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Exhibit 10.22
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED
FOR SALE, SOLD OR OTHERWISE TRANSFERRED, UNLESS SO REGISTERED OR THE TRANSACTION
RELATING THERETO SHALL BE EXEMPT WITHIN THE MEANING OF SUCH ACT AND THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION ADOPTED THEREUNDER. IN
ADDITION, SUCH TRANSACTION MUST COMPLY WITH THE PROVISIONS SET FORTH IN SECTION
205 OF THE LOAN AGREEMENT. BECAUSE OF THE PROVISIONS FOR THE PAYMENT OF
PRINCIPAL CONTAINED HEREIN, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANYONE PURCHASING THIS NOTE MAY
ASCERTAIN THE OUTSTANDING PRINCIPAL AMOUNT HEREOF BY INQUIRY OF THE AGENT.
CRONOS FINANCE (BERMUDA) LIMITED
SECURED NOTE
$25,000,000.00 No. 1
KNOW ALL PERSONS BY THESE PRESENTS that CRONOS FINANCE (BERMUDA)
LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (the "Company"), for value received, hereby promises to pay to
MeesPierson N.V., or its registered assigns, at the principal office of the
Agent named below, the principal sum of Twenty- Five Million Dollars
($25,000,000), which sum shall be payable on the dates and in the amounts set
forth herein, in the Loan Agreement, dated as of July 30, 1999 (the "Loan
Agreement"), among the Company, MeesPierson N.A., as agent (the "Agent"), and
MeesPierson N.V. and First Union National Bank (each a "Noteholder" and together
the "Noteholders"). Capitalized terms not otherwise defined herein will have the
meaning set forth in the Loan Agreement as the same may be amended or
supplemented from time to time.
Payment of the principal and interest on this Note shall be made in
lawful money of the United States of America which at the time of payment is
legal tender for payment of public and private debts. Principal and interest are
payable on each Payment Date in immediately available funds to the extent set
forth in the Loan Agreement from funds on deposit in the Trust Account and the
Restricted Cash Account and as further set forth in Articles II and III of the
Loan Agreement.
This Note shall bear interest on the unpaid principal balance hereof at
a rate per annum equal to the Interest Rate for the applicable Interest Period.
Interest payable on this Note shall be calculated as set forth in the Loan
Agreement.
This Note shall be an obligation of the Company, and shall be secured by
the Collateral, all as defined in, and subject to limitations set forth in, the
Loan Agreement, for the equal and ratable benefit of the Holders, from time to
time, of the Notes (the "Noteholders"). Except to the extent set forth in the
Guaranty, dated July 30, 1999 (the "Guaranty") between The Cronos Group
("Guarantor") and Agent, no other Person shall be liable for any obligation of
the Company under the Loan Agreement or this Note or any losses incurred by the
Holder of this Note.
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Except to the extent set forth in the Guaranty, no recourse may be
taken, directly or indirectly, with respect to the obligations of the Company on
this Note or under the Loan Agreement or any certificate, statement or other
writing delivered in connection herewith or therewith, against any incorporator,
subscriber, agent, administrator, shareholder, partner, officer or director, as
such, of the Company or any predecessor, successor, Affiliate or controlling
person of the Company, or against any stockholder of a corporation, partner of a
partnership or beneficiary or equity owner of a trust, succeeding thereto (all
of the foregoing, collectively, the "Exculpated Parties"), it being understood
(and any holder of this Note, by its acceptance thereof, shall be deemed to have
consented and agreed) that recourse shall be solely to the Collateral. The
Company and any director or officer or employee or agent of the Company may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. No suit, claim
or proceeding shall be brought against the Exculpated Parties or any of them for
any obligation under or relating to this Note, the Loan Agreement or any
agreement, instrument, certificate or other document delivered in connection
therewith.
The Agent or Company may require payment by the Noteholder of a sum
sufficient to cover any tax expense or other governmental charge payable in
connection with any transfer or exchange of this Note.
The Company, the Agent and any agent of the Company may treat the person
in whose name this Note is registered as the absolute owner hereof for all
purposes, and neither the Company, the Agent, nor any other such agent shall be
affected by notice to the contrary.
This Note may be prepaid with penalty as set forth in Section 203 of the
Loan Agreement, at the Company's option, upon such notice and in the minimum
amounts set forth in Section 203 of the Loan Agreement.
If an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Loan Agreement.
The Noteholder shall have no right to enforce the provisions of the Loan
Agreement or to institute an action to enforce the covenants, or to take any
action with respect to a default under the Loan Agreement, or to institute,
appear in or defend any suit or other proceedings with respect thereto, except
as provided under certain circumstances described in the Loan Agreement;
provided, however, that nothing contained in the Loan Agreement shall affect or
impair any right of enforcement conferred on the Noteholder to enforce any
payment of the principal of and interest on this Note on or after the due date
thereof; provided further, however, that by acceptance hereof the Noteholder is
deemed to have covenanted and agreed that it will not institute against the
Company any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law, at any time other than at such time as permitted in Section 1211 of
the Loan Agreement.
All terms and provisions of the Loan Agreement are herein incorporated
by reference as if set forth herein in their entirety.
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IT IS HEREBY CERTIFIED, RECITED AND DECLARED, that all acts, conditions
and things required to exist, happen and be performed precedent to the execution
and delivery of the Loan Agreement and the issuance of this Note, do exist, have
happened and have been timely performed in regular form and manner as required
by law.
This Note, and the rights and obligations of the parties hereunder,
shall be governed by, and construed and interpreted with, the laws of the State
of New York, without giving effect to the principles of conflicts of laws.
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IN WITNESS WHEREOF, Cronos Finance (Bermuda) Limited has caused this
Note to be duly executed by its duly authorized representative, on this __ day
of ____________, 1999.
CRONOS FINANCE (BERMUDA) LIMITED
By: /s/ X.X. XXXXXXX
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Its: Attorney-in-Fact
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