<PAGE>
EXHIBIT 2.5
LOAN FACILITY AGREEMENT
DATED: 2000
BETWEEN:-
(1) STOLT COMEX SEAWAY B.V. which is a company incorporated according to the
law of The Netherlands with its registered office at Abel Tasmanstraat 81,
3165 Am Rotterdam, Albrands, The Netherlands (the "BORROWER"); and
(2) STOLT COMEX SEAWAY S.A. ("SCS") which is a company incorporated according
to the law of Luxembourg with its registered office at 26 Rue Louvigny,
L-1946, Luxembourg and STOLT-NIELSEN S.A. ("SNSA") which is a company
incorporated according to the law of Luxembourg with its registered office
at 23 Avenue Monterey, L-2086, Luxembourg (together the "GUARANTORS" and
each a "GUARANTOR"); and
(3) the banks listed in Schedule 1, each acting through its office at the
address indicated against its name in Schedule 1 (together "THE BANKS" and
each a "BANK"); and
(4) DEN NORSKE BANK ASA, acting as facility agent and security trustee through
its office at 200 Park Avenue, New York, New York 10166-0396, United
States of America (in that capacity "THE AGENT"); and
(5) DEN NORSKE BANK ASA acting as arranger through its office at 200 Park
Avenue, New York, New York 10166-0396 (in that capacity the "ARRANGER").
WHEREAS:-
(A) Each of the Banks has agreed to advance to the Borrower its respective
Commitment of an aggregate principal amount not exceeding one hundred and
fifty million Dollars ($150,000,000) in order to assist the Borrower in
financing its acquisition of ETPM and certain accounts receivable
associated therewith and providing working capital for the Borrower.
<PAGE>
IT IS AGREED as follows:-
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:-
1.1.1 ACTING IN CONCERT" means persons who pursuant to an
agreement of understanding (whether formal or informal)
actively co-operate together with a view to achieving a
common objective or to control another body corporate.
1.1.2 "THE ADDRESS FOR SERVICE" means c/o Stolt-Nielsen Limited,
Aldwych House, 71-91 Aldwych, London WC2B 4HN, England or,
in relation to any of the Security Parties, such other
address in England and Wales as that Security Party may from
time to time designate by no fewer than ten Business Days'
written notice to the Agent.
1.1.3 the "ADVANCE DATE", in relation to any Drawing, means the
date on which that Drawing is advanced by the Banks to the
Borrower pursuant to Clause 2.
1.1.4 "THE BORROWER'S OBLIGATIONS" means all of the liabilities
and obligations of the Borrower to the Finance Parties under
or pursuant to the Borrower's Security Documents, whether
actual or contingent, present or future, and whether
incurred alone or jointly or jointly and severally with any
other and in whatever currency, including (without
limitation) interest, commission and all other charges and
expenses.
1.1.5 "THE BORROWER'S SECURITY DOCUMENTS" means those of the
Security Documents to which the Borrower is or is to be a
party.
1.1.6 "BREAK COSTS" means all documented costs, losses, premiums
or penalties incurred by any of the Finance Parties in the
circumstances contemplated
2
<PAGE>
by Clause 17.4 or as a result of any of them receiving any
prepayment of all or any part of the Facility (whether
pursuant to Clause 5.2 or otherwise) or any other payment
under or in relation to the Security Documents on a day
other than the due date for payment of the sum in question,
and includes (without limitation) any losses or costs
incurred in liquidating or re-employing deposits from third
parties acquired to effect or maintain the Facility, and any
liabilities, expenses or losses incurred by any of the
Finance Parties in terminating or reversing, or otherwise in
connection with, any interest rate and/or currency swap,
transaction or arrangement entered into by any of the
Finance Parties to hedge any exposure arising under this
Agreement, or in terminating or reversing, or otherwise in
connection with, any open position arising under this
Agreement.
1.1.7 "BUSINESS DAY" means a day on which banks are open for the
transaction of business of the nature contemplated by this
Agreement (and not authorised by law to close) in New York
City, United States of America; London, England; Oslo,
Norway and Brussels, Belgium.
1.1.8 "CERTIFICATE OF COMPLIANCE" means a certificate materially
in the form set forth in (i) Schedule 3 part A in respect of
SCS, signed by the finance director or similar officer of
SCS and (ii) Schedule 3 part B in respect of SNSA signed by
the finance director or similar officer of SNSA.
1.1.9 "CHANGE OF CONTROL" means that SNSA shall cease, for any
reason whatsoever, to own or control directly or indirectly,
shares of SCS representing at least 30% of all votes capable
of being represented in any shareholders' meeting of SCS or
if any shareholder or group of shareholders acting in
concert outside SNSA at any time own or control, directly or
indirectly, more of the issued voting shares determined, on
a per vote basis, of SCS than those owned by SNSA.
1.1.10 "COMMITMENT" means, in relation to each Bank, the amount of
the Facility which that Bank agrees to advance to the
Borrower as its several
3
<PAGE>
liability as indicated against the name of that Bank in
Schedule 1, as the same may be reduced from time to time in
accordance with Clause 2.4.4, or, where the context permits,
the amount of the Facility advanced by that Bank and
remaining outstanding.
1.1.11 "COMMITMENT COMMISSION" means the commitment commission to
be paid by the Borrower to the Agent pursuant to Clause 8.2.
1.1.12 a "COMMUNICATION" means any notice, approval, demand,
request or other communication from one party to this
Agreement to any other party to this Agreement.
1.1.13 "THE COMMUNICATIONS ADDRESS" means c/o Stolt Comex Seaway
M.S. Limited, Bucksburn House, Howes Road, Bucksburn,
Aberdeen, AB21 9RQ, Scotland, United Kingdom fax no: +(44)
1224 712 658 marked for the attention of Bruno Chabas.
1.1.14 "CONFIRMATION OF SECURITY ELECTION" means the written
confirmation delivered to the Borrower by the Agent pursuant
to Clause 11.5 confirming receipt of all documents, evidence
and valuations in form and substance satisfactory to it
regarding the granting of security over the Mortgaged
Vessels.
1.1.15 "CONSOLIDATED DEBT" means for SCS and its Subsidiaries (on a
consolidated basis) at any time, the aggregate value of (i)
notes payable (whether promissory notes or otherwise), plus
(ii) long-term debt (including current portion of long-term
debt), plus (iii) capitalised lease obligations on behalf of
third parties and all contingent liabilities related to debt
and capital lease obligations which, according to US GAAP,
are considered probable and estimable, plus (iv)
subordinated debt, less (v) the amount of debt for which
there is a restricted cash deposit which will repay all or
part of such financial debt obligation.
4
<PAGE>
1.1.16 "CONSOLIDATED TANGIBLE NET WORTH" means for SCS and its
Subsidiaries (on a consolidated basis) at any time (a) the
sum, to the extent shown on SCS's consolidated balance
sheet, of (i) the amount of issued and outstanding share
capital, less the cost of treasury shares, plus (ii) the
amount of surplus and retained earnings, less (b) intangible
assets as determined in accordance with US GAAP.
1.1.17 "CURRENCY OF ACCOUNT" means, in relation to any payment to
be made to a Finance Party pursuant to any of the Security
Documents, the currency in which that payment is required to
be made by the terms of the relevant Security Document.
1.1.18 "DEFAULT RATE" means the rate which is the aggregate of (i)
one per centum (1%) per annum and (ii) the Margin, above
LIBOR.
1.1.19 "DOLLARS" and "$" each means available and freely
transferable and convertible funds in lawful currency of the
United States of America.
1.1.20 "DRAWDOWN NOTICE" means a notice complying with Clause 2.3.
1.1.21 "DRAWING" means a part (or, if requested and available, all)
of the Facility advanced by the Banks to the Borrower in
accordance with Clause 2.
1.1.22 "EARNINGS" in relation to any Vessel, installations or other
equipment whatsoever owned by any member of the Group, means
all hires, freights, pool income and other sums payable to
or for the account of the relevant owner in respect of such
Vessel installation, or equipment including (without
limitation) all remuneration for salvage and towage
services, demurrage and detention moneys, contributions in
general average, compensation in respect of any requisition
for hire and damages and other payments (whether awarded by
any court or arbitral tribunal or by agreement or otherwise)
for breach, termination or variation of any contract for the
operation, employment any such Vessel, installation or
equipment.
5
<PAGE>
1.1.23 "EBITDA" means the consolidated Earnings of SCS and its
Subsidiaries before interest, Taxes, depreciation and
amortisation, at any time during the Facility Period as
determined in accordance with US GAAP, calculated on a pro
forma basis to include acquisitions.
1.1.24 "ENCUMBRANCE" means any mortgage, charge, pledge, lien,
assignment, hypothecation, preferential right, option, title
retention or trust arrangement or any other agreement or
arrangement which has the effect of creating security.
1.1.25 "ETPM" means Stolt Offshore S.A. (formerly ETPM S.A.) which
is a company incorporated according to the law of France
with its registered office at 32 Avenue Pablo Picasso,
Nanterre, France.
1.1.26 "ETPM ASSETS" means the Vessels, the Insurances, the
Earnings, the Requisition Compensation and all other assets,
present or future owned or controlled by ETPM.
1.1.27 "ETPM INDEBTEDNESS" means credit lines which ETPM had with
each of Natexis Banque and Credit Lyonnais, each in the
amount of up to $45,000,000.
1.1.28 "ETPM PLEDGE AGREEMENT" means the negative pledge agreement
to be entered into by ETPM in favour of the Agent referred
to in Clause 9.1.3.
1.1.29 "EVENT OF DEFAULT" means any of the events set out in Clause
12.2.
1.1.30 "EXECUTION DATE" means the date on which this Agreement is
executed by each of the parties thereto.
1.1.31 "FACILITY" means the revolving credit facility made
available by the Banks to the Borrower pursuant to this
Agreement.
6
<PAGE>
1.1.32 "THE FACILITY OUTSTANDINGS" at any time means the total of
all Drawings made at that time, to the extent not reduced by
repayments, prepayments and voluntary reductions.
1.1.33 "THE FACILITY PERIOD" means the period beginning on the
Execution Date and ending on the date when the whole of the
Indebtedness has been repaid in full and the Borrower has
ceased to be under any further actual or contingent
liability to the Finance Parties under or in connection with
the Security Documents.
1.1.34 "THE FEE LETTERS" means the letters from the Agent as agreed
and accepted by the Borrower and the Guarantors setting out
certain fees, commissions and other sums payable by the
Borrower to the Agent in connection with the Facility.
1.1.35 "THE FINANCE PARTIES" means the Banks, the Agent and the
Arranger.
1.1.36 "THE GROUP" means SNSA and the SCS Group.
1.1.37 "THE GUARANTEE" means the joint and several guarantee and
indemnity of the Guarantors contained in Clause 7.
1.1.38 "THE GUARANTORS' LIABILITIES" means all of the liabilities
and obligations of the Guarantors to the Finance Parties
under or pursuant to the Guarantee whether actual or
contingent, including (without limitation) Interest.
1.1.39 "THE INDEBTEDNESS" means the Facility Outstandings; all
other sums of any nature including costs (together with all
interest on any of those sums) which from time to time may
be payable by the Borrower to the Finance Parties pursuant
to the Security Documents; any damages payable as a result
of any breach by the Borrower of any of the Security
Documents; and any damages or other sums payable as a result
of any of the obligations of the Borrower under or pursuant
to any of the Security
7
<PAGE>
Documents being disclaimed by a liquidator or any other
person, or, where the context permits, the amount thereof
for the time being outstanding.
1.1.40 an "INSTRUCTING GROUP" means any one or more Banks whose
combined Proportionate Shares exceed fifty per centum (50%).
1.1.41 "INSURANCES", in relation to a Mortgaged Vessel, means all
policies and contracts of insurance (including all entries
in protection and indemnity or war risks associations) which
are from time to time taken out or entered into in respect
of or in connection with that Mortgaged Vessel or her
increased value and (where the context permits) all benefits
thereof, including all claims of any nature and returns of
premium.
1.1.42 "INTER-COMPANY INDEBTEDNESS" means a note documenting any
inter-company debt due from SNSA or any of its subsidiaries,
other than a member of the SCS Group, to any member(s) of
the SCS Group, on a consolidated basis, which exceeds twenty
five million Dollars ($25,000,000) in principal or its
equivalent in another currency and is not repayable by its
terms within a period of three (3) months.
1.1.43 "INTER-COMPANY INDEBTEDNESS ASSIGNMENTS" means any deeds of
assignment of Inter-Company Indebtedness referred to in
Clause 9.1.2 (each "AN INTER-COMPANY INDEBTEDNESS
ASSIGNMENT").
1.1.44 "INTERCOMPANY LOAN EQUITY" means that portion of the
inter-company debt consisting of one hundred million Dollars
($100,000,000) which was originally due to a Subsidiary of
SNSA by a Subsidiary of SCS.
1.1.45 "INTEREST" means interest at the Default Rate.
1.1.46 "INTEREST PAYMENT DATE" means each date for the payment of
interest in accordance with Clause 6.
8
<PAGE>
1.1.47 "INTEREST PERIOD" means each interest period selected by the
Borrower or agreed by the Agent pursuant to Clause 6.
1.1.48 "LAW" means any law, statute, treaty, convention,
regulation, instrument or other subordinate legislation or
other legislative or quasi-legislative rule or measure, or
any order or decree of any government, judicial or public or
other body or authority, or any directive, code of practice,
circular, guidance note or other direction issued by any
competent authority or agency (whether or not having the
force of law).
1.1.49 "LIBOR" means the rate, rounded to the nearest four decimal
places downwards (if the digit displayed in the fifth
decimal place is 1,2,3 or 4) or upwards (if the digit
displayed in the fifth decimal place is 5,6,7,8 or 9)
displayed on Reuters page 01 (or such other page or pages
which replace(s) such page for the purposes of display
offered rates of leading banks, for deposits in Dollars of
amounts equal to the amount of the relevant Drawing for a
period equal in length to the relevant Interest Period or if
there is no such display rate then available for the amount
of a Drawing, the arithmetic mean (rounded upwards, if
necessary, to the nearest whole multiple of one-sixteenth
per centum (1/16%)) of the respective rates notified to the
Agent by each of the Reference Banks as the rate at which it
is offered deposits in Dollars and for the required period
by prime banks in the London Interbank Market.
1.1.50 "MARGIN" means one point one eight seven five per cent
(1.1875%) per annum.
1.1.51 "THE MAXIMUM FACILITY AMOUNT" means the amount of the
aggregate Commitments subject to any reductions effected in
accordance with Clauses 2.4 and 15.8.
1.1.52 "MORTGAGED ASSET" means any asset (including any Mortgaged
Vessel) secured or to be secured in favour of the Agent
under or pursuant to this Agreement as security for the
Indebtedness.
9
<PAGE>
1.1.53 "MORTGAGED VESSEL" means any Vessel in respect of which the
Agent has received the documents and evidence set out in
Schedule 5, all in form and substance satisfactory to it.
1.1.54 "MORTGAGOR" means any member of the Group which from time to
time has granted any security to the Banks (or to the Agent
on behalf of the Banks) in accordance with the provisions of
Clause 11.5.
1.1.55 "PERMITTED LIENS" means (i) assignments of earnings derived
from specified fixed assets (which assets shall not include
those assets which are the subject of a Security Document or
which may become the subject of a Security Document at any
time during the Facility Period) ancillary to the granting
of a security interest in those fixed assets as part of an
asset based financing, (ii) liens for salvage and any
Encumbrance which has the prior written approval of the
Agent acting upon the instructions of all the Banks, or
(iii) any Encumbrance arising either by operation of law or
in the ordinary course of the business of the relevant
Security Party which is discharged in the ordinary course of
business but in any event does not exist for more than sixty
(60) days.
1.1.56 "POTENTIAL EVENT OF DEFAULT" means any event which, with the
giving of notice and/or the passage of time and/or the
satisfaction of any materiality test, would constitute an
Event of Default.
1.1.57 "PRINCIPAL SUBSIDIARY" means any member of the Group having
total assets exceeding ten per cent (10%) of the
consolidated assets of the Group and/or having during the
last four fiscal quarters accounted for more than ten per
cent (10%) of the consolidated turnover of the Group.
1.1.58 "PROCEEDINGS" means any suit, action or proceedings begun by
any of the Finance Parties arising out of or in connection
with the Security Documents.
10
<PAGE>
1.1.59 "PROPORTIONATE SHARE" means, for each Bank, the percentage
indicated against the name of that Bank in Schedule1.
1.1.60 "REFERENCE BANKS" means the Agent and such other Banks as
may be nominated by the Agent in writing, from time to time.
1.1.61 "REQUISITION COMPENSATION", in relation to a Mortgaged
Vessel, means all compensation or other money which may from
time to time be payable to the relevant Mortgagor as a
result of the Mortgaged Vessel being requisitioned for title
or in any other way compulsorily acquired (other than by way
of requisition for hire).
1.1.62 "SCS GROUP" means SCS and its Subsidiaries.
1.1.63 "THE SECURITY DOCUMENTS" means this Agreement, the ETPM
Pledge Agreement, the Inter-Company Indebtedness
Assignments, the Shipowners' Guarantee, any document
delivered to the Agent pursuant to Clause 11.5 and Schedule
5, or (where the context permits) any one or more of them,
and any other agreement or document which may at any time be
executed by a member of the Group as security for the
payment of all or any part of the Indebtedness.
