AMENDMENT NUMBER 2 TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.1
AMENDMENT NUMBER 2
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NUMBER 2, dated as of July 16, 2007 (the “Amendment”) to the Third
Amended and Restated Loan Agreement, dated as of August 1, 2005 (as amended, modified, restated or
supplemented from time to time as permitted thereby, the “Loan Agreement”), is between
CRONOS FINANCE (BERMUDA) LIMITED, a company organized and existing under the laws of the Islands of
Bermuda (together with its successors and permitted assigns, the “Issuer”), and FORTIS BANK
(NEDERLAND) N.V. (f/k/a MeesPierson N.V.), a Naamloze Vennootschap, as agent (in such capacity, the
“Agent”) and as a Noteholder (the “Fortis”).
WITNESSETH:
WHEREAS, the Issuer, the Agent, the Initial Noteholder and the other Noteholders party thereto
have previously entered into the Loan Agreement;
WHEREAS, immediately prior to the effectiveness of this Amendment, the Issuer, pursuant to
Section 203(b) of the Loan Agreement, has given notice of prepayment in full of the Notes and, upon
such prepayment, the Commitments of the Noteholders under the Loan Agreement will be terminated,
and each Noteholder will cease to be a party to the Loan Agreement;
WHEREAS, simultaneously with such prepayment, Fortis has agreed to assume all of the rights,
duties and obligations of a Noteholder under such Loan Agreement and to become the sole Noteholder
under the Loan Agreement;
WHEREAS, simultaneously with such assumption by Fortis, the parties desire to amend the Loan
Agreement in order to (i) increase Fortis’ Commitment to One Hundred Twenty Million Dollars
($120,000,000), (ii) issue a Note to Fortis in the amount of One Hundred Twenty Million Dollars
($120,000,000), reflecting Fortis’s increased Commitment on the date hereof, (iii) amend the
definition of Asset Base, (iv) amend the definition of Interest Rate, and (v) extend the Revolving
Credit Loan Maturity Date until August 15, 2008, subject to the conditions hereinafter set forth,
and in reliance on the representations and warranties of Issuer set forth herein;
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. Assumption of Obligations; Full Force and Effect. Simultaneously with the
execution of this Amendment, Fortis agrees to assume all of the duties, rights and obligations of a
Lender under the Loan Agreement, as such agreement is amended by the terms of this Amendment.
After giving effect to such assumption, Fortis will be the sole Noteholder. Other than as
specifically modified hereby, the terms of the Loan Agreement as assumed by Fortis shall remain in
full force and effect and are hereby ratified and confirmed by the parties hereto.
SECTION 3. Amendments to the Loan Agreement. Effective upon the execution and delivery
hereof and following the prepayment described in the second Whereas clause hereof,
(a) Schedule 3 to the Loan Agreement is hereby amended to read in its entirety as
Schedule 3 attached to this Amendment.
(b) Clauses (1) and (2) of the definition of “Asset Base” are each hereby amended be
deleting the words “seventy-five percent (75%)” therein and replacing them with the words
“eighty percent (80%)”.
(c) Clauses (a)(ii)(x) and (b)(ii)(x) of the definition of “Interest Rate” are each hereby
amended by deleting the words “two percent (2.00%)” therein and replacing them with the
words “one and one-half percent (1.50%)”.
(d) The definition of “Revolving Credit Loan Maturity Date” is hereby amended and restated
in its entirety as follows:
“ Revolving Credit Loan Maturity Date: August 15, 2008, or if such date is not a Business Day,
the Business Day immediately preceding such date, or such later date pursuant to the provisions
hereof .”
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.
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 (including by facsimile), each of which shall be deemed to be an
original and all of which shall constitute together but one and the same agreement.
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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; PROVIDED THAT
SECTION 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.
SECTION 8. Consent to Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE
AGENT ARISING OUT OF OR RELATING TO THIS AMENDMENT, 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 AMENDMENT, THE AGENT, EACH NOTEHOLDER 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 EACH IRREVOCABLY APPOINTS AND DESIGNATES CT CORPORATION SYSTEM, HAVING AN ADDRESS AT 000
XXXXXX XXXXXX, XXX XXXX, XXX XXXX, 00000, ITS TRUE AND DULY AUTHORIZED AGENT FOR THE LIMITED
PURPOSE OF RECEIVING AND FORWARDING LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, 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 THE LOAN 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 9. No Novation. Notwithstanding that the Loan Agreement is hereby amended by
this Amendment as of the date hereof, nothing contained herein shall be deemed to cause a novation
or discharge of any existing indebtedness of the Issuer under the Loan Agreement, or the security
interest in the Collateral created thereby.
[Signature pages follow.]
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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 | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Director | |||
Amendment No. 2 to 3rd A&R Loan Agreement
| FORTIS BANK (NEDERLAND) N.V., as Agent and Noteholder |
||||
| By: | /s/ Merijn Zondag | |||
| Name: | Merijn Zondag | |||
| Title: | Managing Director | |||
| By: | /s/ M.P. Nijs | |||
| Name: | M.P. Nijs | |||
| Title: | Senior Manager | |||
Amendment No. 2 to 3rd A&R Loan Agreement
Schedule 3
COMMITMENTS
| Noteholder | Dollar Amount | Percentage Share | ||||||||
| Fortis Bank (Nederland) N.V. | $120,000,000 | 100% | ||||||||
