exv10w1



 







Exhibit 10.1




AMENDMENT NUMBER 1 TO AMENDED AND RESTATED 

MANAGEMENT AGREEMENT




     THIS AMENDMENT NUMBER 1, dated as of June 15, 2005 (this “Amendment”) to the Amended and
Restated Management Agreement, dated as of June 15, 2004 (as amended, modified, restated or
otherwise supplemented from time to time in accordance with the terms thereof, the “Management
Agreement”), each by and between CF LEASING LTD., a company organized and existing under the laws
of the Islands of Bermuda (the “Borrower”), and CRONOS CONTAINERS (CAYMAN) LTD., a corporation
organized and existing under the laws of the Cayman Islands (the “Manager”).



WITNESSETH:




     WHEREAS, the Borrower and the Manager have previously entered into the Management Agreement;
and



     WHEREAS, the parties desire to amend the Management Agreement in order to modify certain
provisions of the Management 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 Management Agreement and if not set forth
therein, then in the Amended and Restated Loan Agreement, dated as of March 7, 2003, among the
Borrower, Fortis Bank (Nederland) N.V., BTM Capital Corporation, HSH Nordbank AG, New York Branch,
WestLB AG, New York Branch, NIB Capital Bank N.V. and the other financial institutions from time to
time party thereto (as amended, modified, restated or otherwise supplemented from time to time in
accordance with the terms thereof).



     SECTION 2. Full Force and Effect. Other than as specifically modified hereby, the
Management 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 Management Agreement. Effective on the date hereof,
following the execution and delivery hereof, the Management Agreement is hereby amended as follows:




	 	(a)	 	The defined term Consolidated Tangible Net Worth Leverage Ratio in
Section 1 of the Management Agreement is hereby amended and restated in its
entirety as follows:
	 
	 	 	 	““Consolidated Tangible Net Worth Leverage Ratio” means, for The Cronos Group,
the ratio of (i) the sum of (x) The Cronos Group’s Total Debt plus Capital Lease
Obligations (without duplication) and (y) 50% of the Total





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Exhibit 10.1





	 	 	 	Debt of the Borrower, to (ii) The Cronos Group’s Consolidated Tangible Net
Worth.”
	 
	 	(b)	 	The defined term Capital Lease Obligations is hereby added to Section 1
of the Management Agreement:
	 
	 	 	 	““Capital Lease Obligations” means, for The Cronos Group, at the time any
determination is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on The Cronos
Group’s balance sheet in accordance with GAAP.”
	 
	 	(c)	 	The defined Total Debt is hereby added to Section 1 of the Management
Agreement:
	 
	 	 	 	““Total Debt” means, for any Person at the end of each fiscal quarter of such
Person, the sum of all of such Person’s indebtedness, as determined in
accordance with GAAP and as reported on the most recently available quarterly
financial statements of such Person.”
	 
	 	(d)	 	Clause (ii) of Section 7.13 of the Management Agreement is hereby
amended and restated in its entirety as follows:
	 
	 	 	 	“(ii) a certificate setting forth the financial calculations for The Cronos
Group with respect to Sections 11.1(p), 11.1(r) and 11.1(t) hereof as of such
quarter end; and”
	 
	 	(e)	 	Section 11.1(p) of the Management Agreement is hereby amended and
restated in its entirety as follows:
	 
	 	 	 	“(p) the Consolidated Tangible Net Worth of The Cronos Group (as reflected in
the most recently available financial statements of The Cronos Group delivered
pursuant to Section 7.12 hereof) shall be less than an amount equal to the sum
of (i) Fifty Million Dollars ($50,000,000) and (ii) the product of (x) fifty
percent (50%) and (y) all consolidated net income (but not reduced for net
losses), determined in accordance with GAAP, of The Cronos Group and its
consolidated Subsidiaries for all periods commencing after December 31, 2004;”
	 
	 	(f)	 	Section 11.1(t) of the Management Agreement is hereby amended and
restated in its entirety as follows:
	 
	 	 	 	“(t) the Consolidated Tangible Net Worth Leverage Ratio of The Cronos Group
shall be greater than 4.50:1.00.”





     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



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Exhibit 10.1



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 June 15, 2005.




     (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 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.



     SECTION 8. Consent to Jurisdiction. Any legal suit, action or proceeding against
Borrower or Manager arising out of or relating to this Agreement, or any transaction contemplated
hereby, may, be instituted in any federal or state court in the City of New York, State of New
York, and each of the Borrower and the Manager 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, Borrower and Manager each hereby irrevocably submits to the
jurisdiction of any such court in any such suit, action or proceeding. Each of Borrower and Manager
hereby irrevocably appoints and designates CT Corporation System, having an address at 111 Eighth
Avenue, New York, New York, 10011, its true and duly authorized agent for the limited purpose of
receiving and forwarding legal process in any such suit, action or proceeding, and each of
Borrower and Manager agrees that service of process upon such party shall constitute personal
service of such process on such Person. Each of Borrower and Manager shall maintain the designation
and appointment of such authorized agent until the termination of this Agreement; provided,
however, if such agent shall cease to so act, each of Borrower and Manager shall immediately
designate and appoint another such agent and each shall promptly deliver to the other evidence in
writing of such other agent’s acceptance of such appointment.



[Signature pages follow]




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Exhibit 10.1




     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., as Borrower
	 
	 	 	 	 
	 

	 	By:
	 	/s/ PETER J. YOUNGER
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:
	 	Peter J. Younger
	 
	 	 	 	 
	 

	 	Title:
	 	Director
	 
	 	 	 	 
	 	 	CRONOS CONTAINERS (CAYMAN) LTD., as Manager
	 
	 	 	 	 
	 

	 	By:
	 	/s/ DENNIS J. TIETZ
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:
	 	Dennis J. Tietz
	 
	 	 	 	 
	 

	 	Title:
	 	Director





The undersigned hereby consents to the
amendment of the Management Agreement:




	 	 	 	 
	FORTIS BANK (NEDERLAND) N.V., as Agent	 
	 
	 	 	 
	By:

	 	/s/ R. J. VAN DAM	 
	 

	 	 	 
	 
	 	 	 
	Name:

	 	R. J. Van Dam	 
	 
	 	 	 
	Title:

	 	Deputy Director	 
	 
	 	 	 
	By:

	 	/s/ H. P. DE KOOL	 
	 

	 	 	 
	 
	 	 	 
	Name:

	 	H. P. De Kool	 
	 
	 	 	 
	Title:

	 	Manager	 






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