Exhibit 4.17


 




 





 


AMENDMENT NO. 1


TO



TERM LOAN AND REVOLVING CREDIT FACILITY AGREEMENT



made by and among



STOLTHAVEN HOUSTON INC.

and

STOLTHAVEN NEW ORLEANS LLC,

as Borrowers,



DNB NOR BANK ASA,

acting through its New York Branch, as

Administrative Agent and Collateral Agent,



the Banks and Financial Institutions

identified on Schedule 1 to the Original Agreement, as Lenders,



and



STOLT-NIELSEN S.A.

and

STOLT-NIELSEN TRANSPORTATION GROUP LTD.,

as Join and Several Guarantors


 




 





 


 


July 20,  2005


 

















 


AMENDMENT NO.
1 TO TERM LOAN AND 

REVOLVING CREDIT FACILITY AGREEMENT


 


THIS AMENDMENT NO. 1 TO TERM LOAN AND
REVOLVING CREDIT FACILITY AGREEMENT (this “Amendment”) is made as of the 20th
day of July, 2005 by and among (i) STOLTHAVEN HOUSTON INC., a corporation
incorporated under the laws of the State of Texas (“Stolthaven Houston”) and
STOLTHAVEN NEW ORLEANS LLC, a limited liability company organized under the
laws of the State of Louisiana (“Stolthaven New Orleans”), as joint and several
borrowers (collectively, the “Borrowers” and each a “Borrower”), (2) the
banks and financial institutions listed on Schedule 1 to the Original
Agreement (as defined below) (together with any assignee pursuant to Section 11
of the Original Agreement, the “Lenders”), and (3)  DNB NOR BANK ASA,
acting through its New York Branch, as administrative agent for the Lenders (in
such capacity, the “Administrative Agent”), as collateral agent for the Lenders
(in such capacity, the “Collateral Agent” and together with the Administrative
Agent, the “Agents” and each an “Agent”) and as arranger for the Lenders, and
amends and is supplemental to the Term Loan and Revolving Credit Facility
Agreement dated as of August 13, 2004 as supplemented by that certain
Supplement No. 1 dated as of November 30, 2004 (as so supplemented,
the “Original Agreement”) made by and among the Borrowers, the Lenders and the
Agents.


 


W I T N E S S E T H   T H A T:


 


WHEREAS, pursuant to the Original Agreement,
the Lenders made available to the Borrowers a term loan facility in the
principal amount of US$150,000,000 (the “Loan”);


 


WHEREAS, the Borrowers have requested and the
Lenders have agreed, subject to the terms and conditions set forth herein, to (i) extend
the maturity date of the Loan until August 13, 2010 and (ii) amend
certain provisions of the Original Agreement as set forth herein.


 


NOW, THEREFORE, in consideration of the
premises and such other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by the parties, it is hereby agreed
as follows:


 


1.     Definitions.  Unless otherwise defined herein, words and
expressions defined in the Original Agreement have the same meanings when used
herein, including in the recitals hereto.


 


2.     Representations
and Warranties.  Each of the Borrowers,
and each other Security Party by its execution of the Consent and Agreement
hereto, hereby reaffirms, as of the date hereof, (and except with respect to
any matter disclosed in the Guarantor’s20-F filing, dated May 31, 2005
with respect to the Guarantor’s fiscal year ending November 30, 2004 and
filed with the United States Securities and Exchange Commission) each and every
representation and warranty made thereby in the Original Agreement, the Notes
and the Security Documents (updated mutatis
mutandis).


 


3.     No
Defaults.  Each of the Borrowers
hereby represents and warrants that as of the date hereof no Event of Default
nor any event which with the lapse of time, the giving of notice or both would
become an Event of Default has occurred.


 


4.     Performance
of Covenants.  Each of the Borrowers
hereby reaffirms that, except as disclosed to the Administrative Agent, it and
each other Security Party has duly performed and observed the covenants and
undertakings set forth in the Original Agreement, the Notes and the


 

















 


Security Documents, on its part to be
performed, and each of the Borrowers, and each other Security Party by its
execution of the Consent and Agreement hereto, covenants and undertakes to
continue duly to perform and observe such covenants and undertakings, as may be
amended hereby, so long as the Original Agreement, as the same is amended
hereby and may hereafter be amended or supplemented, shall remain in effect.


