EXHIBIT 99.6
CONFORMED COPY
Xxxxx Comex Seaway Finance B.V. (the "Borrower") and
Xxxxx Offshore SA (the "Guarantor")
c/x Xxxxx Offshore M.S. Limited,
1st Floor, Dolphin House,
Windmill Road, Sunbury-on-Thames,
Middlesex TW16 7HT,
England
For the attention of Xxxxxxx Xx-Xxxx/Xxxxx Xxxxxx
Date 20 December 2002
Dear sirs,
US$440,000,000 Secured Multi-Currency Revolving Loan Facility
We refer to:-
(a) a Secured Multi-Currency Revolving Loan Facility Agreement dated 22
September 2000 (the "Original Agreement") made between the Borrower, the
Guarantor, the Banks, the Arrangers, the Agent, the Syndication Agents and
the Documentation Agent (as each of those capitalised expressions is
defined in the Original Agreement) as amended by a letter dated 24 April
2001 and a letter dated 29 May 2002 (together the "Loan Agreement") on the
terms and subject to the conditions of which each of the Banks agreed to
advance to the Borrower its respective Commitment of an aggregate amount
not exceeding four hundred and forty million Dollars ($440,000,000) (the
"Facility"); and
(b) the request of the Borrower and the Guarantor that an Instructing Group
consent to the amendment of certain of the financial covenants and
calculations contained in the Loan Agreement as set out in a letter from
the Borrower to the Agent dated 27 November 2002 (the "Request").
This letter sets out the terms and conditions upon which the Agent acting on
behalf of an Instructing Group will consent to the Request.
IT IS AGREED THAT:-
1 Interpretation
1.1 In this Letter:-
"Confirmation Deed" means the deed of confirmation and amendment to be
given by the Shipowning Guarantors to the Agent substantially in the
form of Schedule 4;
"Confirmation Letter" means the letter of confirmation addressed to
the Agent to be signed by the Managers substantially in the form of
Schedule 5;
"Effective Date" means the date on which the Agent confirms to the
Borrower that all of the conditions referred to in Clause 2.1 have
been satisfied, which confirmation the Agent shall be under no
obligation to give if an Event of Default or Potential Event of
Default shall have occurred;
"Mortgage Addenda" means together (i) the Addendum to the Mortgage in
relation to m.v. "LB 200" dated 22 September 2000 as amended by an
addendum thereto dated 24 April 2001 and (ii) an Addendum to each of
the Mortgages in relation to m.v. "SEAWAY CONDOR", m.v. "SEAWAY
HARRIER", m.v. "SEAWAY OSPREY" and m.v. "SEAWAY EAGLE" each dated 22
September 2000, each such addenda to be made between the Agent and the
relevant Shipowning Guarantor; and
"this Letter" means this letter including the Acknowledgement below
and its Schedules.
1.2 Words and expressions defined in the Loan Agreement shall have the
same meaning when used in this Letter unless the context otherwise
requires. Clause 1.2 of the Original Agreement shall apply to the
interpretation of this Letter as if it were set out in full.
2 Conditions
2.1 Before Clause 4 of this Letter shall take effect, the Borrower shall
deliver or cause to be delivered to or to the order of the Agent the
following documents and evidence:-
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2.1.1 A certificate from a duly authorised officer of each of the
Security Parties (i) confirming that none of the documents
delivered to the Agent pursuant to clauses 3.1.1 and 3.1.4
of the Original Agreement have been amended or modified in
any way since the date of their delivery to the Agent, or
copies, certified by a duly authorised officer of the
Security Party in question as true, complete, accurate and
neither amended nor revoked, of any which have been amended
or modified and (ii) setting out the names of the directors,
officers and (other than the Guarantor) the Shareholders of
that Security Party.
2.1.2 A copy, certified by a director or the secretary of the
Security Party in question as true, complete and accurate
and neither amended nor revoked, of a resolution of the
directors and 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 this Letter, the Confirmation Deed, the
Confirmation Letter and the Mortgage Addenda.
2.1.3 The notarially attested and legalised (in either case to the
extent required by applicable law) power of attorney of each
of the Security Parties under which this Letter, the
Confirmation Deed, the Confirmation Letter and the Mortgage
Addenda is to be executed by that Security Party.
2.1.4 Evidence of payment to the Agent of an amendment fee for the
account of each of the Banks who have consented to the
Request of nought point three five per cent (0.35%) of the
amount of their respective Proportionate Shares.
2.1.5 This Letter (including the Acknowledgement below), the
Confirmation Deed, the Confirmation Letter and the Mortgage
Addenda duly executed by all parties thereto together with
evidence of the registration of the Mortgage Addenda at the
Panamanian and Liberian Ship Registries, as appropriate.
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2.1.6 Evidence that SNSA's Liquidity Line (i) has been made
available to members for the SO Group for a minimum period
of twelve 12 months starting from 28 November 2002 and (ii)
is fully subordinated to the Facility upon terms and
conditions acceptable to the Agent.
