Exhibit 4.10


 


DATED:
29 July 2005


 


STOLT
TANKERS FINANCE II B.V.


(as
borrower)


 


-
and -


 


STOLT-NIELSEN
S.A.


STOLT-NIELSEN
TRANSPORTATION GROUP LTD (Liberia)


STOLT-NIELSEN
TRANSPORTATION GROUP LTD (Bermuda)


STOLT-NIELSEN
INVESTMENTS N.V.


STOLT-NIELSEN
HOLDINGS BV


and
STOLT-NIELSEN TRANSPORTATION GROUP BV


(as
joint and several guarantors)


 


-
and -


 


DEUTSCHE
BANK AG IN HAMBURG


DnB
NOR BANK ASA


DVB
BANK AG


and
NORDEA BANK NORGE ASA


(as
mandated lead arrangers and underwriters)


 


-
and -


 


THE
BANKS LISTED IN SCHEDULE 1


(as
banks)


 


-
and -


 


DEUTSCHE
BANK AG IN HAMBURG


(as
facility agent and security trustee)


 


 






 


US$400,000,000


SECURED
MULTICURRENCY


REVOLVING
LOAN


FACILITY
AGREEMENT


 






 


 


	
   

  	
  One St. Paul’s Churchyard

  
	
  

  	
  London EC4M 8SH

  
	
  Tel: +44 (0)20 7329 4422

  
	
  Fax: +44 (0)20 7329 7100

  
	
  DX No. 64 Chancery Lane

  
	
  STEPHENSON HARWOOD

  	
  www.shlegal.com

  



 

















 


CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1

  	
  Definitions and Interpretation

  	
  2

  
	
   

  	
   

  	
   

  
	
  2

  	
  The Facility and its Purpose

  	
  20

  
	
   

  	
   

  	
   

  
	
  3

  	
  Conditions Precedent and Subsequent

  	
  24

  
	
   

  	
   

  	
   

  
	
  4

  	
  Representations and Warranties

  	
  29

  
	
   

  	
   

  	
   

  
	
  5

  	
  Currency

  	
  33

  
	
   

  	
   

  	
   

  
	
  6

  	
  Repayment and Prepayment

  	
  34

  
	
   

  	
   

  	
   

  
	
  7

  	
  Interest

  	
  35

  
	
   

  	
   

  	
   

  
	
  8

  	
  Guarantee and Indemnity

  	
  37

  
	
   

  	
   

  	
   

  
	
  9

  	
  Fees

  	
  41

  
	
   

  	
   

  	
   

  
	
  10

  	
  Security Documents

  	
  42

  
	
   

  	
   

  	
   

  
	
  11

  	
  Agency and Trust

  	
  42

  
	
   

  	
   

  	
   

  
	
  12

  	
  Covenants

  	
  52

  
	
   

  	
   

  	
   

  
	
  13

  	
  Earnings

  	
  60

  
	
   

  	
   

  	
   

  
	
  14

  	
  Events of Default

  	
  60

  
	
   

  	
   

  	
   

  
	
  15

  	
  Set-Off and Lien

  	
  65

  
	
   

  	
   

  	
   

  
	
  16

  	
  Assignment and Sub-Participation

  	
  67

  
	
   

  	
   

  	
   

  
	
  17

  	
  Payments, Mandatory Prepayment,
  Reserve Requirements and Illegality

  	
  69

  
	
   

  	
   

  	
   

  
	
  18

  	
  Communications

  	
  74

  
	
   

  	
   

  	
   

  
	
  19

  	
  General Indemnities

  	
  75

  
	
   

  	
   

  	
   

  
	
  20

  	
  Miscellaneous

  	
  77

  
	
   

  	
   

  	
   

  
	
  21

  	
  Law and Jurisdiction

  	
  81

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1

  	
  83

  
	
   

  	
  The Banks, the
  Commitments and the Proportionate Shares

  	
  83

  
				



 

















 


	
  SCHEDULE 2 

  	
  85

  
	
   

  	
  The Guarantors 

  	
  85

  
	
   

  	
   

  
	
  SCHEDULE 3 

  	
  86

  
	
   

  	
  Mandated Lead Arrangers
  / Underwriters

  	
  86

  
	
   

  	
   

  
	
  SCHEDULE 4

  	
  87

  
	
   

  	
  The Shipowning
  Guarantors and the Vessels

  	
  87

  
	
   

  	
   

  
	
  SCHEDULE 5

  	
  89

  
	
   

  	
   

  
	
  SCHEDULE 6

  	
  91

  
	
   

  	
  Form of Transfer
  Certificate

  	
  91

  
	
   

  	
   

  
	
  SCHEDULE 7

  	
  93

  
	
   

  	
  PART A

  	
  93

  
	
   

  	
  Notice of Assignment

  	
  98

  
	
   

  	
   

  
	
  APPENDIX A

  	
  109

  
	
   

  	
   

  
	
  APPENDIX B

  	
  110

  
	
   

  	
  Mandatory Cost Formulae

  	
  110

  



 

















 


FACILITY
AGREEMENT


 


Dated:  29 July 2005


 


BETWEEN:-


 


(1)           STOLT TANKERS FINANCE II B.V. which is a company incorporated according to the law of the
Netherlands with its registered office at Westerlaan 5, 3016 CK Rotterdam, the
Netherlands (the “Borrower”); and


 


(2)           the guarantors listed in Schedule 2, each being a company
incorporated according to the law of the country of incorporation indicated
against its name in Schedule 2 with its registered office as indicated against
its name in Schedule 2 (together the “Guarantors” and
each a “Guarantor”);


 


(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”);


 


(4)           DEUTSCHE BANK AG IN HAMBURG acting as
facility agent through its office at, Ludwig-Erhard-Strasse 1, D-20459 Hamburg,
Federal Republic of Germany (in that capacity “the Agent”);


 


(5)           DEUTSCHE BANK AG IN HAMBURG acting as security trustee through its office at,
Ludwig-Erhard-Strasse 1, D-20459 Hamburg, Federal Republic of Germany (in that
capacity the “Security Trustee”); and


 


(6)           the banks and financial institutions listed in Schedule 3, each
acting as a joint mandated lead arranger and underwriter through its office at
the address indicated against its name in Schedule 3 (together in that capacity
the “Lead Arrangers” and each a “Lead Arranger”).


 


WHEREAS:-


 


(A)          Each of the Vessels is registered in the name and ownership of her
Shipowning Guarantor under the flag of the country indicated in Schedule 4.


 


(B)           Each of the Banks has agreed to advance to the Borrower its
respective Commitment of an initial aggregate principal amount not exceeding
four hundred million Dollars ($400,000,000) or the Equivalent Amount in a
Permitted Currency or Permitted Currencies (as appropriate), provided that the
aggregate of the Facility Outstandings, 


 

















 


from time to time, shall not exceed the Existing
Acceptable Collateral Value for (i) the purpose of refinancing the Existing
Facilities and (ii) general corporate purposes.


 


IT IS AGREED as follows:-


 


1              Definitions and Interpretation


 


1.1           Definitions


 


In this Agreement:-


 


1.1.1        “Accepted Broker” means such of
P.F. Bassøe A.S. & Co., R.S. Platou Shipbrokers a.s., Fearnleys A/S, Odin
Marine Inc., Compass Maritime Services LLC, OK Maritime AS and Inge Steensland
AS or such other reputable independent broker as may be acceptable to the Agent
acting in its absolute discretion.


 


1.1.2        “Acceptable Market Value” means
eighty per cent (80%) of the Fair Market Value of all the Vessels mortgaged in
favour of the Security Trustee from time to time (based on the most recent
Valuations obtained pursuant to Clause 12.2.2).


 


1.1.3        “the Address for Service” means c/o
Stolt-Nielsen Limited, 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.


 


1.1.4        “the
Administration” has the
meaning given to it in paragraph 1.1.3 of the ISM Code.


 


1.1.5        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.


 


1.1.6        “Annex VI” means Annex VI
(Regulations for the Presentation of Air Pollution from Ships) to the
International Convention for the Prevention of Pollution from Ships 1973 (as
modified in 1978 and 1997).


 


2

















 


1.1.7        “the Assignments” means the deeds
of assignment of the Insurances, Earnings and Requisition Compensation in
respect of each Vessel referred to in Clause 10.2 (each an “Assignment”).


 


1.1.8        “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.


 


1.1.9        “the Borrower’s Security Documents”
means those of the Security Documents to which the Borrower is or is to be a
party.


 


1.1.10      “Break Costs” means all documented
costs, losses, premiums or penalties incurred by any of the Finance Parties in
the circumstances contemplated by Clause 19.4 or as a result of any of them
receiving any prepayment of all or any part of the Facility (whether pursuant
to Clause 6.2 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.


 


1.1.11      “Business Day” means (a) 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 Hamburg, Federal Republic
of Germany or (b) in relation to the determination of interest rates for Euros
only, a day on which TARGET is operating.


 


3

















 


1.1.12      “Cash” means cash at bank or in
hand which is not subject to any charge back or other Encumbrance and to which
a member of the SNSA Group has free, immediate and direct access.


 


1.1.13      “Certificate of Compliance”  means a certificate materially in the form
set forth in Schedule 5 with such amendments as may be necessary to reflect the
financial position stated in SNSA’s most recent financial statements, signed by
the chief financial officer or senior vice president for corporate finance of
SNSA.


 


1.1.14      “Commitment” means, in relation to
each Bank, the amount of the Facility which that Bank agrees to advance to the
Borrower as its several liability pursuant to Clause 2, as indicated against
the name of that Bank in Schedule 1, as reduced from time to time in accordance
with Clause 2.4.6 and the amount of any other Commitment transferred to it
under this Agreement.


 


1.1.15      “Commitment Commission” means the
commitment commission to be paid by the Borrower to the Agent pursuant to
Clause 9.1.


 


1.1.16      a “Communication” means any notice,
approval, demand, request or other communication from one party to this
Agreement to any other party to this Agreement.


 


1.1.17      “the Communications Address” means
c/o Stolt-Nielsen Limited, 71-91 Aldwych, London WC2B 4HN, England, fax no:
+(44) 207 611 89 65 marked for the attention of Chief Financial Officer and 

e-mail: jce@stolt.com.


 


1.1.18      “the Company” means, in relation to
any Vessel and at any given time, the company responsible for the Vessel’s
compliance with the ISM Code pursuant to paragraph 1.1.2 of the ISM Code.


 


1.1.19      “Consolidated Debt” means for the
SNSA Group (on a consolidated basis, without duplication and measured on a quarterly
basis) at any time, the aggregate value of (i) moneys borrowed, plus (ii) notes
payable (whether promissory notes or otherwise), plus (iii) amounts raised by
acceptance under any acceptance credit facility, plus (iv) amounts raised
pursuant to any note purchase facility or the issue of bonds, notes, 


 


4

















 


debentures or similar instruments, plus (v) the amount
of any liability in respect of lease or hire purchase obligations which,
according to US GAAP, would be treated as finance or capital leases, plus (vi)
all contingent liabilities, including guarantee obligations, related to debt
and capital lease obligations of third parties which, according to US GAAP, are
considered probable and estimable, plus (vii) subordinated debt, less (viii)
the amount of that part of any financial indebtedness for which there is a
blocked or restricted Cash deposit which will repay such part of such financial
indebtedness.


 


1.1.20      “Consolidated Interest Expense”
means, for the SNSA Group (on a consolidated basis) for the most recent four
fiscal quarters of SNSA for which financial statements have been prepared,
interest expense (including the interest component of any capital lease
obligations) on all Consolidated Debt, determined in accordance with US GAAP.


 


1.1.21      “Consolidated EBITDA” means, for
the SNSA Group (on a consolidated basis) the aggregate value of (i) net income
(or net loss), (ii) Consolidated Interest Expense, (iii) provisions for income
taxes, (iv) depreciation, amortisation and other non-cash charges deducted in
arriving at such net income (or net loss), at any time during the Facility
Period as determined in accordance with US GAAP for the most recent four fiscal
quarters of SNSA for which financial statements have been prepared, calculated
on a pro forma historical basis to include acquisitions.


 


1.1.22      “Consolidated Tangible Net Worth”
means, for the SNSA Group (on a consolidated basis) at the end of the most
recent quarter for which financial statements have been prepared, (a) the sum,
to the extent shown on SNSA’s consolidated balance sheet, of (i) the amount of
issued and outstanding share capital, less the cost of treasury shares of SNSA,
plus (ii) the amount of surplus and retained earnings, less (b) intangible
assets as determined in accordance with US GAAP.


 


1.1.23      “converted” means actually or
notionally (as the case may require) converted by the Agent at the rate at
which the Agent, in accordance with its usual practice, is able in the relevant
interbank market to purchase the Permitted Currency in which the Facility or
part 


 


5

















 


thereof is to be denominated with the Permitted
Currency in which the Facility or part thereof is then denominated, on the second
Business Day before the value date for that conversion pursuant to Clause 5,
and the words “convert”, “convertible”
and “conversion” shall be interpreted
accordingly.


 


1.1.24      “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.


 


1.1.25      “the Deeds of Covenants” means the
deeds of covenants referred to in Clause 10.1 (each a “Deed of
Covenants”).


 


1.1.26      “Default  Interest”  means interest at the Default Rate.


 


1.1.27      “Default Rate” means the rate which
is one per centum (1%) per annum over the aggregate of (i) the applicable
Margin, (ii) the relevant Interbank Market Offer Rate and (iii) any Mandatory
Cost.


 


1.1.28      “DOC” means a valid Document of
Compliance issued for the Company by the Administration pursuant to paragraph
13.2 of the ISM Code.


 


1.1.29      “Dollars” and “$”
each means available and freely transferable and convertible funds in lawful
currency of the United States of America.


 


1.1.30      “Drawdown Notice” means a notice
complying with Clause 2.3.


 


1.1.31      “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.


 


1.1.32      “Earnings”, in relation to a
Vessel, means all hires, freights, pool income and other sums payable to or for
the account of a Shipowning Guarantor in respect of that Vessel 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
or use of the Vessel.


 


6

















 


1.1.33      “Encumbrance” means any mortgage,
charge, pledge, lien, assignment, hypothecation, preferential right, option,
title retention or trust arrangement or any other agreement or arrangement
which, in any of the aforementioned instances, has the effect of creating
security.


 


1.1.34      “Equivalent Amount” means the
amount of any Permitted Currency converted from the relevant amount of Dollars.


 


1.1.35      “EURIBOR” means:


 


(a)           the applicable Screen Rate; or


 


(b)           (if no Screen Rate is available for Euro or for the Interest Period
of that Drawing) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the Reference Banks
to leading banks in the European Euro interbank market,


 


at 11.00 a.m. (Brussels time) on the Quotation Day for
the offering of deposits for a period comparable to the Interest Period for
that Drawing.


 


1.1.36      “Euro” and “€” means
the currency of participating member states of the European Monetary Union
pursuant to Council Regulation (EC) 974/98 of 3 May 1998, as amended from time
to time.


 


1.1.37      “Event of Default” means any of the
events set out in Clause 14.2.


 


1.1.38      “Execution Date” means the date on
which this Agreement is signed by all parties who are a signatory to it.


 


1.1.39      “the Existing Acceptable Collateral Value”
means, from time to time, the sum (converted into Dollars) of (a) the
Acceptable Market Value of all Vessels from time to time (including any Vessel
which became a Total Loss within 180 days before, which Vessel shall be valued
at the amount being the lesser of (i) the amount of insurance proceeds which
the Agent reasonably expects to be paid in respect of any insurance claim
relating to the Total Loss of such Vessel and (ii) the Acceptable Market Value
of such Vessel) plus (b) 80% of the value of other collateral accepted by the
Banks pursuant to Clause 2.4.5 plus (c) the amount of any Cash pledged 


 


7

















 


as collateral pursuant to Clause 2.4.5. (a)”Existing Facilities” means together the 130 Facility and the
150 Facility.


 


1.1.40      “Facility” means the secured
multicurrency revolving credit facility made available by the Banks to the
Borrower pursuant to this Agreement.


 


1.1.41      “the Facility Outstandings” at any
time means the total of all Drawings made at that time and converted into
Dollars, to the extent not reduced by repayments or prepayments.


 


1.1.42      “the Facility Outstandings Test Date”
means a date on which any of the following occurs:


 


(a)           a Drawing;


 


(b)           each Interest Payment Date;


 


(c)           a Vessel is sold or disposed of in
accordance with Clause 12.1.4;


 


(d)           one or more new Valuations are received
by the Agent or the Agent obtains valuations of other collateral in accordance
with the terms of the pledge of such collateral;


 


(e)           fifteen (15) Business Days after a Total
Loss; or


 


(f)            after a Total Loss, the earliest to occur
of (i) the receipt of the insurance proceeds for such Total Loss, (ii) 180 days
after such Total Loss; or (iii) the Agent, after consultation with the
Borrower, reasonably concludes it is likely that the insurance proceeds from
such Total Loss will be less than the Acceptable Market Value of such Vessel.


 


1.1.43      “the Facility Period” means the
period beginning on the Execution Date and ending on the date when (i) 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 and (ii) the Termination
Date has occurred.


