Exhibit 4.16


 




 





SUPPLEMENT 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




 





 


November 30, 2004


 

















 


SUPPLEMENT NO. 1 TO TERM LOAN AND 

REVOLVING CREDIT FACILITY AGREEMENT


 


THIS SUPPLEMENT NO. 1 TO TERM LOAN AND
REVOLVING CREDIT FACILITY AGREEMENT (this “Supplement”) is made as of the 30th
day of November, 2004 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 (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, pursuant to the Original Agreement,
the Borrowers are required to deliver to the Administrative Agent amended and
updated title insurance policies containing certain endorsements in respect of
the Terminals;


 


WHEREAS, the description of the Terminal
owned by Stolthaven Houston set forth in Appendix B to the Original Agreement
did not contain two adjacent parcels of land (the “Additional Parcels”) owned
by Stolthaven Houston which were intended to have been included in such
description;


 


WHEREAS, the Lenders and the Agents have agreed
to eliminate the requirement for certain endorsements on the title insurance
policy in respect of the Stolthaven New Orleans Terminal on the condition that
the Borrowers deliver to the Administrative Agent (i) semi-annual reports with
respect to the payment and satisfaction of construction contract fees and
expenses and the satisfaction of any mechanic’s liens in respect of the
Stolthaven New Orleans Terminal and (ii) a mortgage in favor of the Collateral
Agent covering the Additional Parcels.


 


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, 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.             Supplement
to the Original Agreement. Subject to the terms and conditions of this
Supplement, 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
4.4(b) shall be amended and restated in its entirety as follows:


 


“(b) Survey. Within ninety (90) days
of the Closing Date or such later date as the Majority Lenders in their sole
discretion shall agree, the Administrative Agent shall have received (i) an
accurate survey with respect to each Terminal certified to the Administrative
Agent prepared in accordance with ALTA/ACSM standards with the following Table
A options: 1, 2, 3, 4, 6, 7(a), 7(b)(1) and (2), 7(c), 8, 9, 10, 11(b), 13 and
14 and otherwise in form and substance satisfactory to the Administrative Agent
and (ii) amended and updated title insurance policies, in form and substance
satisfactory to the Administrative Agent, with respect to each Terminal
evidencing the removal of any pre-printed survey exceptions contained in the
title insurance policies received by the Administrative Agent pursuant to
Section 4.1(t) and containing, without limitation, with respect to the Terminal
owned by Stolthaven Houston, the Comprehensive (T-19), Access (T-23) and
Contiguity (T-25) Endorsements and containing, without limitation, with respect
to the Terminal owned by Stolthaven New Orleans, the Access, Same as Survey,
Contiguity and ALTA 9 Endorsements.”


 


(c)           Section
5.3(a) shall be amended and restated in its entirety as follows:


 


“(a) Sale
of Collateral. On any sale of (x) a Terminal, (y) a portion of a Terminal
that has a value in excess of Two Million Dollars (US$2,000,000) or when
aggregated with the proceeds of any other sales occurring after the date of
this Agreement of a portion or portions of a Terminal would have a value in
excess of Two Million Dollars (US$2,000,000) (the portion being described in
this Section 5.3(a)(y) to be referred to as a “Significant Terminal Portion”)
or (z) any other collateral that has a value in excess of Two Million Dollars
(US$2,000,000), the Borrowers shall apply the proceeds of any such sale toward
the repayment of the Credit Facilities. All payments received by the
Administrative Agent under this Section 5.3 shall be applied to reduce the
aggregate outstanding Advances in inverse order of maturity.”


 

















 


(d)           Section
9.1 shall be amended by inserting the following new subsection (u) at the end
of such Section:


 


“(u) Construction Contract Payment Reports.
within five (5) Business Days of the last day of each July and January of each
calendar year (each a “Report Due Date”), deliver to the Administrative Agent
(i) a certificate of an officer of the sole member of Stolthaven New Orleans
certifying that no invoice received from a general contractor in respect of the
Stolthaven New Orleans’ Terminal remains outstanding and unpaid more than sixty
(60) days after receipt thereof (excepting such invoices of which the legality
or amount shall be contested in good faith and by appropriate proceedings or
other acts and provided that Stolthaven New Orleans shall set aside on its
books appropriate reserves with respect thereto) and (ii) a mechanic’s lien
search dated within three (3) Business Days of the Report Due Date evidencing
no mechanic’s liens (other than Permitted Liens) on the Stolthaven New Orleans’
Terminal.”


 


(e)           Section
9.2(e) shall be amended and restated as follows:


 


“(e) Sale of Assets. sell, or
otherwise dispose of, (i) any Terminal or any portion thereof except that the
Borrowers may:


 


(x) sell a Terminal or a Significant Terminal Portion where no Event of
Default or event which with the lapse of time, the giving of notice or both
would become an Event of Default has occurred and is continuing and the
application of the proceeds complies with Section 5.3 hereof;


 


(y) dispose of a Significant Terminal Portion for non-cash
consideration on an arms length basis, provided that the consideration received
is mortgaged or pledged to Lenders in a manner appropriate to the consideration
received; or


 


(z) sell or dispose of a portion of a
Terminal which is not a Significant Terminal Portion;


 


and the Agents and the Lenders, as the case
may be, will enter into such documents as may be necessary or advisable to
effectuate sales and dispositions permitted under this sub-clause 9.2(e)(i),
including, but not limited to amendments or partial releases of Mortgages and
new security agreements; or


 


