exv10w61



 








Exhibit 10.61




EXECUTION VERSION




AMENDMENT NUMBER 2




TO AMENDED AND RESTATED GUARANTY




     THIS AMENDMENT NUMBER 2, dated as of August 1, 2005 (the “Amendment”) to the Amended and
Restated Guaranty, dated as of July 19, 2001 (together with any amendments and supplements, the
“Guaranty”), between THE CRONOS GROUP, as the Guarantor (together with its successors and
permitted assigns, the “Guarantor”), FORTIS BANK (NEDERLAND) N.V. in its capacity as Agent
(together with its successors and permitted assigns, the “Agent”) and in its capacity as a
Noteholder (in such capacity, “Fortis”), and NIB CAPITAL BANK N.V. and HOLLANDSCHE BANK-UNIE N.V.,
each as a Noteholder (collectively with Fortis and each together with its successors and permitted
assigns, the “Noteholders” and each a “Noteholder”).



WITNESSETH:




     WHEREAS, the Guarantor, the Agent and the Noteholders have previously entered into the
Guaranty; and



     WHEREAS, the parties desire to amend the Guaranty in order to modify certain provisions of the
Guaranty;



     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 Guaranty, or, if such terms are not defined therein, as
defined in that certain Third Amended and Restated Loan Agreement, dated as of August 1, 2005 (the
“Loan Agreement”), among Cronos Finance (Bermuda) Limited, Fortis Bank (Nederland) N.V., as “Agent”
and as “Initial Noteholder”, and NIB Capital Bank N.V. and Hollandsche Bank-Unie N.V., each as a
Noteholder.




          SECTION 2. Full Force and Effect. Other than as specifically modified hereby, the Guaranty shall
remain in full force and effect in accordance with the terms and provisions thereof.




          SECTION 3. Amendments to the Guaranty. Effective upon the execution and delivery hereof,




          (a) The proviso at the end of Section 2(a) of the Guaranty is hereby amended and restated to read as
follows:





“provided, however, that, subject to the provisions of Section 15 hereof, the
maximum aggregate amount of funds paid by the Guarantor under this Guaranty
(such maximum aggregate amount, the “Aggregate Maximum Guaranteed Payment”)
throughout the entire term of this Guaranty shall not
exceed an amount equal to Forty-Five Million Dollars ($45,000,000) plus



 









 






any additional amounts for unpaid accrued interest, fees or other payments owed by
the Issuer pursuant to the Transaction Documents.”; and



          (b) Paragraphs (h) and (k) of Section 5 of the Guaranty are each hereby amended and restated to read as
follows:





“[Reserved]”



          (c) Paragraph (j) of Section 5 of the Guaranty is hereby deleted in its entirety.




          (d) Paragraph (i) of Section 6 of the Guaranty is hereby deleted in its entirety.




          (e) Clause (iv) of Section 6(j) of the Guaranty is hereby amended and restated to read as follows:





“(iv) Notwithstanding any provision of law which otherwise empowers each
Company, the Guarantor shall not permit either Cronos Holdings Investments
(U.S.), Inc. or Cronos Capital Corp. to:




     (i) consolidate or merge with or into any other person or dissolve or
liquidate in whole or in part or transfer its properties and assets
substantially as an entirety to any other person,




     (ii) hold itself out as being liable for the debts of any other person,
unless permitted to do so pursuant to clauses (iv) or (vi) below,




     (iii) act other than in its corporate name and through its duly authorized
officers or agents,




     (iv) guarantee the Indebtedness of any Affiliate thereof, unless such
guarantee is fully subordinated to the payment of the Outstanding Obligations,




     (v) commingle its funds or other assets with those of any other person, or




     (vi) take any other action or engage in any other activity that would be
inconsistent with maintaining the separate legal identity of such Company.”



          (f) Section 7(g) of the Guaranty is hereby amended to read in its entirety as follows:





“(g) if any judgment against the Guarantor or any attachment, execution,
levy or restraining notice against its property in excess of $2,000,000 remains
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period
of thirty (30) days or more;”



 









 





          (g) Section 7(h) of the Guaranty is hereby amended to read in its entirety as follows:





“(h) a default by the Guarantor or any subsidiary of the Guarantor in the
payment of any principal or interest on any indebtedness for borrowed money
which, individually or in the aggregate, exceeds Two Million Dollars
($2,000,000) beyond the period of grace, if any, specified therefor in the
applicable instrument evidencing such indebtedness; or the occurrence of any
event or the existence of any condition, the effect of which is to cause or
permit holders of debt more than Two Million Dollars ($2,000,000), individually
or in the aggregate, of indebtedness for borrowed money of the Guarantor or any
subsidiary thereof to become due before its (or their) stated maturity date(s)
or regularly scheduled dates of payments and such event or condition remains
unremedied for more than sixty (60) days;”