1.1.64 "SECURITY PARTIES" means the Borrower, the Guarantors, the
Shipowning Guarantors and any other member of the Group who
may at any time during the Facility Period be liable for, or
provide security for, all or any part of the Indebtedness,
and "SECURITY Party" means any one of them.
1.1.65 "THE SHIPOWNERS' GUARANTEE" means the joint and several
guarantee and indemnity of the Shipowning Guarantors
referred to in Clause 9.1.1.
1.1.66 "THE SHIPOWNING GUARANTORS" means the companies listed in
Schedule 2, each of which is a company incorporated
according to the law of the country indicated against its
name in Schedule 2 with its registered office and/or
principal place of business at the address and major assets
11
<PAGE>
indicated against its name in Schedule 2 (each "A SHIPOWNING
GUARANTOR").
1.1.67 "SNSA DEBT" means, at any time, the aggregate (on a
consolidated basis) of all financial indebtedness of SNSA
and its Subsidiaries at such time less the amount of that
part of any financial indebtedness the obligations for which
are secured by a blocked or restricted cash deposit which
will repay such part of such financial indebtedness.
1.1.68 "SNSA CONSOLIDATED TANGIBLE NET WORTH" means at any time the
sum to the extent shown on the SNSA's consolidated balance
sheet of (i) the amount of issued and outstanding paid up
share capital plus (ii) the amount of surplus and retained
earnings less the aggregate of:
(a) any amounts shown in its accounts in respect of
intangible assets (as determined in accordance with
accounting principles US GAAP); and
(b) the value of any treasury shares (that is, shares in
SNSA) held at such share's cost (or if so required by
accounting laws applicable to the SNSA's financial
reporting requirements, any lower value).
1.1.69 "SNSA GROUP" means SNSA and its consolidated subsidiaries.
1.1.70 "SUBSIDIARY" means a subsidiary undertaking, as defined in
section 258 Companies Act 1985 or any analogous definition
under any other relevant system of law.
1.1.71 "SURETY" means any person (other than the Borrower or the
Guarantors) who has given or who may in the future give to
the Finance Parties or any of them any security, guarantee
or indemnity for or in relation to the Borrower's
Obligations.
12
<PAGE>
1.1.72 "TAXES" means all taxes, levies, imposts, duties, charges,
fees, deductions and withholdings (including any related
interest and penalties) and any restrictions or conditions
resulting in any charge, other than taxes on the overall net
income of a Finance Party or branch thereof, and "TAX" and
"TAXATION" shall be interpreted accordingly.
1.1.73 "THE TERMINATION DATE" means the date falling three hundred
and sixty four (364) days after the Execution Date.
1.1.74 "TOTAL LOSS", in relation to a Mortgaged Vessel means:-
(a) an actual, constructive, arranged, agreed or
compromised total loss of that Mortgaged Vessel; or
(b) the requisition for title or compulsory acquisition of
that Mortgaged Vessel by or on behalf of any
government or other authority (other than by way of
requisition for hire); or
(c) the capture, seizure, arrest, detention or
confiscation of that Mortgaged Vessel, unless such
Mortgaged Vessel (as the case may be) is released and
returned to the possession of the relevant Mortgagor
within two months after the capture, seizure, arrest,
detention or confiscation in question.
1.1.75 "TRANSFER CERTIFICATE" means a certificate materially in the
form set forth in Schedule 4 signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such
Transferee of all or a part of such Bank's rights and
obligations under this Agreement upon and subject to
the terms and conditions set out in Clause 14; and
13
<PAGE>
(b) such Transferee undertakes to perform the obligations
it will assume as a result of delivery of such
certificate to the Agent as is contemplated in Clause
14.
1.1.76 "TRANSFER DATE" means, in relation to any Transfer
Certificate, the date for the making of the transfer
specified in the schedule to such Transfer Certificate.
1.1.77 "TRANSFEREE" means a bank or other financial institution to
which a Bank seeks to transfer all or part of such Bank's
rights and obligations under this Agreement.
1.1.78 "THE TRUST PROPERTY" means:-
(a) the benefit of the covenant contained in Clause 9; and
(b) all benefits arising under (including, without
limitation, all proceeds of the enforcement of) each
of the Security Documents (other than this Agreement),
with the exception of any benefits arising solely for
the benefit of the Agent).
1.1.79 "US GAAP" means the generally accepted accounting principles
in the United States of America, from time to time in
effect, subject to any changes in the rules of US GAAP,
consistently applied always provided that if SCS or SNSA
wishes to change accounting principles within the applicable
rules of US GAAP, the Borrower shall notify the Agent of the
intention together with an explanation of the effects on the
financial covenants contained in this Agreement. Should the
Banks, and/or SCS and/or SNSA, find that such change will
impact upon the result of the calculation of the financial
covenants contained in this Agreement, the Banks will,
following consultation with SCS and SNSA, stipulate
amendments to the financial covenants so that the ratio of
the SCS Group's or SNSA Group's (as the case may be)
performance in respect of the covenants reflects the
position which would have been the case
14
<PAGE>
had no changes to SCS's and/or SNSA's (as the case may be)
accounting principles taken place.
1.1.80 "VESSEL" means the vessels specified in Schedule 2 (each a
"VESSEL").
1.2 INTERPRETATION
In this Agreement:-
1.2.1 words denoting the plural number include the singular and
vice versa;
1.2.2 words denoting persons include corporations, partnerships,
associations of persons (whether incorporated or not) or
governmental or quasi-governmental bodies or authorities and
vice versa;
1.2.3 references to Recitals, Clauses, Schedules and Appendices
are references to recitals and clauses of, and schedules and
appendices to, this Agreement;
1.2.4 references to this Agreement include the Recitals, the
Schedules and the Appendices;
1.2.5 the headings and contents page(s) are for the purpose of
reference only, have no legal or other significance, and
shall be ignored in the interpretation of this Agreement;
1.2.6 references to any document (including, without limitation,
to all or any of the Security Documents) are, unless the
context otherwise requires, references to that document as
amended, supplemented, novated or replaced from time to
time;
1.2.7 references to statutes or provisions of statutes are
references to those statutes, or those provisions, as from
time to time amended, replaced or re-enacted;
15
<PAGE>
1.2.8 references to any of the Finance Parties include its
successors, Transferees and assignees; and
1.2.9 references to times of day are to New York time.
1.3 JOINT AND SEVERAL LIABILITY
1.3.1 All obligations, covenants, representations, warranties and
undertakings in or pursuant to the Security Documents
assumed, given, made or entered into by the Borrower and the
Guarantors shall, unless otherwise expressly provided, be
assumed, given, made or entered into by the Borrower and the
Guarantors jointly and severally.
1.3.2 Each of the Borrower and the Guarantors agrees that any
rights which it may have at any time during the Facility
Period by reason of the performance of its obligations under
the Security Documents to be indemnified by the other or by
any Surety and/or to take the benefit of any security taken
by the Finance Parties pursuant to the Security Documents
shall be exercised in such manner and on such terms as the
Agent may require. Each of the Borrower and the Guarantors
agrees to hold any sums received by it as a result of its
having exercised any such right on trust for the Agent (as
agent for the Banks) absolutely.
1.3.3 Each of the Borrower and the Guarantors agrees that it will
not at any time during the Facility Period claim any set-off
or counterclaim against the other or against any Surety in
respect of any liability owed to it by the other or by any
Surety under or in connection with the Security Documents,
nor prove in competition with any Finance Party in any
liquidation of (or analogous proceeding in respect of) the
other or of any Surety in respect of any payment made under
the Security Documents or in respect of any sum which
includes the proceeds of realisation of any security held by
any of the Finance Parties for the repayment of the
Indebtedness.
16
<PAGE>
2 THE FACILITY AND ITS PURPOSE
2.1 AGREEMENT TO LEND Subject to the terms and conditions of this
Agreement, and in reliance on each of the representations and
warranties made or to be made in or in accordance with each of the
Security Documents, each of the Banks agrees to advance to the
Borrower its Commitment of an aggregate principal amount not
exceeding the Maximum Facility Amount to be used by the Borrower for
the purposes referred to in Recital (A).
2.2 DRAWINGS Subject to satisfaction by the Borrower of the conditions
set out in Clause 3.1 (in respect of the first Drawing), Clause 3.3
(in respect of all subsequent Drawings), and subject to Clause 2.3,
and provided that the maximum aggregate amount of the Facility
Outstandings at any given time during the Facility Period shall not
exceed the Maximum Facility Amount, each Drawing shall be advanced
to the Borrower, in each case by the Agent transferring the amount
of the Drawing to such account of the Borrower as the Borrower shall
notify to the Agent in the relevant Drawdown Notice by such same day
method of funds transfer as the Agent shall select.
2.3 ADVANCE OF DRAWINGS Each Drawing shall be advanced in Dollars. Each
Drawing shall be advanced on a Business Day, provided that the
Borrower shall have given to the Agent not more than ten and not
fewer than four Business Days' notice in writing materially in the
form set out in Appendix A of the required Advance Date of the
Drawing in question. Each Drawdown Notice once given shall be
irrevocable and shall constitute a warranty by the Borrower that:-
2.3.1 all conditions precedent to the advance of the Drawing
requested in that Drawdown Notice will have been satisfied
on or before the Advance Date requested;
2.3.2 no Event of Default or Potential Event of Default has
occurred or will then have occurred; and
17
<PAGE>
2.3.3 no Event of Default or Potential Event of Default will
result from the advance of the Drawing in question.
The Agent shall promptly notify each Bank of the receipt of each
Drawdown Notice, following which each Bank will make its
Proportionate Share of the amount of the requested Drawing
available to the Borrower through the Agent on the Advance Date
requested.
2.4 FACILITY REDUCTION
2.4.1 The amount of the Facility available to the Borrower for
drawing under this Agreement shall be one hundred and fifty
million Dollars ($150,000,000) during the period from the
Execution Date until the Termination Date. On the
Termination Date the Facility available shall be reduced to
zero.
2.4.2 The Borrower may voluntarily reduce the Maximum Facility
Amount in whole or in part in multiples of two million
Dollars ($2,000,000), where applicable provided that it has
first given to the Agent not fewer than fourteen (14) days'
prior written notice expiring on a Business Day of its
desire to reduce the Maximum Facility Amount. Any such
reduction in the Maximum Facility Amount shall not be
reversed.
2.4.3 To the extent that repayments or prepayments made by the
Borrower to the Agent in accordance with this Agreement
reduce the Facility Outstandings to less than the Maximum
Facility Amount, the Borrower shall again be entitled to
make Drawings in accordance with and subject to the terms of
this Agreement.
2.4.4 Simultaneously with any reduction of the Maximum Facility
Amount in accordance with Clause 2.4.2, the Commitment of
each Bank will reduce so that the Commitments of the Banks
in respect of the reduced Maximum Facility Amount remain in
accordance with their respective Proportionate Shares.
18
<PAGE>
2.5 RESTRICTIONS ON DRAWINGS The Borrower shall not be entitled to make
more than three Drawings on any Business Day and no more than ten
(10) Drawings may be outstanding at any one time during the Facility
Period. Each Drawing shall be of an amount of not less than five
million Dollars ($5,000,000). If at any time during the Facility
Period the Facility Outstandings exceed the Maximum Facility Amount
then available or if a proposed Drawing when advanced would result
in the Maximum Facility Amount being exceeded then the Borrower
shall immediately pay to the Agent on behalf of the Banks such
amount as will ensure that the Facility Outstandings are equal to or
less than the Maximum Facility Amount then available.
2.6 TERMINATION DATE No Bank shall be under any obligation to advance
all or any part of its Commitment (i) if the Execution Date has not
occurred on or before 29 February 2000 or (ii) after the Termination
Date.
2.7 SEVERAL OBLIGATIONS The obligations of the Banks under this
Agreement are several. The failure of a Bank to perform its
obligations under this Agreement shall not affect the obligations of
the Borrower to any Finance Party nor shall any Finance Party be
liable for the failure of another Bank to perform any of its
obligations under or in connection with this Agreement.
2.8 APPLICATION OF FACILITY Without prejudice to the obligations of the
Borrower under this Agreement, no Finance Party shall be obliged to
concern itself with the application of the Facility by the Borrower.
2.9 LOAN FACILITY AND CONTROL ACCOUNTS The Agent will open and maintain
such loan facility account or such other control accounts as the
Agent shall in its discretion consider necessary or desirable in
connection with the Facility.
3 CONDITIONS PRECEDENT AND SUBSEQUENT
3.1 CONDITIONS PRECEDENT - FIRST DRAWING Before any Bank shall have any
obligation to advance the first Drawing under the Facility, the
Borrower shall pay
19
<PAGE>
to the Agent the relevant fees referred to in Clause 8 and deliver
or cause to be delivered to or to the order of the Agent the
following documents and evidence:-
3.1.1 EVIDENCE OF INCORPORATION Such evidence as the Agent may
reasonably require that each Security Party was duly
incorporated in its country of incorporation and remains in
existence and, where appropriate, in good standing, with
power to enter into, and perform its obligations under,
those of the Security Documents to which it is, or is
intended to be, a party, including (without limitation) a
copy, certified by a director or an officer of the Security
Party in question as true, complete, accurate and unamended,
of all documents establishing or limiting the constitution
of each Security Party.
3.1.2 CORPORATE AUTHORITIES A copy, certified by a director or the
secretary of the Security Party in question as true,
complete, accurate and neither amended nor revoked, of a
resolution of the directors and (other than the Guarantors)
a resolution of the shareholders of each Security Party
(together, where appropriate, with signed waivers of notice
of any directors' or shareholders' meetings) approving, and
authorising or ratifying the execution of, those of the
Security Documents and each Drawdown Notice to which that
Security Party is or is intended to be a party and all
matters incidental thereto.
3.1.3 OFFICER'S CERTIFICATE A certificate (i) signed by a duly
authorised officer of each of the Security Parties setting
out the names of the directors, officers and (other than the
Guarantors) shareholders of that Security Party and (ii)
issued by each Security Party's company registry confirming
due incorporation and valid existence and (when such
information is maintained by the registry) the names of its
directors and shareholders.
3.1.4 POWER OF ATTORNEY The power of attorney (notarially attested
and legalised, if necessary, for registration purposes) of
each of the Security Parties under which any documents are
to be executed or transactions undertaken by that Security
Party.
20
<PAGE>
3.1.5 THE SECURITY DOCUMENTS This Agreement, the ETPM Pledge
Agreement, any Inter-Company Indebtedness Assignment, and
the Shipowner's Guarantee, together with all notices and
other documents required by any of them, duly executed.
3.1.6 DRAWDOWN NOTICE A Drawdown Notice.
3.1.7 PROCESS AGENT A letter from Stolt-Nielsen Limited accepting
their appointment by each of the Security Parties as agent
for service of Proceedings pursuant to the Security
Documents.
3.1.8 THE FEE LETTERS The Fee Letters countersigned on behalf of
the Borrower and the Guarantors by way of acceptance of
their terms.
3.1.9 LEGAL OPINIONS Confirmation satisfactory to the Agent that
all legal opinions required by the Agent on behalf of the
Banks from its Dutch, French, Luxembourg, Panamanian and
English legal advisers will be given substantially in the
form required by the Agent on behalf of the Banks.
3.1.10 ACCOUNTS The consolidated audited accounts of each of the
Guarantors for the financial year 30 November 1998 in each
case, certified, in respect of SCS, by a director or the
chief financial officer of Stolt Comex Seaway M.S. Limited
as agent for SCS and in respect of SNSA, by the chief
financial officer of SNSA, as fair and accurate.
3.1.11 SUBORDINATION OF SNSA INTERCOMPANY LOAN EQUITY Evidence that
the SNSA Intercompany Loan Equity has been subordinated to
the Indebtedness until its conversion into equity pursuant
to Clause 11.2.12.
3.1.12 ETPM FINANCIAL INFORMATION Such financial information which
ETPM has prepared in the normal course of its business which
the Agent may require.
21
<PAGE>
3.1.13 REFINANCING LETTER A letter in relation to arrangement of
the "take-out banking financing" signed by the Borrower and
the Guarantors in form and substance satisfactory to the
Agent in its absolute discretion (to be delivered to the
Agent in any event no later than fourteen days after the
Execution Date).
3.1.14 CONFIRMATION OF SECURITY ELECTION The documents and evidence
referred to in Schedule 5 if a security election has been
made pursuant to Clause 11.5.
3.1.15 ETPM INDEBTEDNESS The written confirmation of the Borrower
that all of the ETPM Indebtedness has been repaid.
3.2 CONDITIONS SUBSEQUENT The Borrower undertakes to deliver or to cause
to be delivered to the Agent on, or as soon as practicable after,
the first Advance Date, the following additional documents and
evidence:-
3.2.1 LEGAL OPINIONS Such legal opinions as the Agent on behalf of
the Banks shall require pursuant to Clause 3.1.9.
3.2.2 COMPANIES ACT REGISTRATIONS Evidence that the prescribed
particulars of the Security Documents have been delivered to
the Registrar of Companies of England and Wales, within the
statutory time limit.
3.3 CONDITIONS PRECEDENT - SUBSEQUENT DRAWINGS Before any Bank shall
have any obligation to advance any subsequent Drawings under the
Facility, the Borrower shall deliver or cause to be delivered to the
order of the Agent, a Drawdown Notice and any documents and evidence
pursuant to Schedule 5, if applicable, in addition to the documents
and evidence referred to in Clause 3.1 where such documents and
evidence have not already been delivered to and received by the
Agent.