 


8

















 


1.1.44      “Fair Market Value” means the
aggregate of the market values of all the Vessels mortgaged in favour of the
Security Trustee from time to time or any of them as determined annually and
otherwise by a Valuation for each such Vessel pursuant to Clause 12.2.2.


 


1.1.45      “the Fee Letter” means the letter
dated 20 June 2005 from the Agent as agreed and accepted by the Borrower on 21
June 2005.


 


1.1.46      “the Finance Parties” means the
Banks, the Agent, the Security Trustee and the Lead Arrangers.


 


1.1.47      “First Reduction Date” means the
date falling sixty months after the Execution Date.


 


1.1.48      “the Guarantee” means the guarantee
and indemnity of the Guarantors contained in Clause 8.


 


1.1.49      “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) Default Interest.


 


1.1.50      “IAPPC” means a valid international
air pollution prevention certificate for the Vessel issued under Annex VI.


 


1.1.51      “the Indebtedness” means the
Facility Outstandings together with all interest thereon; all other sums of any
nature including costs and fees (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 Documents being disclaimed by a liquidator
or any other person, or, where the context permits, the amount thereof for the
time being outstanding.


 


1.1.52      “Independent Managers” means
commercial and/or technical managers of the Vessels other than Stolt Managers,
nominated by the Shipowning Guarantors as an Instructing Group may approve in
its discretion.


 


9

















 


1.1.53      an “Instructing Group” means any one
or more Banks whose combined Proportionate Shares exceed fifty per centum (50%)
of the aggregate of Commitments.


 


1.1.54      “Insurances”, in relation to a
Vessel, means all policies and contracts of insurance (including but not
limited to hull and machinery, 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 Vessel or her increased value and (where
the context permits) all benefits thereof, including all claims of any nature
and returns of premium.


 


1.1.55      “Insurance Proceeds Amount” means such amount of the insurance proceeds in respect of a Total
Loss which are required to be paid by the Borrower to the Agent to ensure that
the Borrower remains in full compliance with its obligations under this
Agreement.


 


1.1.56      “Interbank Market Offer Rate” means
EURIBOR, LIBOR and/or NIBOR (as the case may be).


 


1.1.57      “Interest Payment Date” means each
date for the payment of interest in accordance with Clause 7.


 


1.1.58      “Interest Period” means each
interest period selected by the Borrower or agreed by the Agent pursuant to
Clause 7.1.


 


1.1.59      “the ISM Code” means the
International Management Code for the Safe Management of Ships and for
Pollution Prevention, as adopted by the Assembly of the International Maritime
Organisation on 4 November 1993 by resolution A.741 (18) and incorporated on 19
May 1994 as chapter IX of the Safety of Life at Sea Convention 1974.


 


1.1.60      “the ISPS Code” means the
International Ship and Port Facility Security Code adopted by the International
Maritime Organisation (as the same may be amended from time to time).


 


1.1.61      “ISSC” means a valid and current
International Ship Security Certificate issued under the ISPS Code.


 


1.1.62      “law” means any law, statute,
treaty, convention, regulation, instrument or other subordinate legislation or
other legislative or quasi-legislative rule 


 


10

















 


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).


 


1.1.63      “LIBOR” means, in relation to any
Drawing denominated in Dollars or Pounds Sterling:


 


(a)           the applicable Screen Rate; or


 


(b)           (if no Screen Rate is available for the Currency of Account or for
the Interest Period of that Drawing) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its request quoted
by the Reference Banks to leading banks in the London interbank market,


 


at 11.00am on the Quotation Day for the offering of
deposits in the Currency of Account and for a period comparable to the Interest
Period for that Drawing.


 


1.1.64      “the Managers” means the Stolt
Managers and/or the Independent Managers, as the case may be.


 


1.1.65      “Management Agreement” means, in
relation to any Vessel which is not self managed by a member of the SNSA Group,
the Management Agreement made between such Managers and the relevant Shipowning
Guarantor.


 


1.1.66      “Mandatory Cost”  means the percentage rate per annum
calculated by the Agent in accordance with Appendix B.


 


1.1.67      “Margin” based on the ratio of
Consolidated Debt to Consolidated EBITDA for the four fiscal quarters
determined in accordance with the final sentence of this definition (“D/EBITDA”) for which financial statements of the SNSA Group
have been prepared, means, nought point seven per cent (0.7%) per annum until
the date falling twelve months after the Execution Date and thereafter:-


 


(i)            0.60% per annum where D/EBITDA is equal to 2 or less;


 


11

















 


(ii)           0.70% per annum where D/EBITDA is greater than 2 but equal to or
less than 3;


 


(iii)          0.80% per annum where D/EBITDA is greater than 3 or equal to or less
than 4;


 


(iv)          0.90% per annum where D/EBITDA is greater than 4 or equal to or less
than 5; and


 


(v)           1.20% per annum where D/EBITDA is greater than 5 or if it is not
possible to calculate D/EBITDA for that period.


 


The Margin shall be calculated by the Agent as of 28/29 February, 31 May,
31 August and 30 November each year (each a “Margin
Review Date”) commencing 31 May 2005 for the succeeding fiscal
quarter and shall be calculated based on the Consolidated Debt as of the
previous Margin Review Date over Consolidated EBITDA for the four fiscal
quarters, the most recent of which shall have ended on the previous Margin
Review Date.


 


1.1.68      “Material Subsidiary” means, at any time, (i) each Subsidiary of SNSA whose tangible net worth
at such time is equal to or greater than five per cent of the consolidated
tangible net worth of SNSA and all its Subsidiaries at such time (ii) each of
any two or more Subsidiaries which would each not be a Material Subsidiary for
the purposes of paragraph (i) but whose aggregate tangible net worth at such
time is equal to or greater than five per cent of the consolidated tangible net
worth of SNSA and all its subsidiaries at such time and (iii) each Subsidiary
of SNSA the whole or any part of whose financial indebtedness at such time is
guaranteed or secured in any way by the Security Parties, or any one of them
(but only if the portion of the indebtedness guaranteed or secured is at least
$7,500,000). For the purposes of this definition, the term “tangible
net worth” shall be construed in accordance with US GAAP at the time
any determination of tangible net worth is being made for purposes of this
Agreement.


 


1.1.69      “the Maximum Facility Amount” means
the aggregate amount of the Commitments (stated in Dollars) subject to any
reductions effected, from time to time, in accordance with Clauses 2.4.1, 2.4.2
or 17.8.


 


12

















 


1.1.70      “the Maximum Available Facility Amount”
means the lesser of, the Maximum Facility Amount and the Existing Acceptable
Collateral Value as calculated by the Agent on each Facility Outstandings Test
Date.


 


1.1.71      “the Mortgagees’ Insurances” means
all policies and contracts of mortgagees’ interest insurance and any other
insurance from time to time taken out by the Agent on behalf of the Banks in
relation to the Vessels pursuant to this Agreement.


 


1.1.72      “the Mortgages” means the first
priority mortgages or first preferred mortgages (as the case may be) referred
to in Clause 10.1 (each a “Mortgage”).


 


1.1.73      “NIBOR” means:


 


(a)           the applicable Screen Rate; or


 


(b)           (if no Screen Rate is available for Norwegian Kroner or for the
Interest Period of that Drawing) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its request quoted
by the Reference Banks to leading banks in the Norwegian interbank market,


 


at 12.00 p.m. (Oslo time) on the Quotation
Day for the offering of deposits in Norwegian Kroner and for a period
comparable to the Interest Period for that Drawing.


 


1.1.74      “Norwegian Kroner” means available
and freely transferable and convertible funds in the lawful currency of the
Kingdom of Norway.


 


1.1.75      “130 Facility” means the
$130,000,000 revolving credit facility made available to SNTG (Liberia) by a
syndicate of banks subject to the terms and conditions set forth in a
$130,000,000 secured revolving loan facility agreement dated 30 March 2004.


 


1.1.76      “150 Facility” means the
$150,000,000 revolving credit facility made available to SNTG (Liberia) by DnB
NOR Bank ASA subject to the terms and conditions set forth in a $150,000,000
revolving loan facility agreement dated 20 June 2005.


 


13

















 


1.1.77      “Permitted Currency” means Dollars,
the Euro, Norwegian Kroner and Pounds Sterling provided that each such
preceding currency selected by the Borrower is freely convertible, transferable
and available to the Banks in the relevant interbank market and in respect of
which the Agent is at all material times able to ascertain the relevant
Interbank Market Offer Rate.


 


1.1.78      “Permitted Liens” means (i) liens
for salvage and any Encumbrance which has the prior written approval of the
Agent acting upon the instructions of an Instructing Group, or (ii) 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 and/or is covered by insurance.


 


1.1.79      “Potential Event of Default” means
any event which, with the giving of notice and/or the passage of time would
constitute an Event of Default.


 


1.1.80      “Pounds Sterling” means pounds
sterling being the available and freely transferable and convertible funds in
the lawful currency of the United Kingdom.


 


1.1.81      “Proceedings” means any suit,
action or proceedings begun by any of the Finance Parties arising out of or in
connection with the Security Documents.


 


1.1.82      “Proportionate Share” means, for
each Bank, the percentage indicated against the name of that Bank in Schedule
1, as amended by any Transfer Certificate executed from time to time.


 


1.1.83      “Quotation Day” means, in relation
to any period for which an interest rate is to be determined:


 


(a)           (if the currency is Pounds Sterling) on the first day of that
period;


 


(b)           (if the currency is Euro) two TARGET Days before the first day of
that period; or


 


(c)           (for any other Permitted Currency) two Business Days before the
first day of that period.


 


14

















 


1.1.84      “Reduction Amount” means fifty
million Dollars ($50,000,000).


 


1.1.85      “Reference Banks” means Deutsche
Bank AG, DnB NOR Bank ASA, DVB Bank AG and Nordea Bank Norge ASA.


 


1.1.86      “Requisition Compensation”, in relation
to a Vessel, means all compensation or other money which may from time to time
be payable to the relevant Shipowning Guarantor as a result of the Vessel being
requisitioned for title or in any other way compulsorily acquired (other than
by way of requisition for hire).


 


1.1.87      “Screen Rate” means the British
Bankers Association Interest Settlement Rate for the relevant currency and
period and displayed on the appropriate page of the Telerate, Reuters or
Bloomberg screen or such other screen as is customarily used for that purpose
for Dollars and Pounds Sterling, Reuters screen page EURIBOR 01 for Euros or
Reuters screen page NIBP for Norwegian Kroner.


 


1.1.88      “Second Reduction Date” means the
date falling seventy two (72) months after the Execution Date.


 


1.1.89      “the Security Documents” means this
Agreement, the Mortgages, the Deeds of Covenants, the Assignments and the
Shipowners’ Guarantee, 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 SNSA Group as security for the payment of all or any part of the
Indebtedness.


 


1.1.90      “Security Parties” means the
Borrower, the Guarantors, the Shipowning Guarantors, the Stolt Managers and any
other member of the SNSA 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.


 


1.1.91      “the Shipowners’ Guarantee” means
the joint and several guarantee and indemnity of the Shipowning Guarantors
referred to in Clause 10.3.


 


1.1.92      “the Shipowning Guarantors” means
the companies listed in Schedule 4, each of which is a company incorporated
according to the law of the country indicated against its name in Schedule 4 with
its registered office 


 


15

















 


and/or principal place of business at the address
indicated against its name in Schedule 4 (each “a Shipowning
Guarantor”).


 


1.1.93      “SMC” in relation to any Vessel,
means a valid safety management certificate issued for the Vessel by or on
behalf of the Administration pursuant to paragraph 13.4 of the ISM Code.


 


1.1.94      “SMS” in relation to any Vessel,
means a safety management system for the Vessel developed and implemented in accordance
with the ISM Code and including the functional requirements, duties and
obligations required by the ISM Code.


 


1.1.95      “SNSA” means the Guarantor,
Stolt-Nielsen S.A., being a company incorporated according to the laws of
Luxembourg.


 


1.1.96      “SNSA Group” means SNSA and its
Subsidiaries.


 


1.1.97      “SNTG (Liberia) means the
Guarantor, Stolt-Nielsen Transportation Group Ltd, being a company incorporated
according to the laws of Liberia.


 


1.1.98      “Stolt Managers” means any member
of the SNSA Group acting as commercial and/or technical managers of the
Vessels.


 


1.1.99      “Subsidiary”
means a subsidiary undertaking, as defined in section 258 Companies Act 1985 or
any analogous definition under any other relevant system of law.


 


1.1.100      “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.


 


1.1.101      “TARGET”
means the Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.


 


1.1.102      “TARGET Day”
means any day on which (a) TARGET is open for the settlement of payments in
Euro and (b) banks are open for the transaction of business of the nature
contemplated by this Agreement in New York City, United States of America.


 


16

















 


1.1.103      “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.


 


1.1.104      “the Termination Date” means the
date falling seven (7) years from the Execution Date.


 


1.1.105      “Total Loss”, in relation to a
Vessel means:-


 


(a)           an actual, constructive, arranged, agreed or compromised total loss
of that Vessel; or


 


(b)           the requisition for title, compulsory acquisition, nationalisation
or expropriation of that 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
Vessel, unless the Vessel is released and returned to the possession of the
relevant Shipowning Guarantor within two months after the capture, seizure,
arrest, detention or confiscation in question.


 


1.1.106      “Transfer
Certificate” means a certificate materially in the form set forth in
Schedule 6 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 16; and


 


(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 16.


 


1.1.107      “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.


 


17

















 


1.1.108      “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.


 


1.1.109      “the Trust Property” means:-


 


(a)           the benefit of the covenant contained in Clause 10; 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).


 


1.1.110      “20-F Filing” means SNSA’s 20-F
filing with the United States Securities and Exchange Commission made on 31 May
2005 relating to its fiscal year ending 30 November 2004.


 


1.1.111      “US GAAP” means the generally
accepted accounting principles in the United States of America, from time to
time in effect, provided that if any changes to such accounting principles
negatively impact SNSA’s ability to meet its financial covenants, the Banks and
the Borrower will enter into good faith discussions in order to agree upon new
financial covenants consistent with the original intent of Clause 12.3. If as
of the effective date of the change no agreement has been reached with regard
to the form and content of the new financial covenants, the Borrower shall
prepay such amount of the Facility Outstandings as is necessary to ensure it
returns to full compliance with the covenants originally set forth in Clause
12.3.


 


1.1.112      “Valuation”  means in relation to each Vessel, the
arithmetic mean of three written valuations of that Vessel expressed in Dollars
each prepared by an Accepted Broker. Such valuations shall be prepared at the
Borrower’s expense, without a physical inspection, on the basis of a sale for
prompt delivery for cash at arm’s length between a willing buyer and a willing
seller without the benefit of any charterparty or other contract of engagement,
and each Vessel shall be valued as a “parcel tanker” engaged in the parcel
tanker trade and operating on the spot market.


 


18

















 


1.1.113      “the Vessels” means
the vessels listed in Schedule 4 and any other vessel from time to time which
may be mortgaged to the Security Trustee under or pursuant to this Agreement
and everything now or in the future belonging to them on board and ashore (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;


 


1.2.8        references to any of the Finance Parties include its successors,
Transferees and assignees;


 


1.2.9        references to times of day are (unless otherwise stipulated) to
London time; and


 


19

















 


1.2.10      the word “including” means including (without limitation) to the
extent not already stated.


 


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.


 


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 up to 


 


20

















 


but not exceeding the Maximum Facility Amount to be
used by the Borrower for the purposes referred to in Recital (B).


 


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, 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 the
Permitted Currency selected in accordance with Clause 5.1. Each Drawing shall
be advanced on a Business Day, provided that the Borrower shall have given to
the Agent by 11.00 a.m. not more than ten and not fewer than three Business
Days’ notice in writing signed in accordance with a form of mandate provided by
the Borrower to the Agent materially in the form set out in Appendix A of
the required Advance Date of the Drawing in question. Each Drawdown Notice
shall be signed on behalf of the Borrower by the chief financial officer or
senior vice president for corporate finance for SNSA, the treasurer of SNTG
(Liberia) or by any individual identified by any of them pursuant to notice
given from time to time in accordance with Clause 18. 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;


 


2.3.3        no Event of Default or Potential Event of
Default will result from the advance of the Drawing in question; and


 


2.3.4        the advance of the Drawing in question
would not result in the Facility Outstandings exceeding the Maximum Available
Facility Amount.


 


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 


 


21

















 


amount of the requested Drawing available
to the Borrower through the Agent on the Advance Date requested.


 


2.4           Facility Adjustments


 


2.4.1        Subject to the terms and conditions of this Agreement, the Maximum
Facility Amount available to the Borrower for drawing under this Agreement
shall be four hundred million Dollars ($400,000,000) during the period from the
Execution Date until the First Reduction Date. On the First Reduction Date and
on the Second Reduction Date the above Maximum Facility Amount shall reduce by
the Reduction Amount with a final reduction occurring on the Termination Date
to reduce the Facility to zero. The mandatory reductions in the Maximum
Facility Amount under this Clause will be made in the amounts and at the times
specified whether or not the Maximum Facility Amount is reduced pursuant to
Clause 2.4.2  or Clause 17.8.