2.1.7 Such legal opinions as the Agent on behalf of the Banks
shall require.
2.2 All documents and evidence delivered to the Agent pursuant to this
Clause shall:-
2.2.1 be in form and substance acceptable to the Agent;
2.2.2 be accompanied, if required by the Agent, by translations
into the English language, certified in a manner acceptable
to the Agent;
2.2.3 if required by the Agent, be certified, notarised, legalised
or attested in a manner acceptable to the Agent.
3 Representations and Warranties
Each of the representations and warranties contained in clause 4 of the
Original Agreement shall be deemed repeated by each of the Borrower and the
Guarantor at the date of this Letter and at the Effective Date, by
reference to the facts and circumstances then pertaining, as if references
to the Security Documents included this Letter. Notwithstanding anything to
the contrary, the deemed repetition of the representation and warranty set
forth in clause 4.14 of the Original Agreement shall relate to changes
since 21 November 2002.
4 Amendments to Loan Agreement
With effect from that Effective Date the Original Agreement as amended
shall be read and construed as though:-
(a) the address of the Borrower's registered office on page 1 were amended
to read "Karel Xxxxxxxxxx 00, 0000 XX Xxxxxxxx, Xxx Xxxxxxxxxxx";
(b) the reference in clause 1.1.2 to "Clause 12.3.1(e)" were amended to
read "Clause 12.3.1(f)";
(c) the definition of "Default Rate" in clause 1.1.23 were amended to
insert the words "and applicable Premium" after the words "the
applicable Margin" in (ii);
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(d) a new definition were inserted at clause 1.1.69 as follows and the
remaining clauses were renumbered accordingly:-
""Premium" based on the ratio of Consolidated Debt to EBITDA for the
preceding four fiscal quarters ("D/EBITDA") for the period commencing
on 1 December 2002 and for the remainder of the Facility Period
means:-
(i) 0.00% where D/EBITDA is less than 2;
(ii) 0.25% where D/EBITDA is equal to or greater than 2 but less
than 3;
(iii) 0.50% where D/EBITDA is equal to or greater than 3 but less
than 4;
(iv) 0.75% where D/EBITDA is equal to or greater than 4 but less
than 5; and
(v) 1.25% where D/EBITDA is equal to or greater than 5;
Provided however that each applicable Premium shall automatically
increase by fifty per cent(50%) in the event of a Change of Control,
unless such Change of Control is acceptable to all the Banks. The
Premium shall be calculated by the Agent on each Margin Review Date
commencing 30 November 2002 for the succeeding fiscal quarter and
shall be calculated based on the Consolidated Debt as of the previous
Margin Review Date over EBITDA for the four fiscal quarters, the most
recent of which shall have ended on the previous Margin Review Date
however for the fiscal quarter commencing on 1 December 2002 only, the
applicable Premium shall be one per cent (1.00%).";
(e) a new definition were inserted at clause 1.1.85 as follows and the
remaining clauses were re numbered accordingly:-
""SNSA's Liquidity Line" means the committed line of credit in the
amount of fifty million Dollars ($50,000,000) to be extended by
Xxxxx-Xxxxxxx Transportation Group Ltd (Liberia) to members of the SO
Group for working capital and other corporate purposes for a period
ending on or after 28 November 2003, the availability of such
committed line of credit to be guaranteed by SNSA.";
(f) clause 7.3 line 5, were amended by inserting the words "and applicable
Premium" after the words "the applicable Margin" and before the words
", (b) LIBOR and, ...";
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(g) clause 9.2 were amended (i) by inserting the words "and applicable
Premium" after the words "applicable Margin" and before the words "per
annum" in line 2 and (ii) by inserting the words "the aggregate of "
before the word "Margin" and inserting the words "and applicable
Premium" after the word "Margin" and before the words "in effect" in
line 6;
(h) a new clause 12.2.3(f) were inserted as follows:-
"(f) the Guarantor's consolidated monthly unaudited internal
management accounting reports as soon as practicable but in any event
not later than 35 days after the month end to which they relate.",
and the full stop at the end of clause 12.2.3(e) were deleted and
replaced by a semi colon;
(i) in clause 12.2.21, (i) the reference in line 3 to "fifty million
Dollars ($50,000,000)" were deleted and replaced by "seventy five
million Dollars ($75,000,000)" and (ii) for the purposes of the second
sentence of this clause only, the Facility Period shall be deemed to
commence on the Effective Date;
(j) clause 12.3.1 (a), (b), (c) and (d) was deleted and replaced by the
following and the existing clause 12.3.1 (e) was renumbered clause
12.3.1. (f):-
"(a) maintain a Consolidated Tangible Net Worth of not less than
$475,000,000 or the equivalent in any other currency which shall
be increased on an annual basis calculated as of the end of each
fiscal year by an amount equal to 50% of annual consolidated net
income (to the extent positive) from 30 November 2002;
(b) maintain a Consolidated Debt to Consolidated Tangible Net Worth
ratio of a maximum of 1.00:1.00 as calculated at the end of each
fiscal quarter;
