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CHANCE LIMITED LIABILITY PARTNERSHIP
Execution Version
Dated ____ December 2003
Sea CONTAINERS BRITISH ISLES LIMITED
as Borrower
sea containers ltd.
and others
as Guarantors
with
CITIBANK INTERNATIONAL PLC
acting as Agent
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amendment agreement
relating to a
facility agreement
dated 10 june 2003
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THIS AGREEMENT is dated ____ December 2003 and made between:
(1) SEA CONTAINERS BRITISH ISLES LIMITED (the "Borrower");
(2) THE GUARANTORS (as defined in the Original Facility Agreement);
(3) SILJA HOLDINGS LIMITED AND SILJA OYJ (as new guarantors, the "New
Guarantors");
(4) CITIGROUP GLOBAL MARKETS LIMITED, FORTIS BANK and THE GOVERNOR AND
COMPANY OF THE BANK OF SCOTLAND (whether acting individually or together)
(the "Arranger" or the "Mandated Lead Arranger");
(5) THE ORIGINAL LENDERS (as defined in the Original Facility Agreement);
(6) CITIBANK INTERNATIONAL PLC as agent of the other Finance Parties (the
"Agent"); and
(7) CITICORP TRUSTEE COMPANY LIMITED as security trustee for the Secured
Parties (the "Trustee").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Citigroup DTC Account" means the account that Citigroup holds with DTC.
"DTC" means Depository Trust Company.
"Dematerialisation Documents" means the OEH Share Certificates and the
Undertaking.
"Dematerialisation Process" means the procedure effecting the transfer of
the Secured Shares from certificated form to electronic form in
accordance with Clause 4.2 (Dematerialisation Process).
"Effective Date" means the date on which the Agent confirms to the
Lenders and the Borrower that it has received each of the documents
listed in Schedule 1 (Conditions Precedent), in a form and substance
satisfactory to the Agent.
"Final Term Interest Period" means the current Interest Period in respect
of the Outstanding Term Loan under the Original Facility Agreement or
such later Interest Period as the Lenders may agree.
"Final Term Interest Period Date" means the last day of the Final Term
Interest Period.
"First Revolving Interest Period" means the Interest Period which
immediately follows the Final Term Interest Period.
"OEH Share Certificates" means the share certificates evidencing the
Secured Shares.
"OEH Transfer Agent" means Equiserve Inc., Mail Stop 45-02-62, ▇▇▇ ▇▇▇▇▇
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"Original Facility Agreement" means the asset sales bridge facility
Agreement dated 10 June 2003 between the Borrower, the Guarantor, the
Agent, the Trustee and others as amended from time to time prior to the
date of this Agreement.
"Outstanding Term Loan" means the Loan of US$31,856,434.95 outstanding
under the Original Facility Agreement.
"Restated Agreement" means the Original Facility Agreement, as amended by
this Agreement, the terms of which are set out in Schedule 2 (Restated
Agreement).
"SETG" means the Special Equity Transaction Group, an internal department
of Citigroup.
"SETG Account" means the account with SETG (with such number as notified
by the Agent to the Borrower) to which the Secured Shares are credited.
"Undertaking" means irrevocable written instructions addressed from the
Parent to the OEH Transfer Agent, in form and substance satisfactory to
the Agent, to deliver the Secured Shares into Citigroup's general account
at DTC.
1.2 Incorporation of Defined Terms
(a) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(b) The principles of construction set out in the Original Facility
Agreement shall have effect as if set out in this Agreement.
1.3 Clauses
(a) In this Agreement any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause or
Schedule of this Agreement.
(b) Clause and Schedule headings are for ease of reference only.
1.4 Third party rights
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the benefit of any term of
this Agreement.
(a) Unless expressly provided to the contrary in a Finance Document a
person who is not a Party has no right under the Contracts (Rights
of Third Parties) Act 1999 (the "Third Parties Act") to enforce or
to enjoy the benefit of any term of this Agreement.
(b) Notwithstanding any term of any Finance Document, the consent of
any person who is not a Party is not required to rescind or vary
this Agreement at any time.
2. RESTATEMENT
2.1 Restatement of the Original Facility Agreement
With effect from the Effective Date, the Original Facility Agreement
shall be amended and restated so that it shall be read and construed for
all purposes as set out in Schedule 2 (Restated Agreement).
3. REPRESENTATIONS
Each Obligor makes the representation and warranties set out in Clause 18
of the Restated Agreement as if each reference in those representations
to "this Agreement" or "the Finance Documents" includes a reference to
(a) this Agreement and (b) the Restated Agreement.