22
<PAGE>
3.4 NO WAIVER If the Banks in their sole discretion agree to advance any
part of the Facility to the Borrower before all of the documents and
evidence required by Clause 3.1 or Clause 3.3 (as the case may be)
have been delivered to or to the order of the Agent, the Borrower
undertakes to deliver all outstanding documents and evidence to or
to the order of the Agent no later than the date specified by the
Agent, and the advance of any part of the Facility shall not be
taken as a waiver of the Agent's right to require production of all
the documents and evidence required by Clause 3.1 or Clause 3.3 (as
the case may be).
3.5 FORM AND CONTENT All documents and evidence delivered to the Agent
pursuant to this Clause shall:-
3.5.1 be in form and substance acceptable to the Agent;
3.5.2 be accompanied, if required by the Agent, by translations
into the English language, certified in a manner acceptable
to the Agent;
3.5.3 if required for registration purposes, be certified,
notarised, legalised or attested in a manner acceptable to
the Agent.
3.6 EVENT OF DEFAULT No Bank shall be under any obligation to advance
any part of its Commitment nor to act on any Drawdown Notice if, at
the date of the Drawdown Notice or at the date on which the advance
of a Drawing is requested in the Drawdown Notice, an Event of
Default or Potential Event of Default shall have occurred, or if an
Event of Default or Potential Event of Default would result from the
advance of the Drawing in question.
4 REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Guarantors represents and warrants to each of
the Finance Parties at the date of this Agreement and (by reference to the
facts and circumstances then pertaining) at the date of each Drawdown
Notice, at each Advance Date and at each Interest Payment Date as follows
(except that the representation and warranty contained at Clause 4.6 and
Clause 4.13 shall only be made on the first Advance Date):-
23
<PAGE>
4.1 INCORPORATION AND CAPACITY Each of the Security Parties is a body
corporate duly constituted, organised and validly existing and
(where applicable) in good standing under the law of its country of
incorporation, in each case with perpetual corporate existence and
the power to sue and be sued, to own its assets and to carry on its
business, and all of the corporate shareholders (if any) of each
Security Party (other than the Guarantors) are duly constituted and
existing under the laws of their countries of incorporation with
perpetual corporate existence and the power to sue and be sued, to
own their assets and to carry on their business.
4.2 SOLVENCY None of the Security Parties is insolvent or in liquidation
or administration or subject to any other insolvency procedure, and
no receiver, administrative receiver, administrator, liquidator,
trustee or analogous officer has been appointed in respect of any of
the Security Parties or all or any part of their assets.
4.3 BINDING OBLIGATIONS The Security Documents when duly executed and
delivered will constitute the legal, valid and binding obligations
of the Security Parties enforceable in accordance with their
respective terms subject to applicable laws regarding creditors'
rights in general.
4.4 SATISFACTION OF CONDITIONS All acts, conditions and things required
to be done and satisfied and to have happened prior to the execution
and delivery of the Security Documents in order to constitute the
Security Documents the legal, valid and binding obligations of the
Security Parties in accordance with their respective terms have been
done, satisfied and have happened in compliance with all applicable
laws.
4.5 REGISTRATIONS AND CONSENTS With the exception only of the
registrations referred to in Clause 3.2 or where appropriate
Schedule 5, all (if any) consents, licences, approvals and
authorisations of, or registrations with or declarations to, any
governmental authority, bureau or agency which may be required in
connection with the execution, delivery, performance, validity or
enforceability of the Security Documents have been obtained or made
and remain in full force and effect and neither the Borrower nor
either of the Guarantors is aware of any event
24
<PAGE>
or circumstance which could reasonably be expected adversely to
affect the right of any of the Security Parties (as the case may be)
to hold and/or obtain renewal of any such consents, licences,
approvals or authorisations.
4.6 DISCLOSURE OF MATERIAL FACTS Neither the Borrower nor the Guarantors
is aware of any material facts or circumstances which have not been
disclosed to the Agent and which might, if disclosed, have
reasonably been expected to adversely affect the decision of a
person considering whether or not to make loan facilities of the
nature contemplated by this Agreement available to the Borrower.
4.7 NO MATERIAL LITIGATION Except for those matters disclosed in writing
to the Agent, there is no action, suit, arbitration or
administrative proceeding nor any contemplated action, suit,
arbitration or administrative proceeding pending or to its knowledge
about to be pursued before any court, tribunal or governmental or
other authority which would, or would be likely to, have a
materially adverse effect on the business, assets, financial
condition or creditworthiness of the Group.
4.8 NO BREACH OF LAW OR CONTRACT The execution, delivery and performance
of the Security Documents will not contravene any contractual
restriction or any law binding on any of the Security Parties or on
any shareholder (whether legal or beneficial) of any of the Security
Parties (other than the Guarantors), or the constitutional documents
of any of the Security Parties, nor result in the creation of, nor
oblige any of the Security Parties to create, any Encumbrance over
all or any of its assets, with the exception of the Encumbrances
created by or pursuant to the Security Documents.
4.9 NO DEDUCTIONS Except as disclosed to the Agent in writing, that to
the best of their knowledge belief and without undue enquiry, none
of the Security Parties is required to make any deduction or
withholding from any payment which it may be obliged to make to any
of the Finance Parties under or pursuant to the Security Documents.
25
<PAGE>
4.10 NO ESTABLISHED PLACE OF BUSINESS IN THE UNITED KINGDOM OR UNITED
STATES Save in respect of the Shipowning Guarantors referred to in
Schedule 2 whose registered office or principal place of business is
in the United Kingdom, none of the Security Parties has, at the date
of this Agreement, an established place of business in the United
Kingdom or the United States of America.
4.11 USE OF FACILITY The Facility will be used for the purposes specified
in Recital (A).
4.12 SUBSIDIARIES Save as a result of any merger or amalgamation effected
pursuant to Clause 11.1.2, each of the Shipowning Guarantors is and
will remain throughout the Facility Period a directly wholly owned
subsidiary of the SCS.
4.13 MATERIAL ADVERSE CHANGE Except as has been previously advised to the
Agent in writing, there has been no material adverse change in the
financial condition of the Borrower or the Guarantors since delivery
to the Agent of each Guarantor's consolidated audited and unaudited
accounts referred to in Clause 3.1.10.
4.14 FINANCE COMPANY STATUS (i) The Borrower complies with and shall
throughout the Facility Period continue to comply (to the extent
applicable), with the regulations of the Netherlands Ministry of
Finance dated 4 February 1993 with respect to finance companies and
that the application of the Facility is and will throughout the
Facility continue to be in accordance with such regulations and (ii)
all notice requirements to the Dutch central bank pursuant to the
Foreign Financial Relations Act ("Wet Financiele Betrekkingen
Buitenland") 1994 have been complied with and shall throughout the
Facility Period continue to be complied with.
4.15 COVENANT COMPLIANCE Each of the Security Parties on the date of this
Agreement is in full compliance with all existing financial
covenants and undertakings contained in any loan facility agreement
to which it is a party.
26
<PAGE>
5 REPAYMENT AND PREPAYMENT
5.1 REPAYMENT Each Drawing shall be repaid by the Borrower to the Agent
on behalf of the Banks on the last day of its Interest Period unless
the Borrower selects a further Interest Period for that Drawing in
accordance with Clause 6, provided that the Borrower shall not be
permitted to select such further Interest Period if an Event of
Default or Potential Event of Default has occurred and shall then be
obliged to repay such Drawing on the last day of its then current
Interest Period. In addition, the Borrower shall from time to time
repay to the Agent as agent for the Banks such amounts of the
Facility Outstandings as will ensure that the Facility Outstandings
do not exceed the Maximum Facility Amount then available. The
Borrower shall on the Termination Date repay to the Agent as agent
for the Banks all Facility Outstandings.
5.2 PREPAYMENT The Borrower may prepay the Facility Outstandings in
whole or in part in multiples of two million Dollars ($2,000,000)
(or as otherwise may be agreed by the Agent) provided that it has
first given to the Agent not fewer than fourteen (14) days' prior
written notice expiring on a Business Day of its intention to do so.
Any notice pursuant to this Clause 5.2 once given shall be
irrevocable and shall oblige the Borrower to make the prepayment
referred to in the notice on the Business Day specified in the
notice, together with all interest accrued on the amount prepaid up
to and including that Business Day.
5.3 PREPAYMENT INDEMNITY If the Borrower shall, subject always to Clause
5.2, make a prepayment on a Business Day other than the last day of
an Interest Period, it shall pay to the Agent on behalf of the Banks
any amount which is necessary to compensate the Banks for any Break
Costs incurred by the Agent or any of the Banks as a result of the
prepayment in question.
5.4 APPLICATION OF PREPAYMENTS Any prepayment in an amount less than the
Indebtedness shall be applied in satisfaction or reduction first of
any costs and other moneys outstanding; secondly of all interest
outstanding and thirdly of the outstanding Drawings in inverse order
of maturity.
27
<PAGE>
5.5 REBORROWING OF PREPAYMENTS Any amount prepaid pursuant to this
Agreement may be reborrowed in accordance with Clause 2.4.3.
6 INTEREST
6.1 INTEREST PERIODS The period during which any Drawing shall be
outstanding pursuant to this Agreement shall be divided into
consecutive Interest Periods of one, two or three months' duration,
as selected by the Borrower by written notice to the Agent not later
than 11.00 a.m. on the fourth Business Day before the beginning of
the Interest Period in question, or such other duration as may be
agreed by the Banks in their discretion. No more than three one (1)
month Interest Periods may be selected by the Borrower during the
Facility Period.
6.2 BEGINNING AND END OF INTEREST PERIODS The first Interest Period in
respect of each Drawing shall begin on the Advance Date of that
Drawing and shall end on the last day of the Interest Period
selected in accordance with Clause 6.1. Any subsequent Interest
Period selected in respect of each Drawing shall commence on the day
following the last day of its previous Interest Period and shall end
on the last day of its current Interest Period selected in
accordance with Clause 6.1. However, in respect of any Drawings
outstanding on the Termination Date, the Interest Period applicable
to such Drawings shall end on the Termination Date.
6.3 INTEREST RATE During each Interest Period interest shall accrue on
each Drawing at the rate determined by the Agent to be the aggregate
of (a) the Margin and (b) LIBOR determined in each case, at or about
11.00 a.m. on the second Business Day prior to the beginning of the
Interest Period relating to that Drawing.
6.4 ACCRUAL AND PAYMENT OF INTEREST Interest shall accrue from day to
day, shall be calculated on the basis of a 360 day year and the
actual number of days elapsed (or, in any circumstance where market
practice differs, in accordance with the prevailing market practice)
and shall be paid by the Borrower to the Agent on behalf of the
Banks on the last day of each Interest Period and additionally,
during any Interest Period exceeding three months, on the last day
of each successive three month period after the beginning of that
Interest Period.
28
<PAGE>
6.5 ENDING OF INTEREST PERIODS If any Interest Period would end on a day
which is not a Business Day, that Interest Period shall end on the
next succeeding Business Day (unless the next succeeding Business
Day falls in the next calendar month, in which event the Interest
Period in question shall end on the next preceding Business Day).
6.6 DEFAULT RATE If an Event of Default shall occur, the whole of the
Indebtedness shall, from the date of the occurrence of the Event of
Default, bear interest up to the date of actual payment (both
before and after judgment) at the Default Rate, compounded at such
intervals as the Agent shall in its discretion determine, which
interest shall be payable from time to time by the Borrower to the
Agent on behalf of the Banks on demand.
6.7 DETERMINATIONS CONCLUSIVE Each determination of an interest rate
made by the Agent in accordance with Clause 6 shall (save in the
case of manifest error or on any question of law) be final and
conclusive.
7 GUARANTEE AND INDEMNITY
7.1 THE BORROWER'S OBLIGATIONS
In consideration of the agreement of the Banks to make the Facility
available to the Borrower, each of the Guarantors:-
7.1.1 irrevocably and unconditionally guarantees to discharge on
demand the Borrower's Obligations, including Interest from
the date of demand until the date of payment, both before
and after judgement; and
7.1.2 agrees, as a separate and independent obligation, that, if
any of the Borrower's Obligations are not recoverable from
the Guarantors under Clause 7.1.1 for any reason, the
Guarantors will be liable to the Finance Parties as
principal debtors by way of indemnity for the same amount as
that for which the Guarantors would have been liable had
those Borrower's Obligations been recoverable and agrees to
discharge its
29
<PAGE>
liability under this Clause 7.1.2 on demand together with
Interest from the date of demand until the date of payment,
both before and after judgement,
provided that the liability of SNSA under Clause 7.1 shall,
during the period commencing on the Execution Date and
ending on a date falling six (6) months thereafter (the
"LIMITATION DATE") be limited to fifty per cent (50%) of the
Borrower's Obligations. Immediately after the Limitation
Date, the liability of SNSA under Clause 7.1 shall be in
respect of the full amount of the Borrower's Obligations.
7.1.3 For the purpose of ascertaining the date on which SNSA
becomes liable from time to time under Clause 7.1.1 or
Clause 7.1.2 (as the case may be), any such date shall be
the date on which an Event of Default shall have occurred.
7.2 CONTINUING SECURITY
The Guarantee is a continuing security for the full amount of the
Borrower's Obligations from time to time and shall remain in force
notwithstanding the liquidation of the Borrower or any change in the
constitution of the Borrower or of any Finance Party or the
absorption of or amalgamation by any Finance Party in or with any
other entity or the acquisition of all or any part of the assets or
undertaking of any Finance Party by any other entity.
7.3 PRESERVATION OF GUARANTORS' LIABILITY
7.3.1 The Banks may without either Guarantor's consent and without
notice to either Guarantor and without in any way releasing
or reducing the Guarantors' Liabilities:-
(a) amend, novate, supplement or replace all or any of the
Borrower's Security Documents;
30
<PAGE>
(b) increase or reduce the amount of the Facility or vary
the terms and conditions for its repayment or
prepayment (including, without limitation, the rate
and/or method of calculation of interest payable on
the Facility);
(c) allow to the Borrower or to any other person any time
or other indulgence;
(d) renew, vary, release or refrain from enforcing any of
the Borrower's Security Documents or any other
security, guarantee or indemnity which the Agent may
now or in the future hold from the Borrower or from
any other person;
(e) compound with the Borrower or any other person;
(f) enter into, renew, vary or terminate any other
agreement or arrangement with the Borrower or any
other person; or
(g) make any concession to the Borrower or do or omit or
neglect to do anything which might, but for this
provision, operate to release or reduce the liability
of either Guarantor under the Guarantee.
7.3.2 The liability of the Guarantors under the Guarantee shall
not be affected by:-
(a) the absence of or any defective, excessive or
irregular exercise of any of the powers of the
Borrower or of any Surety;
(b) any security given or payment made to the Finance
Parties or any of them by the Borrower or any other
person being avoided or reduced under any law (whether
English or foreign) relating to bankruptcy or
insolvency or analogous circumstance in force from
time to time;
31
<PAGE>
(c) the liquidation, administration, receivership or
insolvency of either Guarantor;
(d) any other security, guarantee or indemnity now or in
the future held by the Finance Parties or any of them
being defective, void or unenforceable, or the failure
of the any Finance Party to take any security,
guarantee or indemnity;
(e) any compromise or arrangement under Part I or Part VII
of the Insolvency Act 1986 or section 425 of the
Companies Act 1985 (or any statutory modification or
re-enactment of either of them for the time being in
force) or under any analogous provision of any foreign
law;
(f) the novation of any of the Borrower's Obligations;
(g) anything which would not have released or reduced the
liability of the Guarantors to the Finance Parties had
the liability of the Guarantors under Clause 7.1.1
been as principal debtors of the Finance Parties and
not as guarantors.
7.4 PRESERVATION OF BANKS' RIGHTS
7.4.1 The Guarantee is in addition to any other security,
guarantee or indemnity now or in the future held by the
Finance Parties in respect of the Borrower's Obligations,
whether from the Borrower, the Guarantors or any other
person, and shall not merge with, prejudice or be prejudiced
by any such security, guarantee or indemnity or any
contractual or legal right of each Finance Party.
7.4.2 Any release, settlement, discharge or arrangement relating
to the liabilities of the Guarantors under the Guarantee
shall be conditional on no payment, assurance or security
received by the Finance Parties in respect of the Borrower's
Obligations being avoided or reduced under any law (whether
English or foreign) in force from time to time relating to
32
<PAGE>
bankruptcy, insolvency or any (in the opinion of the Agent)
analogous circumstance and after any such avoidance or
reduction the Finance Parties shall be entitled to exercise
all of their rights, powers, discretions and remedies under
or pursuant to the Guarantee and/or any other rights,
powers, discretions or remedies which they would otherwise
have been entitled to exercise, as if no release,
settlement, discharge or arrangement had taken place.
7.4.3 Following the discharge of the Borrower's Obligations, the
Finance Parties shall be entitled to retain any security
which they may hold for the liabilities of the Guarantors
under the Guarantee until the Finance Parties are satisfied
in their discretion that they will not have to make any
payment under any law referred to in Clause 7.4.2.