          (h) Section 16 of the Guaranty is hereby amended to read in its entirety as follows:





“Section 16. Notices. All notices and other communications provided for
hereunder shall be in writing or telex: (i) if to Guarantor, at its address at
5 Rue Guillaume Kroll, L1882 Luxembourg, Tel #352 26.48.36.88,
with a copy to Cronos Containers Ltd. at its address at The Ice House, Dean
Street, Marlow, Bucks SL7 3AB, England, (ii) if to the Agent, at the address
set forth in Section 1107 of the Loan Agreement, and (iii) if to any
Noteholder, at the respective addresses set forth in the Note Register. All
such notices and communications shall be sent in the manner, and shall be
effective on the dates, set forth in Section 1207 of the Loan Agreement.”



          SECTION 4. Confirmation of Guarantee. The Guarantor hereby (i) ratifies and confirms its Guaranty to
the Agent for the benefit of the Noteholders, (ii) confirms that such Guaranty extends to the
Outstanding Obligations under the Loan Agreement, as such agreement was amended and restated as of
August 1, 2005, and (iii) confirms that such Guaranty continues in full force and effect.




          SECTION 5. Representations and Warranties. Each of the Guarantor, the Agent and each of the
Noteholders hereby confirms that each of the representations and warranties set forth in Section 5
of the Guaranty 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 6. Effectiveness of Amendment.




          (a) This Amendment shall become effective as of the date first referenced 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 Guaranty,
and (ii) each reference in the Guaranty to “this Agreement” or “hereof”, “hereunder” or words of
like import, and each reference in any other document to the Guaranty shall mean and be a reference
to the Guaranty as amended or modified hereby.



     SECTION 7. 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 (counterparts executed by facsimile to be valid as
originals).



     SECTION 8. 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 (EXCEPT FOR SECTION 5-1401 AND SECTION
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), 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 pages follow]




 









 








     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment on the date
first above written.



	 	 	 	 	 
	 	 	THE CRONOS GROUP
	 
	 	 	 	 
	 

	 	By: 
	/s/ Dennis J. Tietz
	 

	 	 	 
	 

	 	Name:
	Dennis J. Tietz
	 

	 	Title:
	Director






 









 






	 	 	 	 	 
	APPROVED AND ACCEPTED:
	 
	 	 	 	 
	FORTIS BANK
(NEDERLAND) N.V.,
as Agent and Noteholder
	 
	 	 	 	 
	By:

	 	/s/ H.P. De Kool	 	 
	 

	 	 	 	 
	Name:

	 	H.P. De Kool	 	 
	Title:

	 	Manager	 	 
	 
	 	 	 	 
	By:

	 	/s/ P.R.G. Zaman	 	 
	 

	 	 	 	 
	Name:

	 	P.R.G. Zaman	 	 
	Title:

	 	Deputy Director	 	 
	 
	 	 	 	 
	NIB CAPITAL BANK N.V., as Noteholder
	 
	 	 	 	 
	By:

	 	/s/ Dieter Fennema	 	 
	 

	 	 	 	 
	Name:

	 	Dieter Fennema	 	 
	Title:

	 	Associate Director	 	 
	 
	 	 	 	 
	By:

	 	/s/ C. Mulder	 	 
	 

	 	 	 	 
	Name:

	 	C. Mulder	 	 
	Title:

	 	legal counsel	 	 
	 
	 	 	 	 
	By:

	 	/s/ Taco van der Mast	 	 
	 

	 	 	 	 
	Name:

	 	Taco van der Mast	 	 
	Title:

	 	Managing Director	 	 
	 
	 	 	 	 
	HOLLANDSCHE BANK-UNIE N.V., as a Noteholder
	 
	 	 	 	 
	By:

	 	/s/ R.A. Coenraadts	 	 
	 

	 	 	 	 
	Name:

	 	R.A. Coenraadts	 	 
	Title:

	 	proxy	 	 
	 
	 	 	 	 
	By:

	 	/s/ L.J.M. Bloemheuvel	 	 
	 

	 	 	 	 
	Name:

	 	L.J.M. Bloemheuvel	 	 
	Title:

	 	proxy	 	 






Amendment No. 2 to A&R Guaranty