THIRD AMENDMENT TO INDENTURE
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THIRD AMENDMENT (the "Amendment"),dated as of July 29, 1998, to the
Indenture (as heretofore amended, the "Indenture"), dated as of November 27,
1996, among Statia Terminals International N.V., a Netherlands Antilles
corporation ("Statia"), Statia Terminals Canada, Incorporated, a corporation
organized under laws of Nova Scotia ("Statia Canada"; and together with Statia,
the "Issuers"), the Subsidiary Guarantors named therein (the "Subsidiary
Guarantors") and Marine Midland Bank (the "Trustee"). All capitalized terms
used herein and not otherwise defined shall have the respective meanings
provided such terms in the Indenture.
W I T N E S S E T H:
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WHEREAS the Indenture as currently drafted is ambiguous as to whether
the Statia Terminals Southwest, Inc., a Texas corporation ("STSW"), may be
released from the Guarantee, the Securities and as a party to the Indenture in
the event of a sale of the Capital Stock of STSW (the "STSW Stock");
WHEREAS the Indenture clearly comtemplates a possible sale of the STSW
Stock by reason of the fact that the Indenture (i) excludes the sale of the STSW
Stock and the assets of the Brownsville Facility from the definition of an Asset
Sale and therewith from the limitations applicable to Asset Sales under Section
4.15 of the Indenture; (ii) excludes the sale of the STSW Stock from the
limitations applicable to sales of the Capital Stock of any Restricted
Subsidiary under Section 4.16 of the Indenture; (iii) excludes the distribution
of the net proceeds resulting from the sale of the Brownsville Facility from
certain of the limitations applicable to Restricted Payments under Section 4.03
of the Indenture; (iv) excludes STSW from the restriction on mergers of
Significant Subsidiary Guarantors under Section 5.01(b) of the Indenture; and
(v) permits the release of the STSW Stock from the Lien of the applicable
Securities Pledge Agreement in the event of a sale of the STSW Stock;
WHEREAS, while Section 9.01(7) of the Indenture permits the Indenture,
the Securities and the Guarantees to be amended "to release any Subsidiary
Guarantor...strictly in accordance with another provision of this
Indenture...expressly providing for such...release," no such express provision
for release currently exists in the Indenture;
WHEREAS the Issuers believe that the failure to provide such a
provision for a release of STSW from the Guarantee and this Indenture in the
event of a sale of the STSW Stock was an oversight and thus creates an ambiguity
in the Indenture; and
WHEREAS, the parties desire to amend the Indenture pursuant to Section
9.01 of the Indenture to cure this ambiguity;
NOW, THEREFORE, the parties hereto agree as follows for the benefit of
each other party and for the equal and ratable benefit of the Holders of the
Securities:
1. Amendment. The Indenture is hereby amended by adding a new Section
10.08 to read as follows:
Section 10.08 Release of Statia Terminals Southwest, Inc.
(a) If no Default or Event of Default exists or would
exist under this Indenture, upon the sale or disposition of all of the
Capital Stock (the "STSW Stock") of Statia Terminals Southwest, Inc., a
Texas corporation ("STSW"), to a Person that is not an Affiliate of any
of the Issuers or Subsidiary Guarantors, (i) STSW's Guarantee will be
automatically discharged, (ii) STSW shall be released from all of its
obligations under this Indenture and the Securities and (iii) STSW
shall no longer be a party to the Guarantee, the Securities and the
Indenture, without any further action required on the part of the
Trustee or any Holder. All references in the Guaranties, the
Securities and the Indenture to the defined term "Subsidiary Guarantor"
shall be deemed to exclude STSW and all references to STSW contained
therein shall be deemed deleted.
(b) The Trustee shall deliver an appropriate instrument
evidencing the release of STSW upon receipt of a request by the Issuers
or STSW accompanied by an Officers' Certificate and an Opinion of
Counsel stating that all conditions precedent in this Indenture
relating to the release of STSW have been complied with; provided,
however, that the legal counsel delivering such Opinion of Counsel may
rely as to matters of fact on one or more Officers' Certificates of the
Issuers.
(c) The Trustee shall execute any documents reasonably
requested by the Issuers or STSW in order to evidence the release of
STSW from its obligations under its Guarantee endorsed on the
Securities and under this Article Ten, the Securities and the
Indenture.
2. TIA Controls. If any provision of this Amendment limits or
conflicts with another provision which is required to be included in this
Amendment by the TIA, the required provision shall control.
3. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
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4. Counterparts. This Amendment may be executed and agreed in any
number of counterparts and by the parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same agreement. A complete set
of counterparts shall be lodged with the signatories hereto.
5. Indenture Not Otherwise Amended. The terms and provisions of the
Indenture not amended hereby shall continue to remain in full force and effect.
6. References. From and after the date hereof, all references in the
Indenture shall be deemed to be references to the Indenture as amended hereby.
7. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Amendment or
for or in respect of the recitals contained herein, all of which recitals are
made solely by Issuers and the Subsidiary Guarantors.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of this ___ day of July, 1998.
STATIA TERMINALS INTERNATIONAL
N.V.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
By: /s/ James G. Cameron
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Name: James G. Cameron
Title: Managing Director
STATIA TERMINALS CANADA,
INCORPORATED
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
MARINE MIDLAND BANK,
as Trustee
By:
---------------------------
Name:
Title:
IN WITNESS WHEREOF, each of the undersigned Subsidiary Guarantors has
caused this Amendment to be duly executed as of this ___ day of July, 1998.
STATIA TERMINALS CORPORATION N.V.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
By: /s/ James G. Cameron
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Name: James G. Cameron
Title: Managing Director
STATIA TERMINALS DELAWARE, INC.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
STATIA TERMINALS, INC.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
STATIA TERMINALS N.V.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
STATIA DELAWARE HOLDCO II, INC.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
SABA TRUST COMPANY N.V.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
BICEN DEVELOPMENT CORPORATION
N.V.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
STATIA TERMINALS SOUTHWEST, INC.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
W.P. COMPANY, INC.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
SEVEN SEAS STEAMSHIP COMPANY, INC.
By: /s/ Susan M. Mosteller
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Name: Susan M. Mosteller
Title: Secretary
STATIA TUGS N.V.
By: /s/ James G. Cameron
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Name: James G. Cameron
Title: Managing Director
SEVEN SEAS STEAMSHIP COMPANY
(SINT EUSTATIUS) N.V.
By: /s/ Susan M. Mosteller
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Name: Susan M. Mosteller
Title: Secretary
POINT TUPPER MARINE SERVICES
LIMITED
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President
STATIA LABORATORY SERVICES, N.V.
By: /s/ James F. Brenner
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Name: James F. Brenner
Title: Vice President