 


5.     Amendment
to the Original Agreement.  Subject
to the terms and conditions of this Amendment, the Original Agreement is hereby
amended and supplemented as follows:


 


(a)           all
references to “this Agreement” shall be deemed to refer to the Original
Agreement, as further amended and supplemented hereby;


 


(b)           Section 8.1(k)
shall be amended and restated in its entirety as follows:


 


“(k) Cross-Default.  If there is a default by any Security Party
or SNTG Bermuda under any other material contract or agreement with respect to
indebtedness or obligations for borrowed money and such default is not cured
within any applicable cure period save, in either case, for amounts (except
with respect to the Borrowers) of less than Seven Million Five Hundred Thousand
Dollars ($7,500,000) in aggregate or, with respect to the Borrowers Ten
Thousand Dollars ($10,000), or the equivalent in any other currency, and claims
contested in good faith; “


 


(c)           Section 8.1(p)
shall be amended and restated in its entirety as follows:


 


“(p) Final Judgment.  If any Security Party, SNTG Bermuda or any
Shipowning Subsidiary fails to comply with any non appealable court order or
fails to pay a final unappealable judgement against it, in either case, in
excess of Seven Million Five Hundred Thousand Dollars ($7,500,000), within
fourteen (14) days of such order or judgment (save for judgments against
Shipowning Subsidiaries which are covered by insurance where insurance has not
been disavowed); “


 


(d)           Section 9.1(s)
(Most Favored Nation) shall be deleted in its entirety and the phrase “[INTENTIONALLY
OMITTED]” shall be substituted therefor;


 


(e)           Section 9.2(h) (Restrictions
on Investments) shall be deleted in its entirety and the phrase “[INTENTIONALLY
OMITTED]” shall be substituted therefor;


 


(f)            Appendix
A shall be amended by:


 


(i) deleting
the definition of “Applicable Margin” and substituting the follow in lieu
thereof:


 


““Applicable Margin” means that rate
per annum to be determined, subject to any adjustments pursuant to Section 6.1
of the Credit Agreement, according to SNSA’s Debt/EBITDA Ratio as determined by
the most recent Certificate of Compliance of SNSA (delivered to the
Administrative Agent pursuant to Section 9.1(g) of the Credit
Agreement) in accordance with the following:


 

















 


	
  Debt/EBITDA Ratio

  	
   

  	
  Applicable Margin

  	
   

  
	
  < 2.0

  	
   

  	
  0.60

  	
  %

  
	
  > 2.0 but < 3.0

  	
   

  	
  0.70

  	
  %

  
	
  > 3.0 but < 4.0

  	
   

  	
  0.80

  	
  %

  
	
  > 4.0 but < 5.0

  	
   

  	
  0.90

  	
  %

  
	
  > 5.0

  	
   

  	
  1.20

  	
  %

  



 


provided, that during the twelve-month period
commencing on July 20, 2005, the Applicable Margin shall be 0.70%;
provided, further, that should SNSA fail to deliver a Certificate of Compliance
in accordance with the Credit Agreement, the Debt/EBITDA Ratio shall be deemed
to be greater than 5.0.”


 


(ii) deleting
the definition of “Final Payment Date” and substituting the follow in
lieu thereof:


 


“Final Payment Date” means August 13,
2010 unless such date is not a Business Day in which case the Final Payment
Date shall be the Business Day immediately preceding such date.”;


 


(iii) amending
the definition of “Initial Payment Date” by deleting the phrase “first
anniversary” and substituting “second anniversary” in lieu thereof;


 


(iv) amending
the definition of “Revolver Drawdown Date” by deleting the phrase “first
anniversary of the Closing” and substituting “July 20, 2005” in lieu
thereof; and


 


(iii) deleting
the definition of “Revolver Maturity Date” and substituting the follow
in lieu thereof:


 


“Revolver Maturity Date” means July 20,
2005.”.


 


6.     Fees
and Expenses.


 


(a) Fees.  The Borrowers shall pay to Administrative
Agent (on behalf of the Lenders) upon the execution hereof an amendment fee
equal to One Tenth of One Percent (0.10%) of the Credit Facilities.  The Borrowers shall also pay to the
Administrative Agent such fees as the parties have otherwise agreed.