 


2.4.2        The Borrower may from time to time voluntarily reduce the Maximum
Facility Amount in whole or in part in a minimum amount of five million Dollars
($5,000,000) or any greater whole number of millions of Dollars provided that
it has first given to the Agent not fewer than five Business 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
available for re-drawing.


 


2.4.3        The Facility Outstandings shall not exceed the Maximum Available
Facility Amount. If, from time to time, on any Facility Outstandings Test Date,
the Facility Outstandings exceed the Maximum Available Facility Amount, the
Borrower shall immediately prepay such amount of the Facility Outstandings as
will ensure that the Facility Outstandings are equal to or are less than the
Maximum Available Facility Amount. Clauses 6.3, 6.4 and 6.5 shall apply,
mutatis mutandis, to any prepayment made pursuant to this Clause.


 


2.4.4        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 Available Facility Amount the 


 


22

















 


Borrower shall again be entitled to make Drawings in
accordance with and subject to the terms of this Agreement.


 


2.4.5        At any time and from time to time when the Maximum Available
Facility Amount is less than the Maximum Facility Amount, the Borrower may
provide (x) Cash, (y) additional vessels acceptable to the Banks on terms
substantially equivalent to the security interests in the Vessels granted
pursuant to the Security Documents, or (z) other collateral acceptable to the
Banks on terms acceptable in their discretion, upon which a new calculation of
the Existing Acceptable Collateral Value and a corresponding adjustment in the
Maximum Available Facility Amount shall be made, it being understood that if
the Existing Acceptable Collateral Value, equals or exceeds the Maximum
Facility Amount the Maximum Available Facility Amount will increase to the Maximum
Facility Amount.


 


The value of any additional security provided pursuant
to this Clause shall be determined by (i) the Agent, in relation to any
Cash deposit, (ii) a Valuation in relation to any new ship security and (iii)
the Banks in their discretion in respect of any other security.


 


Where the Borrower has provided additional security
pursuant to this Clause 2.4.5, then, on a date falling not earlier than six
months after the date such additional security was provided the Borrower may
request that such security or a portion thereof (in each case as acceptable to
the Agent in its reasonable discretion) be released. Any request shall be
accompanied by Valuations of all the Vessels dated within thirty (30) days
prior to the request together with valuations of collateral (other than the Vessels)
obtained in accordance with a procedure acceptable to the Agent. If after
taking into account the Valuations and these new valuations, the Existing
Acceptable Collateral Value is greater than the Maximum Facility Amount then
provided that no Potential Event of Default or Event of Default has occurred
and is continuing, the Agent shall release to the Borrower at the Borrower’s
expense, such additional security provided that after its release the Maximum
Available Facility Amount will at least be equal to the Maximum Facility
Amount, and further provided, however, that the value of such security to be
released is not less than five hundred thousand Dollars ($500,000). This
paragraph 


 


23

















 


shall not be interpreted to limit the ability of a
company within the SNSA Group to sell or dispose of a Vessel as permitted under
Clause 12.1.4 of this Agreement.


 


2.4.6        Simultaneously with each reduction of the Maximum Facility Amount in
accordance with Clause 2.4.1 or 2.4.2 (as the case be) the Commitment of each
Bank will reduce so that the Commitments of the Banks in respect of the reduced
Maximum Facility Amount (from time to time) remain in accordance with their
respective Proportionate Shares.


 


2.5           Restrictions on Drawings  The Borrower shall not be entitled to make
more than five (5) 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 a whole number of millions of Dollars and of not less than
three million Dollars ($3,000,000).


 


2.6           Termination Date  No Bank shall be under any obligation to advance all or any part of
its Commitment 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 to the
Agent the relevant fees referred to in Clause 9 and the Fee Letter and deliver
or cause to be delivered to or to the order of the Agent (in sufficient copies
for all Banks) the following documents and evidence:-


 


24

















 


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 SNSA) 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
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.


 


3.1.5        Vessel documents  Photocopies, certified as true, accurate and complete by a director
or the secretary of the relevant Shipowning Guarantor of (in respect of each
Vessel):-


 


(a)           any
time charterparty or bareboat charterparty of that Vessel which will be in
force on the first Advance Date and which 


 


25

















 


exceeds twelve (12)
months duration which is entered into with an entity which is not a member of
the SNSA Group; and


 


(b)           the Management Agreement relating to that Vessel which is in force
at the time of this Agreement;


 


in each case together with all addenda,
amendments or supplements.


 


3.1.6        Evidence of ownership  In respect of each Vessel, certificate(s) of ownership and
encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent
official) at the Vessel’s port of registry confirming that such Vessel is on
the first Advance Date owned by her Shipowning Guarantor and free of registered
Encumbrances other than the Mortgages.


 


3.1.7        Evidence of insurance  Evidence that each Vessel is insured in the manner required by the
Security Documents and that letters of undertaking will be issued in the manner
required by the Security Documents, together with (if required by the Agent)
the written approval of the Insurances by an insurance adviser appointed by the
Agent.


 


3.1.8        Confirmation of class  A Certificate of Confirmation of Class for hull and machinery (dated
not more than seven days before the first Advance Date) confirming that each
Vessel is classed 100 A 1 by Lloyd’s Register of Shipping, or + A1 by Det
norske Veritas, or with the highest applicable class necessary to operate such
vessel (without recommendations or extensions) of the American Bureau of
Shipping or such other classification society which is a member of the
International Association of Classification Societies as may be acceptable to
the Agent.


 


3.1.9        Valuations  A Valuation of each Vessel addressed to the
Agent to be dated no earlier than 1 May 2005 for the purposes of assessing the
Fair Market Value of all Vessels in order to determine the initial Maximum
Facility Amount.


 


3.1.10      The Security Documents  The Security Documents, together with all notices and other
documents required by any of them, duly executed and, in the case of the
Mortgages, registered with first priority through the Registrar of Ships (or
equivalent official) at the port of registry of the Vessel concerned.


 


26

















 


3.1.11      Drawdown Notice  A Drawdown Notice requesting the first Drawing on or before 31
August 2005.


 


3.1.12      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.


 


3.1.13      Managers’ subordination confirmation letter  The written
confirmation of the Managers that they will (i) manage the Vessels in
accordance with good standard ship management practice (ii) subordinate all
their rights in relation to the Vessels to those of the Finance Parties and
(iii) assign their interests in the Insurances to the Security Trustee.


 


3.1.14        The Fee Letter/Fees The Fee Letter
countersigned on behalf of the Borrower by way of acceptance of its terms and
the payment of any fees due and payable thereunder and under Clause 9.


 


3.1.15      Legal opinions  Confirmation satisfactory to the Agent that all legal opinions
required by the Agent on behalf of the Banks will be given substantially in the
form required by the Agent on behalf of the Banks.


 


3.1.16      Corporate Structure  Evidence of the actual corporate structure of
the SNSA Group insofar as it relates to the Security Parties.


 


3.1.17      “Know your customer”  Such documents and evidence as each Bank may
reasonably request in order for such Bank to comply with its “know your
customer” requirements to confirm the identity of the Security Parties and/or
the individuals acting on their behalf.


 


3.1.18      Dutch Central Bank Notification Requirements  Evidence that the
Borrower has notified the Dutch Central Bank (De Nederlandsche Bank) of its
incorporation has complied with any reporting requirements.


 


3.2           Conditions Subsequent  The Borrower undertakes to deliver or to
cause to be delivered to the Agent on, or with the prior approval of the Agent,
as soon as practicable after the first Advance Date or otherwise within the
time specified in this Clause, the following additional documents and
evidence:-


 


3.2.1        Evidence of registration  Evidence of registration of the Mortgages, in each case with first
priority with the Registrar of Ships (or equivalent 


 


27

















 


official) at the port of registry of the Vessel
concerned, no later than the day after the first Advance Date.


 


3.2.2        Letters of undertaking  Letters of undertaking as required by the Security Documents in form
and substance acceptable to the Agent.


 


3.2.3        Legal opinions  Such legal opinions as the Agent on behalf of the Banks shall
require pursuant to Clause 3.1.15.


 


3.2.4        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, 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 and shall deliver to the Agent such
evidence as it shall require in order to set the Margin.


 


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        (i) with respect to the documents and evidence referred to in Clause
3.1, be in form and substance acceptable to the Banks and (ii) otherwise 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;


 


28

















 


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 Advance Date 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 or if, after giving effect to such Drawing,
the Facility Outstandings would exceed the Maximum Available Facility Amount.


 


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 representations and warranties contained in Clauses
4.6, 4.7(a) and 4.13 shall only be made on the first Advance Date and the
representation and warranty contained in Clause 4.16 shall be made by the
Borrower only on a daily basis throughout the Facility Period):-


 


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 SNSA) 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 and are acting on their own account.


 


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 except if such insolvency should arise in relation to
a Shipowner in the circumstances where a demand has been made under the
Shipowners’ Guarantee. For this purpose a Security Party will be deemed
insolvent if it is unable to pay its 


 


29

















 


debts within the meaning of S.123 of the Insolvency
Act 1986 save in relation to the exception referred to in the previous
sentence.


 


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, and (in the case of the Borrower)
no utilisation of the Facility will cause any limit or restriction on its
borrowing or other powers (however imposed), or on the right or ability of its
directors to exercise those powers, to be exceeded or breached.


 


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, 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 any of the Guarantors is aware of any event 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 any of the Guarantors is aware of any
material facts or circumstances which have not been disclosed to the Agent in
the 20-F Filing 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, and the most recently published consolidated annual financial
statements of the SNSA Group give a true and fair view of the state of affairs
of the SNSA Group on the date as at which those financial statements were
prepared.


 


30

















 


4.7           No material litigation  Except as disclosed in the 20-F Filing, 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 (a)
which would, or would be likely to, have a materially adverse effect on the
business, assets, condition (financial or otherwise) or creditworthiness of any
of the Security Parties or (b) which might reasonably be expected adversely to
affect the legality, validity or enforceability of any of the Security
Documents.


 


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 SNSA), 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,
to the best of their knowledge and 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.


 


4.10         Filings  Each Security Party has complied with all
filing or registration requirements relative to each place in which it carries
on business.


 


4.11         Use of Facility  The Facility will be used for the purposes
specified in Recital (B).


 


4.12          Subsidiaries  Save as a result of any
merger or amalgamation effected pursuant to Clause 12.1.3, each of the
Guarantors (other than SNSA) and the Shipowning Guarantors is and will remain
throughout the Facility Period a directly or indirectly wholly owned subsidiary
of SNSA.


 


4.13          Material
Adverse Change 
There has been no material adverse change in the condition (financial or
otherwise) of the Borrower or any of the Guarantors since 31 May 2005.


 


31

















 


4.14         SNSA’s company Status  SNSA operates as a milliardaire holding
company and finance holding company under Luxembourg law pursuant to the terms
of a letter of the “Administration de l’Enregistrement et des Domaines” dated
14 September 1984.


 


4.15         Liabilities  There are no liabilities (contingent or
otherwise) of the SNSA Group which were not disclosed by the 20-F Filing
(including the notes thereto and the discussion of anticipated capital
expenditures contained therein) or reserved against therein except where such
disclosure or reserve is not required by US GAAP, nor any unrealised or
anticipated losses arising from commitments entered into by any member of the
SNSA Group which were not so disclosed or reserved against but which, if they
had been disclosed or reserved against, would have materially affected the
content of those financial statements.


 


4.16         Money Laundering 
In relation to obtaining any Drawing, the
performance and discharge of its obligations and liabilities under this
Agreement and any of the other Security Documents and the transactions and
other arrangements effected or contemplated by this Agreement and any of the
other Security Documents to which the Borrower is a party, the Borrower is
acting for its own account and that none of the foregoing activities will
involve or lead to the contravention of any law, official requirement or other
regulatory measure or procedure which has been implemented to combat “money
laundering” (as defined in each of Article 1 of Directive 91/308/EEC issued by
Council of the European Community and the USA Patriot Act 2001, Publ. L. No
107-56).


 


4.17         No Immunity from suit  None of the Security Parties nor any of their
respective assets or other property enjoys, nor will any Security Party assert
or claim at any time during the Facility Period, any right of immunity from
set-off, suit or execution in respect of its obligations under the Security
Documents to which it is a party.


 


4.18         Finance company Status  That (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 Period 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”) 


 


32

















 


1994 have been complied with and shall throughout the
Facility Period continue to be complied with.


 


5              Currency


 


5.1           Selection
of Permitted Currency  The Borrower may from time to time in accordance with this Clause
select the Permitted Currency in which it wishes any Drawing to be denominated.
A selection shall be made by the Borrower in the Drawdown Notice relating to
the Drawing in question, in which event the Drawing shall be advanced in, and
remain denominated in, the Permitted Currency selected until repayment of that
Drawing in accordance with this Agreement. If the Borrower fails to select a
Permitted Currency for any Drawing in a Drawdown Notice, the Borrower shall be
deemed to have selected that the Drawing in question be advanced in, and
denominated in, Dollars.


 


5.2           Conditions
precedent  The
denomination of any Drawing in a Permitted Currency other than Dollars shall be
subject to the following:-


 


5.2.1        no Drawing may at any time during the Facility
Period be denominated in more than one Permitted Currency and any Drawdown
Notice requesting denomination of a Drawing in more than one Permitted Currency
shall be of no effect;


 


5.2.2        the Facility may not, at any time during the
Facility Period, be denominated in more than three Permitted Currencies and any
Drawdown Notice which, if acted on, would result in the Facility being
denominated in more than three Permitted Currencies shall be of no effect; and


 


5.2.3        a Drawing may only be denominated in a Permitted
Currency other than Dollars if the Agent certifies by notice in writing to the
Borrower, which notice shall be final and conclusive, that deposits in the
Permitted Currency selected for the amount of the Drawing and for the Interest
Period selected are available to the Banks in the normal course of business in
the relevant interbank market on the relevant date.


 


5.3           Non-availability
of Permitted Currency  If, in any Permitted Currency selected (other than Dollars),
deposits of the specified amount and for the specified Interest Period are not
available to any Bank in the normal course of business in the relevant
interbank market on the relevant date such Bank shall notify the 


 


33

















 


Agent who shall in turn notify the Borrower
and offer on behalf of the Banks to advance that Drawing to the Borrower in
Dollars. The Borrower may accept the advance of the Drawing in Dollars by
confirming its acceptance to the Agent in writing two (2) Business Days before
the Advance Date requested in which case the Drawing in question shall be
advanced and denominated in Dollars. If the Borrower does not advise the Agent
that it accepts the advance of the Drawing in Dollars within the requisite
period, the Drawdown Notice requesting such Drawing in the Permitted Currency
which was not available shall be deemed to be cancelled and the Banks shall
have no obligation thereunder.


 


5.4           Repayment  During each
Interest Period in which a Drawing is denominated in a Permitted Currency other
than Dollars, the obligation of the Borrower to repay that Drawing and to pay
interest in respect of that Drawing shall be an obligation to repay the Drawing
and to pay interest in respect of the Drawing in the Permitted Currency in
which the Drawing is then denominated, whether or not the Facility or any part
thereof shall have become repayable by acceleration.


 


5.5           Currency
fluctuations 
If on any Interest Payment Date the Agent shall determine that the
Facility Outstandings when converted into Dollars on such date (the “Conversion Amount”) exceed the Maximum Available Facility
Amount, then the Borrower shall immediately pay to the Agent (on behalf of the
Banks) the amount, denominated in any Permitted Currency on such date, by which
the Conversion Amount exceeds the Maximum Available Facility Amount.


 


6              Repayment and Prepayment


 


6.1           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 7.1,
provided that the Borrower shall not be permitted to select and shall not be
deemed to have selected such further Interest Period if an Event of Default,
Potential Event of Default or any of the circumstances described in Clause 17.9
has occurred and shall then be obliged to repay such Drawing on the last day of
its then current Interest Period. The Borrower shall on the Termination Date
repay to the Agent as agent for the Banks the Indebtedness.


 


6.2           Prepayment  Subject to Clause 6.4, the Borrower may prepay the Facility
Outstandings in the relevant Permitted Currency in whole or in part in a
minimum 


 


34

















 


amount of five million Dollars ($5,000,000) or any
greater whole number of millions of Dollars or the Equivalent Amount thereof in
the relevant Permitted Currency (or as otherwise may be agreed by the Agent)
provided that it has first given to the Agent not fewer than three Business
Days’ prior written notice expiring on a Business Day of its intention to do so.
Any notice pursuant to this Clause 6.2 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.


 


6.3           Prepayment indemnity  If the Borrower shall, subject always to Clause 6.2, 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.


 


6.4           Application of prepayments  Any prepayment (including for the avoidance of doubt any sums
received by the Agent in respect of the Insurance Proceeds Amount) in an amount
less than the Indebtedness shall be applied in satisfaction or reduction first
of any costs and other expenses outstanding; secondly of all interest accrued
with respect to the outstanding Drawings in the currency in which the
prepayment is to be made and thirdly of the outstanding Drawings in the
currency in which the prepayment is to be made in inverse order of maturity.


 


6.5           Reborrowing of prepayments  Any amount prepaid pursuant to this Agreement may be reborrowed
subject to and in accordance with Clause 2.4.4.


