EXHIBIT 10.9
(m) Section 11.1(r) of the Management Agreement is hereby
amended by replacing the reference therein to "1.05"
with "1.10" and by replacing the period (".") at the
end thereof with a comma (",").
(n) Section 11.1 of the Management Agreement is hereby
further amended by adding the following paragraph (s)
and (t) immediately after paragraph (r) as follows:
"(s) 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, exceeds Two
Million Dollars ($2,000,000) beyond the period of
grace, if any, specified therefor in the applicable
instrument evidencing such Indebtedness; or the
occurrence of any event or the existence of any
condition, the effect of which is to cause or permit
holders of debt more than Two Million Dollars
($2,000,000), individually or in the aggregate, of
Indebtedness for borrowed money of The Cronos Group
or any Subsidiary thereof to become due before its
(or their) stated maturity date(s) or regularly
scheduled dates of payments and such event or
condition remains unremedied for more than sixty (60)
days; or"
"(t) The Cronos Group shall fail to maintain
either of the following financial covenants as of the
end of any fiscal quater: (i) a minimum Debt Service
Coverage of 1.25 to 1.00 and (ii) a maximum
Consolidated Tangible Net Worth Leverage Ratio of
5.00 to 1.00."
(o) Section 1 of the Management Agreement is hereby
amended by inserting the following definitions of
"CONSOLIDATED TANGIBLE NET WORTH LEVERAGE RATIO" and
"DEBT SERVICE COVERAGE" and:
"'CONSOLIDATED TANGIBLE NET WORTH LEVERAGE
RATIO' for The Cronos Group, means the ratio of (i)
Total Liabilities to (ii) Consolidated Tangible Net
Worth."
"'DEBT SERVICE COVERAGE' means, at the end
of each of the
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EXHIBIT 10.9
four (4) immediately preceding fiscal quarters, the
ratio of (a) the consolidated net earnings for the
three (3) month period immediately preceding each
such quarter and (b) depreciation and amortization
for the three (3) month period immediately preceding
each such quarter and (c) non-cash charges
(including, but not limited to, deferred taxes) for
the three (3) month period immediately preceding each
such quarter less (d) non-cash income for the three
(3) month period immediately preceding each such
quarter, divided by (ii) the aggregate principal
portion of interest bearing consolidated fund
indebtedness of such Person due within the following
twelve (12) months, in each case as determined in
accordance with GAAP and as reported on the most
recently available quarterly financial statements of
The Cronos Group."
(p) Section 11.2(iii) is hereby amended by replacing the
phrase "or any other Person designated by the Agent"
with "or any other Person designated by the Agent
with the written approval of the Majority Lenders".
(q) The first sentence of Section 00.0.xx hereby amended
by replacing the phrase "or any other Person
designated by the Agent" with "or any other Person
designated by the Agent with the written approval of
the Majority Lenders".
(r) Section 11.5 is hereby amended to read in its
entirety as follows:
"11.5 Manager, irrevocably and by way of
security to Borrower for the obligations of Manager
herein, appoints Agent to be its attorney-in-fact in
the event that Manager Default shall have occurred
and be continuing (with full power to appoint
substitutes and to delegate, including power to
authorize the Person so appointed to make further
appointments) on behalf of Manager and in its name or
otherwise to execute any document, with power to date
the same, and to give any notice and to do any act or
thing which Manager is obliged to execute or do,
under this Agreement or otherwise, and which Manager
fails to do after reasonable request therefor by
Borrower or Agent; and any person appointed as the
substitute or delegate of Agent shall, in connection
with the exercise of the said power of attorney, be
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EXHIBIT 10.9
the agent of Manager. Manager hereby ratifies and
confirms and agrees to ratify and confirm whatever
any such attorney shall do or propose to do in the
exercise or purported exercise of all or any of the
powers, authorities and discretion referred to in
this paragraph."
(s) Section 21.6 of the Management Agreement is hereby
amended by replacing the reference to "the Agent" in
the first sentence thereof with "the Agent at the
direction of the Majority Lenders".
4. Representations, Warranties and Covenants. The Manager hereby
confirms that each of the representations, warranties and covenants set forth in
Sections 14 and 20.1, and the Borrower hereby confirms that each of the
representations and warranties set forth in Section 20.2, of the Management
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, warranties and covenants expressly relate to
earlier dates.
SECTION 5. Effectiveness of 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 Management Agreement, and (ii)
each reference in the Management Agreement to "this Agreement" and
"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 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
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EXHIBIT 10.9
REGARD TO CONFLICT OF LAW PRINCIPLES; PROVIDED THAT SECTIONS 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.
[Signature pages follow.]
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EXHIBIT 10.9
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized, all as of the day and year first above written.
CF LEASING LTD.
By: /s/ XXXXX X. XXXXXXX
---------------------
Name: Xxxxx X. Xxxxxxx
----------------
Title: Director
--------
CRONOS CONTAINERS (CAYMAN) LTD., as Manager
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
-------------
Title: Director
----------
The undersigned hereby consents to the
amendment of the Management Agreement:
FORTIS BANK (NEDERLAND) N.V., as Agent
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
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