7.4.4 Until all claims of the Finance Parties in respect of the
Borrower's Obligations have been discharged in full:-
(a) neither Guarantor shall be entitled to participate in
any security held or sums received by any Finance
Party in respect of all or any part of the Borrower's
Obligations;
(b) neither Guarantor shall stand in the place of, or be
subrogated for, any of the Finance Parties in respect
of any security nor take any step to enforce any claim
against the Borrower or any Surety (or the estate or
effects of any such person) nor claim or exercise any
right of set off or counterclaim against the Borrower
or any Surety nor make any claim in the bankruptcy or
liquidation of the Borrower or any Surety in respect
of any sums paid by either Guarantor to the Finance
Parties or any of them or in respect of any sum which
includes the proceeds of realisation of any security
at any time held by the Finance Parties or any of them
in respect of all or any part of the Guarantors'
Liabilities; and
(c) neither Guarantor shall take any steps to enforce any
claim which it may have against the Borrower or any
Security Party without
33
<PAGE>
the prior written consent of the Agent, and then only
on such terms and subject to such conditions as the
Agent may impose.
7.4.5 The Guarantors' Liabilities shall be continuing for all
purposes (including Interest) and every sum of money which
may now or in the future be or become due or owing to the
Finance Parties by the Borrower under the Security Documents
to which the Borrower is a party (or which would have become
due or owing had it not been for the bankruptcy, liquidation
or insolvency of the Borrower) shall be deemed to continue
due and owing to the Finance Parties by the Borrower until
such sum is actually repaid to the Finance Parties,
notwithstanding the bankruptcy, liquidation or insolvency of
the Borrower.
7.4.6 The Finance Parties may, but shall not be obliged to, resort
for their own benefit to any other means of payment at any
time and in any order they think fit without releasing or
reducing the Guarantors' Liabilities.
7.4.7 The Finance Parties may enforce the Guarantee either before
or after resorting to any other means of payment and, in the
latter case, without entitling either Guarantor to any
benefit from or share in any such other means of payment for
so long as the Borrower's Obligations have not been
discharged in full.
7.5 OTHER SECURITY
Each Guarantor confirms that it has not taken and will not take
without the prior written consent of the Agent (and then only on
such terms and subject to such conditions as the Agent may impose)
any security from the Borrower or from any Surety in connection with
the Guarantee and any security taken by either Guarantor in
connection with the Guarantee notwithstanding this Clause shall be
held by such Guarantor in trust for the Agent on behalf of the
Finance Parties absolutely as a continuing security for the
Guarantors' Liabilities.
34
<PAGE>
8 FEES
8.1 The Borrower shall pay to or to the order of the Agent the fees,
commissions and other sums referred to in the Fee Letters in the
amounts and on the dates set out in the Fee Letters.
8.2 The Borrower shall pay to the Agent Commitment Commission at the
rate of one half of the Margin per annum on any undrawn part of the
Facility after 23 December 1999. The Commitment Commission will
accrue from day to day on the basis of a 360 day year and the actual
number of days elapsed and shall be paid monthly in arrears from 23
December 1999 until the Termination Date.
9 SECURITY DOCUMENTS
9.1 As security for the repayment of the Indebtedness, the Borrower
shall execute and deliver to the Agent or cause to be executed and
delivered to the Agent, on or before the first Advance Date, the
following Security Documents in such forms and containing such terms
and conditions as the Agent shall require:-
9.1.1 THE SHIPOWNERS' GUARANTEE the joint and several guarantee
and indemnity of the Shipowning Guarantors; and
9.1.2 ANY INTER-COMPANY INDEBTEDNESS ASSIGNMENTS if applicable, a
deed of assignment of any Inter-Company Indebtedness
materially in the form set forth in Appendix B; and
9.1.3 THE ETPM PLEDGE AGREEMENT the agreement of ETPM containing a
negative pledge and agreement to pledge all its material
assets.
9.2 As further security for the repayment of the Indebtedness, the
Borrower shall cause to be executed and delivered to the Agent, from
time to time, all Security Documents required by the Agent pursuant
to Clause 11.5.1.
35
<PAGE>
10 AGENCY AND TRUST
10.1 APPOINTMENT Each of the Banks and the Arranger appoints the Agent
its agent for the purpose of administering the Facility and the
Security Documents and authorises the Agent and its directors,
officers, employees and agents acting on the instructions from time
to time of an Instructing Group, and subject to Clauses 10.4 and
10.19, to execute the Security Documents on its behalf and to
exercise all rights, powers, discretions and remedies vested in the
Banks under or pursuant to the Security Documents, together with all
powers reasonably incidental to them.
10.2 AUTHORITY Each of the Banks and the Arranger irrevocably authorises
the Agent, acting on the instructions from time to time of an
Instructing Group:-
10.2.1 to give or withhold any consents or approvals; and
10.2.2 to exercise, or refrain from exercising, any discretions;
and
10.2.3 to collect, receive, release or pay any money;
under or pursuant to any of the Security Documents. In addition the
Agent may waive compliance by any Security Party with Clauses 11.2.1
and 17.2.3 with the prior written consent of an Instructing Group.
The Agent shall have no duties or responsibilities as agent or as
security trustee other than those expressly conferred on it by the
Security Documents and shall not be obliged to act on any
instructions if to do so would, in the opinion of the Agent, be
contrary to any provision of the Security Documents or to any law,
or would expose the Agent to any actual or potential liability to
any third party.
10.3 TRUST The Agent agrees and declares, and each of the Banks
acknowledges, that, subject to the terms and conditions of this
Clause, the Agent holds the Trust Property on trust for the Banks,
in accordance with their respective Proportionate Shares,
absolutely. Each of the Banks agrees that the obligations, rights
and benefits vested in the Agent in its capacity as security trustee
shall be performed and exercised in accordance with this Clause. The
Agent in its capacity as
36
<PAGE>
security trustee shall have the benefit of all of the provisions of
this Agreement benefiting it in its capacity as agent for the Banks,
and all the powers and discretions conferred on trustees by the
Trustee Act 1925 (to the extent not inconsistent with this
Agreement). In addition:-
10.3.1 the Agent (and any attorney, agent or delegate of the Agent)
may indemnify itself or himself out of the Trust Property
against all liabilities, costs, fees, damages, charges,
losses and expenses sustained or incurred by it or him in
relation to the taking or holding of any of the Trust
Property or in connection with the exercise or purported
exercise of the rights, trusts, powers and discretions
vested in the Agent or any other such person by or pursuant
to the Security Documents or in respect of anything else
done or omitted to be done in any way relating to the
Security Documents; and
10.3.2 the Banks acknowledge that the Agent shall be under no
obligation to insure any property nor to require any other
person to insure any property and shall not be responsible
for any loss which may be suffered by any person as a result
of the lack or insufficiency of any insurance; and
10.3.3 the Agent and the Banks agree that the perpetuity period
applicable to the trusts declared by this Agreement shall be
the period of eighty years from the Execution Date.
10.4 LIMITATIONS ON AUTHORITY Except with the prior written consent of
each of the Banks, the Agent shall not be entitled to :-
10.4.1 release or vary any security given for the Borrower's
obligations under this Agreement; nor
10.4.2 except as otherwise provided in this Agreement, agree to
waive the payment of any sum of money payable by any of the
Security Parties under the Security Documents or waive,
modify, vary or otherwise
37
<PAGE>
amend or excuse performance by any of the Security Parties
of any material provision of the Security Documents; nor
10.4.3 change the meaning of the expression "INSTRUCTING GROUP";
nor
10.4.4 exercise, or refrain from exercising, any discretion, or
give or withhold any consent, the exercise or giving of
which is, by the terms of this Agreement, expressly reserved
to the Banks; nor
10.4.5 extend the due date for the payment of any sum of money
payable by any of the Security Parties under the Security
Documents; nor
10.4.6 take or refrain from taking any step if the effect of such
action or inaction may lead to the increase of the
obligations of a Bank under any of the Security Documents;
nor
10.4.7 agree to change the currency in which any sum is payable
under the Security Documents (other than in accordance with
the terms of the Security Documents); nor
10.4.8 agree to amend this Clause 10.4.
10.5 LIABILITY Neither the Agent nor any of its directors, officers,
employees or agents shall be liable to the Banks or the Arrangers
for anything done or omitted to be done by the Agent under or in
connection with the Security Documents unless as a result of the
Agent's wilful misconduct or gross negligence.
10.6 ACKNOWLEDGEMENT Each of the Banks and the Arrangers acknowledges
that:-
10.6.1 it has not relied on any representation made by the Agent or
any of the Agent's directors, officers, employees or agents
or by any other person acting or purporting to act on behalf
of the Agent to induce it to enter into any of the Security
Documents;
38
<PAGE>
10.6.2 it has made and will continue to make without reliance on
the Agent, and based on such documents and other evidence as
it considers appropriate, its own independent investigation
of the financial condition and affairs of the Security
Parties in connection with the making and continuation of
the Facility;
10.6.3 it has made its own appraisal of the creditworthiness of the
Security Parties;
10.6.4 the Agent shall not have any duty or responsibility at any
time to provide it with any credit or other information
relating to any of the Security Parties unless that
information is received by the Agent pursuant to the express
terms of the Security Documents.
Each of the Banks and the Arrangers agrees that it will not assert
nor seek to assert against any director, officer, employee or agent
of the Agent or against any other person acting or purporting to act
on behalf of the Agent any claim which it might have against them in
respect of any of the matters referred to in this Clause.
10.7 LIMITATIONS ON RESPONSIBILITY The Agent shall have no responsibility
to any of the Security Parties or to the Banks or to the Arrangers
on account of:-
10.7.1 the failure of a Bank or of any of the Security Parties to
perform any of their respective obligations under the
Security Documents;
10.7.2 the financial condition of any of the Security Parties;
10.7.3 the completeness or accuracy of any statements,
representations or warranties made in or pursuant to any of
the Security Documents, or in or pursuant to any document
delivered pursuant to or in connection with any of the
Security Documents;
10.7.4 the negotiation, execution, effectiveness, genuineness,
validity, enforceability, admissibility in evidence or
sufficiency of any of the
39
<PAGE>
Security Documents or of any document executed or delivered
pursuant to or in connection with any of the Security
Documents.
10.8 THE AGENT'S RIGHTS The Agent may:-
10.8.1 assume that all representations or warranties made or deemed
repeated by any of the Security Parties in or pursuant to
any of the Security Documents are true and complete, unless,
in its capacity as the Agent, it has acquired actual
knowledge to the contrary; and
10.8.2 assume that no Event of Default or Potential Event of
Default has occurred unless, in its capacity as the Agent,
it has acquired actual knowledge to the contrary; and
10.8.3 rely on any document or Communication believed by it to be
genuine; and
10.8.4 rely as to legal or other professional matters on opinions
and statements of any legal or other professional advisers
selected or approved by it; and
10.8.5 rely as to any factual matters which might reasonably be
expected to be within the knowledge of any of the Security
Parties on a certificate signed by or on behalf of that
Security Party; and
10.8.6 refrain from exercising any right, power, discretion or
remedy unless and until instructed to exercise that right,
power, discretion or remedy and as to the manner of its
exercise by the Banks (or, where applicable, by an
Instructing Group) and unless and until the Agent has
received from the Banks any payment which the Agent may
require on account of, or any security which the Agent may
require for, any costs, claims, expenses (including legal
and other professional fees) and liabilities which it
considers it may incur or sustain in complying with those
instructions.
40
<PAGE>
10.9 THE AGENT'S DUTIES The Agent shall:-
10.9.1 if requested in writing to do so by a Bank, make enquiry and
advise the Banks as to the performance or observance of any
of the provisions of the Security Documents by any of the
Security Parties or as to the existence of an Event of
Default; and
10.9.2 inform the Banks promptly of any Event of Default of which
the Agent has actual knowledge; and
10.9.3 inform the Banks promptly of any disclosures in writing
received by the Agent pursuant to Clause 4.7.
10.10 NO DEEMED KNOWLEDGE The Agent shall not be deemed to have actual
knowledge of the falsehood or incompleteness of any representation
or warranty made or deemed repeated by any of the Security Parties
or actual knowledge of the occurrence of any Event of Default or
Potential Event of Default unless a Bank or any of the Security
Parties shall have given written notice thereof to the Agent.
10.11 OTHER BUSINESS The Agent may, without any liability to account to
the Banks or the Arrangers, generally engage in any kind of banking
or trust business with any of the Security Parties or any of their
respective Subsidiaries or associated companies or with a Bank as if
it were not the Agent.
10.12 INDEMNITY The Banks shall, promptly on the Agent's request,
reimburse the Agent in their respective Proportionate Shares, for,
and keep the Agent fully indemnified in respect of:-
10.12.1 all amounts payable by the Borrower to the Agent pursuant to
Clause 18 to the extent that those amounts are not paid by
the Borrower;
41
<PAGE>
10.12.2 all liabilities, damages, costs and claims sustained or
incurred by the Agent in connection with the Security
Documents, or the performance of its duties and obligations,
or the exercise of its rights, powers, discretions or
remedies under or pursuant to any of the Security Documents;
or in connection with any action taken or omitted by the
Agent under or pursuant to any of the Security Documents,
unless in any case those liabilities, damages, costs or
claims arise solely from the Agent's wilful misconduct or
gross negligence.
10.13 EMPLOYMENT OF AGENTS In performing its duties and exercising its
rights, powers, discretions and remedies under or pursuant to the
Security Documents, the Agent shall be entitled to employ and pay
agents to do anything which the Agent is empowered to do under or
pursuant to the Security Documents (including the receipt of money
and documents and the payment of money) and to act or refrain from
taking action in reliance on the opinion of, or advice or
information obtained from, any lawyer, banker, broker, accountant,
valuer or any other person believed by the Agent in good faith to be
competent to give such opinion, advice or information.
10.14 DISTRIBUTION OF PAYMENTS The Agent shall pay promptly to the order
of each of the Banks that Bank's Proportionate Share of every sum of
money received by the Agent pursuant to the Security Documents (with
the exception of any amounts payable pursuant to Clause 8.1 and/or
the Fee Letters and any amounts which, by the terms of the Security
Documents, are paid to the Agent for the account of the Agent alone
or specifically for the account of one or more Banks or the
Arranger) and until so paid such amount shall be held by the Agent
on trust absolutely for that Bank or the Arranger (or as the case
may be).
10.15 REIMBURSEMENT The Agent shall have no liability to pay any sum to a
Bank or to the Arranger until it has itself received payment of that
sum. If, however, the Agent does pay any sum to a Bank or to the
Arranger on account of any amount prospectively due to it pursuant
to Clause 10.14 before it has itself received payment of that
amount, and the Agent does not in fact receive payment within five
Business Days after the date on which that payment was required to
be made
42
<PAGE>
by the terms of the Security Documents, the recipient will, on
demand by the Agent, refund to the Agent an amount equal to the
amount received by it, together with an amount sufficient to
reimburse the Agent for any amount which the Agent may certify that
it has been required to pay by way of interest on money borrowed to
fund the amount in question during the period beginning on the date
on which that amount was required to be paid by the terms of the
Security Documents and ending on the date on which the Agent
receives reimbursement.
10.16 REDISTRIBUTION OF PAYMENTS Unless otherwise agreed between the
Finance Parties, if at any time a Bank receives or recovers by way
of set-off, the exercise of any lien or otherwise (other than from
any assignee or transferee of or sub-participant in that Bank's
Commitment), an amount greater than that Bank's Proportionate Share
of any sum due from any of the Security Parties under the Security
Documents (the amount of the excess being referred to in this Clause
as the "EXCESS AMOUNT") then:-
10.16.1 that Bank shall promptly notify the Agent (which shall
promptly notify each other Bank);
10.16.2 that Bank shall pay to the Agent an amount equal to the
Excess Amount within ten days of its receipt or recovery of
the Excess Amount; and
10.16.3 the Agent shall treat that payment as if it were a payment
by the Security Party in question on account of the sum owed
to the Banks as aforesaid and shall account to the Banks in
respect of the Excess Amount in accordance with the
provisions of this Clause.
However, if a Bank has commenced any Proceedings to recover sums
owing to it under the Security Documents and, as a result of, or in
connection with, those Proceedings has received an Excess Amount,
the Agent shall not distribute any of that Excess Amount to any
other Bank which had been notified of the Proceedings and had the
legal right to, but did not, join those Proceedings or commence and
diligently prosecute separate Proceedings to enforce its rights in
the same or another court.
43
<PAGE>
10.17 RESCISSION OF EXCESS AMOUNT If all or any part of any Excess Amount
is rescinded or must otherwise be restored to any of the Security
Parties or to any other third party, the Banks which have received
any part of that Excess Amount by way of distribution from the Agent
pursuant to this Clause shall repay to the Agent for the account of
the Bank which originally received or recovered the Excess Amount,
the amount which shall be necessary to ensure that the Banks share
rateably in accordance with their Proportionate Shares in the amount
of the receipt or payment retained, together with interest on that
amount at a rate equivalent to that (if any) paid by the Bank
receiving or recovering the Excess Amount to the person to whom that
Bank is liable to make payment in respect of such amount, and Clause
10.16.3 shall apply only to the retained amount.
10.18 PROCEEDINGS Each of the Finance Parties shall notify one another of
the proposed commencement of any Proceedings under any of the
Security Documents prior to their commencement. No such Proceedings
may be commenced without the prior written consent of an Instructing
Group.