 


7              Interest


 


7.1           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, three, six or twelve months’ duration, as
selected by the Borrower by written notice to the Agent not later than 11.00
a.m. on the third 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. If, in respect of any Drawing, the Borrower fails to select an
Interest Period in accordance with this Clause, the Borrower shall (subject to
Clause 6.1) be deemed to have selected an Interest Period for that Drawing of
three months’ duration.


 


35

















 


7.2           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 7.1. Any subsequent Interest Period selected or deemed
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 or deemed selected in accordance with Clause
7.1. However, in respect of any Drawings outstanding on the Termination Date,
the Interest Period applicable to such Drawings shall end on the Termination
Date.


 


7.3           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 applicable Margin, (b) the relevant Interbank Market Offer
Rate and if applicable (c) the Mandatory Cost, 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. The Margin may be adjusted if
necessary on any Margin Review Date during the Interest Period.


 


7.4           Accrual and payment of interest 
During the Facility Period, interest shall accrue from day to day, shall be calculated
on the basis of a 360 day year or a 365 day year, as applicable, 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.


 


7.5           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).


 


7.6            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 monthly, which interest shall be payable from time to
time by the Borrower to the Agent on behalf of the Banks on demand.


 


36

















 


7.7           Determinations conclusive  Each determination of an interest rate made by the Agent in
accordance with Clause 7 shall (save in the case of manifest error or on
any question of law) be final and conclusive.


 


8              Guarantee and Indemnity


 


8.1           The Borrower’s Obligations In consideration of the agreement of the
Banks to make the Facility available to the Borrower, each of the Guarantors
(on a joint and several basis):-


 


8.1.1        irrevocably and
unconditionally guarantees to discharge on demand the Borrower’s Obligations,
including Default Interest from the date of demand until the date of payment,
both before and after judgement; and


 


8.1.2        agrees, as a separate and
independent obligation, that, if any of the Borrower’s Obligations are not
recoverable from the Guarantors or any of them under Clause 8.1.1 for any
reason, each of the Guarantors will be liable to the Finance Parties as
principal debtor by way of indemnity for the same amount as that for which it
would have been liable had those Borrower’s Obligations been recoverable and
agrees to discharge its liability under this Clause 8.1.2 on first demand
together with Default Interest from the date of demand until the date of
payment, both before and after judgement.


 


8.2           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.


 


8.3           Preservation of Guarantors’ Liability


 


8.3.1        The
Banks may without the Guarantors’ consent and without notice to the Guarantors
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;


 


37

















 


(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 the Guarantors or any
of them under the Guarantee.


 


8.3.2        The
liability of each 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;


 


(c)           the liquidation,
administration, receivership or insolvency of any of the Guarantors;


 


(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 


 


38

















 


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 all or any of the Guarantors to the
Finance Parties had the liability of each of the Guarantors under Clause 8.1.1
been as a principal debtor of the Finance Parties and not as a guarantor.


 


8.4           Preservation of Banks’ Rights


 


8.4.1        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.


 


8.4.2        Any release, settlement,
discharge or arrangement relating to the liabilities of all or any 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 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.


 


39

















 


8.4.3        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 each of the Guarantors
under the Guarantee until the Finance Parties are satisfied in their reasonable
discretion that they will not have to make any payment under any law referred
to in Clause 8.4.2.


 


8.4.4        Until
all claims of the Finance Parties in respect of the Borrower’s Obligations have
been discharged in full:-


 


(a)           none of the Guarantors
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)           none of the Guarantors
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 any 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)           none of the Guarantors
shall take any steps to enforce any claim which it or they may have against the
Borrower or any Security Party without the prior written consent of the Agent
acting on behalf of an Instructing Group, and then only on such terms and
subject to such conditions as the Agent acting on behalf of an Instructing
Group may impose.


 


8.4.5        The Guarantors’ Liabilities
shall be continuing for all purposes (including Default 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 


 


40

















 


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.


 


8.4.6        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.


 


8.4.7        The Finance Parties may
enforce the Guarantee either before or after resorting to any other means of
payment or enforcement and, in the latter case, without entitling the
Guarantors or any of them 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.


 


8.5           Other Security  Each of the
Guarantors confirms that it has not taken and will not take without the prior
written consent of the Agent acting on behalf of an Instructing Group (and then
only on such terms and subject to such conditions as the Agent may impose
acting on behalf of an Instructing Group) any security from the Borrower or
from any Surety in connection with the Guarantee and any security taken by the
Guarantors or any of them in connection with the Guarantee notwithstanding this
Clause shall be held by such Guarantor(s) in trust for the Agent on behalf of
the Finance Parties absolutely as a continuing security for the Guarantors’
Liabilities.


 


9              Fees


 


9.1           The Borrower shall pay to the Agent, for the account of the Banks in
accordance with their Proportionate Shares, Commitment Commission in Dollars at
the rate of forty per centum (40%) of the applicable Margin per annum on any
undrawn part of the Maximum Facility Amount after the Execution Date. 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 quarterly in
arrears on each Margin Review Date from the Execution Date until the
Termination Date based upon the Margin in effect from time to time. Where any
Commitment Commission is due and payable prior to the first Advance Date the
applicable Margin shall be the Margin that would have applied to the Facility
if all or any part of the Facility had been advanced under this Agreement.


 


41

















 


10           Security Documents


 


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:-


 


10.1         the Mortgages and Deeds of Covenants a
first preferred and/or first priority mortgage together, where applicable, with
a collateral deed of covenants, over each Vessel;


 


10.2         the Assignments  a deed of assignment of the Insurances, Earnings and Requisition
Compensation of each Vessel; and


 


10.3         the Shipowners’ Guarantee  the joint and several guarantee and indemnity of the Shipowning
Guarantors.


 


11           Agency and Trust


 


11.1         Appointment  Each of the Banks and the Lead Arrangers, appoints the Agent its
agent for the purpose of administering the Facility and the Security Trustee
for the purpose of administering the Security Documents and authorises the
Agent and/or the Security Trustee (as the case may be) and their directors,
officers, employees and agents acting on the instructions from time to time of
an Instructing Group, and subject to Clauses 11.4 and 11.19, 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.


 


11.2         Authority  Subject to Clause 11.4, each of the Banks and the Lead Arrangers,
irrevocably authorises the Agent and/or the Security Trustee (as the case may
be), acting on the instructions from time to time of an Instructing Group:-


 


11.2.1          to give or withhold any consents or approvals;


 


11.2.2          to exercise, or refrain from exercising, any discretions;


 


11.2.3          to collect, receive, release or pay any money;


 


11.2.4          to amend or waive any covenant contained in any of the Security
Documents; and/or


 


42

















 


11.2.5          to waive the occurrence of any Potential Event of Default;


 


under or pursuant to any of the Security Documents. Neither
the Agent nor the Security Trustee shall have 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 or the Security Trustee (as the case may
be), be contrary to any provision of the Security Documents or to any law, or
would expose the Agent or the Security Trustee to any actual or potential
liability to any third party.


 


11.3         Trust  The Security Trustee agrees and declares, and each of the Banks
acknowledges, that, subject to the terms and conditions of this Clause, the
Security Trustee 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 Security Trustee
shall be performed and exercised in accordance with this Clause. The Security
Trustee shall have the benefit of all the powers and discretions conferred on
trustees by the Trustee Act 1925 (to the extent not inconsistent with this
Agreement). In addition:-


 


11.3.1          the Security Trustee (and any attorney, agent or delegate of the
Security Trustee) 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 Security Trustee 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


 


11.3.2          the Banks acknowledge that the Security Trustee 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


 


43

















 


11.3.3          the Security Trustee, 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.


 


11.4          Limitations on authority  Except with the prior written consent of each of the Banks, neither
the Agent nor the Security Trustee shall be entitled to :-


 


11.4.1          release or vary any security given for the Borrower’s obligations
(including, without limitation, security in respect of the Vessels) under this
Agreement; nor


 


11.4.2          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; nor


 


11.4.3          change the meaning of the expression “Instructing
Group”; nor


 


11.4.4          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


 


11.4.5          extend the due date for the payment of any sum of money payable by
any of the Security Parties under the Security Documents; nor


 


11.4.6          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 (including, without limitation, any increase in respect of
its Commitment); nor


 


11.4.7          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


 


11.4.8          agree to amend this Clause 11.4; nor


 


11.4.9          agree to amend Clauses 1.1.67 (Margin), 7.3, 9.1 or 13; nor


 


11.4.10        agree to increase the Maximum Facility Amount.


 


11.5         Liability  Neither the Agent, the Security Trustee nor any of their directors,
officers, employees or agents shall be liable to the Banks or the Lead
Arrangers, 


 


44

















 


for anything done or omitted to be done by the Agent
or the Security Trustee (as the case may be) under or in connection with the
Security Documents unless as a result of the Agent’s or the Security Trustee’s
wilful misconduct or gross negligence.


 


11.6         Acknowledgement  Each of the Banks and the Lead Arrangers acknowledges that:-


 


11.6.1          it has not relied on any representation made by the Agent or the
Security Trustee or any of the Agent’s or the Security Trustee’s directors,
officers, employees or agents or by any other person acting or purporting to
act on behalf of the Agent or the Security Trustee (as the case may be) to
induce it to enter into any of the Security Documents;


 


11.6.2          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;


 


11.6.3          it has made its own appraisal of the creditworthiness of the
Security Parties;


 


11.6.4          neither the Agent nor the Security Trustee (as the case may be)
shall 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 or the Security Trustee (as the case may
be) pursuant to the express terms of the Security Documents.


 


Each of the Banks and the Lead Arrangers, agrees that
it will not assert nor seek to assert against any director, officer, employee
or agent of the Agent or the Security Trustee (as the case may be) or against
any other person acting or purporting to act on behalf of the Agent or the
Security Trustee (as the case may be) any claim which it might have against
them in respect of any of the matters referred to in this Clause.


 


11.7         Limitations on responsibility 
Neither the Agent nor the Security Trustee
shall have any responsibility to any of the Security Parties or to the Banks or
the Lead Arrangers, on account of:-


 


45

















 


11.7.1          the failure of a Bank or of any of the Security Parties to perform
any of their respective obligations under the Security Documents;


 


11.7.2          the financial condition of any of the Security Parties;


 


11.7.3          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;


 


11.7.4          the negotiation, execution, effectiveness, genuineness, validity,
enforceability, admissibility in evidence or sufficiency of any of the Security
Documents or of any document executed or delivered pursuant to or in connection
with any of the Security Documents.


 


11.8         The Agent’s and Security Trustee’s rights  The Agent and the
Security Trustee may:-


 


11.8.1          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 or as the
Security Trustee (as the case may be), it has acquired actual knowledge to the
contrary; and


 


11.8.2          assume that no Event of Default or Potential Event of Default has
occurred unless, in its capacity as the Agent or as the Security Trustee (as
the case may be), it has acquired actual knowledge to the contrary; and


 


11.8.3          rely on any document or Communication believed by it to be genuine;
and


 


11.8.4          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


 


11.8.5          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


 


46

















 


11.8.6          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 or the Security Trustee, as
appropriate, has received from the Banks any payment which the Agent, or the
Security Trustee, as appropriate, may require on account of, or any security
which the Agent, or the Security Trustee, as appropriate, 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.


 


11.9         The Agent’s and the Security Trustee’s duties  The Agent and the
Security Trustee shall:-


 


11.9.1          if requested in writing to do so by an Instructing Group, 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


 


11.9.2          inform the Banks promptly of any Event of Default of which the Agent
or the Security Trustee (as the case may be) has actual knowledge.


 


11.10       No deemed knowledge  Neither the Agent nor the Security Trustee shall 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 or the Security Trustee (as the case may be).


 


11.11       Other business  Each of the Agent and the Security Trustee may, without any
liability to account to the Banks or the Lead 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 or the Security Trustee (as the case may be).


 


11.12       Indemnity  The Banks shall, promptly on the Agent’s or the Security Trustee’s
(as the case may be) request, reimburse the Agent or the Security Trustee (as
the case may be) in their respective Proportionate Shares, for, and keep the
Agent or the Security Trustee (as the case may be) fully indemnified in respect
of:-


 


47

















 


11.12.1        all amounts payable by the Borrower to the Agent pursuant to Clause
19 to the extent that those amounts are not paid by the Borrower;


 


11.12.2        all liabilities, damages, costs and claims sustained or incurred by
the Agent or the Security Trustee, as appropriate, 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 or the Security Trustee (as the case may be) 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 or the Security Trustee’s wilful
misconduct or gross negligence.


 


11.13       Employment of agents  In performing its duties and exercising its rights, powers,
discretions and remedies under or pursuant to the Security Documents, the Agent
or the Security Trustee (as the case may be) shall be entitled to employ and
pay agents to do anything which the Agent or the Security Trustee (as the case
may be) 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 or the Security Trustee (as the case may
be) in good faith to be competent to give such opinion, advice or information.


 


11.14       Distribution of payments  Every sum of money received by the Security Trustee under or
pursuant to the Security Documents shall be paid promptly to the order of the
Agent. 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 from the
Security Trustee or otherwise pursuant to the Security Documents or the
Mortgagees’ Insurances (with the exception of (a) any amounts payable pursuant
to Clause 9.1 and/or the Fee Letter or (b) 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, Lead Arrangers)
which, until so paid, shall be held by the Agent or the Security Trustee on
trust absolutely for that Bank or that Lead Arranger (as the case may be).


 


11.15       Reimbursement  Neither the Agent nor the Security Trustee shall have any liability
to pay any sum to any Finance Party or Security Party until it has itself 


 


48

















 


received payment of that sum. If, however, the Agent
or the Security Trustee (as the case may be) does pay any sum to any Finance
Party or Security Party on account of any amount prospectively due to it
pursuant to Clause 11.14 before it has itself received payment of that
amount, and the Agent or the Security Trustee (as the case may be) does not in
fact receive payment within five Business Days after the date on which that
payment was required to be made by the terms of the Security Documents or the
Mortgagees’ Insurances, the recipient will, on demand by the Agent or the
Security Trustee (as the case may be), refund to the Agent or Security Trustee
(as appropriate) an amount equal to the amount received by it, together with an
amount sufficient to reimburse the Agent or the Security Trustee (as the case
may be) for any amount which the Agent or the Security Trustee (as the case may
be) 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 or the Mortgagees’ Insurances and ending on the date on which the
Agent or the Security Trustee (as appropriate) receives reimbursement.


 


11.16       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:-


 


11.16.1        that Bank shall promptly notify the Agent (which shall promptly
notify each other Bank);


 


11.16.2        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


 


11.16.3        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 


 


49

















 


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.


 


11.17       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 (or, as appropriate,
their Security 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
11.16.3 shall apply only to the retained amount.


 


11.18       Proceedings  Each of the Finance Parties shall notify the Agent 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.


 


11.19       Instructions  Where the Agent or the Security Trustee 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 or the
Security Trustee (as the case may be) with instructions within five Business
Days of the Agent’s or the Security Trustee’s request (which request shall be
made in writing). If a Bank does not provide the Agent or the Security Trustee
(as the case may be) with instructions within that period, (i) that Bank shall
be bound by the decision of the Agent or the Security Trustee (as the case may
be), (ii) that Bank shall have no vote for the purposes of this Clause and
(iii) the combined Proportionate Shares of the other Banks who provided such
instructions shall be deemed to contribute 100%. Nothing in this Clause shall
limit the right of the Agent or the Security Trustee (as the case may be) to
take, or refrain from taking, any action without obtaining the instructions of
the Banks if the Agent or the Security Trustee (as the case may be) in its
discretion considers it necessary or appropriate 


 


50

















 


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 or the Security Trustee (as the case may
be) 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 or the
Security Trustee (as the case may be) pursuant to this Clause.


 


11.20       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 one of the
Banks), in the case of the Security Trustee (in its capacity as Security
Trustee or as one of the Banks) and in the case of the other Banks, at the
address indicated in Schedule 1 or such other addresses as shall be duly
notified in writing to the Agent on behalf of the Banks.


 


11.21       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.


 


11.22       Retirement Subject to a successor being
appointed in accordance with this Clause, the Agent or the Security Trustee may
retire as agent or security trustee (as the case may be) 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:-


 


11.22.1        the Agent or the Security Trustee may, by not less than fourteen
days’ notice to each of the other parties to this Agreement, appoint any
holding or subsidiary company of the Agent or the Security Trustee, or any
other subsidiary (direct or indirect) of the Agent’s ultimate holding company
as its successor;


 


11.22.2        if the Agent or the Security Trustee does not appoint a successor in
accordance with Clause 11.22.1, an Instructing Group may, with the consent of
the Borrower, not to be unreasonably withheld, within thirty days after the
date of the Agent’s or the Security Trustee’s notice appoint a successor to act
as agent and/or security trustee or, if they fail to do so, the Agent or the
Security Trustee (as the case may be) may, with the consent of the Borrower,
not to be unreasonably withheld, appoint any other bank or financial
institution as its successor;


 


51

















 


11.22.3        the resignation of the Agent or the Security Trustee 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;


 


11.22.4        the Agent or the Security Trustee (as the case may be) shall thereupon
be discharged from all further obligations as agent or security trustee but
shall remain entitled to the benefit of the provisions of this Clause;


 


11.22.5        the Agent’s or the Security Trustee’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.


