EXHIBIT 10.4
AMENDMENT NUMBER 1
TO AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NUMBER 1, dated as of August 6, 2001 (the "Amendment")
to the Amended and Restated Loan Agreement, dated as of July 19, 2001 (as
amended or supplemented from time to time as permitted thereby, the "Loan
Agreement"), between 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.), a Naamloze Vennootschap, as agent on
behalf of the Noteholders (in such capacity, the "Agent") and itself, 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 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) Section 1208 of the Loan Agreement is hereby amended to read
in its entirety as follows:
Consent to Jurisdiction. Any legal suit, action or proceeding
against the Issuer arising out of or relating to this Loan Agreement,
or any transaction contemplated hereby, may be instituted in any
federal or state court in The County of New York, State of New York and
the Issuer hereby waives any objection which it may now or hereafter
have to the laying of venue of any such suit, action or proceeding, and
the Issuer hereby irrevocably submits to the jurisdiction of any such
court in any such suit, action or proceeding. The Issuer hereby
irrevocably appoints and designates CT Corporation System, 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 the Issuer agrees
that service of process upon such party shall constitute personal
service of such process on such Person. The Issuer shall maintain the
designation and appointment of such authorized agent until all amounts
payable under this Loan Agreement shall have been paid in full. If such
agent shall cease to so act, each of the Agent and the Owner shall
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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.
(b) Section 1214 of the Loan Agreement is hereby amended to read
in its entirety as follows:
CONSENT TO JURISDICTION. ANY LEGAL SUIT, ACTION OR PROCEEDING
AGAINST THE AGENT 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 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
AGREEMENT, EACH AGENT 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 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 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 THIS 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 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.
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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 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, 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, 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 page follows.]
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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
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Name Xxxxxx X Xxxxx
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Title: Director
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FORTIS BANK (NEDERLAND) N.V., as Agent
and Initial Noteholder
By: /s/ MAARTEN XXXXXXXX
/s/ MERIJN ZONDAG
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Name: Maarten Xxxxxxxx
Xxxxxx Zondag
Title:________________________________
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