EXHIBIT 99.5
CONFORMED COPY
DATED 3 January 2003
--------------------
XXXXX COMEX SEAWAY FINANCE B.V.
(as borrower)
-and-
XXXXX OFFSHORE SA
(as guarantor)
-and-
CITIBANK N.A.
DEN NORSKE BANK ASA
HSBC BANK PLC
ING CAPITAL LLC
NORDEA BANK NORGE ASA,
Grand Cayman Branch
-and-
VEREINS-UND WESTBANK
AKTIENGESELLSCHAFT
(as banks)
-and-
NORDEA BANK NORGE ASA,
Grand Cayman Branch
(as facility agent and security trustee)
-------------------------------------------------
FIRST SUPPLEMENTAL AGREEMENT
TO A $100,000,000 SECURED MULTI-CURRENCY REVOLVING
LOAN FACILITY AGREEMENT DATED 9 JULY 2002
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XXXXXXXXXX XXXXXXX
Xxx, Xx. Xxxx'x Xxxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
Ref: 822
CONTENTS
Page
1 Interpretation.............................................................2
2 Conditions.................................................................2
3 Representations and Warranties.............................................4
4 Amendments to Loan Agreement...............................................4
5 Confirmation and Undertaking...............................................8
6 Communications, Law and Jurisdiction.......................................8
7 Miscellaneous..............................................................9
Schedule 1....................................................................10
The Banks.............................................................10
Schedule 2....................................................................12
Confirmation Deed.....................................................12
Schedule 3....................................................................18
Confirmation Letter...................................................18
Schedule 4....................................................................20
Financial Covenants Certificate.......................................20
Schedule 5....................................................................22
Form of Promissory Note...............................................22
SUPPLEMENTAL AGREEMENT
Dated: 3 January 2003
BETWEEN:-
(1) XXXXX COMEX SEAWAY FINANCE B.V. which is a company incorporated
according to the law of The Netherlands with its registered office at
Xxxxx Xxxxxxxxxx 00, 0000 XX Xxxxxxxx, Xxx Xxxxxxxxxxx (the
"Borrower"); and
(2) XXXXX OFFSHORE S.A. which is a company incorporated according to the
law of Luxembourg with its registered office at 26 rue Louvigny X-0000
Xxxxxxxxxx (the "Guarantor"); and
(3) the banks and financial institutions 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) NORDEA BANK NORGE ASA, Grand Cayman Branch acting as facility agent
and security trustee through its office at 437 Madison Avenue, 21st
Floor, New York, New York 10022, United States of America (in that
capacity "the Agent").
SUPPLEMENTAL TO a Secured Multi-Currency Revolving Loan Facility Agreement dated
9 July 2002 (the "Loan Agreement") made between the Borrower, the Guarantor, the
Banks and the Agent 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 one hundred million Dollars ($100,000,000) (the
"Facility").
WHEREAS:-
(A) The Borrower and the Guarantor have requested that the Banks and the
Agent 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").
(B) The Banks, the Agent, the Borrower and the Guarantor have agreed to
amend the Loan Agreement on the terms and subject to the conditions
contained in this Supplemental Agreement.
IT IS AGREED THAT:-
1 Interpretation
1.1 In this Supplemental Agreement:-
"Confirmation Deed" means the deed of confirmation and amendment to be
given by the Shipowning Guarantor to the Agent substantially in the
form of Schedule 2;
"Confirmation Letter" means the letter of confirmation addressed to
the Agent to be signed by the Managers substantially in the form of
Schedule 3;
"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; and
"Mortgage Addenda" means together (i) the Addendum to the Mortgage in
relation to m.v. "DLB 801" dated 11 July 2002 and (ii) an Addendum to
the Mortgage in relation to m.v. "SEAWAY POLARIS" dated 11 July 2002,
each such addenda to be made between the Agent and the Shipowning
Guarantor.
1.2 All words and expressions defined in the Loan Agreement shall have the
same meaning when used in this Supplemental Agreement unless the
context otherwise requires, and clause 1.2 of the Loan Agreement shall
apply to the interpretation of this Supplemental Agreement as if it
were set out in full.
2 Conditions
2.1 Before Clause 4 of this Supplemental Agreement 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:-
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 Loan 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
2
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 Supplemental Agreement, 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 Supplemental
Agreement, 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 of
nought point three five per cent (0.35%) of the Maximum
Facility Amount to be allocated among the Banks in
proportion to their Proportionate Shares for the account of
each of the Banks who have consented to the Request.
2.1.5 This Supplemental Agreement, 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 Ship
Registry.
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.
3
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 Supplemental Agreement and at the Effective
Date, by reference to the facts and circumstances then pertaining, as if
references to the Security Documents included this Supplemental Agreement.
Notwithstanding anything to the contrary, the deemed repetition of the
representation and warranty set forth in clause 4.13 of the Loan Agreement
shall relate to changes since 21 November 2002.