 


11.23       No fiduciary relationship  Except as provided in Clauses 11.3 and 11.14, neither the Agent nor
the Security Trustee shall have any fiduciary relationship with or be deemed to
be a trustee of or for a Bank or a Lead Arranger (as the case may be) and
nothing contained in any of the Security Documents shall constitute a
partnership between any two or more Banks or Lead Arrangers or between the
Agent or the Security Trustee and any Bank or Lead Arranger (as the case may
be).


 


12           Covenants


 


Each of the Borrower and the Guarantors covenants with
the Finance Parties in the following terms for the duration of the Facility
Period.


 


12.1         Negative covenants


 


Neither the Borrower nor any of the Guarantors will:-


 


12.1.1          no third party rights  without the Banks’
prior written consent permit any of the Shipowning Guarantors to create or
permit to arise or continue any Encumbrance on or over all or any part of its
assets or undertaking (including, without limitation, accounts receivable)
other than Permitted Liens; nor


 


12.1.2          no change in management  without the prior
written consent of an Instructing Group, permit the appointment,
sub-contracting or delegation of the commercial or technical management of the
Vessels to 


 


52

















 


anyone other than the Managers, nor terminate or amend
any Management Agreement and/or the arrangements for the commercial or
technical management of the Vessels in a manner which is in the reasonable
opinion of the Agent, detrimental to the interests of the Finance Parties or
any of them, provided that any termination, amendment, appointment,
sub-contracting or delegation of any Management Agreement and/or management
arrangements referred to above by, with or to a Stolt Manager shall not be
deemed to be detrimental to the interests of the Finance Parties or any of them
as long as all management obligations continue to be performed by one or more
Stolt Managers and each said Stolt Manager becomes or remains party to
agreements with the Agent or the Security Trustee (as the case may be)
subordinating its rights in the Vessels to those of the Banks in terms substantially
the same as contained in Schedule 7 Part A where the new Stolt Manager is also
a bareboat charterer of any Vessel and Schedule 7 Part B where the new Stolt
Manager is a manager only of any Vessel; nor


 


12.1.3          merger, amalgamation or a voluntary liquidation in
lieu of merger  without the prior written consent of an
Instructing Group, permit any merger, amalgamation or (in the case of the
Guarantors other than SNSA) voluntary liquidation in lieu of merger of all or
part of any Security Party unless (i) the Security Party in question remains
the surviving entity following any such merger, amalgamation or voluntary
liquidation in lieu of merger (or if the merger, amalgamation or a voluntary
liquidation in lieu of merger involves more than one Security Party, that one
Security Party remains the surviving entity); and (ii) such surviving entity is
not divested of any material part of the assets or operations of the merging or
amalgamating entities with its core business of chemical transportation maintained;
and (iii) in the case of SNSA only, such merger or amalgamation has been
approved by a duly passed resolution of SNSA’s shareholders if required by
applicable law; nor


 


12.1.4           no sale of
Vessels/Shipowning Guarantors without the prior
written consent of the Banks sell or cause to be sold or dispose or cause to be
disposed of in whole or in part any Vessel or the shares in any 


 


53

















 


Shipowning Guarantor nor agree to do so
unless the Borrower simultaneously makes such prepayments under Clause 2.4.3 or
offers such additional collateral pursuant to Clause 2.4.5 as may be necessary
to maintain compliance with Clause 2.4.3; nor


 


12.1.5           sale of other
assets without the prior written consent of an
Instructing Group, procure that a member of the SNSA Group shall, sell, lease,
transfer or otherwise dispose of, by one or more transactions or series of
transactions (whether related or not) the whole or any part of its property or
assets (other than in accordance with Clause 12.1.4) except on arm’s length
commercial terms or to another member of the SNSA Group; nor


 


12.1.6           purchase of Margin Stock  utilise all or any part of
the Facility for the purchase of Margin Stock as that term is defined in
Regulation U of the United States Board of Governors of the Federal Reserve
System.


 


12.2         Positive covenants


 


The Borrower and/or the Guarantors, as the case may
be, will in the absence of a waiver granted by the Agent acting under
instructions as set forth in the individual Sub-Clauses of Clause 12.2 or if no
terms for waiver are set forth in any such Sub-Clause, then under instructions
of an Instructing Group under Clause 11.2 or the Banks under Clause 11.4 (as
the case may be) comply with the following covenants:-


 


12.2.1          Registration of Vessels  Each of the Borrower and the
Guarantors undertakes to procure the maintenance of the registration of the
Vessels under the flags and ownerships indicated in Schedule 4 for the duration
of the Facility Period unless otherwise approved by an Instructing Group in
writing.


 


12.2.2          Valuations  For the purposes of Clause 2.4 the Borrower shall at its expense
throughout the Facility Period deliver to the Agent a Valuation in respect of
each Vessel (i) at least annually after the Execution Date and (ii) at any one
further time during each year of the Facility Period as requested by the Agent.


 


54

















 


12.2.3          Financial statements  The Borrower will
supply to the Agent (with sufficient copies for distribution to each of the
Banks), without request,


 


(a)       on a consolidated basis:-


 


(i)        SNSA’s annual consolidated audited accounts prepared in accordance
with US GAAP within one hundred and eighty (180) days of the end of the fiscal
year to which they relate and such financial statements shall accurately and
fairly represent the financial condition of the SNSA Group; and


 


(ii)       SNSA’s unaudited consolidated quarterly financial statements not
later than ninety (90) days after the end of the relevant fiscal quarter; and


 


(b)           the annual update to SNSA Group’s three year plan when approved by
SNSA’s board of directors; and


 


(c)           any other financial information prepared by SNSA in the normal
course of its business (including, but not limited to, cashflow forecasts)
which may reasonably be requested by the Banks.


 


12.2.4          Other information 
The Borrower will promptly supply to the
Agent (with sufficient copies for distribution to each of the Banks) copies of
all financial and other information from time to time given by SNSA to its
shareholders (provided that any information made available to the public on
SNSA’s World Wide Web site shall be deemed supplied for this purpose) and such
information and explanations as the Agent may from time to time reasonably
require in connection with the operation of the Vessels and the Borrower’s and
SNSA’s profit and liquidity, and will procure that the Agent be given the like
information and explanations relating to all other Security Parties.


 


12.2.5          ISM Code compliance  In respect of each Vessel at any time subject
to the ISM Code the Borrower will:-


 


(a)           procure that each Vessel
remains for the duration of the Facility Period subject to a SMS;


 


55

















 


(b)           maintain a valid and
current SMC for each Vessel throughout the Facility Period;


 


(c)           if it is not itself the
Company, procure that the Company maintains a valid and current DOC throughout
the Facility Period;


 


(d)           promptly report to the
Agent in writing of any actual or threatened withdrawal, suspension,
cancellation or modification of any Vessel’s SMC or of the Company’s DOC;


 


(e)           promptly report to the
Agent in writing (i) any accident involving any Vessel which may result in that
Vessel’s insurers making payment directly to the Agent in accordance with the
relevant Security Documents or (ii) any “major  non-conformity”, as
that term is defined in the Guidelines on the Implementation of the
International Safety Management Code by Administrations adopted by the Assembly
of the International Maritime Organisation pursuant to Resolution A.788(19),
and of the steps being taken to remedy the situation; and


 


(f)            not without the prior
written consent of the Agent (which will not be unreasonably withheld) change
the identity of the Company.


 


12.2.6      ISPS Code  Throughout the Facility Period the Borrower
shall procure compliance, in relation to each Vessel, with the ISPS Code or any
replacement of the ISPS Code and in particular, without limitation, shall:-


 


(a)           procure that each Vessel
and the company responsible for that Vessel’s compliance with the ISPS Code
complies with the ISPS Code; and


 


(b)           maintain for each Vessel
throughout the Facility Period an ISSC; and


 


(c)           notify the Agent
immediately in writing of any actual or threatened withdrawal, suspension,
cancellation or modification of the ISSC for any Vessel.


 


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12.2.7      Annex VI compliance   The Borrower will:


 


(a)           for the duration of the Facility
Period procure compliance with Annex VI in relation to
the Vessels and procure that the Vessels’ masters and other officers are familiar
with, and that the Vessels comply with, Annex VI;


 


(b)           maintain a valid and
current IAPPC for each Vessel throughout the Facility Period and provide a copy
to the Agent; and


 


(c)           immediately notify the
Agent in writing of any actual or threatened withdrawal, suspension,
cancellation or modification of the IAPPC.


 


12.2.8      Insurances  The Borrower shall ensure that each of the
Vessels is fully insured upon the terms and conditions set forth in the
Mortgages or Deed of Covenants (as the case may be). In addition, each of the
Borrower and the Guarantors shall ensure that its property and assets are
insured against such risks and in such amounts as are customary for companies
engaged in similar businesses with reputable and financially sound insurers.


 


12.2.9      Classification  The Borrower shall ensure that each Vessel is
classed and maintained as 100 A1 by Lloyd’s Register of Shipping, or + A1 by
Det norske Veritas, (in each case modified, as appropriate, from time to time),
or with the highest applicable class necessary properly to operate such Vessel
of the American Bureau of Shipping or such other classification society
acceptable to the Agent, and that such classification will be maintained and
not changed in any way during the Facility Period, (or in the event of any
change of classification immediate steps are taken to restore such
classification within one (1) month from the date on which such change
occurred).


 


12.2.10    Certificate of Compliance SNSA shall deliver to the Agent a duly executed Certificate of
Compliance ninety (90) days after the end of each fiscal quarter of SNSA
occurring during the Facility Period certifying (inter alia) compliance with
the covenants contained in Clause 12.3.


 


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12.2.11    Inspection of records  Each of the Borrower and each of 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.


 


12.2.12    Notification of Event of Default 
Each of the Borrower and each of 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 ability of either of the Borrower or any of the
Guarantors to perform its obligations under this Agreement or the ability of
any of the other Security Parties to perform any of their obligations under any
of the Security Documents to which they are a party or may become a party to.


 


12.2.13    Additional Filings/Notification  Each of the Borrower and
each of the Guarantors shall ensure that (i) any additional filings required to
ensure continuing compliance with Clause 4.10 will be made and/or effected
promptly and within any applicable time limits imposed by law; and (ii) the
Agent is immediately notified if any of the Security Parties (a) has an
established place of business in the United Kingdom or the United States of
America at any time during the Facility Period or (b) changes the place of its
chief executive office or principal place of business in the United States of
America.


 


12.2.14    Pari Passu  Each of the Borrower and each of the
Guarantors shall ensure that its respective obligations under this Agreement
shall at all times rank at least pari passu with all of its 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.


 


12.2.15    Corporate Existence  Save as permitted by Clause 12.1.3, each of
the Borrower and each of 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 each 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


 


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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 where the
failure to comply with such could reasonably be expected to have a material
adverse effect on its business, assets or operations, financial or otherwise.


 


12.2.16    Admissibility In Evidence  Each of the Borrower and
each of 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.


 


12.2.17    Compliance with law  Each of the Borrower and each of the Guarantors
will comply (and will procure that each of the Shipowning Guarantors complies)
in all material respects with the requirements of all applicable laws and/or
regulations (including, without limitation, any environmental laws).


 


12.2.18    Payment of Taxes 
Each of the Borrower and each of the
Guarantors will ensure that all Taxes, the non-payment of which might
reasonably be expected to have a material adverse effect on the financial
condition of any of the Security Parties or of the SNSA Group are paid promptly
and will provide the Agent with details of any demand issued for such Taxes.


 


12.2.19    Maintenance of records Each of the Borrower and each of the Guarantors will ensure that all
of their accounting and other records (including operational records relating
to all vessels and containers owned by, or leased to, members of the SNSA
Group) are kept up to date and in such places as they are easily accessible in
the event that the Agent wishes to inspect them pursuant to Clause 12.2.12.


 


12.2.20    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


 


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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.


 


12.2.21    SNSA’s company Status  SNSA will throughout the Facility Period
operate as a milliardaire holding company and finance holding company under
Luxembourg law pursuant to the terms of a letter of the “Administration de l’Enregistrement
et des Domaines” dated 14 September 1984.


 


12.3         SNSA’s Financial Covenants Throughout the Facility Period SNSA shall:-


 


12.3.1      maintain a Consolidated Tangible Net Worth of not less than six
hundred million Dollars ($600,000,000) or the equivalent in any other currency
calculated at the end of each fiscal quarter;


 


12.3.2      maintain a Consolidated Debt to Consolidated Tangible Net Worth
ratio of a maximum of 2.00:1.00, as calculated at the end of each fiscal
quarter; and


 


12.3.3      maintain a Consolidated EBITDA to Consolidated Interest Expense
ratio equal to or greater than 2.00:1.00 as calculated at the end of each
fiscal quarter.


 


13           Earnings


 


Remittance of earnings Immediately upon the occurrence of an Event of Default, the Borrower
shall procure that all Earnings are paid to such account(s) as the Agent shall
from time to time specify by notice in writing to the Borrower.


 


14           Events of Default


 


14.1         The Agent’s rights  If any of the events set out in Clause 14.2 occurs, and such event
(if, in the opinion of an Instructing Group, capable of remedy) 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 14.2.1, 14.2.4, 14.2.5, 14.2.6, 14.2.16, 14.2.17, 14.2.18 and 14.2.20


 


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where such remedy period shall not apply) the Agent
(acting on the instructions of an Instructing Group) 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.


 


14.2         Events of Default  The events referred to in Clause 14.1 are:-


 


14.2.1      payment default 
if the Borrower defaults in the payment of
any principal forming part of the Indebtedness when due or any other part of
the Indebtedness within three (3) Business Days of its due date; or


 


14.2.2      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; or


 


14.2.3      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


 


14.2.4      execution  if a distress or execution or other process of a court or authority
is levied on any of the property of any Security Party or Material Subsidiary
before or after final judgment or by order of any competent court or authority
for an amount in excess of seven million five hundred thousand Dollars
($7,500,000) or its equivalent in any other currency and is not satisfied or
stayed (with a view to being contested in good faith) within fourteen (14) days
of levy; or


 


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14.2.5      insolvency events 
if any Security Party or Material
Subsidiary:-


 


(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 purposes of a merger, amalgamation or voluntary
liquidation in lieu of merger pursuant to Clause 12.1.3; 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 (except in the case of a Material Subsidiary as part of the
ordinary course of business or with the consent of an Instructing Group, such
consent not to be unreasonably withheld or for the purposes of a voluntary
liquidation in lieu of merger pursuant to Clause 12.1.3); 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


 


14.2.6      insolvency proceedings  if any proceedings are commenced or threatened, or any order or
judgment is given by any court, for the bankruptcy, liquidation (whether by the
means of a voluntary liquidation or otherwise except as permitted pursuant to
Clause 12.1.3), winding up, administration or re-organisation of any Security
Party or Material Subsidiary or for the appointment of a receiver,
administrative receiver, administrator, liquidator or trustee of any Security
Party or Material Subsidiary or of all or part of the assets of any Security
Party or Material Subsidiary, 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


 


14.2.7      impossibility or illegality subject to
the terms of Clause 17.7, if any event occurs
which would, or would with the passage of time, render


 


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performance of any of the Security Documents
impossible, unlawful or unenforceable by any of the Finance Parties; or


 


14.2.8      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


 


14.2.9      revocation or modification of consents etc. if any material 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


 


14.2.10    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 (other than a Vessel if it is that Security Party’s only asset) 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


 


14.2.11    loss of Vessel 
if any Vessel, or any such other vessel
which may from time to time be mortgaged to the Banks (or to the Security
Trustee on their behalf) as security for the repayment of all or any part of
the Indebtedness is destroyed, abandoned, confiscated, forfeited, condemned as
prize or otherwise becomes a Total Loss, except that a Total Loss shall not be
an Event of Default if:-


 


(a)           such Vessel or such other
vessel (as the case may be) is insured in accordance with the Security
Documents; and


 


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(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 the Insurance
Proceeds Amount to the Security Trustee on behalf of the Banks is made on or
before the date falling one hundred and eighty days (180) after the date the
Total Loss occurred; or


 


14.2.12    acceleration of other indebtedness  if any other
indebtedness or obligation for borrowed money of any Security Party or any
Subsidiary of SNSA 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  Subsidiary of SNSA (as the case may be), or
is not repaid or satisfied on the due date for its repayment or any such other
loan, guarantee or indebtedness becomes enforceable save, in either case, for
amounts of less than seven million five hundred thousand Dollars ($7,500,000)
in aggregate, or its equivalent in any other currency, and claims contested in
good faith; or


 


14.2.13    reduction of capital  if any of the Security Parties reduces its authorised or issued or
subscribed capital except reductions effected in compliance with Clause 12.1.3;
or


 


14.2.14    challenge to registration  if the
registration of any Vessel or any Mortgage becomes void or voidable or liable
to cancellation or termination; or


 


14.2.15    war  if the country of registration of any 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; or


 


14.2.16    notice of termination   if any of the
Guarantors or any Shipowning Guarantor gives notice to the Agent to determine
its obligations under the Guarantee or the Shipowners’ Guarantee, as
appropriate; or


 


14.2.17    claim against assets except
for Permitted Liens, if a maritime or other lien, arrest, distress or similar
charge is levied upon or against any


 


64

















 


Vessel or any substantial part of the assets of any of
the Guarantors (on a consolidated basis) and is not discharged within fourteen
(14) Business Days after any Security Party has become aware of the same; or


 


14.2.18    Borrower’s/Guarantor’s business  if all or a substantial part
of the Borrower’s or any of the Guarantors’ business is destroyed, abandoned,
seized, appropriated or forfeited for any reason; or


 


14.2.19    ownership  if (i) the Borrower ceases to be a wholly owned subsidiary of SNSA;
or (ii) any Guarantor or Shipowning Guarantor ceases to be 100% directly or
indirectly owned by SNSA except as permitted under Clause 12.1.3; or (iii)
members of the Stolt-Nielsen family cease for any reason to own and control,
directly or indirectly, at least thirty per centum (30%) of the issued voting
share capital of SNSA; or (iv) any individual shareholder, or group of
shareholders acting in concert, outside the Stolt-Nielsen family owns a greater
proportion of the issued voting share capital of SNSA than members of the
Stolt-Nielsen family; or


 


14.2.20    final judgements  if any Security Party or Material 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; or


 


14.2.21    third party charters  if any Vessel which is on charter to a member
of the SNSA Group is chartered for a period of twelve (12) months or more to a
person who is not a member of the SNSA Group; or


 


14.2.22    core business if
either the Borrower or any Guarantor shall, without the prior written consent
of an Instructing Group, cease to carry on the business of the transportation
of bulk liquid chemicals and other products customary for chemical and product
tankers as its core activity.