10.19 INSTRUCTIONS Where the Agent is authorised or directed to act or
refrain from acting in accordance with the instructions of the Banks
or of an Instructing Group each of the Banks shall provide the Agent
with instructions within three Business Days of the Agent's request
(which request may be made orally or in writing). If a Bank does not
provide the Agent with instructions within that period, that Bank
shall be bound by the decision of the Agent. Nothing in this Clause
shall limit the right of the Agent to take, or refrain from taking,
any action without obtaining the instructions of the Banks if the
Agent in its discretion considers it necessary or appropriate to
take, or refrain from taking, such action in order to preserve the
rights of the Banks under or in connection with the Security
Documents. In that event, the Agent will notify the Banks of the
action taken by it as soon as reasonably practicable, and the Banks
agree to ratify any action taken by the Agent pursuant to this
Clause.
10.20 COMMUNICATIONS Any Communication under this Clause shall be given,
delivered, made or served, in the case of the Agent (in its capacity
as Agent or as
44
<PAGE>
one of the Banks), and in the case of the other Banks, at the
address indicated in Schedule 1.
10.21 PAYMENTS All amounts payable to a Bank under this Clause shall be
paid to such account at such bank as that Bank may from time to time
direct in writing to the Agent.
10.22 RETIREMENT Subject to a successor being appointed in accordance with
this Clause, the Agent may retire as agent and/or security trustee
at any time without assigning any reason by giving to the Borrower
and the other Finance Parties notice of its intention to do so, in
which event the following shall apply:-
10.22.1 with the consent of the Borrower, not to be unreasonably
withheld, the other Finance Parties may within thirty days
after the date of the Agent's notice appoint a successor to
act as agent and/or security trustee or, if they fail to do
so with the consent of the Borrower, not to be unreasonably
withheld, the Agent may appoint any other bank or financial
institution as its successor;
10.22.2 the resignation of the Agent shall take effect
simultaneously with the appointment of its successor on
written notice of that appointment being given to the
Borrower and the other Finance Parties;
10.22.3 the Agent shall thereupon be discharged from all further
obligations as agent and/or security trustee but shall
remain entitled to the benefit of the provisions of this
Clause;
10.22.4 the Agent's successor and each of the other parties to this
Agreement shall have the same rights and obligations amongst
themselves as they would have had if that successor had been
a party to this Agreement.
10.23 NO FIDUCIARY RELATIONSHIP Except as provided in Clauses 10.3 and
10.14, the Agent shall not have any fiduciary relationship with or
be deemed to be a trustee of or for a Bank or the Arranger and
nothing contained in any of the Security
45
<PAGE>
Documents shall constitute a partnership between any two or more
Banks or between the Agent and any Bank or the Arranger.
10.24 THE AGENT AS A BANK The expression "THE BANKS" when used in the
Security Documents includes the Agent in its capacity as one of the
Banks. The Agent shall be entitled to exercise its rights, powers,
discretions and remedies under or pursuant to the Security Documents
in its capacity as one of the Banks in the same manner as any other
Bank and as if it were not also the Agent.
10.25 THE AGENT AS SECURITY TRUSTEE Unless the context otherwise requires,
the expression "THE AGENT" when used in the Security Documents
includes the Agent acting in its capacities both as agent and
security trustee.
11 COVENANTS
Each of the Borrower and the Guarantors covenants with the Finance Parties
in the following terms.
11.1 NEGATIVE COVENANTS
Neither the Borrower nor the Guarantors, will:-
11.1.1 NO THIRD PARTY RIGHTS without the Banks' prior written
consent, save for Permitted Liens, secure any debt or
guarantee obligation on any Vessel or other asset secured or
to be secured in favour of the Finance Parties or any of
them under the Security Documents nor permit any Security
Party or any other member of the SCS Group to create or
permit to arise or subsist any Encumbrance of whatever
nature upon any amount due from time to time during the
Facility Period to that Security Party or any other member
of the SCS Group in relation to any ETPM Assets except any
Encumbrance existing on the date of this Agreement and
notified to the Agent and listed in Appendix C; nor
11.1.2 MERGER OR AMALGAMATION without the prior written consent of
an Instructing Group, permit any merger or amalgamation
unless (i) SCS,
46
<PAGE>
SNSA, the Borrower and each Shipowning Guarantor (as the
case may be) remains the surviving entity following any such
merger or amalgamation (or if the merger or amalgamation
involves more than one of the Shipowning Guarantors, then
one of the Shipowning Guarantors remains the surviving
entity) and (ii) such surviving entity is not divested of
any material part of the assets or operations of such member
of the SCS Group and (iii) in the case of SCS or SNSA, such
merger or amalgamation has been approved by a duly passed
resolution of its shareholders; nor
11.1.3 DISPOSAL OF ASSETS without prejudice to any provision
contained in any Security Document, sell, lease, transfer or
otherwise dispose of, by one or more transactions or series
of transactions (whether related or not), any of its Vessels
or the whole or any part of its other property or assets
otherwise than on arm's length commercial terms except where
such sale, lease, transfer or disposal is between a
Guarantor and any Subsidiary; nor
11.1.4 NO BORROWINGS in the case of the Borrower and SCS only,
borrow any money or incur any obligations under leases other
than borrowings in respect of existing credit lines; nor
11.1.5 NO LOANS OR OTHER FINANCIAL COMMITMENTS in the case of the
Borrower and SCS only, make any loan nor enter into any
guarantee or indemnity or otherwise voluntarily assume any
actual or contingent liability in respect of any obligation
of any other person not being a member of the SCS Group; nor
11.1.6 NO DIVIDENDS in the case of the Borrower and SCS only, pay
any dividends or make any other distributions to
shareholders unless, in the case of SCS, such distribution
of dividends has been approved by a duly passed resolution
of the shareholders.
47
<PAGE>
11.2 POSITIVE COVENANTS
11.2.1 FINANCIAL STATEMENTS The Borrower will supply to the Agent,
without request:-
(a) its annual unaudited financial statements for each
financial year of the Borrower ending during the
Facility Period, containing (amongst other things) the
Borrower's profit and loss account for, and balance
sheet at the end of, each such financial year,
prepared in accordance with generally accepted
accounting principles and practices applicable to
companies incorporated in the Netherlands consistently
applied, in each case within one hundred and eighty
days of the end of the financial year to which they
relate and such financial statements shall accurately
and fairly represent the financial condition of the
Borrower; and
(b) on a consolidated basis:-
(i) each Guarantors annual audited accounts prepared
in accordance with US GAAP within one hundred
and eighty days of the end of the financial year
to which they relate and such financial
statements shall accurately and fairly represent
the financial condition of the Group; and
(ii) each Guarantors unaudited quarterly financial
statements (including cash flow analysis) not
later than 90 days after the end of the relevant
fiscal quarter; and
(c) the SCS Group's consolidated budget; and
(d) any financial information delivered by each Guarantor
to its shareholders; and
48
<PAGE>
(e) on a non-consolidated basis and if reasonably required
by the Agent and the company concerned is obliged by
law or otherwise to prepare accounts, the annual
unaudited accounts of each of the Shipowning
Guarantors within one hundred and eighty days of the
end of the financial year to which they relate; and
(f) a statement of the aggregate amount due at any time to
the SCS Group at least every twelve (12) months during
the Facility Period; and
(g) in respect of the SCS Group a cash flow projection for
the following three (3) years to be provided every six
months during the Facility Period; and
(h) a list and broad description of all contracts with a
value in excess of two million Dollars ($2,000,000) to
be performed by any member of the SCS Group, to be
provided every six months during the Facility Period,
such information to be in the form set forth in
Appendix D.
11.2.2 OTHER INFORMATION The Borrower will promptly supply to the
Agent copies of all financial and other information from
time to time given by each Guarantor to its shareholders and
such information and explanations as the Agent may from time
to time reasonably require in connection with the Borrower's
and each Guarantor's profit and liquidity, and will procure
that the Agent be given the like information and
explanations relating to all other Security Parties.
11.2.3 SCS'S PUBLIC LISTING Each of the Borrower and the Guarantors
shall ensure that throughout the Facility Period SCS shall
remain a public listed company unless it is owned by
significant and recognised corporate bodies approved by the
Banks with a corporate rating of at
49
<PAGE>
least BBB as defined by Standard & Poor's or similar rating
from a rating agency acceptable to the Banks.
11.2.4 CERTIFICATE OF COMPLIANCE The Borrower and the Guarantors
shall deliver to the Agent a duly executed Certificate of
Compliance ninety (90) days after the end of each fiscal
quarter occurring during the Facility Period.
11.2.5 INSPECTION OF RECORDS The Borrower and the Guarantors will
each permit the inspection of its financial records and
accounts from time to time during business hours by the
Agent or its nominee.
11.2.6 NOTIFICATION OF EVENT OF DEFAULT Each of the Borrower and
the Guarantors will immediately notify the Agent in writing
of the occurrence of any Event of Default or Potential Event
of Default or any event which will materially adversely
affect the Borrower's or the Guarantor's ability to perform
its obligations under this Agreement or the ability of any
of the other Security Parties or any Principal Subsidiary to
perform any of their obligations under any of the Security
Documents to which they are a party or may become a party
to.
11.2.7 NOTIFICATION Each of the Borrower and the Guarantors shall
ensure that the Agent is immediately notified if any of the
Security Parties has an established place of business in the
United Kingdom or the United States of America at any time
during the Facility Period.
11.2.8 PARI PASSU Each of the Borrower and the Guarantors shall
ensure that their respective obligations under this
Agreement shall at all times rank at least pari passu with
all of their other present and future unsecured and
unsubordinated indebtedness with the exception of any
obligations which are mandatorily preferred by any
applicable laws to companies generally and not by contract.
50
<PAGE>
11.2.9 CORPORATE EXISTENCE Save as permitted by Clause 11.1.2, each
of the Borrower and the Guarantors shall ensure that
throughout the Facility Period each of the Security Parties
shall (i) remain duly formed and validly existing under the
laws of its respective jurisdiction of incorporation (ii)
remain authorised to do business in the jurisdiction in
which it transacts its business (iii) continue to have the
power to carry on its business as it is now being conducted
and to enter into and perform its obligations under the
Security Documents to which it is a party and (iv) continue
to comply with all statutory, regulatory and other
requirements relative to its business which could reasonably
be expected to have a material adverse effect on its
business, assets or operations, financial or otherwise.
11.2.10 ADMISSIBILITY IN EVIDENCE Each of the Borrowers and the
Guarantors shall on the request of the Agent obtain all
necessary authorisations, consents, approvals, licences,
exemptions, filings, registrations, recordings and
notarisations required or advisable in connection with the
admissibility in evidence of the Security Documents or any
of them in Proceedings in England or any other jurisdiction
in which Proceedings have been commenced.
11.2.11 FINANCE COMPANY STATUS The Borrower will ensure that
throughout the Facility Period the Borrower will comply with
the regulations of the Netherlands Ministry of Finance dated
4 February 1993 with respect to finance companies to the
extent applicable and that the application of the Facility
will be in accordance with such regulations. The Borrower
will also ensure that throughout the Facility Period all
notice requirements to the Dutch Central Bank pursuant to
the Foreign Financial Relations Act ("Wet Financiele
Betrekkingen Buitenland") 1994, are complied with.
11.2.12 INTERCOMPANY LOAN EQUITY Each of the Borrower and SCS shall
ensure that the Intercompany Loan Equity is converted into
equity on or before 28 February 2000.
51
<PAGE>
11.2.13 MORTGAGED ASSETS In respect of each Mortgaged Asset, each of
the Borrower and the Guarantors shall:
(i) comply in all material respects with the requirements
of all applicable laws (including any environmental
laws), rules, regulations, orders and decrees of any
administrative or governmental authority or
organisation;
(ii) repair and keep in good and substantial repair all
Vessels, installations, equipment, containers,
properties and other assets owned by it;
(iii) permit the Agent, its agents, officers and employees
free access at all reasonable times to any of its
offices or operation centres and allow such persons to
inspect such documents or information as they may
reasonably request and provide, on the request of such
person, such copies of such documents or information
as aforesaid; and
(iv) ensure that all taxes, levies, imposts, custom duties
and other levies (howsoever described) (together with
any interest accruing thereon) the non-payment of
which might reasonably be expected to have a material
adverse affect on the financial condition of the
Security Parties, or any of them, are paid promptly
and provide the Agent with details of any demand
issued for such taxes, levies, imposts, customs duties
or other levies;
(v) ensure that all its books of account and records
(including operational records relating to its
Vessels) are kept up to date and in such places they
are easily accessible in the event the Agent exercises
its rights to inspect the same pursuant to paragraph
(iii) above; and
52
<PAGE>
(vi) ensure that it maintains and procure that each of its
Subsidiaries maintains, insurance coverage with
financially sound and reputable insurers or ship
owners' mutual associations and in such forms and
amounts and against such risks as are customary for
corporations of established reputation engaged in the
same or similar business and owning and operating
similar properties.
11.3 SCS'S FINANCIAL COVENANTS
11.3.1 Throughout the Facility Period SCS shall:-
(a) maintain a Consolidated Tangible Net Worth of not less
than $250,000,000 PLUS 50% of consolidated net income
(to the extent positive) for each fiscal year from and
after 30 November 1999;
(b) maintain a Consolidated Debt to Consolidated Tangible
Net worth ratio of a maximum of 1.25:1 as calculated
at the end of each fiscal quarter ending 31 August and
a maximum of 1.0:1 as calculated quarterly at the end
of each fiscal quarter ending on the last day of
February, May and November;
(c) on a rolling four fiscal quarter basis, maintain a
D/EBITDA ratio of a maximum of 3.5:1 during the
Facility Period; and
(d) ensure that any inter-company debt due from SNSA or
any of its Subsidiaries (not including the SCS Group)
to the SCS Group does not at any one time exceed
thirty million Dollars ($30,000,000) in aggregate or
its equivalent amount in another currency.
53
<PAGE>
11.3.2 Immediately on any Inter-Company Indebtedness coming into
effect SCS shall duly authorise, execute and deliver to the
Agent an Inter-Company Indebtedness Assignment.
11.4 SNSA FINANCIAL COVENANTS
11.4.1 SNSA shall ensure that, at all times throughout the Facility
Period:-
(a) SNSA Consolidated Tangible Net Worth is equal to or
greater than six hundred million Dollars
($600,000,000); and
(b) the ratio of SNSA Consolidated Debt to SNSA
Consolidated Tangible Net Worth is less than or equal
to 2:1.
54
<PAGE>
11.5 SECURITY ELECTION
11.5.1 The Borrower hereby agrees that from time to time during the
Facility Period, the Agent may elect at any time by notice
in writing to the Borrower (which the Agent shall copy to
the Arranger and the Banks) to require the Borrower to
provide, or arrange that there be provided by one or more of
the Borrower's Subsidiaries, security for the Borrower's
obligations under this Agreement. If the Agent makes such an
election, the Borrower shall, within forty five (45) days
from the date of the aforementioned notice (or such longer
period as the Agent may in writing agree) provide to the
Agent the documents and evidence set out in paragraphs 1 to
11 of Schedule 5 in respect of each Mortgagor and each
Mortgaged Vessel, and will use all reasonable endeavours to
provide to the Agent the document set out in paragraph 12 of
Schedule 5, it being acknowledged by the Agent that, if the
Borrower (having used all reasonable endeavours) is unable
to provide the document set out in paragraph 12 of Schedule
5, it shall be under no obligation to provide the documents
set out in paragraph 4 of Schedule 5 or any other documents
required solely by the terms of the document set out in
paragraph 4 of Schedule 5. Upon receipt of all such
documents and evidence, all in form and substance
satisfactory to the Agent, the Agent shall, as soon as is
practicable thereafter, confirm such receipt in writing to
the Borrower.
11.5.2 Each Guarantor covenants that it shall, in relation to each
Mortgaged Vessel:-
(a) maintain, or procure that there are maintained, such
hull and machinery insurance and entries in protection
and indemnity or war risk associations and such
mortgagee interest insurance in respect of such
Mortgaged Vessel as are taken out in respect of any
other vessels in either Guarantor's fleet with such
brokers, underwriters or protection indemnity
associations as are reasonably acceptable to the Agent
and in each case in an
55
<PAGE>
amount equal to at least market value of such
Mortgaged Vessel; and
(b) comply with, or procure that the relevant Mortgagor
complies with, such other provisions, warranties and
covenants as may be contained in any of the Security
Documents to which such Mortgagor is a party.
11.5.3 The terms of any Security Documents delivered to the Agent
pursuant to Clause 11.5.1 shall be agreed between the Agent
and the Borrower at the relevant time but in the case of any
mortgage or assignment of Earnings, Insurances and
Requisition Compensation shall be substantially in the forms
annexed hereto as Appendix E Part A and Part B respectively
with such adjustments as may be appropriate depending on the
flag of the Mortgaged Vessel. Notwithstanding the foregoing,
the Agent and the Borrower agree that prior to the
occurrence of an Event of Default, notice of any assignment
of Earnings (whether contained in a deed of covenants or
otherwise) shall not be required to be delivered to any
charterer of a Mortgaged Vessel.
12 EVENTS OF DEFAULT
12.1 THE AGENT'S RIGHTS If any of the events set out in Clause 12.2
occurs, and such event remains unremedied for fourteen (14) days
after notice thereof has been given by the Agent to the Borrower
(except in relation to any of the events described in Clauses
12.2.1, 12.2.2, 12.2.4, 12.2.6 and 12.2.15 where such remedy period
shall not apply) the Agent may at its discretion by notice to the
Borrower declare the Banks to be under no further obligation to the
Borrower under or pursuant to this Agreement and may declare all or
any part of the Indebtedness (including such unpaid interest as
shall have accrued) to be immediately payable, whereupon the
Indebtedness (or the part of the Indebtedness referred to in the
Agent's notice) shall immediately become due and payable without any
further demand or notice of any kind.
