exv10w59



 








Exhibit 10.59




EXECUTION VERSION




          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




	 	 	 
	 
	$15,000,000.00
	 	No. 10






          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 NIB CAPITAL BANK N.V., or its registered assigns, at the principal office of the
Agent named below, the principal sum of up to Fifteen Million Dollars ($15,000,000), which sum
shall be payable on the dates and in the amounts set forth in the Third Amended and Restated Loan
Agreement, dated as of August 1, 2005 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Loan Agreement”), among the Company, Fortis Bank (Nederland) N.V.,
as agent (the “Agent”), and Fortis Bank (Nederland) N.V., NIB Capital Bank N.V. and Hollandsche
Bank-Unie N.V. (each a “Noteholder” and together the “Noteholders”). The actual unpaid principal
balance of this Note shall be determined by reference to the records of the Agent. 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 as
further 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 Amended and Restated Guaranty, dated July 19, 2001 (as amended, modified or
supplemented from time to time, 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.




 









 








          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 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 Noteholders 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 Noteholders 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 holder of this Note 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 1213 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, including Sections 5-1401 and
5-1402 of the General Obligations Laws, but otherwise without giving effect to the principles of
conflicts of laws.




[Signature page follows.]




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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 1st day of August, 2005.




	 	 	 	 	 
	 	 	CRONOS FINANCE (BERMUDA) LIMITED
	 
	 	 	 	 
	 

	 	By: 
	/s/ Dennis J. Tietz
	 

	 	 	 
	 

	 	Name:
	Dennis J. Tietz
	 

	 	Title:
	Director






NIB $15MM Note