 


(b) Expenses. The Borrowers shall
pay promptly to the Administrative Agent all costs and expenses (including
reasonable legal fees) of the Lenders and the Agents in connection with the
preparation and execution of this Amendment


 


(b) Payments. All amounts payable
under this Section 6 shall be:


 


(i)            made
in Dollars in freely available funds, to the Account of the Administrative
Agent at Bank of New York (ABA No. 021000018), for Account No. 8026001499
for further credit to DNB NOR BANK ASA, New York Branch, a/c 15064999; and


 

















 


(ii)           without
set-off or counterclaim and free from, clear of, and without deduction for, any
Taxes, provided, however, that if the Borrowers shall at any time be compelled
by law to withhold or deduct any Taxes from any amounts payable to the Lenders
or Agents hereunder, the Borrowers shall pay such additional amounts in Dollars
as may be necessary in order that the net amounts received after withholding or
deduction shall equal the amounts which would have been received if such
withholding or deduction were not required and, in such event, the Borrowers
shall promptly send to the Administrative Agent such documentary evidence with
respect to such withholding or deduction as may be required from time to time
by the Administrative Agent.


 


7.     No
Other Amendment.  All other terms and
conditions of the Original Agreement shall remain in full force and effect and
the Original Agreement shall be read and construed as if the terms of this
Amendment were included therein by way of addition or substitution, as the case
may be.


 


8.     Other
Documents.  By the execution and
delivery of this Amendment, each of the Borrowers, the Lenders, the Agents and,
by the execution and delivery of the Consent and Agreement hereto, each other
Security Party hereby consent and agree that all references in the Notes and
the Security Documents to the Original Agreement shall be deemed to refer to
the Original Agreement as amended by this Amendment.  By the execution and delivery of this
Amendment, each of the Borrowers and, by the execution and delivery of the
Consent and Agreement hereto, each other Security Party hereby consent and
agree that the Notes, the Security Documents and any other documents that have
been or may be executed as security for the Loan and any of its or any Security
Party’s obligations under the Original Agreement, the Notes or any Security
Document to which it is a party shall remain in full force and effect
notwithstanding the amendments contemplated hereby.


 


9.     Conditions
Precedent.  The effectiveness of this
Amendment shall be expressly subject to the following conditions precedent; provided,
however, that the Agents’ signatures hereto shall constitute
satisfaction of the conditions set forth below in this Section 9:


 


a)     Corporate
Documents.  The Administrative Agent
shall have received such evidence as it may reasonably require as to the
authority of the officers or attorneys-in-fact executing this Amendment
including, without limitation:


 


(i)            copies,
certified as true and complete by an officer of the Security Parties, of the
resolutions of the board of directors thereof evidencing approval of this
Amendment and any related amendments to the Security Documents and authorizing
appropriate officers or attorneys-in-fact to execute the same on its behalf;


 


(ii)           copies,
certified as true and complete by an officer of the Security Parties or other
party acceptable to the Administrative Agent and its legal advisers, of all
documents evidencing any other necessary action (including actions by such
parties thereto other than the Security Parties as may be required by the
Administrative Agent), approvals or consents


 

















 


with respect to this Amendment and any
related amendments to the Security Documents;


 


(iii)          copies,
certified as true and correct by an officer of each Security Party of the
constitutional documents thereof; and


 


(iv)          certificates
as to the good standing (or the equivalent) of each of the Security Parties.


 


b)    Security
Documents.  Stolthaven Houston shall
have duly executed and delivered to the Administrative Agent an amendment to
its Mortgages substantially in the form attached hereto as Exhibit A (the “Mortgage
Amendments”);


 


c)     Insurance
Evidence and Opinions.  The
Administrative Agent shall have received (i) evidence of that such
endorsements as are reasonably necessary to preserve and continue the title
insurance in effect on each of the Terminals (after giving effect to the
Mortgage Amendments) have been obtained and are in effect and (ii) a
favorable report and opinion, satisfactory to the Administrative Agent, of JLT
Risk Solutions Ltd. that the insurances on the Terminals remains in effect;


 


d)    Recording
and Filing. The Mortgage Amendments and all financing or other similar
statements or notices as requested by the Administrative Agent, shall have been
duly recorded or filed under the laws of the appropriate federal, state or
local jurisdiction, or be in proper form to be duly recorded or filed in such
appropriate jurisdiction, and all recording and filing fees and Taxes with
respect to any such recording or filing shall have been paid in full (or
arrangements, satisfactory to the Administrative Agent and the Lenders, for
such payment shall have been made);


 


e)     Legal
Opinions.  The Administrative Agent
shall have received legal opinions, in such forms as it may require, addressed
to the Administrative Agent, on behalf of the Lenders, from (i) Campbell &
Riggs P.C., special Texas counsel for the Borrowers, (ii) Phelps Dunbar
LLP, special Louisiana counsel for the Borrower, and (iii)  Alan B. Winsor
the general counsel of Stolt-Nielsen Inc., in respect of Security Parties, in
each case in such form as the Administrative Agent may require, as well as such
other legal opinions as the Administrative Agent shall have required as to all
or any matters under the laws of the United States of America, the State of New
York, the State of Texas and the State of Louisiana.