12.2 EVENTS OF DEFAULT The events referred to in Clause 12.1 are:-
56
<PAGE>
12.2.1 PAYMENT DEFAULT if the Borrower defaults in the payment of
any part of the Indebtedness when due; or
12.2.2 OTHER DEFAULT if any of the Security Parties fails to
observe or perform any of the covenants, conditions,
undertakings, agreements or obligations on its part
contained in any of the Security Documents or shall in any
other way be in breach of or do or cause to be done any act
repudiating or evidencing an intention to repudiate any of
the Security Documents and such default (if in the
reasonable opinion of the Instructing Group capable of
remedy) is not remedied within fourteen (14) days after
notice of the default has been given to the Borrower; or
12.2.3 MISREPRESENTATION OR BREACH OF WARRANTY if any
representation, warranty or statement made, deemed to be
made, or repeated under any of the Security Documents or in
any accounts, certificate, notice instrument, written
statement or opinion delivered by a Security Party under or
in connection with any Security Document is incorrect in any
material respect when made, deemed to be made or repeated;
or
12.2.4 EXECUTION if a distress or execution or other process of a
court or authority is levied on any of the property of any
of the Security Parties or any of the Principal Subsidiaries
before or after final judgment or by order of any competent
court or authority for an amount in excess of ten million
Dollars ($10,000,000) or, its equivalent in any other
currency and is not satisfied or stayed (with a view to
being contested in good faith) within fourteen days of levy;
or
12.2.5 INSOLVENCY EVENTS if any of the Security Parties or any of
the Principal Subsidiaries:-
(a) resolves to appoint, or applies for, or consents to
the appointment of, a receiver, administrative
receiver, trustee, administrator or liquidator of
itself or of all or part of its assets other than for
the
57
<PAGE>
purposes of a merger or amalgamation pursuant to
Clause 11.1.2; or
(b) is unable or admits its inability to pay its debts as
they fall due; or
(c) makes a general assignment for the benefit of
creditors; or
(d) ceases trading or threatens to cease trading; or
(e) has appointed an Inspector under the Companies Act
1985 or any statutory provision which the Agent in its
discretion considers analogous thereto; or
12.2.6 INSOLVENCY PROCEEDINGS if any proceedings are commenced or
threatened, or any order or judgment is given by any court,
for the bankruptcy, liquidation, winding up, administration
or re-organisation of any of the Security Parties or any of
the Principal Subsidiaries or for the appointment of a
receiver, administrative receiver, administrator, liquidator
or trustee of any of the Security Parties or any of the
Principal Subsidiaries or of all or part of the assets of
any of the Security Parties or any of the Principal
Subsidiaries, or if any person appoints or purports to
appoint such receiver, administrative receiver,
administrator, liquidator or trustee which proceeding is not
discharged within thirty (30) days of its commencement; or
12.2.7 IMPOSSIBILITY OR ILLEGALITY unless covered by Clause 15.7,
if any event occurs which would, or would with the passage
of time, render performance of any of the Security Documents
impossible, unlawful or unenforceable by the Banks or the
Agent; or
12.2.8 CONDITIONS SUBSEQUENT if any of the conditions set out in
Clause 3.2 is not satisfied within the time reasonably
required by the Agent except where such condition has not
been satisfied due to an act or omission on the part of a
Finance Party; or
58
<PAGE>
12.2.9 REVOCATION OR MODIFICATION OF CONSENTS ETC. if any consent,
licence, approval or authorisation which is now or which at
any time during the Facility Period becomes necessary to
enable any of the Security Parties to comply with any of
their obligations in or pursuant to any of the Security
Documents is revoked, withdrawn or withheld, or modified in
a manner which the Agent reasonably considers is, or may be,
prejudicial to the interests of the Banks in a material
manner, or any material consent, licence, approval or
authorisation ceases to remain in full force and effect; or
12.2.10 CURTAILMENT OF BUSINESS if the business of any of the
Security Parties is wholly or partially curtailed by any
intervention by or under authority of any government, or if
all or a substantial part of the undertaking, property or
assets of any of the Security Parties is seized,
nationalised, expropriated or compulsorily acquired by or
under authority of any government or any Security Party
disposes or threatens to dispose of a substantial part of
its business or assets; or
12.2.11 ACCELERATION OF OTHER INDEBTEDNESS if any other indebtedness
or obligation for borrowed money of any of the Security
Parties or any Principal Subsidiary becomes due or capable
of being declared due prior to its stated maturity by reason
of default on the part of that Security Party or Principal
Subsidiary (as the case may be), or is not repaid or
satisfied at maturity save for amounts of less than two
million five hundred thousand Dollars ($2,500,000), or its
equivalent in any other currency, and claims contested in
good faith; or
12.2.12 REDUCTION OF CAPITAL if any of the Security Parties except
SCS reduces its authorised or issued or subscribed capital
except reductions effected in compliance with Clause 11.1.2;
or
59
<PAGE>
12.2.13 NOTICE OF TERMINATION if either Guarantor or any Shipowning
Guarantor gives notice to the Agent to determine its
obligations under the Guarantee or the Shipowner's
Guarantee, as appropriate; or
12.2.14 CLAIM AGAINST EITHER GUARANTOR'S ASSETS except for Permitted
Liens, if a maritime or other lien, arrest distress or
similar charge is levied upon or against any Vessel or any
substantial part of the assets of either Guarantor (on a
consolidated basis) and such is not discharged within
fourteen (14) Business Days after any Security Party or
Principal Subsidiary (as the case may be) has become aware
of the same; or
12.2.15 GUARANTORS BUSINESS if all or a substantial part of either
Guarantor's business is destroyed, abandoned, seized,
appropriated or forfeited for any reason; or
12.2.16 OWNERSHIP if the Borrower ceases to be 100% directly owned
by Stolt Comex Seaway A/S and/or indirectly owned by SCS; or
12.2.17 FINAL JUDGEMENTS if any of the Security Parties fails to
comply with any non appealable court order or fails to pay a
final unappealable judgement against it in excess of ten
million Dollars ($10,000,000); or
12.2.18 CHANGE OF CONTROL if there is any change of control in SNSA;
for this purpose there will be deemed to be a change of
control if members of the Stolt-Nielsen family shall cease,
for any reason whatsoever, to own and/or control directly or
indirectly at least thirty per cent (30%) of the issued
voting shares of SNSA, or if any other shareholder or group
of shareholders acting in concert outside the Stolt-Nielsen
family at any time owns or controls, directly or indirectly
more of the issued voting shares of SNSA than are owned or
controlled by members of the Stolt-Nielsen family; or
60
<PAGE>
12.2.19 LOSS OF MORTGAGED VESSEL if any Mortgaged Vessel is
destroyed, abandoned, confiscated, forfeited, condemned as
prize or becomes a Total Loss, except that a Total Loss
shall not be an Event of Default if:-
(a) such Mortgaged Vessel is insured in accordance with
the Security Documents; and
(b) no insurer has refused to meet or has disputed the
claim for Total Loss and it is not apparent to the
Agent in its discretion that any such refusal or
dispute is likely to occur; and
(c) payment of all insurance proceeds in respect of the
Total Loss is made in full to the Agent on behalf of
the Banks for application in accordance with Clause
13.4.2; or
12.2.20 CHALLENGE TO REGISTRATION if the registration of any
Mortgaged Vessel or any mortgage thereon in favour of the
Agent becomes void or voidable or liable to cancellation or
termination; or
12.2.21 WAR if the country of registration of any Mortgaged Vessel
becomes involved in war (whether or not declared) or civil
war or is occupied by any other power and the Agent
reasonably considers that, as a result, the security
conferred by the Security Documents is materially
prejudiced.
13 SET-OFF AND LIEN
13.1 SET-OFF Each of the Borrower and the Guarantors irrevocably
authorises the Finance Parties at any time after all or any part of
the Indebtedness shall have become due and payable to set off
without notice any liability of the Borrower or the Guarantors (as
the case may be) to any of the Finance Parties (whether present or
future, actual or contingent, and irrespective of the branch or
office, currency or place of payment) against any credit balance
from time to time standing on any account of the Borrower or the
Guarantors (as the case may be) (whether current or otherwise and
whether or not subject to notice) with any branch of any of the
Finance Parties in or towards satisfaction of the Indebtedness and,
in the name of
61
<PAGE>
that Finance Party, the Borrower or the Guarantors (as the case may
be), to do all acts (including, without limitation, converting or
exchanging any currency) and execute all documents which may be
required to effect such application.
13.2 LIEN If an Event of Default has occurred and is continuing, each
Finance Party shall have a lien on and be entitled to retain and
realise as additional security for the repayment of the Indebtedness
any cheques, drafts, bills, notes or negotiable or non-negotiable
instruments and any stocks, shares or marketable or other securities
and property of any kind of the Borrower or the Guarantors (or of
that Finance Party as agent or nominee of the Borrower or the
Guarantors) from time to time held by that Finance Party, whether
for safe custody or otherwise.
13.3 RESTRICTIONS ON WITHDRAWAL Despite any term to the contrary in
relation to any deposit or credit balance at any time on any account
of the Borrower or the Guarantors (as the case may be) with any of
the Finance Parties, no such deposit or balance shall be repayable
or capable of being assigned, mortgaged, charged or otherwise
disposed of or dealt with by the Borrower or the Guarantors (as the
case may be) after an Event of Default has occurred and while such
Event of Default is continuing, but any Finance Party may from time
to time permit the withdrawal of all or any part of any such deposit
or balance without affecting the continued application of this
Clause.
13.4 APPLICATION Whilst an Event of Default is continuing, each of the
Borrower and the Guarantors irrevocably authorises the Agent to
apply all sums which the Agent may receive:-
13.4.1 pursuant to a sale or other disposition of a Mortgaged Asset
or any right, title or interest in a Mortgaged Asset; or
13.4.2 by way of payment to the Agent of any sum in respect of the
Insurances, Earnings or Requisition Compensation of a
Mortgaged Vessel; or
13.4.3 otherwise arising under or in connection with any of
the Security Documents,
62
<PAGE>
in or towards satisfaction, or by way of retention on account, of
the Indebtedness, in such manner as the Agent may in its discretion
determine.
14 ASSIGNMENT, SUB-PARTICIPATION AND REFINANCING
14.1 RIGHT TO ASSIGN Each of the Banks may assign or transfer all or any
of its rights under or pursuant to the Security Documents to any
other branch of that Bank or to any other bank or financial
institution, and may grant sub-participations in all or any part of
its Commitment provided that the Borrower and the Agent consent to
such assignment or transfer (such consent not to be unreasonably
withheld or delayed) and such assignment or transfer does not result
in the Borrower being subject to any additional Tax or other
financial or legal obligations other than those contemplated by the
terms of this Agreement.
14.2 BORROWER'S CO-OPERATION Each of the Borrower and the Guarantors will
co-operate fully with the Banks in connection with any assignment,
transfer or sub-participation pursuant to Clause 14.1; will execute
and procure the execution of such documents as the Banks may require
in connection therewith; and irrevocably authorises each of the
Finance Parties to disclose to any proposed assignee, transferee or
sub-participant (whether before or after any assignment, transfer or
sub-participation and whether or not any assignment, transfer or
sub-participation shall take place) all information relating to the
Security Parties, the Facility or the Security Documents which the
each such Finance Party may in its discretion consider necessary or
desirable.
14.3 RIGHTS OF ASSIGNEE Any assignee, transferee or sub-participant of a
Bank shall (unless limited by the express terms of the assignment,
transfer or sub-participation) take the full benefit of every
provision of the Security Documents benefiting that Bank.
14.4 TRANSFER CERTIFICATES If any Bank wishes to transfer all or any of
its Commitment as contemplated in Clause 14.1 then such transfer may
be effected by the delivery to the Agent of a duly completed and
duly executed Transfer Certificate in which event, on the later of
the Transfer Date specified in such
63
<PAGE>
Transfer Certificate and the fifth Business Day after the date of
delivery of such Transfer Certificate to the Agent:
14.4.1 to the extent that in such Transfer Certificate the Bank
which is a party thereto seeks to transfer its Commitment,
the Borrower and such Bank shall be released from further
obligations towards each other under this Agreement and
their respective rights against each other shall be
cancelled (such rights, benefits and obligations being
referred to in this Clause 14.4 as "DISCHARGED RIGHTS AND
OBLIGATIONS");
14.4.2 the Borrower and the Transferee which is a party thereto
shall assume obligations towards one another and/or acquire
rights against one another which differ from such discharged
rights and obligations only insofar as the Borrower and such
Transferee have assumed and/or acquired the same in place of
the Borrower and such Bank; and
14.4.3 the Agent, the Arranger, the Transferee and the other Banks
shall acquire the same rights and benefits and assume the
same obligations between themselves as they would have
acquired and assumed had such Transferee been an original
party to this Agreement as a Bank with the rights, benefits
and/or obligations acquired or assumed by it as a result of
such transfer.
14.5 POWER OF ATTORNEY In order to give effect to each Transfer
Certificate the Finance Parties and the Borrower each hereby
irrevocably and unconditionally appoint the Agent as its true and
lawful attorney with full power to execute on their respective
behalves each Transfer Certificate delivered to the Agent pursuant
to Clause 14.4 without the Agent being under any obligation to take
any further instructions from or give any prior notice to, any of
the Finance Parties or, subject to the Borrower's rights under
Clause 14.1, the Borrower before doing so and the Agent shall so
execute each such Transfer Certificate on behalf of the other
Finance Parties and the Borrower immediately on its receipt of the
same pursuant to Clause 14.4.
64
<PAGE>
14.6 NOTIFICATION The Agent shall promptly notify the other Finance
Parties, the Transferee and the Borrower on the execution by it of
any Transfer Certificate together with details of the amount
transferred, the Transfer Date and the parties to such transfer.
15 PAYMENTS, MANDATORY PREPAYMENT, RESERVE REQUIREMENTS AND ILLEGALITY
15.1 PAYMENTS All amounts payable by the Borrower and the Guarantors
under or pursuant to any of the Security Documents shall be paid to
such accounts at such banks as the Agent may from time to time
direct to the Borrower or the Guarantors (as the case may be), and
shall be paid in Dollars in same day funds (or such funds as are
required by the authorities in the United States of America for
settlement of international payments for immediate value). Payments
shall be deemed to have been received by the Agent on the date on
which the Agent receives authenticated advice of receipt, unless
that advice is received by the Agent on a day other than a Business
Day or at a time of day (whether on a Business Day or not) when the
Agent in its discretion considers that it is impossible or
impracticable for the Agent to utilise the amount received for value
that same day, in which event the payment in question shall be
deemed to have been received by the Agent on the Business Day next
following the date of receipt of advice by the Agent.
15.2 NO DEDUCTIONS OR WITHHOLDINGS All payments (whether of principal or
interest or otherwise) to be made by the Borrower and/or the
Guarantors pursuant to the Security Documents shall, subject only to
Clause 15.3, be made free and clear of and without deduction for or
on account of any Taxes or other deductions, withholdings,
restrictions, conditions or counterclaims of any nature, and neither
the Borrower nor the Guarantors will claim any equity in respect of
any payment due from it to the Banks or to the Agent under or in
relation to any of the Security Documents.
15.3 GROSSING-UP If at any time any law requires (or is interpreted to
require) the Borrower or the Guarantors to make any deduction or
withholding from any payment, or to change the rate or manner in
which any required deduction or withholding is made, the Borrower or
the Guarantors (as the case may be) will
65
<PAGE>
promptly notify the Agent and, simultaneously with making that
payment, will pay to the Agent whatever additional amount (after
taking into account any additional Taxes on, or deductions or
withholdings from, or restrictions or conditions on, that additional
amount) is necessary to ensure that, after making the deduction or
withholding, the Agent and the Banks receive a net sum equal to the
sum which they would have received had no deduction or withholding
been made.
15.4 EVIDENCE OF DEDUCTIONS If at any time either the Borrower or the
Guarantors is required by law to make any deduction or withholding
from any payment to be made by it pursuant to any of the Security
Documents, the Borrower or the Guarantors (as the case may be) will
pay the amount required to be deducted or withheld to the relevant
authority within the time allowed under the applicable law and will,
no later than thirty days after making that payment, deliver to the
Agent an original receipt issued by the relevant authority, or other
evidence acceptable to the Agent, evidencing the payment to that
authority of all amounts required to be deducted or withheld. If the
Borrower makes any deduction or withholding from any payment under
or pursuant to any of the Security Documents, and the Agent
subsequently receives a refund or allowance from any tax authority
which the Agent identifies as being referable to that deduction or
withholding, the Agent shall, as soon as reasonably practicable, pay
to the Borrower an amount equal to the amount of the refund or
allowance received, if and to the extent that it may do so without
prejudicing its right to retain that refund or allowance and without
putting itself in any worse financial position than that in which it
would have been had the deduction or withholding not been required
to have been made. Nothing in this Clause shall be interpreted as
imposing any obligation on the Agent unless requested by the
Borrower to apply for any refund or allowance nor as restricting in
any way the manner in which the Agent organises its tax affairs, nor
as imposing on the Agent any obligation to disclose to the Borrower
any information regarding its tax affairs or tax computations. All
costs and expenses incurred by the Agent in obtaining or seeking to
obtain a refund or allowance from any tax authority pursuant to this
Clause shall for the Borrower's account.