4 Amendments to Loan Agreement
With effect from that Effective Date the Loan Agreement shall be read and
construed as though:-
(a) the reference in clause 1.1.2 to "Clause 12.3.1(e)" were amended to
read "Clause 12.3.1(f)";
(b) the definition of "Default Rate" in clause 1.1.21 were amended to
insert the words "and applicable Premium" after the words "the
applicable Margin" in (ii);
(c) a new definition were inserted at clause 1.1.67 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;
4
(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) 1.00% where D/EBITDA is equal to or greater than 4 but less than
5; and
(v) 1.50% 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%).";
(d) a new definition were inserted at clause 1.1.83 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.";
(e) clause 7.3 line 3, were amended by inserting the words "and applicable
Premium" after the word "Margin" and before the words ", (b) LIBOR
and, .....";
(f) 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;
5
(g) 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;
(h) in clause 12.2.21, (i) the reference in lines 3 and 4 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;
(i) 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 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;
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;
6
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 or 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.";
(g) schedule 1 were deleted and replaced by Schedule 1 to this
Supplemental Agreement; and
(f) schedule 3 were deleted and replaced by the form of certificate
set forth in Schedule 4 to this Supplemental Agreement.
7
5 Confirmation and Undertaking
5.1 In consideration of the agreements of the Finance Parties contained in
this Supplemental Agreement, 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
Supplemental Agreement, 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 Supplemental
Agreement.
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 Supplemental
Agreement.
5.3 In consideration of the consent of the Banks and the Agent contained
in this Supplemental Agreement, 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 5 to this Supplemental
Agreement (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.
6 Communications, Law and Jurisdiction
The provisions of clauses 18 (Communications) and 21 (Law and Jurisdiction)
of the Loan Agreement shall apply to this Supplemental Agreement as if they
were set out in full and as if references to the Loan Agreement were
references to this Supplemental Agreement.
8
7 Miscellaneous
Clauses 19.7, 20.2, 20.20 and 20.21 of the Loan Agreement shall (mutatis
mutandis) apply to this Supplemental Agreement.
IN WITNESS of which the parties to this Supplemental Agreement have executed
this Supplemental Agreement the day and year first before written
9
SIGNED by /s/ XXXXX XXXXXXXXX )
Xxxxx Xxxxxxxxx )
duly authorised )
for and on behalf of )
XXXXX COMEX SEAWAY )
FINANCE B.V )
in the presence of: )
SIGNED by /s/ XXXXX XXXXX-XXXXXXX )
Xxxxx Xxxxx-Xxxxxxx )
duly authorised )
for and on behalf of )
XXXXX OFFSHORE SA )
in the presence of: )
SIGNED by /s/ XXXXXXX X. XXXXXXXXX )
Xxxxxxx X. Xxxxxxxxx, Managing Director )
Senior Credit Officer )
duly authorised )
for and on behalf of )
CITIBANK N.A. )
(as a Bank) )
in the presence of: /s/ XXXXXXXXX X'XXXXX )
Xxxxxxxxx X'Xxxxx
Assistant Vice President
SIGNED by /s/ XXXXXXX X. XXXXXXXXX )
Xxxxxxx X. Xxxxxxxxx, First Vice President )
duly authorised )
for and on behalf of )
DEN NORSKE BANK ASA )
(as a Bank ) )
in the presence of: /s/ XXXXXX XXXXXX )
Xxxxxx Xxxxxx
Senior Vice President
SIGNED by /s/ XX XXXXXXX )
duly authorised for and on behalf )
of HSBC BANK PLC )
(as a Bank) )
in the presence of:- )
10
SIGNED by /s/ R. SCHERPENHUIJSEN ROM )
duly authorised for and on behalf )
of ING CAPITAL LLC )
(as a Bank) )
in the presence of:- /s/ XXXXX XXXXXXXXX )
SIGNED by /s/ HANS CHR. KJELSRUD )
Hans Chr. Kjelsrud, Senior Vice President )
duly authorised for and on behalf )
of NORDEA BANK NORGE ASA, )
Grand Cayman Branch (as a Bank) )
in the presence of:-/s/ XXXXX BJORNADAL )
Xxxxx Bjornadal
Vice President
SIGNED by /s/ XXXX XXXXXXXXX )
duly authorised for and on behalf )
of VEREINS-UND WESTBANK AG )
(as a Bank) )
in the presence of:- /s/ XXXXX XXXXXXXXX )
SIGNED by /s/ HANS CHR. KJELSRUD )
Hans Chr. Kjelsrud, Senior Vice President )
duly authorised for and on behalf )
of NORDEA BANK NORGE ASA, )
Grand Cayman Branch (as the Agent )
and Security Trustee) in the presence of:- )
/s/ XXXXX BJORNADAL
Xxxxx Bjornadal
Vice President
