Exhibit 10.3
AMENDMENT NUMBER 1
TO
COLLATERAL AGREEMENT
THIS AMENDMENT NUMBER 1, dated as of September 23, 2003 (the
"Amendment"), to the Collateral Agreement, dated as of November 16, 2001 (the
"Collateral Agreement"), by and among Cronos Equipment (Bermuda) Limited, a
company organized and existing under the laws of the Islands of Bermuda ("CEB"),
Cronos Finance (Bermuda) Limited, a company organized and existing under the
laws of the Islands of Bermuda ("CFL"), and Fortis Bank (Nederland) N.V. (f/k/a
MeesPierson N.V.), a Naamloze Vennootschap ("Secured Party").
W I T N E S S E T H :
WHEREAS, CFL, as Issuer, is a party to that certain Amended
and Restated Loan Agreement, dated as of July 19, 2001 (the "Loan Agreement")
with Secured Party, as the Agent and Initial Noteholder; and
WHEREAS, pursuant to the terms of the Loan Agreement, the
Initial Noteholder agreed to lend CFL up to $60,000,000 (the "Initial Secured
Amount"); and
WHEREAS, CEB, CFL and Secured Party have previously entered
into the Collateral Agreement; and
WHEREAS, the Collateral Agreement dated as of November 16,
2001 was registered as a charge over the assets of CEB, pursuant to section 55
of the Companies Xxx 0000, on November 27, 2001, bearing registration number
13378 (the "Original Charge");
WHEREAS, the amount due or owing on the Original Charge is up
to $60,000,000; and
WHEREAS, CFL, as Issuer, is a party to that certain Second
Amended and Restated Loan Agreement, dated as of September 23, 2003 (the "Second
Amended and Restated Loan Agreement") with Secured Party, as the Agent and
Initial Noteholder and NIB Capital Bank N.V. ("NIB"), a Naamloze Vennootschap,
and Hollandsche Bank-Unie ("HBU"), a Naamloze Vennootschap, each as a Noteholder
(each a "Noteholder"); and
WHEREAS, pursuant to the terms of the Second Amended and
Restated Loan Agreement, the Initial Noteholder has agreed to lend CFL up to
$40,000,000, NIB has agreed to lend CFL up to $25,000,000 and HBU has agreed to
lend CFL up to $5,000,000; and
WHEREAS, CFL's borrowings under the Second Amended and
Restated Loan Agreement are evidenced by Promissory Notes (the "Notes") in the
form of Exhibit C to the Second Amended and Restated Loan Agreement; and
WHEREAS, in order to secure the payment of all amounts due
under the Notes and the performance of CFL's covenants and agreements in the
Second Amended and Restated Loan Agreement in excess of the Initial Secured
Amount (collectively, the "Additional Secured Obligations"), CFL has
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Exhibit 10.3
granted the Noteholders a security interest in and to the "Collateral," as
defined in Section 401 of the Second Amended and Restated Loan Agreement; and
WHEREAS, the parties desire to amend the Collateral Agreement
in order to modify certain provisions thereof;
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties agree as follows:
ARTICLE XIII DEFINED TERMS
Capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings assigned in the Collateral 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 (as the same may be
amended, restated, extended and renewed from time to time, the "Loan
Agreement"), among CFL, Secured Party, as "Agent" and as "Noteholder," and NIB
Capital Bank N.V., a Naamloze Vennootschap, and Hollandsche Bank-Unie N.V., a
Naamloze Vennootschap, each as a "Noteholder."
2. AMENDMENTS TO COLLATERAL AGREEMENT
Effective upon the execution and delivery hereof, (i) each
reference in the Collateral Agreement to the term "Loan Agreement" when used in
the Collateral Agreement shall mean the Loan Agreement as such term is defined
in Section 1 of this Amendment, and (ii) Schedule 1 B to the Collateral
Agreement, the listing of CEB's Patents, is hereby supplemented and amended by
Schedule 1 C attached to this Amendment, to include reference to CEB's right,
title and interest in, to and under the Patents set forth thereon as
intellectual property acquired subsequent to the entering into of the Collateral
Agreement and thereby charged pursuant to the provisions of Section 1 thereof;
provided that such Schedule 1 B to the Collateral Agreement remains in full
force and effect.
3. GRANT OF SECURITY INTEREST
As collateral security for the prompt and complete payment and
performance of the Additional Secured Obligations, and in consideration of the
payment by CFL of the Credit Enhancement Fee (Section 4 hereof), CEB hereby
grants to the Secured Party, for the benefit of the Noteholders under the Second
Amended and Restated Loan Agreement, a security interest in the Intellectual
Property as defined in the Collateral Agreement.
4. CREDIT ENHANCEMENT FEE
In consideration of CEB's ratification and confirmation of the
Collateral Agreement pursuant to Section 7 hereof and the grant of a security
interest in the Intellectual Property pursuant to the provisions of Section 1
thereof, CFL agrees to pay CEB an additional Credit Enhancement Fee of Fourteen
Thousand Five Hundred Fifteen Dollars ($14,515), payable within three (3)
business days of the date of this Amendment, by wire transfer to CEB. CFL agrees
to provide notice of payment of the Credit Enhancement Fee to Secured Party
concurrently with the payment thereof to CEB. If the Credit Enhancement Fee is
not paid as aforesaid, then this Amendment shall become null and void.
5. REPRESENTATIONS AND WARRANTIES
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Exhibit 10.3
CEB hereby confirms that each of the representations and
warranties set forth in Section 2 of the Collateral Agreement is 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.
6. 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.
(c) On and after the execution and delivery hereof, (i)
this Amendment shall be a part of the Collateral Agreement, and (ii) each
reference in the Collateral Agreement to "this Agreement" or "hereof",
"hereunder" or words of like import, and each reference in any other document to
the Collateral Agreement shall mean and be a reference to the Collateral
Agreement as amended or modified hereby.
7. FULL FORCE AND EFFECT
Other than as specifically modified hereby, the Collateral
Agreement shall remain in full force and effect in accordance with the terms and
provisions thereof (including, without limitation, the security interests
granted pursuant thereto to secure the Initial Secured Amount) and is hereby
ratified and confirmed by the parties hereto.
8. EXECUTION IN COUNTERPARTS
This Agreement may be executed by the parties hereto in
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall constitute one and the same instrument, and all signatures
need not appear on any one counterpart.
9. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law.
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Exhibit 10.3
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CRONOS EQUIPMENT (BERMUDA) LIMITED
By /s/ XXXXX X XXXXXXX
-------------------------------
Name: Xxxxx X Xxxxxxx
Its: Director
CRONOS FINANCE (BERMUDA) LIMITED
By /s/ XXXXXX X XXXXX
-------------------------------
Name: Xxxxxx X Xxxxx
Its: Director
FORTIS BANK (NEDERLAND) N.V.
By /s/ MENNO A.N. VAN LACUM
-------------------------------
Name: Menno A.N. van Lacum
Its: Account Manager
By /s/ XXXX X.X. XXXXX
-------------------------------
Name: Xxxx X.X. Xxxxx
Its: Deputy Director
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Exhibit 10.3
PATENTS
Schedule 1 C
COUNTRY NUMBER CASE STATUS EXPIRY YEAR
------- ------ ---- ------ -----------
Austria 0206542 Pinched end Granted patent 0000
Xxxxxxx 0708732 Slimwall Granted patent 2013
Eire 0708732 Slimwall Granted patent 0000
Xxxxxx 0708732 Slimwall Granted patent 0000
Xxxxx 0206542 Pinched end Granted patent 0000
Xxxxxx 0206542 Pinched end Granted patent 2006
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