4. DEMATERIALISATION
4.1 Dematerialisation Commencement
At any time after the Effective Date, the Parent may commence the
Dematerialisation Process by delivering the executed Undertaking to the
Agent.
4.2 Dematerialisation Process
(a) The Agent shall, as soon as reasonably practicable after receiving
the executed Undertaking from the Parent, take all reasonable
steps to deliver the Dematerialisation Documents to the OEH
Transfer Agent with instructions that the OEH Transfer Agent
should:
(i) transfer the Secured Shares from certificated form into
electronic form; and then
(ii) credit the Secured Shares to the Citigroup DTC Account.
(b) The Agent shall, as soon as reasonably practicable after the
Secured Shares have been credited to the Citigroup DTC Account,
take all reasonable steps to transfer the Secured Shares from the
Citigroup DTC Account to the SETG Account.
5. NEW PARTIES
Each of the New Guarantors hereby guarantees, undertakes with and agrees
to indemnify each Finance Party in the terms set out in Clause 17.1
(Guarantee) of the Restated Agreement and agrees that the terms set out
in Clause 17.2 (Continuing Guarantee) to Clause 17.11 (Limitation on
Finnish Guarantor) shall apply mutatis mutandis to such covenant.
6. INTEREST PERIODS
6.1 Final Term Interest Period
Notwithstanding the occurrence of the Effective Date, but subject to the
terms and conditions of the Restated Agreement, the Final Term Interest
Period shall end on the Final Term Interest Period Date.
6.2 Conversion
Provided the Effective Date has occurred by the Final Term Interest
Period Date, the Borrower shall repay the Outstanding Term Loan on the
Final Term Interest Period Date and provided that the conditions set out
in Clause 4.2 (Further Conditions Precedent) of the Restated Agreement
are satisfied and the Agent has received a duly completed Utilisation
Request therefor, the Lenders shall make a loan available to the Borrower
in an amount equal to the Outstanding Term Loan. This Loan shall be a
revolving Loan made and permitted to subsist in accordance with the terms
of the Restated Agreement.
6.3 Interest Period for Revolving Loan
For the purposes of paragraph (d) of Clause 9.1 (Selection of Interest
Periods) of the Restated Agreement, the First Revolving Interest Period
shall commence on the Final Term Interest Period Date and shall be for a
duration of one month.
7. CONTINUITY AND FURTHER ASSURANCE
7.1 Continuing obligations
The provisions of the Finance Documents shall, save as amended in this
Agreement, continue in full force and effect.
7.2 Further assurance
Each of the Obligors shall, at the request of the Agent and at its own
expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
8. FEES, COSTS AND EXPENSES
8.1 Transaction expenses
The Parent shall promptly on demand pay the Agent the amount of all costs
and expenses (including legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing and execution of
this Agreement and any other documents referred to in this Agreement.
8.2 Enforcement costs
The Parent shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under this Agreement.
8.3 Stamp taxes
The Parent shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar
Taxes payable in respect of this Agreement.
9. MISCELLANEOUS
9.1 Incorporation of terms
The provisions of clause 34 (Remedies and waivers), clause 33 (Partial
Invalidity), clause 37 (Governing Law), and clause 38 (Enforcement) of
the Original Facility Agreement shall be incorporated into this Agreement
as if set out in full in this Agreement and as if references in those
clauses to "this Agreement" or "the Finance Documents" are references to
this Agreement.
9.2 Designation as Finance Document
The Parent and the Agent designate this Agreement as a Finance Document
by execution of this Agreement for the purposes of the definition of
Finance Document in the Original Facility Agreement. 9.3 Counterparts
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
CONDITIONS PRECEDENT
1. Obligors: Corporate Documents
(a) A copy of the constitutional documents of each Obligor.
(b) A copy of a good standing certificate (including verification of
tax status) with respect to each US Obligor, issued as of a recent
date by the Secretary of State or other appropriate official of
each US Obligor's jurisdiction of incorporation or organisation.
(c) A copy of a resolution of the board of directors of each Obligor:
(i) approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party and
resolving that it execute the Finance Documents to which it
is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents, powers of attorneys,
deeds and notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a
party.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above.
(e) A copy of a resolution signed by all the holders of the issued
shares in each Obligor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Obligor is a party and where such Obligor is a corporate, a
resolution from the directors of that company approving such
shareholder resolution and duly appointing a director or other
authorised signatory to sign it.