 


15           Set-Off and Lien


 


15.1         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


 


65

















 


become due and payable to set off without notice any
liability of the Borrower or any Guarantor 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 any Guarantor (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 that Finance Party, the Borrower or that Guarantor (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.


 


15.2         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 any of the Security
Parties (or of that Finance Party as agent or nominee of any of the Security
Parties) from time to time held by that Finance Party, whether for safe custody
or otherwise.


 


15.3         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 any Guarantor (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 or any of
them (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.


 


15.4         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 or the Security Trustee may receive:-


 


15.4.1      pursuant to a sale or other disposition of a Vessel or any right,
title or interest in a Vessel; or


 


15.4.2      by way of payment to the Agent of any sum in respect of the
Insurances, Earnings or Requisition Compensation of a Vessel; or


 


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15.4.3      otherwise arising under or in connection with any of the Security
Documents


 


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.


 


16           Assignment and Sub-Participation


 


16.1         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 financial institution which is a subsidiary of that Bank or which
is a subsidiary (direct or indirect) of that Bank’s ultimate holding company or
to another Bank so long as 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 at the
time of such assignment or transfer, or (subject to the prior written consent
of the Borrower (only where no Event of Default has occurred and is continuing)
and an Instructing Group, any other bank or financial institution, and each of
the Banks may grant sub-participations in all or any part of its Commitment. Unless
such Bank is assigning all of its rights, the amount of the Commitment being
assigned or transferred shall be at least twenty million Dollars ($20,000,000)
(the “Minimum Transfer Amount”). For the
avoidance of doubt the Minimum Transfer Amount shall not apply to any
sub-participations granted pursuant to Clause 16.1.


 


16.2         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 16.1; 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 each such Finance Party
may in its discretion consider necessary or desirable (subject to any duties of
confidentiality applicable to the Banks generally).


 


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16.3         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.


 


16.4         Transfer
Certificates 
If any Bank wishes to transfer all or any of its Commitment as
contemplated in Clause 16.1 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 Transfer
Certificate and the fifth Business Day after the date of delivery of such
Transfer Certificate to the Agent:


 


16.4.1      to the extent that in such Transfer Certificate the Bank which is a
party thereto seeks to transfer its Commitment in whole, 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
other than existing claims against such Bank for breach of this Agreement (such
rights, benefits and obligations being referred to in this Clause 16.4 as “discharged rights and obligations”);


 


16.4.2      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


 


16.4.3      the Agent or the Lead Arrangers,
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.


 


16.5         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 16.4
without the Agent being under any obligation to take any further


 


68

















 


instructions from or give any prior notice
to, any of the Finance Parties or, subject to the Borrower’s rights under
Clause 16.1, the Borrower 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 16.4.


 


16.6         Notification  The Agent shall
promptly notify the other Finance Parties, the Transferee and the Borrower of
the execution by it of any Transfer Certificate together with details of the
amount transferred, the Transfer Date and the parties to such transfer.


 


16.7         Transfer Fee  Each Transferee shall on the
date upon which an assignment or transfer takes effect pursuant to Clause 16.4,
pay to the Agent (for its own account) a fee of one thousand five hundred
Dollars ($1,500).


 


17           Payments, Mandatory
Prepayment, Reserve Requirements and Illegality


 


17.1         Payments  All amounts payable by the Borrower and/or any of 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 (unless payable in any
other Currency of Account) 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 for good value, 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 reasonable 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.


 


17.2         No deductions or withholdings  All payments
(whether of principal or interest or otherwise) to be made by the Borrower
and/or any of the Guarantors pursuant to the Security Documents shall, subject
only to Clause 17.3, 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 any
Guarantor will claim any equity in respect of any payment


 


69

















 


due from it to the Banks or to the Agent under or in
relation to any of the Security Documents.


 


17.3         Grossing-up  If at any time any law requires (or is interpreted to require) the
Borrower or any Guarantor 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 relevant Guarantor (as the case may be)
will 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 Finance Parties receive a net sum
equal to the sum which they would have received had no deduction or withholding
been made.


 


17.4         Evidence of deductions  If at any time either the Borrower or any Guarantor 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 that Guarantor (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 reasonably
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 a Bank subsequently receives a refund or allowance from
any tax authority which that Bank identifies as being referable to that
deduction or withholding, that Bank 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 any Bank to apply for any refund
or allowance, nor as restricting in any way the manner in which any Bank
organises its tax affairs, nor as imposing on any Bank any obligation to
disclose to the Borrower any information regarding its tax affairs or tax
computations. All costs and expenses incurred by any Bank in


 


70

















 


obtaining or seeking to obtain a refund or allowance
from any tax authority pursuant to this Clause shall be for the Borrower’s
account.


 


17.5         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.


 


17.6         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:-


 


17.6.1      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


 


17.6.2      the basis of Taxation of payments to any Finance Party in respect of
all or any part of the Indebtedness shall be changed; or


 


17.6.3      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 its direct or indirect holding company;
or


 


17.6.4      any ratio (whether cash, capital adequacy, liquidity or otherwise)
which any Finance Party or its direct or indirect holding company is required
or requested to maintain shall be affected; or


 


17.6.5      there is imposed on any Finance Party (or on the direct or indirect 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 direct or indirect holding company of
any Bank) of that Bank making or maintaining its Commitment or any Drawing, or
to cause any Finance Party to suffer (in its reasonable opinion) a material
reduction in the rate of return on its


 


71

















 


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. Notwithstanding the
foregoing, the affected Bank shall (without any obligation on the part of such
Bank to be bound) negotiate in good faith with the Borrower to find a method to
avoid any such increase. Additionally, should the Borrower and the Bank
affected be unable to find a method to avoid any such increase, the Borrower
shall have the right to demand that, that Bank’s obligations be terminated
using the procedure set forth in Clause 17.7 subject to any claims that Bank
may have against the Borrower being preserved.


 


17.7         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 6.3 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.


 


17.8         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 relevant Interbank market, adequate and fair


 


72

















 


means do not exist for ascertaining the rate of
interest on the Facility or any part thereof pursuant to this Agreement:-


 


17.8.1      that Bank shall give notice to the Agent and the Agent shall give
notice to the Borrower of the occurrence of such event; and


 


17.8.2      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,


 


17.8.3      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 17.8.1, 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 outstanding 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 6.3 shall apply to
that prepayment if it is made on a day other than the last day of an Interest
Period.


 


17.9         Non-availability of currency  If a Bank is for
any reason unable to obtain the relevant Permitted Currency in the relevant
interbank market and is, as a result, or as a result of any other contingency
affecting the relevant interbank market, unable to maintain all or part of its
Commitment in the relevant Permitted Currency, that Bank shall give notice to
the Agent and the Agent shall give notice to the Borrower and that Bank’s
obligations to make its Proportionate Share of the Facility available in that
Permitted Currency shall immediately cease. In that event, if all or any part
of the Facility shall have been advanced in that Permitted Currency by that Bank
to the Borrower, 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


 


73

















 


view to establishing a mutually acceptable basis for
funding the Facility or relevant part thereof from an alternative source and/or
in an alternative Permitted Currency. If the Agent and the Borrower have failed
to agree in writing on a basis for funding the Facility or relevant part
thereof from an alternative source and/or in an alternative Permitted Currency
by 11.00 a.m. on the second Business Day prior to the end of the then current
relevant Interest Period, the Borrower will (without prejudice to its other
obligations under or pursuant to this Agreement, including, without limitation,
its obligation to pay interest on the Facility or relevant part thereof,
arising on the expiry of the then relevant Interest Period) prepay the Indebtedness
to the Agent on behalf of that Bank on the expiry of the then current relevant
Interest Period.


 


18           Communications


 


18.1         Method 
Except for Communications pursuant to Clause 11, which shall be made or
given in accordance with Clause 11.20, any Communication may be given,
delivered, made or served (as the case may be) under or in relation to this
Agreement by letter, fax or e-mail and shall be in the English language and
sent addressed:-


 


18.1.1      in the
case of any of the Finance Parties to the Agent at its address at the head of
this Agreement (fax no: +49 40 3701 4649 marked for the attention of: Carola
Maria Roth or e-mail: carola-maria.roth@db.com); and


 


18.1.2      in the case of the Borrower and/or any Guarantor to the
Communications Address with a copy to McLaughlin & Stern, LLP, 260 Madison
Avenue, New York, NY 10016, (fax no: + (212) 448-6260 Attention: John E.
Greenwood or e-mail: jgreenwood@mclaughlinstern.com), provided that the failure
to deliver such copy shall not affect the rights of any party under this
Agreement;


 


or to such other address, fax number or e-mail address
as the Finance Parties, the Borrower or the Guarantors may designate for
themselves by written notice to the others.


 


18.2         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:-


 


74

















 


18.2.1      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;


 


18.2.2      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


 


18.2.3      if posted, at 9.00 a.m. on the third Business Day after posting by
prepaid first class post; or


 


18.2.4      in the case of an e-mail when the sender receives an acknowledgement
of receipt from the recipient in respect of such e-mail (it being understood
that a response indicating that the intended recipient is out of the office
shall not be deemed a receipt for this purpose).


 


19           General Indemnities


 


19.1         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.


 


19.2         Costs and expenses  The Borrower and the Guarantors will, within fourteen (14) 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 external
legal costs or internal legal costs in lieu thereof (including Value Added Tax
or any similar or replacement tax if applicable) of and incidental to:-


 


19.2.1      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);


 


75

















 


19.2.2      any
amendments, addenda or supplements to any of the Security Documents (whether or
not completed);


 


19.2.3      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 (including, without limitation, all premiums and other sums from time
to time payable by the Agent in relation to the Mortgagees’ Insurances); and


 


19.2.4      the exercise
of the rights, powers, discretions and remedies of the Finance Parties under or
pursuant to the Security Documents.


 


19.3         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.


 


19.4         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 other than that requested in the Drawdown Notice,
including (without limitation) any Break Costs.


 


19.5         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
mortgagees of any Vessel and/or a lender to the Borrower, or by reason of any
Finance Party being deemed by any court or authority to be an operator or
controller, or in any way concerned


 


76

















 


in the operation or control, of any Vessel. No such
indemnity will be given to a Finance Party where any such loss, cost or
liability has occurred due to gross negligence or wilful misconduct on the part
of that Finance Party however this shall not affect the right of any other
Finance Party to receive any such indemnity other than where such loss, cost or
liability is caused due to the gross negligence or wilful misconduct of another
Finance Party.


 


19.6         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 or in
connection with any Vessel (whether alone or jointly or jointly and severally
with any other person) including (without limitation) all sums which any
Finance Party may pay or guarantees which any Finance Party may give in respect
of the Insurances, any expenses incurred by any Finance Party in connection
with the maintenance or repair of any Vessel or in discharging any lien, bond
or other claim relating in any way to any Vessel, and any sums which any
Finance Party may pay or guarantees which they may give to procure the release
of any Vessel from arrest or detention.


 


19.7         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. The indemnity contained in this Clause shall
survive the repayment of the Indebtedness.


 


20           Miscellaneous


 


20.1         Waivers  No failure or delay on the part of 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 exercise of that right, power, discretion or
remedy, or the exercise by a Finance Party of any other right, power,
discretion or remedy.


 


77

















 


20.2         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.


 


20.3         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.


 


20.4         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 any of the Guarantors may assign or transfer any of its rights or
duties under or pursuant to any of the Security Documents without the prior
written consent of the Banks.


 


20.5         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.


 


20.6         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 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.


 


78

















 


20.7         Advisers  Each of the Borrower and the Guarantors
irrevocably authorise the Agent, at any time and from time to time during the
Facility Period, to consult insurance advisers on any matters relating to the
Insurances, including, without limitation, the collection of insurance claims,
and from time to time to consult or retain advisers or consultants to monitor
or advise on any other claims relating to the Vessels. Each of the Borrower and
the Guarantors will provide such advisers and consultants with all information
and documents which they may from time to time reasonably require and will
reimburse the Agent on demand for all reasonable costs and expenses incurred by
the Agent in connection with the consultation or retention of such advisers or
consultants.


 


20.8         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).


 


20.9         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 (or, where required by this Agreement, the Banks). 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.


 


20.10       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.


 


20.11       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 Finance Parties shall be under any further actual or contingent liability
to any


 


79

















 


third party in relation to the Vessels, the
Insurances, Earnings or Requisition Compensation or any other matter referred
to in the Security Documents.


 


20.12       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.


 


20.13       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.


 


20.14       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.


 


20.15       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 operation of any law,
unless such Finance Party’s action constitutes gross negligence or wilful
misconduct.


 


80

















 


20.16       Subsequent Encumbrances  If the Agent receives notice of any subsequent Encumbrance (other
than any Encumbrance permitted by this Agreement) affecting any Vessel, or all
or any part of the Insurances, Earnings or Requisition Compensation, the Agent
may open a new account in its books for the Borrower. If the Agent does not
open a new account, then (unless the Encumbrance is permitted by the terms of
this Agreement or the Agent gives written notice to the contrary to the
Borrower) as from the time of receipt by the Agent of notice of such subsequent
Encumbrance, all payments made to the Agent shall be treated as having been
credited to a new account of the Borrower and not as having been applied in
reduction of the Indebtedness.


 


20.17       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.


 


20.18       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.


 


20.19       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.


 


20.20       Counterparts  This Agreement may be executed in any number of counterparts each of
which shall be original but which shall together constitute the same.


 


20.21       Third Party Rights
Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999,
no term of this Agreement is enforceable by a person who is not a party to it.


 


21           Law and Jurisdiction


 


21.1         Governing law  This Agreement shall in all respects be governed by and interpreted
in accordance with English law.


 


81

















 


21.2         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 in this Clause, and any claim that
those Proceedings have been brought in an inconvenient or inappropriate forum.


 


21.3         Alternative jurisdictions  Nothing contained in this Clause shall limit the right of the
Finance Parties to commence any Proceedings against either the Borrower or any
of the Guarantors in any other court of competent jurisdiction nor shall the
commencement of any Proceedings against either the Borrower or any of the
Guarantors in one or more jurisdictions preclude the commencement of any
Proceedings in any other jurisdiction, whether concurrently or not.


 


21.4         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.