66
<PAGE>
15.5 ADJUSTMENT OF DUE DATES If any payment to be made under any of the
Security Documents, other than a payment of interest on the
Facility, shall be due on a day which is not a Business Day, that
payment shall be made on the next succeeding Business Day (unless
the next succeeding Business Day falls in the next calendar month in
which event the payment shall be made on the next preceding Business
Day). Any such variation of time shall be taken into account in
computing any interest in respect of that payment.
15.6 CHANGE IN LAW If, by reason of the introduction of any law, or any
change in any law, or the interpretation or administration of any
law, or in compliance with any request or requirement from any
central bank or any fiscal, monetary or other authority:-
15.6.1 any Finance Party (or the holding company of any Finance
Party) shall be subject to any Tax with respect to payments
of all or any part of the Indebtedness; or
15.6.2 the basis of Taxation of payments to any Finance Party in
respect of all or any part of the Indebtedness shall be
changed; or
15.6.3 any reserve requirements shall be imposed, modified or
deemed applicable against assets held by or deposits in or
for the account of or loans by any branch of any Finance
Party; or
15.6.4 any ratio (whether cash, capital adequacy, liquidity or
otherwise) which any Finance Party is required or requested
to maintain shall be affected; or
15.6.5 there is imposed on any Finance Party (or on the holding
company of any Finance Party) any other condition in
relation to the Indebtedness or the Security Documents;
and the result of any of the above shall be to increase the cost to
any Bank (or to the holding company of any Bank) of that Bank making
or maintaining its
67
<PAGE>
Commitment, or to cause any Finance Party to suffer (in its opinion)
a material reduction in the rate of return on its overall capital
below the level which it reasonably anticipated at the date of this
Agreement and which it would have been able to achieve but for its
entering into this Agreement and/or performing its obligations under
this Agreement the Finance Party affected shall notify the Agent
and, on demand to the Borrower by the Agent, the Borrower shall from
time to time pay to the Agent for the account of the Finance Party
affected the amount which shall compensate that Finance Party or the
Agent (or the relevant holding company) for such additional cost or
reduced return. A certificate signed by an authorised signatory of
the Agent or of the Finance Party affected setting out the amount of
that payment and the basis of its calculation shall be submitted to
the Borrower and shall be conclusive evidence of such amount save
for manifest error or on any question of law.
15.7 ILLEGALITY AND IMPRACTICALITY Notwithstanding anything contained in
the Security Documents, the obligations of a Bank to advance or
maintain the Facility shall terminate in the event that a change in
any law or in the interpretation of any law by any authority charged
with its administration shall make it unlawful for that Bank to
advance or maintain its Commitment. In such event the Bank affected
shall notify the Agent and the Agent shall, by written notice to the
Borrower, declare the Banks' obligations to be immediately
terminated. If all or any part of the Facility shall have been
advanced by the Banks to the Borrower, the Indebtedness (including
all accrued interest) shall be prepaid within thirty days from the
date of such notice. Clause 5.3 shall apply to that prepayment if it
is made on a day other than the last day of an Interest Period.
During that period, the affected Bank shall negotiate in good faith
with the Borrower to find an alternative method or lending base in
order to maintain the Facility.
15.8 CHANGES IN MARKET CIRCUMSTANCES If at any time a Bank determines
(which determination shall be final and conclusive and binding on
the Borrower) that, by reason of changes affecting the London
Interbank market, adequate and fair means do not exist for
ascertaining the rate of interest on the Facility or any part
thereof pursuant to this Agreement:-
68
<PAGE>
15.8.1 that Bank shall give notice to the Agent and the Agent shall
give notice to the Borrower of the occurrence of such event;
and
15.8.2 the Agent shall as soon as reasonably practicable certify to
the Borrower in writing the effective cost to that Bank of
maintaining its Commitment for such further period as shall
be selected by that Bank and the rate of interest payable by
the Borrower for that period; or, if that is not acceptable
to the Borrower,
15.8.3 the Agent in accordance with instructions from that Bank and
subject to that Bank's approval of any agreement between the
Agent and the Borrower, will negotiate with the Borrower in
good faith with a view to modifying this Agreement to
provide a substitute basis for that Bank's Commitment which
is financially a substantial equivalent to the basis
provided for in this Agreement.
If, within thirty days of the giving of the notice referred to in
Clause 15.8.1, the Borrower and the Agent fail to agree in writing
on a substitute basis for such Bank's Commitment the Borrower will
immediately prepay the amount of such Bank's Commitment and the
Maximum Facility Amount will automatically decrease by the amount of
such Commitment and such decrease shall not be reversed. Clause 5.3
shall apply to that prepayment if it is made on a day other than the
last day of an Interest Period.
16 COMMUNICATIONS
16.1 METHOD Except for Communications pursuant to Clause 10, which shall
be made or given in accordance with Clause 10.20, any Communication
may be given, delivered, made or served (as the case may be) under
or in relation to this Agreement by letter or fax and shall be in
the English language and sent addressed:-
16.1.1 in the case of any of the Finance Parties to the Agent
at its address at the head of this Agreement (fax no:
+(212) 681-3900) marked for the attention of: Shipping
Department; and
69
<PAGE>
16.1.2 in the case of the Borrower and/or the Guarantors to
the Communications Address;
or to such other address or fax number as the Finance Parties, the
Borrower or the Guarantors may designate for themselves by written
notice to the others.
16.2 TIMING A Communication shall be deemed to have been duly given,
delivered, made or served to or on, and received by a party to this
Agreement:-
16.2.1 in the case of a fax when the sender receives one or more
transmission reports showing the whole of the Communication
to have been transmitted to the correct fax number;
16.2.2 if delivered to an officer of the relevant party or (in the
case of the Borrower and/or the Guarantors) left at the
Communications Address at the time of delivery or leaving;
or
16.2.3 if posted, at 9.00 a.m. on the third Business Day after
posting by prepaid first class post.
Any Communication by fax shall be promptly confirmed in writing by
post or hand delivery.
17 GENERAL INDEMNITIES
17.1 CURRENCY In the event of any Finance Party receiving or recovering
any amount payable under any of the Security Documents in a currency
other than the Currency of Account, and if the amount received or
recovered is insufficient when converted into the Currency of
Account at the date of receipt to satisfy in full the amount due,
the Borrower and/or the Guarantors (as the case may be) shall, on
the Agent's written demand, pay to the Agent such further amount in
the Currency of Account as is sufficient to satisfy in full the
amount due and that further amount shall be due to the Agent on
behalf of the Finance Parties as a separate debt under this
Agreement.
70
<PAGE>
17.2 COSTS AND EXPENSES Each of the Borrower and the Guarantors will,
within fourteen days of the Agent's written demand, reimburse the
Agent (on behalf of each of the Finance Parties) for all reasonable
out of pocket expenses including internal and external legal costs
(including Value Added Tax or any similar or replacement tax if
applicable) of and incidental to:-
17.2.1 the negotiation, syndication, preparation, execution and
registration of the Security Documents (whether or not any
of the Security Documents are actually executed or
registered and whether or not all or any part of the
Facility is advanced);
17.2.2 any amendments, addenda or supplements to any of the
Security Documents (whether or not completed);
17.2.3 any other documents which may at any time be required by any
Finance Party to give effect to any of the Security
Documents or which any Finance Party is entitled to call for
or obtain pursuant to any of the Security Documents; and
17.2.4 the exercise of the rights, powers, discretions and remedies
of the Finance Parties under or pursuant to the Security
Documents.
17.3 EVENTS OF DEFAULT Each of the Borrower and the Guarantors shall
indemnify the Finance Parties from time to time on demand against
all losses and costs incurred or sustained by any Finance Party as a
consequence of any Event of Default, including (without limitation)
any Break Costs.
17.4 FUNDING COSTS Each of the Borrower and the Guarantors shall
indemnify the Finance Parties from time to time on demand against
all losses and costs incurred or sustained by any Finance Party if,
for any reason due to a default or other action by the Borrower, any
Drawing is not advanced to the Borrower after the relevant Drawdown
Notice has been given to the Agent, or is advanced on a date
71
<PAGE>
other than that requested in the Drawdown Notice, including (without
limitation) any Break Costs.
17.5 PROTECTION AND ENFORCEMENT Each of the Borrower and the Guarantors
shall indemnify the Finance Parties from time to time on demand
against all losses, costs and liabilities which any Finance Party
may from time to time sustain, incur or become liable for in or
about the protection, maintenance or enforcement of the rights
conferred on the Finance Parties by the Security Documents or in or
about the exercise or purported exercise by the Finance Parties of
any of the rights, powers, discretions or remedies vested in them
under or arising out of the Security Documents, including (without
limitation) any losses, costs and liabilities which any Finance
Party may from time to time sustain, incur or become liable for by
reason of any Finance Party being a lender to the Borrower.
17.6 LIABILITIES OF FINANCE PARTIES Each of the Borrower and the
Guarantors will from time to time reimburse the Finance Parties on
demand for all sums which any Finance Party may pay on account of
any of the Security Parties (whether alone or jointly or jointly and
severally with any other person).
17.7 TAXES Each of the Borrower and the Guarantors shall pay all Taxes to
which all or any part of the Indebtedness or any of the Security
Documents may be at any time subject and shall indemnify the Finance
Parties on demand against all liabilities, costs, claims and
expenses resulting from any omission to pay or delay in paying any
such Taxes.
18 MISCELLANEOUS
18.1 WAIVERS No failure or delay on the part of the any Finance Party in
exercising any right, power, discretion or remedy under or pursuant
to any of the Security Documents, nor any actual or alleged course
of dealing between any Finance Party and any of the Security
Parties, shall operate as a waiver of, or acquiescence in, any
default on the part of any Security Party, unless expressly agreed
to do so in writing by the Agent, nor shall any single or partial
exercise by any Finance Party of any right, power, discretion or
remedy preclude any other or further
72
<PAGE>
exercise of that right, power, discretion or remedy, or the exercise
by a Finance Party of any other right, power, discretion or remedy.
18.2 NO ORAL VARIATIONS No variation or amendment of any of the Security
Documents shall be valid unless in writing and signed on behalf of
the Finance Parties and the relevant Security Party.
18.3 SEVERABILITY If at any time any provision of any of the Security
Documents is invalid, illegal or unenforceable in any respect that
provision shall be severed from the remainder and the validity,
legality and enforceability of the remaining provisions shall not be
affected or impaired in any way.
18.4 SUCCESSORS ETC. The Security Documents shall be binding on the
Security Parties and on their successors and permitted transferees
and assignees, and shall inure to the benefit of the Finance Parties
and their respective successors, transferees and assignees. Neither
the Borrower nor the Guarantors may assign or transfer any of its
rights under or pursuant to any of the Security Documents without
the prior written consent of the Agent.
18.5 FURTHER ASSURANCE If any provision of the Security Documents shall
be invalid or unenforceable in whole or in part by reason of any
present or future law or any decision of any court, or if the
documents at any time held by the Finance Parties on their behalf
are considered by the Banks for any reason insufficient to carry out
the terms of this Agreement, then from time to time the Borrower
and/or the Guarantors (as the case may be) will promptly, on demand
by the Agent, execute or procure the execution of such further
documents as in the reasonable opinion of the Banks are necessary to
provide adequate security for the repayment of the Indebtedness.
18.6 OTHER ARRANGEMENTS The Finance Parties may, without prejudice to
their rights under or pursuant to the Security Documents, at any
time and from time to time, on such terms and conditions as they may
in their discretion determine, and without notice to either the
Borrower or the Guarantors, grant time or other indulgence to, or
compound with, any other person liable (actually or
73
<PAGE>
contingently) to the Finance Parties or any of them in respect of
all or any part of the Indebtedness, and may release or renew
negotiable instruments and take and release securities and hold
funds on realisation or suspense account without affecting the
liabilities of the Borrower and/or the Guarantors (as the case may
be) or the rights of the Finance Parties under or pursuant to the
Security Documents.
18.7 DELEGATION The Finance Parties may at any time and from time to time
delegate to any person any of their rights, powers, discretions and
remedies pursuant to the Security Documents, other than rights
relating to actions to be taken by an Instructing Group or the Banks
as a group on such terms as they may consider appropriate (including
the power to sub-delegate).
18.8 RIGHTS ETC. CUMULATIVE Every right, power, discretion and remedy
conferred on the Finance Parties under or pursuant to the Security
Documents shall be cumulative and in addition to every other right,
power, discretion or remedy to which they may at any time be
entitled by law or in equity. The Finance Parties may exercise each
of their rights, powers, discretions and remedies as often and in
such order as they deem appropriate subject to obtaining the prior
written consent of an Instructing Group. The exercise or the
beginning of the exercise of any right, power, discretion or remedy
shall not be interpreted as a waiver of the right to exercise any
other right, power, discretion or remedy either simultaneously or
subsequently.
18.9 NO ENQUIRY The Finance Parties shall not be concerned to enquire
into the powers of the Security Parties or of any person purporting
to act on behalf of any of the Security Parties, even if any of the
Security Parties or any such person shall have acted in excess of
their powers or if their actions shall have been irregular,
defective or informal, whether or not any Finance Parties had notice
thereof.
18.10 CONTINUING SECURITY The security constituted by the Security
Documents shall be continuing and shall not be satisfied by any
intermediate payment or satisfaction until the Indebtedness shall
have been repaid in full and none of the
74
<PAGE>
Finance Parties shall be under any further actual or contingent
liability to any third party in relation to any matter referred to
in the Security Documents.
18.11 SECURITY CUMULATIVE The security constituted by the Security
Documents shall be in addition to any other security now or in the
future held by the Finance Parties or any of them for or in respect
of all or any part of the Indebtedness, and shall not merge with or
prejudice or be prejudiced by any such security or any other
contractual or legal rights of any of the Finance Parties, nor
affected by any irregularity, defect or informality, or by any
release, exchange or variation of any such security. Section 93 of
the Law of Property Act 1925 and all provisions which the Agent
considers analogous thereto under the law of any other relevant
jurisdiction shall not apply to the security constituted by the
Security Documents.
18.12 RE-INSTATEMENT If any Finance Party takes any steps to exercise any
of its rights, powers, remedies or discretions pursuant to the
Security Documents and the result shall be adverse to the Finance
Parties, the Borrower, the Guarantors and the Finance Parties shall
be restored to their former positions as if no such steps had been
taken.
18.13 NO LIABILITY None of the Finance Parties, nor any agent or employee
of any Finance Party, nor any receiver and/or manager appointed by
the Agent, shall be liable for any losses which may be incurred in
or about the exercise of any of the rights, powers, discretions or
remedies of the Finance Parties under or pursuant to the Security
Documents nor liable as mortgagee in possession for any loss on
realisation or for any neglect or default of any nature for which a
mortgagee in possession might otherwise be liable unless such
Finance Party's action constitutes gross negligence or wilful
misconduct.
18.14 RESCISSION OF PAYMENTS ETC. Any discharge, release or reassignment
by any of the Finance Parties of any of the security constituted by,
or any of the obligations of any Security Party contained in, any of
the Security Documents shall be (and be deemed always to have been)
void if any act (including, without limitation, any payment) as a
result of which such discharge, release or reassignment was given or
made is subsequently wholly or partially rescinded or avoided by
75
<PAGE>
operation of any law, unless such Finance Party's action constitutes
gross negligence or wilful misconduct.
18.15 RELEASES If any Finance Party shall at any time in its discretion
release any party from all or any part of any of the Security
Documents or from any term, covenant, clause, condition or
obligation contained in any of the Security Documents, the liability
of any other party to the Security Documents shall not be varied or
diminished.
18.16 CERTIFICATES Any certificate or statement signed by an authorised
signatory of the Agent purporting to show the amount of the
Indebtedness (or any part of the Indebtedness) or any other amount
referred to in any of the Security Documents shall, save for
manifest error or on any question of law, be conclusive evidence as
against the Borrower or the Guarantors (as the case may be) of that
amount.
18.17 SURVIVAL OF REPRESENTATIONS AND WARRANTIES The representations and
warranties on the part of each of the Borrower and the Guarantors
contained in this Agreement shall survive the execution of this
Agreement and the advance of the facility or any part thereof.
18.18 COUNTERPARTS This Agreement may be executed in any number of
counterparts each of which shall be original but which shall
together constitute the same
19 LAW AND JURISDICTION
19.1 GOVERNING LAW This Agreement shall in all respects be governed by
and interpreted in accordance with English law.
19.2 JURISDICTION For the exclusive benefit of the Finance Parties, the
parties to this Agreement irrevocably agree that the courts of
England are to have jurisdiction to settle any disputes which may
arise out of or in connection with this Agreement and that any
Proceedings may be brought in those courts. Each of the Borrower and
the Guarantors irrevocably waives any objection which it may now or
in the future have to the laying of the venue of any Proceedings in
any court referred to
76
<PAGE>
in this Clause, and any claim that those Proceedings have been
brought in an inconvenient or inappropriate forum.
19.3 ALTERNATIVE JURISDICTIONS Nothing contained in this Clause shall
limit the right of the Finance Parties to commence any Proceedings
against either the Borrower or the Guarantors in any other court of
competent jurisdiction nor shall the commencement of any Proceedings
against either the Borrower or the Guarantors in one or more
jurisdictions preclude the commencement of any Proceedings in any
other jurisdiction, whether concurrently or not.