(f) A certificate of the Parent (signed by a director) confirming that
borrowing or guaranteeing, as appropriate, the Total Commitments
would not cause any borrowing, guaranteeing or similar limit
binding on any Obligor to be exceeded and would not cause any
Obligor to breach any provision of any contract or agreement
entered into by it prior to the date of this Agreement.
(g) A certificate of an authorised signatory of the relevant Obligor,
certifying that each copy document relating to it specified in
this Schedule 1 is correct, complete and in full force and effect
as at a date no earlier than the date of this Agreement.
(h) The Group Structure Chart certified by the Parent as being true at
the date of this Agreement.
2. Security Documents
(a) The following Security Documents duly executed by the relevant
Obligors and, if required, the Trustee:
(i) UNITED KINGDOM
(1) Chargor incorporated in Bermuda
(A) Silja Pledge.
(B) Charge over GE Seaco Dividends Account,
Dividends Account and Mandatory Prepayment
Account granted by Sea Containers Ltd..
(2) Chargor incorporated in UK
(A) Charge over shares granted by Sea Containers
UK Limited in respect of its shareholding in
Sea Containers British Isles Limited.
(B) Charge over shares granted by Sea Containers
British Isles Limited in respect of its
shareholding in GNER Holdings Limited.
(C) Charge over shares granted by Sea Containers
British Isles Limited in respect of its
shareholding in Sea Containers Property
Services Limited.
(D) Charge over shares granted by Sea Containers
British Isles Limited in respect of its
shareholding in Sea Containers Railway
Services Limited.
(E) Assignment relating to GNER Limited dividends
by GNER Holdings Limited.
(F) Charge over shares granted by Ferry & Port
Holdings Limited in respect of its
shareholding in Sea Containers Ports Limited.
(G) Charge over shares granted by Sea Containers
Ports Limited in respect of its shareholding
in Folkestone Properties Limited.
(H) Floating Charge granted by Sea Containers
British Isles Limited.
(I) Folkestone Debenture.
(ii) BERMUDA
Chargor incorporated in Bermuda
(A) Charge over shares granted by Sea Containers Ltd. in
respect of its shareholding in Orient Express Hotels
Limited pursuant to the Custodian Accounts Charge
Agreement between Sea Containers Ltd., Citicorp
Trustee Company Limited and the Custodian (as
defined therein) and the Escrow Agreement between
Sea Containers Ltd., Citicorp Trustee Company
Limited and the Custodian (as defined therein)
relating thereto, and delivery of all such shares to
the account established with the Custodian pursuant
to such agreements.
(B) A Power of Attorney, in form and substance
satisfactory to the Agent, of the Parent in favour
of the Agent permitting the sale of Secured Shares
by the Agent on behalf of the Parent
(iii) US
(A) OEH Security Agreement.
(b) All documentation, and/or evidence of all other steps required to
perfect the Security Documents, as set out in the Transaction
Closing Agenda.
3. Legal Opinions
(a) A legal opinion of ▇▇▇▇▇▇▇▇ Chance LLP legal advisors to the
Arranger and Agent in England, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(b) A legal opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ legal advisers to the
Arranger and the Agent in Bermuda, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(c) A legal opinion of ▇▇▇▇▇▇▇▇ Chance US legal advisers to the
Arranger and the Agent in the United States (in relation to New
York law), substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
4. Other documents and evidence
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable
(if it has notified the Borrower accordingly) in connection with
the entry into and performance of the transactions contemplated by
any Finance Document or for the validity or enforceability of any
Finance Document or of the Transaction Security.
(b) The Original Financial Statements.
(c) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clauses 11 (Fees), 16 (Costs and Expenses)
and Clause 12.5 (Stamp Taxes) of the Restated Facility Agreement
have been paid or will be paid by the first Utilisation Date.
(d) The executed Fee Letters.
(e) The executed Subordination Agreement.
(f) Evidence that the Market Value of the Secured Shares is at least
US$100,000,000.
(g) Actuarial valuation evidencing pension fund decifit/surplus in
GNER Limited and evidence showing limitation of liability for any
shortfall expiry at the date of the Franchise Expiry Date.
(h) Evidence that the SETG Account has been established.
(i) Agreed form of the Undertaking.
(j) Evidence that, upon a sale of Secured Shares, the Parent instructs
SETG (i) to direct payment of the OEH Share Proceeds into the
Mandatory Prepayment Account and (ii) that all trades are to be
settled delivery versus payment.
