.7
shall mean and be a reference to the Loan Agreement
as amended or modified hereby.
(d) Each of the parties hereto agrees that any payment
required to be made pursuant to Section 203(d) of the
Loan Agreement as a result of this Amendment shall be
paid on March 7, 2003, notwithstanding anything to
the contrary set forth in the Loan Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be
executed by the parties hereto in separate counterparts, 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. 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 original Loan Agreement that was
executed on July 19, 2001, as amended and supplemented to date, or the security
interest in the Collateral created thereby.
[Signature page follows.]
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EXHIBIT 10.7
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment on the date first above written.
CRONOS FINANCE (BERMUDA) LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
FORTIS BANK (NEDERLAND) N.V., as Agent
and Initial Noteholder
By: /s/ P.R.G. ZAMAN
Name: P.R.G. Zaman
Title:__________________________________
By: /s/ M.A.N. VAN LACUM
-------------------------------------
Name: M.A.N. van Lacum
Title:__________________________________
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EXHIBIT 10.7
HOLDER'S CERTIFICATE
By its signature below, the undersigned hereby (i) certifies
that it is the Holder (as defined in the Loan Agreement) of one hundred percent
(100%) of the Notes (as defined in the Loan Agreement) and (ii) consents to the
amendments set forth in this Amendment Number 4.
FORTIS BANK (NEDERLAND) N.V., as
Noteholder
By: /s/ P.R.G. ZAMAN
------------------
Name: P.R.G. Zaman
Title:_______________________________
By: /s/ M.A.N. VAN LACUM
----------------------------------
Name: M.A.N. van Lacum
Title:_______________________________
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EXHIBIT 10.7
SCHEDULE 2
SCHEDULED TARGETED PRINCIPAL BALANCE PERCENTAGE
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EXHIBIT 10.9
AMENDMENT NUMBER 1 TO MANAGEMENT AGREEMENT
THIS AMENDMENT NUMBER 1, dated as of March 7, 2003 (this "Amendment")
to the Management Agreement, dated as of September 18, 2002 (as amended,
modified or otherwise supplemented from time to time in accordance with the
terms thereof, the "Management Agreement"), each by and between CF LEASING LTD.,
a limited liability company organized and existing under the laws of Bermuda
(the "Borrower"), and CRONOS CONTAINERS (CAYMAN) LTD., a corporation organized
and existing under the laws of the Cayman Islands (the "Manager").
W I T N E S S E T H:
WHEREAS, the Borrower and the Manager have previously entered into the
Management Agreement;
WHEREAS, the parties desire to amend the Management Agreement in order
to modify certain provisions of the Management 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 Management
Agreement and if not set forth therein, then in the Loan Agreement.
SECTION 2. Full Force and Effect. Other than as specifically modified
hereby, the Management 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 Management Agreement. Effective on the date
hereof, following the execution and delivery hereof, the Management Agreement is
hereby as follows:
(a) Section 3.1(a)(ix) of the Management Agreement is
hereby amended by inserting the following after the
semicolon (";") at the end thereof:
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EXHIBIT 10.9
"provided, however, that the Manager shall
not materially modify its credit policies with
respect to the leasing of the Managed Containers
without the prior written consent of the Agent and
each Lender;"
(b) Section 6.1 of the Management Agreement is hereby
amended by inserting "and all Sales Proceeds (less
any related Disposition Fees)" immediately after the
phrase "Net Container Revenue Receipts".
(c) Section 6.2 of the Management Agreement is hereby
amended by inserting "and all Sales Proceeds (less
any related Disposition Fees)" immediately after the
phrase "Net Container Revenue Receipts".
(d) Section 7.7 of the Management Agreement is hereby
amended by inserting at the end of such Section the
following: "The Manager shall reimburse the Borrower,
the Agent and each Lender, as the case may be, for
all reasonable out-of-pocket costs and expenses of
such party for any inspections occurring during the
continuance of a Manager Default."
(e) Article 7 of the Management Agreement is hereby
amended by inserting the following Section 7.17 after
Section 7.16:
"7.17 The Manager will comply, in all
material respects, with all acts, rules, regulations,
orders, decrees and directions of any Governmental
Authority applicable to the Collateral or any part
thereof; provided, however, that the Manager may
contest any act, regulation, order, decree or
direction in any reasonable manner which shall not
materially and adversely affect the rights of the
Borrower, the Agent or any Lenders in the Collateral,
provided further that, with respect to any statutes
administered and the regulations promulgated by the
U.S. Treasury Department's Office of Foreign Assets
Control, the Manager shall comply as if Borrower were
subject to the laws of the United States."
(f) Section 9.2 of the Management Agreement is hereby
amended to restate the second sentence of Section 9.2
to read as follows:
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EXHIBIT 10.9
"Such insurance shall cover physical damage
to the Managed Containers while on land, afloat, in
transit or at rest anywhere in the world and
liability for damage to person or property for limits
of at least $2 million per occurrence and $20 million
in aggregate."
(g) Section 10.1(i) of the Management Agreement is hereby
amended to read in its entirety as follows:
"(i) the receipt by the Manager of casualty
loss or insurance proceeds (if any) with respect to
such Managed Container following the destruction or
loss of such Managed Container by its Lessee or other
third party,"
(h) Section 10.2(i) of the Management Agreement is hereby
amended to read in its entirety as follows:
"with the prior written consent of the
Borrower, the Agent and the Majority Lenders, or"
(i) Section 11.1(d) of the Management Agreement is hereby
amended by replacing the reference therein to
"Section 9" with "Section 11" and the reference
therein to "Noteholders" with "any Lender".
(j) Section 11.1(e) of the Management Agreement is hereby
amended by replacing the reference therein to
"Noteholders" with "any Lender".
(k) Section 11.1(o) of the Management Agreement is hereby
amended to read in its entirety as follows:
"(o) The occurrence of an Event of Default
under the Loan Agreement;"
(l) Section 11.1(q) of the Management Agreement is hereby
amended by deleting the word "or" at the end thereof.
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