Exhibit 10.2
AMENDMENT NUMBER 2
TO AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS AMENDMENT NUMBER 2, dated as of September 23, 2003 (the
"Amendment") to the Amended and Restated Management Agreement, dated as of July
19, 2001 (together with any amendments and supplements, the "Management
Agreement"), between CRONOS FINANCE (BERMUDA) LIMITED, a company organized under
the laws of the Islands of Bermuda (together with its successors and permitted
assigns, the "Owner"), and CRONOS CONTAINERS (CAYMAN) LTD., a company organized
under the laws of the Cayman Islands (together with its successors and permitted
assigns, the "Manager"),
W I T N E S S E T H:
WHEREAS, the Owner 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 101. Defined Terms. Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings assigned in
the Management Agreement, or, if such terms are not defined therein, as defined
in that certain Second Amended and Restated Loan Agreement, dated as of
September 23, 2003 (the "Loan Agreement"), among the Owner, Fortis Bank
(Nederland) N.V., as "Agent" and as "Initial Noteholder," and NIB Capital Bank
N.V. and Hollandsche Bank-Unie N.V., each as a Noteholder.
Section 102. 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 103. Amendment to the Management Agreement. Effective
upon the execution and delivery hereof:
(a) The definition of "Loan Agreement" in Section 1 of
the Management Agreement is hereby amended to read in its entirety as follows:
"Loan Agreement" means the Second Amended
and Restated Loan Agreement, dated as of September 23, 2003,
among the
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Exhibit 10.2
Owner, the Agent and the Noteholders named therein, as such
agreement may be amended, amended and restated, modified or
supplemented from time to time in accordance with its
terms.";
(b) The definition of "Debt Service Coverage" in Section
1 of the Management Agreement is hereby amended to read in its entirety as
follows:
"Debt Service Coverage means the ratio,
measured at the end of each calendar quarter, of (i) the sum
of (a) the consolidated net earnings of the twelve (12)
month period immediately preceding each such quarter end
date and (b) depreciation and amortization for the twelve
(12) month period immediately preceding each such quarter
end date and (c) non-cash charges (including but not limited
to deferred taxes) for the twelve (12) month period
immediately preceding each such quarter end date less (d)
non-cash income for the twelve (12) month period immediately
preceding each such quarter end date, divided by (ii) the
aggregate principal portion of interest bearing consolidated
indebtedness due within the following twelve (12) months, in
each case as determined in accordance with United States
generally accepted accounting principles and as reported on
the most recently available quarterly financial statement of
The Cronos Group.";
(c) Section 8(c)(ii)b of the Management Agreement is
hereby amended to read in its entirety as follows:
"b. the statement of income of the Owner and the
consolidated statement of income of The Cronos Group and its
consolidated subsidiaries for the fiscal quarter and the
statements of income, retained earnings and cash flows of
the Owner and the consolidated statements of income,
retained earnings and cash flows of The Cronos Group and its
consolidated subsidiaries for that portion of the fiscal
year then ended, setting forth in each case in comparative
form the figures for the equivalent timeframe for the
previous year;";
(d) Section 9(a)(x) of the Management Agreement is hereby
amended to read in its entirety as follows:
"(x) a default by The Cronos Group or any subsidiary
of The Cronos Group in the payment of any principal or
interest on any indebtedness for borrowed money which,
individually or in the aggregate, exceed $1,000,000 beyond
the period of grace, if any, specified therefor in the
applicable instrument evidencing such indebtedness;";
(e) Section 9(a)(xi) of the Management Agreement is
hereby amended to read in its entirety as follows:
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Exhibit 10.2
"(xi) The Cronos Group shall not have complied, at
the end of any Management Period, with one or more of the
following financial covenants: (A) a consolidated Tangible
Net Worth of at least an amount equal to the sum of (x)
$45,000,000 plus (y) 50% of all consolidated net income (but