 


f)     No
Event of Default.  The Administrative
Agent shall be satisfied that no Event of Default or event which, with the
passage of time, giving of notice or both would become an Event of Default has
occurred and be continuing and the representations and warranties of any
Security Party contained in the Original Agreement, as amended by this
Amendment, shall be true on and as of the date of this Amendment, and the
Administrative Agent shall have received a certificate signed by a duly authorized
officer of each Security Party dated as of such date, to the effect of the
foregoing.


 

















 


10.   Governing
Law.  This Amendment shall be
governed by and construed in accordance with the laws of the State of New York.


 


11.   Counterparts.  This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts each of which, when so executed, shall
be deemed to be an original but all such counterparts shall constitute but one
and the same agreement.


 


12.   Headings;
Amendment.  In this Amendment, section headings
are inserted for convenience of reference only and shall be ignored in the
interpretation of this Amendment.  This
Amendment cannot be amended other than by written agreement signed by the
parties hereto.


 


[Signature Page Follows]


 

















 


IN WITNESS WHEREOF, each of the parties
hereto has executed this Amendment by its duly authorized representative on the
day and year first above written.


 


 


	
   

  	
  STOLTHAVEN HOUSTON INC., as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ John E. Greenwood

  	
   

  
	
   

  	
  Name: John E. Greenwood

  
	
   

  	
  Title: Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
  STOLTHAVEN NEW ORLEANS LLC, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ John E. Greenwood

  	
   

  
	
   

  	
  Name: John E. Greenwood

  
	
   

  	
  Title: Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DNB NOR BANK ASA, New York Branch, as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Sanjiv Nayar

  	
   

  
	
   

  	
  Name: Sanjiv Nayar

  
	
   

  	
  Title:   Senior Vice President

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:     [ILLEGIBLE]

  
	
   

  	
  Title:       Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG IN HAMBURG, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ EHRHARDT

  	
  /s/ Roth

  	
   

  
	
   

  	
  Name: EHRHARDT

  	
  ROTH

  
	
   

  	
  Title:  
  DIRECTOR

  	
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KFW, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Josef Bellmann

  	
  /s/ Schenk

  	
   

  
	
   

  	
  Name:     Josef
  Bellmann

  	
  Schenk

  
	
   

  	
  Title:

  
						



 

















 


	
   

  	
  DVB BANK AG, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ [ILLEGIBLE]

  	
  /s/ Thomas Meckel

  	
   

  
	
   

  	
  Name: [ILLEGIBLE]

  	
  Thomas Meckel

  
	
   

  	
  Title:          SVP

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DNB NOR BANK ASA, New York Branch, as

  Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Sanjiv
  Nayar

  	
   

  
	
   

  	
  Name:  Sanjiv
  Nayar

  
	
   

  	
  Title:    Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:  [ILLEGIBLE]

  
	
   

  	
  Title:    Vice
  President

  



 

















 


CONSENT AND
AGREEMENT


 


Each of the
undersigned, referred to in the foregoing Amendment No. 1 to Term Loan and
Revolving Credit Facility Agreement as a “Security Party”, hereby consents and
agrees to said Amendment No. 1 and to the documents contemplated thereby
and to the provisions contained therein relating to conditions to be fulfilled
and obligations to be performed by the undersigned pursuant to or in connection
with said Amendment No. 1 and agrees particularly to be bound by the
representations, warranties and covenants relating to the undersigned contained
in said Amendment No. 1 to the same extent as if the undersigned were a
party to said Amendment No. 1.  Each
hereby reaffirms its obligations under that certain Guaranty dated August 13,
2004 notwithstanding the amendments to the Original Agreement contemplated by
the foregoing Amendment No. 1.


 


 


	
   

  	
  STOLT-NIELSEN S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  John E. Greenwood

  	
   

  
	
   

  	
  Name:   
  John E. Greenwood

  
	
   

  	
  Title:    
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STOLT-NIELSEN TRANSPORTATION GROUP LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John E.
  Greenwood

  	
   

  
	
   

  	
  Name: John E. Greenwood

  
	
   

  	
  Title: Attorney-in-Fact