(c) on a rolling four fiscal quarter basis, maintain a D/EBITDA ratio
of a maximum of:-
5:1 during the period commencing on 1 September 2002 and ending
30 November 2002;
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6:1 during the period commencing on 1 December 2002 and ending on
28 February 2003;
6:1 during the period commencing on 1 March 2003 and ending on 31
May 2003;
4.75:1 during the period commencing on 1 June 2003 and ending on
31 August 2003;
4.00:1 during the period commencing on 1 September 2003 and
ending on 30 November 2003; and
3.50:1 during the period commencing on 1 December 2003 and ending
on the last day of the Facility Period;
(d) ensure that any inter-company debt due from SNSA or any of its
Subsidiaries (not including the SO Group) to the SO Group does
not at any one time exceed fifty million Dollars ($50,000,000) in
aggregate or its equivalent amount in any other currency provided
that the Guarantor shall procure that no inter-company debt
whatsoever shall be advanced to SNSA or any of its subsidiaries
if an Event of Default or Potential Event of Default has occurred
and is continuing;
(e) ensure that SNSA's Liquidity Line (i) shall be fully subordinated
to the Facility throughout the Facility Period upon terms and
conditions acceptable to the Banks in their sole discretion upon
the occurrence of an Event of Default (ii) shall not exceed
$50,000,000 in aggregate and (iii) shall not be repaid if an
Event of Default or Potential Event of Default has occurred and
is continuing or an Event of Default or Potential Event of
Default would occur as a result of such repayment.
For the purposes of this Clause 12.3.1 (i) Subordinated Debt in
an amount of up to one hundred million Dollars ($100,000,000) or
the equivalent in any other currency and (ii) SNSA's Liquidity
Line shall not be included in the calculation of (i) Consolidated
Debt to Consolidated Tangible Net Worth and (ii) D/EBITDA, for
covenant calculation purposes but shall be included for the
purposes of calculating the applicable Margin and the applicable
Premium.";
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(k) schedules 1 and 3 were deleted and replaced by Schedules 1 and 3 to
this Letter; and
(l) schedule 5 were deleted and replaced by the form of certificate set
forth in Schedule 6 of this Letter.
5 Confirmation and Undertaking
5.1 In consideration of the agreement of the Agent (acting on behalf of an
Instructing Group) contained in this Letter, each of the Borrower and
the Guarantor confirms that all of its respective obligations under or
pursuant to the Loan Agreement remain in full force and effect,
despite the amendments to the Loan Agreement made in or pursuant to
this Letter, as if all references in any of the Security Documents to
the Loan Agreement (however described) were references to the Loan
Agreement as amended and supplemented by this Letter.
5.2 The definition of any term defined in any of the Security Documents
shall, to the extent necessary, be modified to reflect the amendments
to the Loan Agreement made in or pursuant to this Letter.
5.3 In consideration of the consent of the Agent contained in this Letter,
each of the Borrower and the Guarantor agrees that:-
5.3.1 it will not repay any sums due and owing or any other sums
howsoever payable by it under or pursuant to SNSA's
Liquidity Line if an Event of Default has occurred and is
continuing or an Event of Default or Potential Event of
Default would occur as a result of such repayment;
5.3.2 immediately upon receiving monies under or pursuant to
SNSA's Liquidity Line it will execute a Promissory Note in
the form attached at Schedule 7 to this Letter (the
"Promissory Note") and deliver a certified copy of the same
to the Agent; and
5.3.3 any funds received by it under or pursuant to SNSA's
Liquidity Line shall at all times throughout the Facility
Period be fully subordinated to the Facility upon the terms
set out in the Promissory Note.
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6 Communications, Law and Jurisdiction
The provisions of clauses 18 (Communications) and 21 (Law and Jurisdiction)
of the Original Agreement shall apply to this Letter as if they were set
out in full and as if references to the Original Agreement were references
to this Letter.
7 Miscellaneous
Clauses 19.7, 20.2, 20.20 and 20.21 of the Original Agreement as amended
shall (mutatis mutandis) apply to this Letter.
Yours faithfully
/s/ XXXXX X. XXXXXXXXX /s/ XXXXXX X. XXXXX, III
Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxx, III
Executive Vice President Senior Vice President
and General Manager and General Counsel
For and on behalf of
Den norske Bank ASA
(as Agent acting on behalf of an Instructing Group)
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Acknowledgement
To: Den norske Bank ASA
(as Agent acting on behalf of
an Instructing Group)
We confirm that we agree to the amendments to the Loan Agreement subject to and
upon the terms and conditions contained in the above Letter.
Dated 3 January 2003
/s/ XXXXX XXXXXXXXX /s/ XXXXX XXXXX-XXXXXXX
duly authorised attorney-in-fact duly authorised attorney-in-fact
for and on behalf of for and on behalf of
Xxxxx Comex Seaway Finance B.V. Xxxxx Offshore S.A.
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