 


82

















 


SCHEDULE 1


 


The Banks, the Commitments and the
Proportionate Shares


 


 


	
  The Banks

  	
   

  	
  The Commitments

  	
   

  	
  The

  Proportionate

  Shares

  	
   

  
	
  Deutsche
  Bank AG in Hamburg

  Ludwig-Erhard-Strasse
  1,

  D-20459
  Hamburg

  Federal
  Republic of Germany

   

  Tel:
  + 49 40 3701 4334

  Fax:
  + 49 40 3701 4649

  Contact:
  Carola Maria Roth

  	
   

  	
  $

  	
  37,525,000

  	
   

  	
  9.38125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DnB
  NOR Bank ASA

  20
  St. Dunstan’s Hill

  London

  EC3R
  8HY

  England

   

  Tel:
  +44 20 7621 1111

  Fax:
  +44 20 7626 5956

  Contact:
  Shipping Department

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
  18.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DVB
  Bank AG

  Shipping
  Division

  80
  Cheapside

  London

  EC2V
  6EE

  England

   

  Tel:
  +44 20 7618 9600

  Fax:
  +44 20 7618 9750

  Contact:
  Angelique Korkodilos

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  12.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Calyon

  9, quai du Président Paul Doumer

  92920 Paris La Défense Cedex

  France

   

  Tel: +47 2201 0650

  Fax: +47 2201 0651

  Contact: Jonas Gunstad/Tobias Gilje

  	
   

  	
  $

  	
  41,650,000

  	
   

  	
  10.4125

  	
  %

  



 


83

















 


	
  Deutsche
  Schiffsbank AG

  Domshof
  17

  28195
  Bremen

  Federal
  Republic of Germany

   

  Tel:
  +49 421 360 9249

  Fax: +49 421 360 9329

  Contact: Malte Schulte-Trux

  	
   

  	
  $

  	
  41,650,000

  	
   

  	
  10.4125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HSH
  Nordbank AG

  Gerhart-Hauptmann-Platz
  50

  20095
  Hamburg

  Federal
  Republic of Germany

   

  Tel:
  +49 40 3333 15142

  Fax:
  +49 40 3333 34307

  Contact:
  Thorsten Lundius

  	
   

  	
  $

  	
  41,650,000

  	
   

  	
  10.4125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nordea
  Bank Norge ASA, Grand Cayman Branch

  437
  Madison Avenue

  21st
  Floor

  New
  York, NY 10022

  United
  States of America

   

  Tel:
  +212 318 9300

  Fax:
  +212 421 4420

  Contact:
  Anne Engen/Martin Lunder

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
  18.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schiffshypothekenbank
  zu Lübeck AG

  Ludwig-Erhard-Strasse
  1,

  D-20459
  Hamburg

  Federal
  Republic of Germany

   

  Tel:
  + 49 40 3701 4334

  Fax:
  + 49 40 3701 4649

  Contact:
  Carola Maria Roth

  	
   

  	
  $

  	
  37,525,000

  	
   

  	
  9.38125

  	
  %

  



 


84

















 


SCHEDULE 2


 


The Guarantors


 


	
  Name of Guarantor 

  	
   

  	
  Country of Incorporation 

  	
   

  	
  Address of Registered Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt-Nielsen
  SA

  	
   

  	
  Luxembourg
  with trade

  register number B 12.179

  	
   

  	
  23
  Avenue Monterey

  L-2086

  Luxembourg

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt-Nielsen
  Transportation Group Ltd

  	
   

  	
  Liberia
  

  	
   

  	
  80
  Broad Street

  Monrovia

  Liberia

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt-Nielsen
  Transporation Group Ltd

  	
   

  	
  Bermuda

  	
   

  	
  Clarendon
  House

  2
  Church Street

  Hamilton,
  HM 11

  Bermuda
  

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt-Nielsen
  Investments N.V.

  	
   

  	
  Netherlands
  Antilles

  	
   

  	
  De Ruyterkade 62

  Curacao 

  Netherlands Antilles

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt-Nielsen
  Holdings B.V.

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5

  3016
  CK

  Rotterdam

  The
  Netherlands

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt-Nielsen
  Holdings Transportation Group B.V.

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5

  3016
  CK

  Rotterdam

  The
  Netherlands

  



 


85

















 


SCHEDULE 3


 


Mandated Lead Arrangers / Underwriters


 


	
  Name

  	
   

  	
  Amount underwritten 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.     Deutsche
  Bank AG in Hamburg

  Ludwig-Erhard-Strasse 1,

  D-20459 Hamburg

  Federal Republic of Germany

   

  Fax: +49 40 3701 4649

  Attention: Carola Maria Roth

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.     DnB
  NOR Bank ASA

  20 St. Dunstan’s Hill

  London

  EC3R 8HY

  England

   

  Tel: +44 20 7621 1111

  Fax: +44 20 7626 5956

  Contact: Shipping Department 

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.     DVB
  Bank AG

  Shipping Division

  80 Cheapside

  London

  EC2V 6EE

  England

   

  Tel: +44 20 7618 9600

  Fax: +44 20 7618 9750

  Contact: Angelique Korkodilos 

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.      Nordea
  Bank Norge ASA, Grand Cayman Branch

  437 Madison Avenue

  21st Floor

  New York, NY 10022

  United States of America

   

  Tel: +212 318 9300

  Fax: +212 421 4420

  Contact: Anne Engen/Martin Lunder

  	
   

  	
  $

  	
  100,000,000

  	
   

  



 


86

















 


SCHEDULE 4


 


The Shipowning Guarantors and the Vessels


 


	
  Name of

  Mortgagor

  	
   

  	
  Name of Vessel

  	
   

  	
  Flag

  	
   

  	
  Country of

  Incorporation

  	
   

  	
  Registered Office

  	
   

  
	
  Stolt
  Aquamarine B.V.

  	
   

  	
  “STOLT
  AQUAMARINE”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Emerald B.V.

  	
   

  	
  “STOLT
  EMERALD”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Helluland B.V.

  	
   

  	
  “STOLT
  HELLULAND”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Hikawa B.V.

  	
   

  	
  “STOLT
  HIKAWA”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Jade B.V.

  	
   

  	
  “STOLT
  JADE”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Markland B.V.

  	
   

  	
  “STOLT
  MARKLAND”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Sea B.V.

  	
   

  	
  “STOLT
  SEA”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Spray B.V.

  	
   

  	
  “STOLT
  SPRAY”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Stream B.V.

  	
   

  	
  “STOLT
  STREAM”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Sun B.V.

  	
   

  	
  “STOLT
  SUN”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Surf B.V.

  	
   

  	
  “STOLT
  SURF”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Taurus B.V.

  	
   

  	
  “STOLT
  TAURUS”

  	
   

  	
  Liberian

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  



 


87

















 


	
  Stolt
  Titan B.V.

  	
   

  	
  “STOLT
  TITAN”

  	
   

  	
  Liberian

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Topaz B.V.

  	
   

  	
  “STOLT
  TOPAZ”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Vestland B.V.

  	
   

  	
  “STOLT
  VESTLAND”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stolt
  Vinland B.V.

  	
   

  	
  “STOLT
  VINLAND”

  	
   

  	
  Cayman
  Islands

  	
   

  	
  The
  Netherlands

  	
   

  	
  Westerlaan
  5,

  3016
  CK Rotterdam,

  The
  Netherlands

  	
   

  



 


88

















 


SCHEDULE 5


 


STOLT
NIELSEN S.A. AND SUBSIDIARIES


 


USD
400,000,000 Senior Secured Multicurrency Credit Facility


 


As of and for the period
ended [             ]
2005 (figures in USD 000s)


 


	
  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

  	
   

  	
  $

  	
  600,000,000

  	
   

  
						



 


	
  B

  	
  Consolidated
  Debt

  	
   

  	
   

  	
   

  



 


	
   

  	
  Short-Term
  Banks Loans

  	
   

  	
   

  	
   

  
	
   

  	
  Current
  Maturities of Long Term Debt

  	
   

  	
   

  	
   

  
	
   

  	
  Current
  Maturities of Long Term Capitalized Leases

  	
   

  	
   

  	
   

  
	
   

  	
  Long Term
  Debt (net of current portion)

  	
   

  	
   

  	
   

  
	
   

  	
  Long Term
  Capitalized Lease Obligations

  	
   

  	
   

  	
   

  
	
   

  	
  Acceptance
  Credits

  	
   

  	
   

  	
   

  
	
   

  	
  Guarantees
  of third-party obligations

  	
   

  	
   

  	
   

  
	
   

  	
  less: Cash-Covered Debt

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Consolidated
  Debt

  	
   

  	
   

  	
   

  
	
   

  	
  Consolidated
  Tangible Net Worth

  	
   

  	
   

  	
   

  
	
   

  	
  Ratio of
  Consolidated Debt to Consolidated Tangible Net Worth

  	
   

  	
   

  	
   

  
	
   

  	
  Maximum
  Ratio of Consolidated Debt to Consolidated Tangible Net Worth

  	
   

  	
  2.00

  	
   

  



 


	
  C

  	
  Consolidated
  EBITDA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
  Feb.28.05

  	
   

  	
  May.31.05

  	
   

  	
  Aug.31.05

  	
   

  	
  Nov.30.05

  	
   

  	
  Total

  	
   

  
	
   

  	
  Net Income

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Interest Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Taxation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Dep’n/Amort/Non-cash

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EBITDA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
  Consolidated
  EBITDA

  	
   

  	
   

  	
   

  
	
   

  	
  Consolidated Interest Expense

  	
   

  	
   

  	
   

  
	
   

  	
  Ratio of Consolidated EBITDA to Consolidated
  Interest Expense

  	
   

  	
   

  	
   

  
	
   

  	
  Minimum Ratio of Consolidated EBITDA to Consolidated
  Interest Expense

  	
   

  	
  2.00

  	
   

  



 


89

















 


	
  D

  	
  Applicable Margin

  	
   

  	
   

  	
   

  



 


	
   

  	
  Ratio of
  Consolidated Debt to Consolidated EBITDA

  	
   

  	
   

  	
   

  
	
   

  	
  Less than or
  equal to 2

  	
   

  	
  0.60

  	
  %

  
	
   

  	
  Greater than
  2 but equal to or less than 3

  	
   

  	
  0.70

  	
  %

  
	
   

  	
  Greater than
  3 but equal to or less than 4

  	
   

  	
  0.80

  	
  %

  
	
   

  	
  Greater than
  4 but equal to or less than 5

  	
   

  	
  0.90

  	
  %

  
	
   

  	
  Greater than
  5

  	
   

  	
  1.20

  	
  %

  



 


	
   

  	
  Applicable
  Margin

  
	
   

  	
  Applicable
  Commitment Commission (40% of the applicable margin)

  



 


	
  E

  	
  Asset
  Cover

  	
   

  	
   

  



 


	
   

  	
  Maximum
  Facility Amount

  	
   

  	
   

  
	
   

  	
  Most recent
  Valuation of the Vessels

  	
   

  	
   

  
	
   

  	
  Additional
  security (other than cash)

  	
   

  	
   

  
	
   

  	
  Additional
  cash security

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  STOLT-NIELSEN
  S.A.

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  	
   

  	
   

  



 


90

















 


SCHEDULE 6


 


Form of Transfer Certificate


 


To:          Deutsche
Bank AG in Hamburg (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
[                         ] 2005
whereby a revolving credit facility of up to $400,000,000 was made available to
Stolt Tankers Finance II 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 16.4 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 Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which the Transfer
Certificate is expressed to take effect.


 


91

















 


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:

  
	
   

  	
   

  	
   

  
	
  Deutsche Bank AG in Hamburg

  	
   

  
	
   

  	
   

  	
   

  
	
  As agent for and on behalf of itself,

  	
   

  
	
  the Borrower and the other Finance Parties

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: [                            
  ]

  	
   

  
					



 






(1)    Details of the Bank's
Commitment should not be completed after the Termination Date.


 


92

















 


SCHEDULE 7


 


PART A


 


	
  To:

  	
  Deutsche Bank AG in Hamburg

  	
   

  
	
   

  	
  in its capacity as security trustee

  	
   

  
	
   

  	
  for and on behalf of the Banks

  	
   

  
	
   

  	
  (as defined below)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:                         200[
  ]

  



 


Dear Sirs


 


US$400,000,000 Secured Revolving Loan
Facility to Stolt Tankers Finance II B.V.


 


1                                         Loan Agreement


 


We understand that, under a Facility Agreement (the “Facility Agreement”) dated
[             ]
2005 made between (1) Stolt Tankers Finance II B.V. as borrower (the “Borrower”) (2) Stolt-Nielsen S.A. and others as guarantors
(3) the banks and financial institutions listed in Schedule 1 to the Facility
Agreement as lenders (the “Banks”) (4) the
banks and financial institutions listed in Schedule 3 to the Facility Agreement
as lead arrangers and underwriters and (5) yourselves as facility agent and
security trustee (the “Agent”) each of
the Banks agreed to advance to the Borrower its respective Commitment of an
aggregate principal amount not exceeding four hundred million Dollars
($400,000,000) (the “Loan”) upon
the terms and conditions contained in the Facility Agreement and that it is a
condition to (i) the Banks’ agreement to continue to make any part of the Loan
available to the Borrower and (ii) an Instructing Group consenting to (a) the
Vessels being bareboat chartered to us and (b) our appointment as managers in
accordance with clauses 8.1.4 and 8.1.5 respectively of the Shipowners’
Guarantee that we (the “Manager”)
enter into this letter in favour of the Security Trustee on behalf of the
Banks.


 


2                                         Definitions


 


Words and expressions defined in the Facility
Agreement shall have the same meanings when used herein.


 


3                                         Confirmation of Appointment/ Representation & Warranties


 


3.1           The
Manager hereby confirms that:-


 


(a)                                  it has been appointed as the manager of the vessels listed in the
Schedule 1 to this letter (the 


93

















 


“Vessels”); and


 


(b)                                 the Vessels have been bareboat chartered to the Manager in
accordance with the terms and conditions of the bareboat charterparties
attached to this letter and marked Exhibit “A” (together the “Charters”).


 


3.2                                 The Manager hereby represents and warrants that (i) the Manager is
duly incorporated in its country of incorporation and has the power to enter
into and perform its obligations under this letter and the Charters and that
this letter and the Charters constitute the legal, valid and binding
obligations of the Manager enforceable in accordance with their respective
terms and (ii) the copies of the Charters attached to this letter are true and
complete copies and constitute the entire agreement between the Manager and the
Shipowning Guarantors concerning the chartering and current management of the
Vessels by the Shipowning Guarantors to the Manager.


 


4                                         Undertakings


 


The Manager
undertakes with the Security Trustee that:


 


(a)                                  subject to the provisions of clause 12.1.2 of the Facility
Agreement, the Manager will remain the commercial and technical managers of the
Vessels throughout the Facility Period;


 


(b)                                 the Manager will manage the Vessels in accordance with good standard
ship management practice throughout the Facility Period;


 


(c)                            the Manager will not, without the prior written consent of the
Security Trustee, the Agent and/or the Banks, take any action or institute any
proceedings or make or assert any claim on or in respect of any Vessel managed
or chartered by it or its Insurances or its Earnings or any of them or any
other property or assets of any of the Shipowning Guarantors which are subject
to any Encumbrance or right of set-off in favour of the Finance Parties or any
of them by virtue of any of the Security Documents executed in favour of the
Finance Parties or any of them pursuant to the Facility Agreement;


 


(d)                                 the Manager is aware that the Vessels are mortgaged to the Security
Trustee pursuant to the Mortgages and Deeds of Covenant and is aware of the
terms of the Security Documents and will not do anything incompatible or
inconsistent with the performance by the Shipowning Guarantors of their
obligations under the Security Documents to which they are a party nor will the
Manager act in a way which is detrimental or prejudicial to the interests of
the


 


94

















 


Finance
Parties in relation to the Vessels, the Earnings, the Insurances and the
Requisition Compensation;


 


(e)                                  the Manager will promptly notify the Security Trustee, the Agent
and/or the Banks in the event that it ceases for any reason whatsoever to be
the manager or charterer of any Vessel managed or chartered by it or if the
relevant Shipowning Guarantor purports to dismiss the Manager as manager and/or
charterer of any Vessel;


 


(f)                                    it will notify the Security Trustee, the Agent and/or the Banks
immediately if at any time and from time to time the amount owed by the
Shipowning Guarantors to the Manager exceeds five hundred thousand Dollars
($500,000);


 


(g)                                 throughout the Facility Period, all the Manager’s rights in relation
to the Vessels, their Earnings, Insurances and Requisition Compensation shall
be fully subordinated to the rights of the Finance Parties under the Security
Documents and the Manager acknowledges that the rights of the Security Trustee
pursuant to the Mortgages and the Deeds of Covenant (including any power or
right of sale, foreclosure or taking possession) shall in all respects have
priority over the rights and powers of the Manager under the Charters;


 


(h)                                 if at any time a sub manager is appointed pursuant to a Management
Agreement or otherwise that the Manager will procure that on such appointment,
the sub manager enters into an undertaking with Security Trustee, the Agent
and/or the Banks in substantially the same form as this letter;


 


(i)                                     the Manager shall not compete with the Finance Parties in a
liquidation or other winding-up or bankruptcy of any Shipowning Guarantor or in
any proceedings in connection with any Vessel, its Earnings or Insurances
or Requisition Compensation;


 


(j)                                     the Manager shall comply with all covenants of the Shipowning
Guarantors contained in clauses 5 and 6 of the [Mortgagesand/or] Deeds of
Covenants in relation to the Vessels; and


 


(k)                                  the Manager shall promptly deliver to the Security Trustee a
certified copy of each Management Agreement as and when the same is entered
into.


 


5                                         Assignment


 


5.1           In consideration of an Instructing
Group approving the entry by the Manager and the Shipowning Guarantors into the
Charters and for other good and valuable consideration (the receipt and
adequacy of which the Manager acknowledges), the Manager, with full title
guarantee, hereby assigns absolutely and unconditionally


 


95

















 


and agrees to assign to the Security
Trustee all the Manager’s right, title and interest in and to the Insurances in
respect of each of the Vessels.


 


5.2           The Manager agrees to give written
notice of the assignment contained in paragraph 5.1 above to the relevant
insurers immediately upon execution of this letter in the form attached at
Schedule 2 to this letter.


 


5.3           The Manager agrees that at all times
whilst the Manager is the manager and/or bareboat charterer of the Vessels to
ensure that a loss payable clause in the form attached at Schedule 3 to this
letter is endorsed on all insurance policies, cover notes and certificates of
entry relating to the Vessels.


 


6                                         Third Party Rights


 


Notwithstanding the provisions of the
Contracts (Rights of Third Parties) Act 1999, no term of this letter is
enforceable by a person who is not a party to it other than the Security
Trustee.