19.4 SERVICE OF PROCESS Without prejudice to the right of the Finance
Parties to use any other method of service permitted by law, each of
the Borrower and the Guarantors irrevocably agrees that any writ,
notice, judgment or other legal process shall be sufficiently served
on it if addressed to it and left at or sent by post to the Address
for Service, and in that event shall be conclusively deemed to have
been served at the time of leaving or, if posted, at 9.00 a.m. on
the third Business Day after posting by prepaid first class
registered post.
IN WITNESS of which the parties to this Agreement have executed this Agreement
the day and year first before written.
77
<PAGE>
SCHEDULE 1
THE BANKS, THE COMMITMENTS AND THE PROPORTIONATE SHARES
THE BANKS THE COMMITMENTS THE PROPORTIONATE SHARES
Den norske Bank ASA $150,000,000 100%
200 Park Avenue
New York
New York 10166-0396
Fax no: +(212) 681-3900
Attention: Barbara Gronquist
78
<PAGE>
SCHEDULE 2
THE SHIPOWNING GUARANTORS AND MAJOR ASSETS
<TABLE>
<CAPTION>
NAME OF COUNTRY OF REGISTERED MAJOR ASSETS
SHIPOWNING GUARANTOR INCORPORATION OFFICE
<S> <C> <C> <C>
Hybris Inc Panama "LB200"
ETPM Deepsea Limited United Kingdom 43/44 Great Windmill Street "NORLIFT" and
London W1V 7PA "NORTHERN EXPLORER"
</TABLE>
79
<PAGE>
SCHEDULE 3
COMPLIANCE CERTIFICATE
PART A
STOLT COMEX SEAWAY S.A. COMPLIANCE CERTIFICATE
STOLT COMEX SEAWAY S.A. AND SUBSIDIARIES
FINANCIAL COVENANT CALCULATIONS
AS OF AND FOR THE PERIOD ENDED [ ]
FIGURES IN USD THOUSANDS
11.3.1(a) CONSOLIDATED TANGIBLE NET WORTH
Capital stock
Paid-in surplus
Retained earnings
Less: Treasury stock
Less: Intangible assets
CONSOLIDATED TANGIBLE NET WORTH
Minimum Consolidated Tangible Net Worth
50% of consolidated net income on fiscal periods after 11/99
Minimum Consolidated Tangible Net Worth
11.3.1(b) CONSOLIDATED DEBT TO CONSOLIDATED TANGIBLE NET WORTH
Consolidated Debt to Consolidated Tangible Net Worth
Maximum consolidated debt: Tangible Net Worth at Feb 28,
May 31 and Nov 30 1:1
Maximum consolidated debt: Tangible Net Worth at Aug 31 1.25:1
CONSOLIDATED DEBT Q3 99
Notes payable
Current maturity of long-term debt & capital leases
Long-term debt
Long-term capital lease obligations
Guarantees of non-consolidated entity debt and capital lease
Subordinated debt
Less: restricted cash
CONSOLIDATED DEBT
11.3.1(c) CONSOLIDATED DEBT/EBITDA
<TABLE>
<S> <C> <C> <C> <C> <C>
EBITDA Q4 98 Q1 99 Q2 99 Q3 99 Rolling 4 quarters
Net Income
Interest
Tax
Depreciation & amortization - - - - -
EBITDA
CONSOLIDATED DEBT: EBITDA
Maximum Consolidated Debt: EBITDA 3.50
</TABLE>
80
<PAGE>
I hereby certify that to the best of my knowledge, no Event of Default exists
and all Representations and Warranties of the Borrower and the Guarantors set
forth in the US$150,000,000 Revolving Loan Facility Agreement between Stolt
Comex Seaway B.V., Stolt Comex Seaway S.A., Stolt-Nielsen S.A. and Den norske
Bank ASA dated February 2000 are true and correct.
STOLT COMEX SEAWAY B.V.
By: .............................................
Title: .............................................
Date: .............................................
81
<PAGE>
PART B
STOLT-NIELSEN S.A. COMPLIANCE CERTIFICATE
STOLT-NIELSEN S.A. AND SUBSIDIARIES
FINANCIAL COVENANT CALCULATIONS
AS OF AND FOR THE PERIOD ENDED [ ]
FIGURES IN USD THOUSANDS
11.4.1(a) MINIMUM CONSOLIDATED TANGIBLE NET WORTH
Capital stock
Paid-in surplus
Retained earnings
Less: Treasury stock
Less: Intangible assets
CONSOLIDATED TANGIBLE NET WORTH
Minimum Consolidated Tangible Net Worth 600,000
11.4.1(b) CONSOLIDATED DEBT TO CONSOLIDATED TANGIBLE NET WORTH
CONSOLIDATED DEBT Q3 99
Notes payable
Current maturity of long-term debt & capital leases
Long-term debt
Long-term capital lease obligations
Guarantees of non-consolidated entity debt and capital lease
Subordinated debt
Less: restricted cash
CONSOLIDATED DEBT -
CONSOLIDATED DEBT TO CONSOLIDATED TANGIBLE NET WORTH
Maximum consolidated debt: Tangible Net Worth 2.00
I hereby certify that to the best of my knowledge, no Event of Default exists
and all Representations and Warranties of the Borrower and the Guarantors set
forth in the US$150,000,000 Revolving Loan Facility Agreement between Stolt
Comex Seaway B.V., Stolt Comex Seaway S.A., Stolt-Nielsen S.A. and Den norske
Bank ASA dated February 2000 are true and correct.
STOLT-NIELSEN S.A.
By: .............................................
Title: .............................................
Date: .............................................
82
<PAGE>
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: Den norske Bank ASA as agent (the "Agent")
TRANSFER CERTIFICATE
This transfer certificate relates to a loan facility agreement (as the same may
be from time to time amended, varied, novated or supplemented, the "FACILITY
AGREEMENT") dated 2000 whereby a revolving credit facility of up to $150,000,000
was made available to Stolt Comex Seaway B.V. as borrower by a group of banks on
whose behalf the Agent acts as agent and security trustee.
1 Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms "Bank" and
"Transferee" are defined in the schedule to this transfer certificate.
2 The Bank (i) confirms that the details in the Schedule hereto under the
heading "BANK'S COMMITMENT" accurately summarises its Commitment in the
Facility Agreement and (ii) requests the Transferee to accept and procure
the transfer to the Transferee of the portion of such Commitment specified
in the Schedule hereto by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of Communications
specified in the Facility Agreement.
3 The Transferee requests the Agent to accept this Transfer Certificate as
being delivered to the Agent pursuant to and for the purposes of clause
14.4 of the Facility Agreement so as to take effect in accordance with the
terms thereof on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4 The Transferee confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
in the future rely on the Bank or any other party to the Facility
Agreement to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information
and further agrees that it has not relied and will not rely on the Bank or
any other party to the Facility Agreement to access or keep under review
on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower or any other party to the
Facility Agreement.
5 Execution of this Transfer Certificate by the Transferee constitutes its
representation to the Transferor and all other parties to the Facility
Agreement that it has power to become a party to the Facility Agreement as
a Bank on the terms herein and therein set out and has taken all steps to
authorise execution and delivery of this Transfer Certificate.
6 The Transferee undertakes with the Bank and each of the other parties to
the Facility Agreement that it will perform in accordance with their terms
all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this
83
<PAGE>
Transfer Certificate to the Agent and satisfaction of the conditions (if
any) subject to which the Transfer Certificate is expressed to take
effect.
7 The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto
and assumes no responsibility for the financial condition of the Borrower
or for the performance and observance by the Borrower of any of its
obligations under the Facility Agreement or any document relating thereto
and any and all such conditions and warranties, whether express or implied
by law or otherwise, are hereby excluded.
8 The Bank gives notice that nothing in this transfer certificate or in the
Facility Agreement (or any document relating thereto) shall oblige the
Bank to (i) accept a re-transfer from the Transferee of the whole or any
part of its rights, benefits and/or obligations under the Facility
Agreement transferred pursuant hereto or (ii) support any losses directly
or indirectly sustained or incurred by the Transferee for any reason
whatsoever including, without limitation, the non-performance by the
Borrower or any other party to the Facility Agreement (or any document
relating thereto) of its obligations under any such document. The
Transferee acknowledges the absence of any such obligation as is referred
to in (i) or (ii) above.
9 This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and interpreted in accordance with English
law.
THE SCHEDULE
1 Bank:
2 Transferee:
3 Transfer Date:
4 Commitment(1): Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
Den norske Bank ASA
As agent for and on behalf of itself
The Borrower and the other Finance Parties in the presence of:-
----------
(1) Details of Bank's Commitment should not be completed after the Termination
Date.
84
<PAGE>
By: ..........................................
Date: [ ]
85
<PAGE>
SCHEDULE 5
MORTGAGED VESSEL SECURITY DOCUMENTS
1 In relation to any Mortgagor granting security over a vessel (for the
purposes of this Schedule 5 the "relevant vessel"), those items referred
to in Clauses 3.1.1 to 3.1.4 (inclusive) and 3.1.7 of the Agreement
amended, mutatis mutandis, to apply to the Security Documents referred to
below to be entered into by such Mortgagor.
2 A certified and true copy by or on behalf of the Mortgagor, of each
law, decree, licence, approval, registration or declaration, if any,
as is in the opinion of counsel to the Banks, necessary to render
the Security Documents referred to below legal, valid, binding and
enforceable and to make such agreements admissible in any relevant
jurisdiction and enable the Mortgagor to perform its obligations
thereunder.
3 A duly executed first preferred or first priority (as the case may be)
ship mortgage over the relevant vessel in a form acceptable to the Agent
but substantially in the form annexed as Appendix E Part A and capable of
being registered as a first priority or first preferred mortgage under the
relevant vessel's flag.
4 A duly executed first priority deed of assignment of Earnings, Insurances
and Requisition Compensation relating to the relevant vessel which shall
be in a form acceptable to the Agent but substantially in the form annexed
as Appendix E Part B.
5 All such notices and all acknowledgements and letters of undertaking as
may be required by the documents referred to above.
6 An opinion of counsel to the Banks in the relevant vessel's flag
jurisdiction and, if different, the Mortgagor's jurisdiction of
incorporation, in a form acceptable to the Banks.
7 Any such discharges or re-assignments as may be required to ensure the
above security takes effect as first priority security.
8 Evidence satisfactory to the Agent that the mortgage referred to at item 4
above has been registered as a first priority/first preferred mortgage at
the relevant flag registry.
9 A copy of an up-to-date confirmation of class certificate for the relevant
vessel, showing the relevant vessel to have the class advised to the Agent
on the date of this Agreement.
10 Evidence that the relevant vessel is registered under Panamanian, Cayman
Islands or Bermudan flag (as the case may be).
11 Evidence satisfactory to the Agent that the Insurances taken out in
respect of the relevant vessel comply with the relevant Security Documents
and Clause 11.5 of the Agreement.
12 A letter of waiver signed by HSBC Bank plc (formerly known as Midland Bank
plc) on behalf of the syndicate of lenders pursuant to a loan agreement
dated 19 December 1997 made between, amongst others, Seaway (UK) Limited
(as borrower) and HSBC Bank plc
86
<PAGE>
and Den norske Bank ASA (as lenders) consenting to the granting of
security referred to in paragraphs 3 and 4 above.
87
<PAGE>
SIGNED by )
duly authorised for and on behalf )
of STOLT COMEX SEAWAY B.V. )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of STOLT COMEX SEAWAY S.A. )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of STOLT-NIELSEN S.A. )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of DEN NORSKE BANK ASA )
(as a Bank) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of DEN NORSKE BANK ASA )
(as the Agent and Security Trustee) )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of DEN NORSKE BANK ASA )
(as Arranger) )
in the presence of:- )
88
<PAGE>
For the purposes of Article 1 of the Protocol annexed to the Convention on
jurisdictions and enforcement of judgements on civil and commercial matters
signed at Brussels on 27 September 1968, the following party expressly and
specifically agrees to the provisions of Clause 19.2 of the Agreement:-
SIGNED by _________________________
duly authorised for and on behalf of
STOLT COMEX SEAWAY S.A.
SIGNED by _________________________
duly authorised for and on behalf of
STOLT-NIELSEN S.A.
89
<PAGE>
APPENDIX A
To: DEN NORSKE BANK ASA
From: STOLT COMEX SEAWAY B.V.
[Date]
Dear Sirs,
DRAWDOWN NOTICE
We refer to the Loan Facility Agreement dated 2000 made
between, amongst others, ourselves and yourselves ("THE AGREEMENT").
Words and phrases defined in the Agreement have the same meaning when used
in this Drawdown Notice.
Pursuant to Clause 2.3 of the Agreement, we irrevocably request that you
advance a Drawing of [ ] to us on 2000, which is a Business
Day, by paying the amount of the Drawing to [ ].
We warrant that the representations and warranties contained in Clause 4
of the Agreement are true and correct at the date of this Drawdown Notice and
will be true and correct on 2000 ; that no Event of Default nor Potential Event
of Default has occurred and is continuing, and that no Event of Default or
Potential Event of Default will result from the advance of the Drawing requested
in this Drawdown Notice.
We select the period of [ ] months as the [first] Interest Period in
respect of the Drawing.
Yours faithfully
..............
For and on behalf of
STOLT COMEX SEAWAY B.V.
90
<PAGE>
APPENDIX B
FORM OF ASSIGNMENT OF INTER-COMPANY INDEBTEDNESS
91
<PAGE>
APPENDIX C
LIST OF ENCUMBRANCES NOTIFIED TO THE AGENT PURSUANT TO CLAUSE 11.1.1 OF
THE AGREEMENT
NONE
92
<PAGE>
APPENDIX D
FORM OF STATEMENT TO BE PRODUCED PURSUANT TO CLAUSE 11.2.3(h) OF THE
AGREEMENT
SCS BACKLOG OVER 2 MUSD INCLUDING TOTAL TURNOVER FOR CURRENT YEAR
<TABLE>
<CAPTION>
------------------------------- -------- -------- -------- -------- -------- -------
PROJECT (VALUE IN MILLIONS) 2000 2001 2002 2003 2004 TOTAL
------------------------------- -------- -------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
CLIENT TOTAL VALUE $ $ $ $ $ $
Project Details
Project Details
Project Details
Project Details
------------------------------- -------- -------- -------- -------- -------- -------
CLIENT TOTAL VALUE $ $ $ $ $ $
Project Details
Project Details
Project Details
Project Details
------------------------------- -------- -------- -------- -------- -------- -------
CLIENT TOTAL VALUE $ $ $ $ $ $
Project Details
Project Details
Project Details
Project Details
------------------------------- -------- -------- -------- -------- -------- -------
CLIENT TOTAL VALUE $ $ $ $ $ $
Project Details
Project Details
Project Details
Project Details
------------------------------- -------- -------- -------- -------- -------- -------
CLIENT TOTAL VALUE $ $ $ $ $ $
Project Details
Project Details
Project Details
Project Details
------------------------------- -------- -------- -------- -------- -------- -------
</TABLE>
93
<PAGE>
APPENDIX E
PART A
FORM OF MORTGAGE
94
<PAGE>
APPENDIX E
PART B
FORM OF ASSIGNMENT
95
<PAGE>
DATED 2000
FINAL
STOLT COMEX SEAWAY B.V.
(AS BORROWER)
- AND -
STOLT COMEX SEAWAY S.A. AND STOLT-NIELSEN S.A.
(AS GUARANTORS)
- AND -
DEN NORSKE BANK ASA
AND OTHERS
(AS BANKS)
- AND -
DEN NORSKE BANK ASA
(AS FACILITY AGENT AND SECURITY TRUSTEE)
- AND -
DEN NORSKE BANK ASA
(AS ARRANGER)
-----------------------------------------
US$150,000,000 REVOLVING LOAN
FACILITY AGREEMENT
-----------------------------------------
<PAGE>
CONTENTS
PAGE
1 Definitions and Interpretation...................................... 2
2 The Facility and its Purpose........................................17
3 Conditions Precedent and Subsequent.................................19
4 Representations and Warranties......................................23
5 Repayment and Prepayment............................................27
6 Interest............................................................28
7 Guarantee and Indemnity.............................................29
8 Fees................................................................35
9 Security Documents..................................................35
10 Agency and Trust....................................................36
11 Covenants...........................................................46
12 Events Of Default...................................................56
13 Set-Off and Lien....................................................61
14 Assignment, Sub-Participation and Refinancing.......................63
15 Payments, Mandatory Prepayment, Reserve Requirements
and Illegality......................................................65
16 Communications......................................................69
17 General Indemnities.................................................70
18 Miscellaneous.......................................................72
19 Law and Jurisdiction................................................76
SCHEDULE 1................................................................78
The Banks, the Commitments and the Proportionate Shares...........78
<PAGE>
SCHEDULE 2................................................................79
The Shipowning Guarantors and major assets........................79
SCHEDULE 3................................................................80
Compliance Certificate............................................80
SCHEDULE 4................................................................83
Form of Transfer Certificate......................................83
SCHEDULE 5................................................................86
Mortgaged Vessel Security Documents...............................86
APPENDIX A................................................................90
APPENDIX B................................................................91
APPENDIX C................................................................92
APPENDIX D................................................................93
APPENDIX E................................................................94
PART A............................................................94
APPENDIX E................................................................95
PART B............................................................95