(ii), with respect to any Guarantor, any
other asset (including by way of spin-off, installment sale or otherwise) which
is substantial in relation to its assets taken as a whole, other than such
sales by one Guarantor to another;”


 


(f)            Appendix
A shall be amended by inserting the following language before the period at the
end of the definition of “Mortgage” therein:


 


“, including, without limitation, that certain Texas deed of trust
granted by Stolthaven Houston to the Collateral Agent on January 27, 2005 with
respect to certain parcels of land described in Appendix B hereto, as amended”;


 

















 


(g)           Appendix
A shall be amended by inserting the following language before the period at the
end of the definition of “Permitted Lien” therein:


 


“ and (vii) easements with respect to undeveloped portions of the
Terminals where (a) there exists no material loss of, or loss or interference
with use or possession of, or diminution of value, utility or useful life of, a
Terminal or any interest therein, or any risk of interference with the
repayment of the Credit Facilities, (b) such easement would not result in, or
increase the risk of, the imposition of any criminal liability on any Creditor,
and (c) such easement would not materially and adversely affect the rights,
titles and interests of any Creditor in or to a Terminal or any interest
therein.”


 


(h)           Appendix
B shall be amended by inserting the descriptions of property set forth in Annex
I hereto after page 76 of the description of the property owned by Stolthaven
Houston.


 


6.             Fees
and Expenses.


 


(a) 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 Supplement


 


(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 Supplement were included therein by way
of addition or substitution, as the case may be.


 


8.             Other
Documents. By the execution and delivery of this Supplement, 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 Supplement. By the execution and delivery of this


 

















 


Supplement, 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 Supplement 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 Supplement;


 


b)    Security
Documents. Stolthaven Houston shall have duly executed (where execution is
necessary) and delivered to the Administrative Agent:


 


(i)            the
Mortgage covering the Additional Parcels; and


 


(ii)           Uniform
Commercial Code Financing Statements for filing with Texas and in such other
jurisdictions as the Administrative Agent shall reasonably require;


 


c)     Insurance
Evidence and Opinions. The Administrative Agent shall have received a
favorable report and opinion, satisfactory to the Administrative Agent, of JLT
Risk Solutions Ltd. that the insurances on the Stolthaven Houston Terminal
cover the Additional Parcels;


 


d)    Recording
and Filing.


 


(i)            The
Mortgage covering the Additional Parcels 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); and


 


(ii)           a
perfected security interest having first priority shall have been created in
the interests assigned under the Mortgage over the Additional Parcels in favor
of the Collateral Agent;


 


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, and
(ii)  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.


 


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 have occurred and be continuing and the
representations and warranties of the any Security Party contained in the
Original Agreement, as amended by this Supplement, shall be true on and as of
the date of this Supplement, 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 Supplement shall be governed by and construed in accordance with
the laws of the State of New York.


 


11.           Counterparts.
This Supplement 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 Supplement, section headings are inserted for
convenience of reference only and shall be ignored in the interpretation of
this Supplement. This Supplement 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
Supplement by its duly authorized representative on the day and year first
above written.


 


 


	
   

  	
  STOLTHAVEN HOUSTON INC., as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Alan B. Winsor

  	
   

  
	
   

  	
  Name:  Alan B. Winsor

  
	
   

  	
  Title:  Secretary

  
	
   

  	
   

  
	
   

  	
  STOLTHAVEN NEW ORLEANS LLC, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Alan B. Winsor

  	
   

  
	
   

  	
  Name:  Alan B. Winsor

  
	
   

  	
  Title:  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DNB NOR BANK ASA, NEW YORK BRANCH, as

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Barbara Gronquist

  	
   

  
	
   

  	
  Name:

  	
  BARBARA GRONQUIST

  
	
   

  	
  Title:

  	
  SENIOR VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Alfred C. Jones III

  	
   

  
	
   

  	
  Name:

  	
  ALFRED C. JONES III

  
	
   

  	
  Title:

  	
  SENIOR VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG IN HAMBURG, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ [ILLEGIBLE]

  	
  /s/ [Illegible]

  	
   

  
	
   

  	
  Name:

  	
  EHRHARDT 

  	
  ROTH

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KFW, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Christian Staab

  	
  /s/ Wolfgang Neubauer

  	
   

  
	
   

  	
  Name:

  	
  Dr. Christian Staab

  	
  Wolfgang Neubauer

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
  Senior Manager

  
								



 

















 


	
   

  	
  DVB BANK AG, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Meckel

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
  Name:

  	
  Meckel

  	
  [ILLEGIBLE]

  
	
   

  	
  Title:

  	
  VP

  	
  AVP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DNB NOR BANK ASA, NEW YORK BRANCH, as
  Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Barbara Gronquist

  	
   

  
	
   

  	
  Name:

  	
  BARBARA GRONQUIST

  
	
   

  	
  Title:

  	
  SENIOR VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Alfred C. Jones III

  	
   

  
	
   

  	
  Name:

  	
  ALFRED C. JONES III

  
	
   

  	
  Title:

  	
  SENIOR VICE PRESIDENT

  
							



 

















 


CONSENT AND
AGREEMENT


 


Each of the undersigned, referred to in the
foregoing Supplement 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.


 


	
   

  	
  STOLT-NIELSEN S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan B. Winsor

  	
   

  
	
   

  	
  Name:  Alan B. Winsor

  
	
   

  	
  Title:  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STOLT-NIELSEN TRANSPORTATION GROUP LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan B. Winsor

  	
   

  
	
   

  	
  Name:  Alan B. Winsor

  
	
   

  	
  Title:  Secretary