 


7              Jurisdiction


 


This letter shall be governed by and construed in
accordance with English law and the Manager hereby agrees to submit to the
non-exclusive jurisdiction of the English courts.


 


	
   

  	
  Yours faithfully

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signed and Delivered as a Deed by a

  	
   

  
	
   

  	
  duly authorised attorney/managing director

  	
   

  
	
   

  	
  For and on behalf of

  	
   

  
	
   

  	
  [Stolt-Nielsen Transportation Group B.V.]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  in the presence of:-

  	
   

  	
   

  



 


96

















 


Schedule 1


 




	
  Name of Vessel

  	
   

  	
  Owner

  	
   

  	
  Flag of Vessel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






 


97

















 


Schedule 2


 


Notice of Assignment


 


(For attachment by way of endorsement to


all policies, contracts and cover notes)


 


We, [Stolt Nielsen Transportation Group B.V.] of Westerlaan 5, 3016 CK, Rotterdam, The Netherlands, the
managers and bareboat charterers of the m.v. “[                        ]”,
m.v. “[                        ]”,
m.v. “[                        ]”,
m.v. “[                        ],
m.v. “[                      ]”,
m.v. “[                      ]”
and m.v. “[                         ]”
(together the “Vessels”) GIVE NOTICE that,
by an assignment in writing contained in a letter dated          200[
], we assigned to Deutsche Bank AG, acting through its office at [                                                            ],
on behalf of a syndicate of banks all our right, title and interest in and to
all insurances effected or to be effected in respect of the Vessels, including
the insurances constituted by the policy on which this notice is endorsed, and
including all money payable and to become payable thereunder or in connection
therewith (including return of premiums).


 


 


	
  Signed:

  	
   

  	
   

  	
   

  
	
   

  	
  For and on behalf of

  	
   

  
	
   

  	
  [Stolt Nielsen Transportation Group B.V.]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  200[ ]

  	
   

  	
   

  



 


98

















 


Schedule
3


 


Loss Payable Clause


 


It is noted that, by an assignment in writing
contained in a letter dated
            200[ ]
[STOLT NIELSEN TRANSPORTATION GROUP B.V.] of
Westerlaan 5, 3016 CK, Rotterdam, The Netherlands (the “Manager”),
being the manager and bareboat charterer of the vessels m.v. “[            ]”,
m.v. “[            ]”,
m.v. “[            ]”,
m.v. “[            ]”,
m.v. “[            ]”,
m.v. “[            ]”
and m.v. “[                  ]”
(together the “Vessels”),
assigned absolutely to Deutsche Bank acting through its office at [                         ]
(the “Mortgagee”) this
policy and all benefits of this policy, including all claims of any nature
(including return of premiums) under this policy.


 


Claims payable under this policy in respect of a total
or constructive total or an arranged or agreed or compromised total loss or
unrepaired damage and all claims which (in the opinion of the Mortgagee) are
analogous thereto shall be payable to the Mortgagee up to the Mortgagee’s
mortgage interest in accordance with clause 14.2.11 (c) of a Secured Revolving
Facility Agreement dated [         ]
2005 made between (1) Stolt Tankers Finance II B.V. as borrower, (2)
Stolt-Nielsen SA and others as guarantors, (3) the banks listed in Schedule 1
thereto as lenders (the “Banks”), (4)
the banks and financial institutions listed in Schedule 3 thereto as lead
arrangers and underwriters and (5) Deutsche Bank AG in Hamburg as facility
agent and security trustee;


 


Subject thereto, all other claims, unless and until
underwriters have received notice from the Mortgagee that an Event of Default
has occurred, in which event all claims under this policy shall be payable
directly to the Mortgagee up to the Mortgagee’s mortgage interest, shall be
payable as follows:-


 


(i)                                   a claim in respect of any one casualty where the aggregate claim
against all insurers does not exceed ONE MILLION UNITED STATES
DOLLARS (US$1,000,000) or the equivalent in any other currency,
prior to adjustment for any franchise or deductible under the terms of the
policy, shall be paid directly to the Manager for the repair, salvage or other
charges involved or as a reimbursement if the Manager has fully repaired the
damage and paid all of the salvage or other charges;


 


(ii)                                a claim in respect of any one casualty where the aggregate claim
against all insurers exceeds ONE MILLION UNITED STATES
DOLLARS (US$1,000,000) or the equivalent in any other currency prior
to adjustment for any franchise or deductible under the terms of the


 


99

















 


policy, shall, subject to the prior written
consent of the Mortgagee, be paid to the manager as and when the relevant
Vessel is restored to her former state and condition and the liability in
respect of which the insurance loss is payable is discharged, and provided that
the insurers may with such consent make payment on account of repairs in the
course of being effected, but, in the absence of such prior written consent
shall be payable directly to the Mortgagee up to the Mortgagee’s mortgage
interest.


 


Notwithstanding the terms of this loss payable clause
and notwithstanding notice of assignment, unless and until brokers receive
notice from the Mortgagee to the contrary, brokers, underwriters/ insurers or
the P & I Club shall be empowered to arrange their proportion of any
collision and/or salvage guarantee to be given in the event of bail being
required in order to prevent the arrest of the Vessels or to secure the release
of such Vessel from arrest following a casualty.


 


All collections are to be made through [name  of  brokers].


 


100

















 


EXHIBIT “A”


 


Bareboat Charterparties


 


101

















 


PART
B


 


To:          Deutsche
Bank AG in Hamburg


in its capacity as security trustee


for and on behalf of the Banks


(as defined below).


 


200[  ]


 


Dear Sirs


 


US$400,000,000 Secured Revolving Loan
Facility to Stolt-Tankers Finance II B.V.


 


1                                          Loan Agreement


 


We understand that under a Revolving Loan Facility
Agreement (the “Facility
Agreement”) dated [              ]
2005 between (1) Stolt Tankers Finance II B.V. as borrower (the “Borrower”) (2) Stolt-Nielsen S.A. and others as guarantors
(3) the banks and financial institutions listed in Schedule 1 to the Facility
Agreement as lenders (the “Banks”) (4) the
banks and financial institutions listed in Schedule 3 to the Facility Agreement
as lead arrangers and underwriters and (5) Deutsche Bank AG in Hamburg as
facility agent and security trustee (the “Agent”) each of
the Banks agreed to advance to the Borrower its respective Commitment of an
aggregate principal amount not exceeding four hundred million Dollars
($400,000,000) (the “Loan”) and
that it is a condition to the Banks’ agreement to continue to make any part of
the Loan available to the Borrower that we (the “Managers”) enter into this letter in favour of the Security
Trustee on behalf of the Banks.


 


2                                          Definitions


 


Words and expressions defined in the Facility
Agreement shall have the same meanings when used herein.


 


3                                          Confirmation of Appointment/ Representation &
Warranties


 


3.1           The
Managers hereby confirm that:-


 


(a)                                  they have been appointed as the managers of the vessels listed in
the attached Schedule (the “Vessels”); and


 


102

















 


3.2                                 The Managers hereby represent and warrant that the Managers are duly
incorporated in their country of incorporation and have the power to enter into
and perform their obligations under this letter and that this letter
constitutes the legal, valid and binding obligations of the Managers
enforceable in accordance with its terms.


 


4              Undertakings


 


The Managers
undertake with the Security Trustee that:


 


(a)                                  subject to the provisions of Clause 12.1.2 of the Facility
Agreement, the Managers will remain the commercial and technical managers of
the Vessels throughout the Facility Period;


 


(b)                                 the Managers will manage the Vessels in accordance with good
standard ship management practice throughout the Facility Period;


 


(c)                            the Managers will not, without the prior written consent of the
Security Trustee, the Agent and/or the Banks, take any action or institute any
proceedings or make or assert any claim on or in respect of any Vessel managed
by it or its Insurances or its Earnings or any of them or any other property or
assets of any of the Shipowning Guarantors subject to any Encumbrance or right
of set-off in favour of the Finance Parties or any of them by virtue of any of
the Security Documents executed in favour of the Finance Parties or any of them
pursuant to the Facility Agreement;


 


(d)                                 the Managers will not do anything incompatible or inconsistent with
the performance by the Shipowning Guarantors of their obligations under the
Security Documents to which they are a party;


 


(e)                                  the Managers will promptly notify the Security Trustee, the Agent
and/or the Banks in the event that they cease for any reason whatsoever to be
the managers of any Vessel managed by it or if the relevant Shipowning
Guarantor purports to dismiss any Manager as manager of any Vessel;


 


(f)                                    they will notify the Security Trustee, the Agent and/or the Banks
immediately if at any time and from time to time the amount owed by the
Shipowning Guarantors to the Managers exceeds five hundred thousand Dollars
($500,000);


 


103

















 


(g)                                 throughout the Facility Period, all their rights in relation to the
Vessels, their Earnings, Insurances and Requisition Compensation shall be fully
subordinated to the rights of the Finance Parties under the Security Documents;


 


(h)                                 if at any time a sub manager is appointed pursuant to a Management
Agreement or otherwise that they will procure that on such appointment, the sub
manager enters into an undertaking with the Security Trustee, the Agent and/or
the Banks in substantially the same form as this letter;


 


(i)                                     the Managers shall not compete with the Finance Parties in a
liquidation or other winding-up or bankruptcy of any Shipowning Guarantor or in
any proceedings in connection with any Vessel, its Earnings or Insurances
or Requisition Compensation; and


 


(j)                                     the Managers shall promptly deliver to the Security Trustee a
certified copy of each Management Agreement as and when the same is entered
into.


 


5              Jurisdiction


 


This letter shall be governed by and construed in
accordance with English law and the Managers hereby agree to submit to the
non-exclusive jurisdiction of the English courts.


 


	
   

  	
  Yours faithfully

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Duly authorised signatory

  	
   

  
	
   

  	
  For and on behalf of

  	
   

  
	
   

  	
  [insert name of Manager]

  	
   

  



 


104

















 


Schedule


 




	
  Name of Vessel

  	
   

  	
  Owner

  	
   

  	
  Flag of Vessel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






 


105

















 


	
                         Ann
  Marie Ehrhardt

  	
   

  	
   

  	
   

  
	
  SIGNED by [ILLEGIBLE]

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of DEUTSCHE BANK AG

  	
  )

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
  IN HAMBURG (as a Bank)

  	
  )

  	
  /s/
  Ann Marie Ehrhardt

  	
   

  
	
  in
  the presence of:- 

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
  T.
  Bartel

  	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of DNB NOR BANK ASA

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  (as a
  Bank)

  	
  )

  	
   

  
	
  in
  the presence of:- 

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  of DVB BANK AG

  	
  )

  	
   

  
	
  (as a
  Bank)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of NORDEA BANK NORGE ASA

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  (as a
  Bank)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Ann
  Marie Ehrhardt

  	
   

  	
   

  	
   

  
	
  SIGNED by [ILLEGIBLE]

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of SCHIFFSHYPOTHEKENBANK

  	
  )

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
  zu LÜBECK AG

  	
  )

  	
  /s/ Ann
  Marie Ehrhardt

  	
   

  
	
  (as a
  Bank)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of CALYON

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  (as a
  Bank)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
									



 


106

















 


	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of HSH NORDBANK AG

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  (as a
  Bank)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of DEUTSCHE SCHIFFSBANK

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  AKTIENGESELLSCHAFT

  	
  )

  	
   

  
	
  (as a
  Bank)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Ann
  Marie Ehrhardt

  	
   

  	
  )

  	
   

  
	
  SIGNED by [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of DEUTSCHE BANK

  	
  )

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
  IN HAMBURG

  	
  )

  	
  /s/ Ann
  Marie Ehrhardt

  	
   

  
	
  (as the
  Agent and Security Trustee)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
   

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
  Ann
  Marie Ehrhardt

  	
   

  	
   

  	
   

  
	
  SIGNED by [ILLEGIBLE]

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of DEUTSCHE BANK AG

  	
  )

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
  IN HAMBURG

  	
  )

  	
  /s/
  Ann Marie Ehrhardt

  	
   

  
	
  (as a
  Lead Arranger)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of DNB NOR BANK ASA

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  (as a
  Lead Arranger)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of DVB BANK AG

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  (as a
  Lead Arranger)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
										



 


107

















 


	
  SIGNED by Sheila Obhrai

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of NORDEA BANK NORGE ASA

  	
  )

  	
  /s/ Sheila
  Obhrai

  	
   

  
	
  (as a
  Lead Arranger)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by John Greenwood

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of STOLT TANKERS

  	
  )

  	
  /s/ John
  Greenwood

  	
   

  
	
  FINANCE II B.V.

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by John Greenwood

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of STOLT NIELSEN S.A.

  	
  )

  	
  /s/ John
  Greenwood

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by John Greenwood

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of STOLT NIELSEN

  	
  )

  	
  /s/ John
  Greenwood

  	
   

  
	
  TRANSPORTATION GROUP LTD

  	
  )

  	
   

  
	
  (Liberia)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by John Greenwood

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of STOLT NIELSEN

  	
  )

  	
  /s/ John
  Greenwood

  	
   

  
	
  TRANSPORTATION GROUP LTD

  	
  )

  	
   

  
	
  (Bermuda)

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by John Greenwood

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of STOLT NIELSEN

  	
  )

  	
  /s/ John
  Greenwood

  	
   

  
	
  INVESTMENTS N.V.

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
							



 


108

















 


	
  SIGNED by John Greenwood

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of STOLT NIELSEN

  	
  )

  	
  /s/ John
  Greenwood

  	
   

  
	
  HOLDINGS B.V.

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by John Greenwood

  	
   

  	
  )

  	
   

  
	
  duly
  authorised for and on behalf

  	
  )

  	
   

  
	
  of STOLT-NIELSEN

  	
  )

  	
  /s/ John
  Greenwood

  	
   

  
	
  TRANSPORTATION GROUP B.V.

  	
  )

  	
   

  
	
  in
  the presence of:-

  	
  )

  	
   

  
	
   

  	
  /s/
  [ILLEGIBLE]

  	
   

  	
   

  	
   

  
							



 


109

















 


APPENDIX B


 


Mandatory Cost Formulae


 


1                                          The Mandatory Cost is an addition to the interest rate to compensate
the Banks for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the requirements of
the European Central Bank.


 


2                                          On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Bank in accordance with
the paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Banks’ Additional Cost Rates (weighted in
proportion to the percentage participation of each Bank in the Facility) and
will be expressed as a percentage rate per annum.


 


3                                          The Additional Cost Rate for any Bank lending from an office in the
euro-zone will be the percentage notified by that Bank to the Agent to be its
reasonable determination of the cost (expressed as a percentage of that Bank’s
participation in the Facility) of complying with the minimum reserve
requirements of the European Central Bank as a result of participating in the
Facility from that office.


 


4                                          The Additional Cost Rate for any Bank lending from an office in the
United Kingdom will be calculated by the Agent as follows:


 


(a)           where
the Facility is denominated in Pounds Sterling:


 


	
  BY +
  S(Y - Z) + F x 0.01

  	
  per
  cent per annum

  
	
  100 -
  (B + S)

  	
   

  



 


(b)           where
the Facility is denominated in any currency other than Pounds Sterling:


 


	
  F x
  0.01

  	
  per
  cent per annum

  
	
  300

  	
   

  



 


where:


 


B                                        is the percentage of eligible liabilities (assuming these to be in
excess of any stated minimum) which that Bank is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England to
comply with cash ratio requirements;


 


110

















 


Y                                        is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Facility is an overdue amount, the additional rate
of interest specified in of Clause 7.6) payable for the relevant Interest
Period on the Facility;


 


S                                         is the percentage (if any) of eligible liabilities which that Bank
is required from time to time to maintain as interest bearing special deposits
with the Bank of England;


 


Z                                        is the interest rate per annum payable by the Bank of England to
that Bank on special deposits; and


 


F                                         is the charge payable by that Bank to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees Regulations
or the equivalent provisions in any replacement regulations (with, for this
purpose, the figure for the minimum amount in paragraph 2.02b or such
equivalent provision deemed to be zero), expressed in pounds per £1 million of
the fee base of that Bank.


 


5              For the purpose of this Schedule:


 


(a)                                  “eligible liabilities” and “special  deposits” have
the meanings given to them at the time of application of the formula by the
Bank of England;


 


(b)                                 “fee  base”
has the meaning given to it in the Fees Regulations;


 


(c)                                  “Fees Regulations” means the
regulations governing periodic fees contained in the FSA Supervision Manual or
such other law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of deposits.


 


6                                          In the application of the formula B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY is
calculated as 0.5. x 15. Each rate calculated in accordance with the formula
is, if necessary, rounded upward to four decimal places.


 


7                                          If a Bank does not supply the information required by the Agent to
determine its Additional Cost Rate when requested to do so, the applicable
Mandatory Cost shall be determined on the basis of the information supplied by
the remaining Banks.


 


8                                          If a change in circumstances has rendered, or will render, the
formula inappropriate, the Agent shall notify the Borrower of the manner in
which the Mandatory Cost will


 


111

















 


subsequently be calculated. The manner of calculation
so notified by the Agent shall, in the absence of manifest error, be binding on
the Borrower.


 


112