not reduced for net losses) for all periods beginning after
December 31, 2002; (B) an Interest Coverage Ratio of at
least 1.10 to 1; (C) a Debt Service Coverage of at least
1.25 to 1; and (D) a Tangible Net Worth Leverage Ratio of no
greater than 4.5 to 1;";
(f) Section 9(a)(xv) of the Management Agreement is
hereby amended to read in its entirety as follows:
"(xv) Judgments are rendered against The
Cronos Group or the Owner which individually or in the
aggregate exceed the amount of $3,000,000 accrued for
litigation contingencies by The Cronos Group in its annual
report on Form 10-K filed with the Securities and Exchange
Commission for the fiscal year ended December 31, 2002 by
more than $1,000,000, and which judgment(s) remains (i)
unpaid and (ii) are not stayed by notice of filing of an
appeal, the posting of a bond, or by agreement with the
judgment creditor(s), for a period of sixty (60) days after
the entry thereof;"; and
(g) Section 9(a)(xvii) of the Management Agreement is
hereby amended to read in its entirety as follows:
"(xvii) The occurrence of any event or the existence of
any condition, the effect of such event or condition is to
cause or permit holders of debt more than $1,000,000,
individually or in the aggregate, of indebtedness for
borrowed money of The Cronos Group or any subsidiary of The
Cronos Group to become due before its (or their) stated
maturity or before its (or their) regularly scheduled dates
of payments and such event or condition remains unremedied
for more than 60 days;".
Section 104. Representations and Warranties. The Owner and the
Manager each hereby confirms that each of the representations and warranties set
forth in Section 8 of the Management Agreement are true and correct as of
September 23, 2003 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 105. Effectiveness of Amendment.
(a) This Amendment shall become effective as of September
23, 2003.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
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Exhibit 10.2
(c) On and after the execution and delivery hereof, (i)
this Amendment shall be a part of the Management Agreement, and (ii) each
reference in the Management Agreement to "this Agreement" or "hereof",
"hereunder" or words of like import, and each reference in any other document to
the Management Agreement shall mean and be a reference to the Management
Agreement as amended or modified hereby.
Section 106. 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 107. CONSENT TO JURISDICTION. ANY LEGAL SUIT, ACTION
OR PROCEEDING AGAINST THE MANAGER OR THE ISSUER ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE INSTITUTED IN ANY
FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXX XX XXX XXXX AND THE
MANAGER 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 AGREEMENT, MANAGER AND THE ISSUER
EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING. MANAGER AND THE ISSUER HEREBY IRREVOCABLY
APPOINTS AND DESIGNATES CT CORPORATION SYSTEMS, HAVING AN ADDRESS AT 000 XXXXXX
XXXXXX, XXX XXXX, XXX XXXX, 00000, ITS TRUE AND LAWFUL ATTORNEY-IN-FACT AND DULY
AUTHORIZED AGENT FOR THE LIMITED PURPOSE OF ACCEPTING SERVICING OF LEGAL PROCESS
AND EACH SELLER 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, MANAGER AND THE ISSUER SHALL
EACH MAINTAIN THE DESIGNATION AND APPOINTMENT OF SUCH AUTHORIZED AGENT UNTIL ALL
AMOUNTS PAYABLE UNDER THIS AGREEMENT AND THE LOAN AGREEMENT SHALL HAVE BEEN PAID
IN FULL. IF SUCH AGENT SHALL CEASE TO SO ACT, MANAGER 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 108. 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, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
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Exhibit 10.2
[Signature page follows.]
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Exhibit 10.2
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment on the date first above written.
CRONOS CONTAINERS (CAYMAN) LTD.
By: /s/ XXXXXX X XXXXX
------------------------------
Name: Xxxxxx X Xxxxx
Title: Director
CRONOS FINANCE (BERMUDA) LIMITED
By: /s/ XXXXX X XXXXXXX
------------------------------
Name: Xxxxx X Xxxxxxx
Title: Director
Confirmed and Agreed to:
FORTIS BANK (NEDERLAND) N.V., as Agent
By: /s/ MENNO A.N. VAN LACUM
--------------------------
Name: Menno A.N. van Lucum
Title: Account Manager
By: /s/ XXXX X.X. XXXXX
--------------------------
Name: Xxxx X.X. Xxxxx
Title: Deputy Director
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