(k) Budget of GNER Holdings Limited evidencing a net cash flow of
US$50,000,000 per annum.
(l) A copy of the Franchise Agreement and Track Access Agreement and
any amendment supplemental or other ancillary document pertaining
to it.
(m) The audited financial statements for GNER Limited for the
financial year ended 31 December 2002 (evidencing the treatment
of/showing the pensions liabilities of GNER Limited).
(n) The Memoranda Update Certificate.
(o) A letter dated on or about the date of this Agreement confirming
consent to the terms and conditions of the Finance Documents and
providing any relevant waivers required in relation thereto from
The Governor and Company of the Bank of Scotland in respect of the
Folkestone Facility.
(p) A duly executed Account Agreement and Escrow Agreement.
(q) A certificate of a finance officer of each US Obligor stating that
the respective company is Solvent after giving effect to the
initial Loans, the application of the proceeds thereof in
accordance with Clause 3 (Purpose) of the Facility Agreement and
the payment of all estimated legal, accounting and other fees
related to this Agreement and the consummation of the other
transactions contemplated hereby. For purposes of this
certificate, "Solvent" means with respect to such US Obligor on
any date of determination that (a) the fair value of the property
of such person is greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such
person; (b) the present fair saleable value of the assets of such
person is not less than the amount which will be required to pay
the probable liability of such person on its debts as they become
absolute and mature; (c) such person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such
person's ability to pay as such debts and liabilities mature; and
(d) such person is not engaged in a business or transaction, and
is not about to engage in a business or transaction, for which
such person's property would constitute unreasonably small
capital. In computing the amount of contingent or unliquidated
liabilities at any time, such liabilities will be computed at the
amount which, in lights of all the facts and circumstances
existing at such time, represents the amount that can reasonably
be expected to become an actual and matured liability.
(r) The Transaction Closing Agenda and, to the extent that they are
not otherwise delivered in accordance with Schedule 1 hereof, the
delivery of all items set out therein
SCHEDULE 2
RESTATED AGREEMENT
SIGNATURES
THE BORROWER
SIGNED for and on behalf of
SEA CONTAINERS BRITISH ISLES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
THE GUARANTORS
SIGNED for and on behalf of
CHARLESTON MARINE CONTAINERS INC.
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
FERRY & PORT HOLDINGS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
FOLKESTONE PROPERTIES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
GNER HOLDINGS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
HOVERSPEED LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
NEWHAVEN MARINA LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS AMERICA INC.
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS FERRIES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS LTD.
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PORTS & FERRIES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PORTS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PROPERTIES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PROPERTY SERVICES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS RAILWAY SERVICES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS UK LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
THE NEW GUARANTORS
SIGNED for and on behalf of
SILJA HOLDINGS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
SIGNED for and on behalf of
SILJA OYJ
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
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Attention: Company Secretary
THE MANDATED LEAD ARRANGERS
SIGNED for and on behalf of
CITIGROUP GLOBAL MARKETS LIMITED
By:
Address: Loan Capital Markets
Citigroup
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Attention: Loan Capital Markets, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
SIGNED for and on behalf of
FORTIS BANK S.A./N.V.
By:
Address: Fortis Bank ▇.▇./▇.▇.
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Attention: ▇▇▇▇ ▇▇▇▇▇▇, Head of Global Shipping Group London
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
Address: Bank of Scotland
Corporate Banking
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Attention: Corporate Banking, ▇▇▇ Feast, Director
THE AGENT
SIGNED for and on behalf of
CITIBANK INTERNATIONAL PLC
By:
Address: Citigroup Centre,
33 Canada Square
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Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Loans Agency
THE TRUSTEE
SIGNED for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
By:
Address: Citicorp Trustee Company Limited
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Attention: Agency and Trust
THE ORIGINAL LENDERS
SIGNED for and on behalf of
CITIBANK, N.A.
By:
Address: Delaware Loan Ops
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Attention: ▇▇▇▇ ▇▇▇▇▇, Vice President
and
Address: Loan Capital Markets
Citigroup
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Attention: Loan Capital Markets, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
SIGNED for and on behalf of
FORTIS BANK S.A./N.V.
By:
Address: Fortis Bank ▇.▇./▇.▇.
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Attention: ▇▇▇▇ ▇▇▇▇▇▇, Head of Global Shipping Group London
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
Address: Bank of Scotland
Corporate Banking
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Attention: Corporate Banking, ▇▇▇ Feast, Director
