Exhibit 4.1(e)
SUPPLEMENTAL INDENTURE NO. 5
This SUPPLEMENTAL INDENTURE NO. 5, dated October 28, 1998, among Xxxxx
Transportation Company, a Delaware corporation (the "Company"), the
Guarantors named therein (the "Guarantors"), Fleet National Bank (formerly
known as Shawmut Bank Connecticut, National Association), as trustee (the
"Trustee"), and MCF Subsidiary, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company (the "New Guarantor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, the Trustee and the Guarantors are parties to
that certain Indenture dated July 11, 1994, as thereafter supplemented by
Supplemental Indenture Nos. 1, 2, 3 and 4 (as so supplemented, the
"Indenture"), pertaining to the Company's 11-3/4% Series B First Preferred
Ship Mortgage Notes due 2004 issued under the Indenture (the "Notes");
WHEREAS, the Company has organized the New Guarantor as a subsidiary
with the intention that the New Guarantor become a Guarantor under the
Indenture and an Unrestricted Subsidiary pursuant to the terms of the
Indenture;
WHEREAS, Section 5.23 of the Indenture provides that any Person that
was not a Guarantor on the date of the Indenture may become a Guarantor by
executing and delivering to the Trustee, among other things, a supplemental
indenture in form and substance satisfactory to the Trustee, which subject
such Person to the provisions (including the representations and warranties)
of the Indenture as a Guarantor;
WHEREAS, Section 10.01(h) of the Indenture provides that the Trustee,
the Company, the Guarantors and a Subsidiary, as applicable, may amend or
supplement the Indenture without the consent of any Holder to supplement the
Indenture to provide for additional Guarantors pursuant to Section 5.23; and
WHEREAS, the Company and the New Guarantor intend that this
Supplemental Indenture fulfill the requirements of such Section 5.23, thereby
making the New Guarantor a Guarantor under the Indenture.
NOW THEREFORE, the parties agree as follows, for the benefit of each
other and for the equal and ratable benefit of the Holders of the Notes:
Section 1.01 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture but not defined herein shall have the meanings given such terms in
the Indenture.
Section 2.01 ACCEPTANCE BY TRUSTEE. The Trustee accepts the
modifications of the
Indenture hereby effected only upon the terms and conditions set forth in the
Indenture as supplemented by this Supplemental Indenture No. 5. Without
limiting the generality of the foregoing, the Trustee shall not be
responsible for the correctness of the recitals contained herein, which shall
be taken as statements of the Company, and the Trustee makes no
representations and shall have no responsibility for, or in respect of, the
validity or sufficiency of this Supplemental Indenture No. 5.
Section 2.02 CONSTRUCTION. This Supplemental Indenture No. 5 is
executed as and shall constitute an instrument supplemental to the Indenture
and shall be construed in connection with and as part of the Indenture.
Section 2.03 RATIFICATION. Except as modified and expressly amended by
this Supplemental Indenture No. 5, the Indenture is, in all respects,
ratified and confirmed and all the terms, provisions and conditions thereof
shall be and remain in full force and effect.
Section 2.04 ADDITION OF GUARANTOR. The New Guarantor hereby agrees to
be bound by and subject to all terms of the Indenture (including
representations and warranties) as a Guarantor, including without limitation
the provisions of Article 3 of the Indenture, as if the New Guarantor were a
signatory to the Indenture.
Section 2.05 COUNTERPARTS. This Supplemental Indenture No. 5 may be
executed in any number of counterparts; each signed copy shall be any
original, but all of them together represent the same agreement.
Section 2.06 GOVERNING LAW. This Supplemental Indenture No. 5 shall be
subject to the governing law and choice of forum provisions of Section 13.09
of the Indenture.
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 5 to be duly executed as of the day and year first above
written.
XXXXX TRANSPORTATION COMPANY
By: /s/ Xxxxxx X. XxxXxxx
-------------------------------------
Name: Xxxxxxx X. XxxXxxx
Title: President
THE GUARANTORS LISTED ON ANNEX I HERETO
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: As to each of the Guarantors
listed on Annex I in the
capacities set forth on Annex I
THE GUARANTORS LISTED ON ANNEX II HERETO
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: As to each of the Guarantors
listed on Annex II in the
capacities set forth on Annex II
3
MCF SUBSIDIARY, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President, Treasurer and
Assistant Secretary
FLEET NATIONAL BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Person
4
Annex I
-------
Guarantor Capacity
--------- --------
Xxxxx Towing Corporation V.P.-Finance & Administration
Xxxxx Towing of Texas Inc. V.P. and Treasurer
Xxxxxxxx Shipyard, Inc. V.P. and Assistant Secretary
Xxxxx Shipyard Corporation V.P., Treasurer & Assistant Secretary
Xxxxx Barge Corp. V.P. -Finance & Administration
Xxxxx Towing of Delaware, Inc. V.P. and Treasurer
Hampton Roads Land Co., Inc. V.P. and Treasurer
Portsmouth Navigation Corporation V.P., Treasurer & Assistant Secretary
Xxxxx Insurance Company Limited Chairman/President
Xxxxxx Bay Towing Company of Pennsylvania V.P. and Treasurer
Xxxxxx Bay Towing Company of Virginia V.P. and Treasurer
Florida Towing Company V.P. and Treasurer
5
Annex II
--------
Guarantor Capacity
--------- --------
Xxxxx Services Corporation President
Seaboard Barge Corporation President
Petroleum Transport Corporation President
6
