EXHIBIT 4.1b
SECOND AMENDMENT TO INDENTURE
SECOND AMENDMENT (the "Amendment"), dated as of February 25,
1998, to the Indenture (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
the 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 :
WHEREAS the Indenture as currently drafted is ambiguous as to
whether the Issuers have the right to obtain a release of the Capital Stock of
Statia Terminals Southwest, Inc. and/or Statia Delaware Holdco II, Inc.
(collectively, the "Brownsville Stock") from the Lien of the applicable
Securities Pledge Agreement in the event of the sale of such Capital Stock;
WHEREAS the Indenture clearly contemplates a possible sale of
the Brownsville Stock by reason of the fact that the Indenture (i) excludes the
sale of the Brownsville 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
Capital Stock of Statia Terminals Southwest, Inc. from the limitations
applicable to sales of the Capital Stock of any Restricted Subsidiary under
Section 4.16 of the Indenture; (iii) excludes the net proceeds resulting from
the sale of the Brownsville Facility from the limitations applicable to
Restricted Payments under Section 4.03 of the Indenture and (iv) excludes Statia
Terminals Southwest, Inc. from the restriction on mergers of Significant
Subsidiary Guarantors under Section 5.01(b) of the Indenture;
WHEREAS (i) the Brownsville Stock is pledged to the Trustee
pursuant to a Securities Pledge Agreement and (ii) there is no provision in
either the Securities Pledge Agreement or the Indenture to permit the Trustee to
release the Lien of the Securities Pledge Agreement in the event of a sale of
the Brownsville Facility pursuant to the sale of the Brownville Stock;
WHEREAS the Issuers believe that the failure to provide such a
provision for a release of such Lien was an oversight and thus creates an
ambiguity in the Indenture;
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. Section 11.04 of the Indenture is hereby amended
by adding the following clause (2) at the end thereof:
(2) In addition to their rights under Section 11.03,
in the event of a sale of the Capital Stock of Statia Terminals
Southwest, Inc. or Statia Delaware Holdco II, Inc. (collectively, the
"Brownsville Stock"), the Issuers shall have the right to obtain a
release of, and the Trustee shall release, the Brownsville Stock so
sold from the Lien of the applicable Securities Pledge Agreement, upon
compliance with the condition that the appropriate Pledgor deliver to
the Trustee the following:
(a) RELEASE NOTICE. A notice from the
appropriate Pledgor requesting the release of the
Brownsville Stock (i) confirming the sale of, or an
agreement to sell, such in a bona fide sale to a
Person that is not an Affiliate of any of the
Issuers or Subsidiary Guarantors, (ii) certifying
that such sale complies with the terms and
conditions of this Indenture with respect thereto,
and (iii) accompanied by a counterpart of the
instruments proposed to give effect to the release
fully executed and acknowledged (if applicable) by
all parties thereto other than the Trustee;
(b) OFFICERS' CERTIFICATE. An Officers'
Certificate of the appropriate Pledgor stating that
(i) there is no Default or Event of Default in
effect or continuing on the date thereof or the date
of such sale, (ii) the release of the Brownsville
Stock will not result in a Default or Event of
Default under this Indenture and (iii) all
conditions precedent in this Indenture and in the
Security Documents relating to the release of the
Brownsville Stock have been complied with;
(c) OPINION OF COUNSEL. An Opinion of
Counsel substantially to the effect that all
conditions precedent in this Indenture and in the
Security Documents relating to the release of the
Brownsville Stock have been complied with; and
(d) OTHER DOCUMENTS. All documentation
required by the Trust Indenture Act, if any, prior
to the release of the Brownsville Stock by the
Trustee.
In connection with any release, the Issuers shall
execute, deliver and record or file and obtain such instruments as the
Trustee may reasonably require, including, without limitation,
amendments to the Security Documents.
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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.
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.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of this 25th day of February, 1998.
STATIA TERMINALS INTERNATIONAL N.V.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
By: /S/ XXXXX X. XXXXXXX
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Title: Director
STATIA TERMINALS CANADA, INCORPORATED
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
MARINE MIDLAND BANK,
as Trustee
By: /S/ XXXXX X. XXXXXX
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Title: Vice President
IN WITNESS WHEREOF, each of the undersigned Subsidiary
Guarantors has caused this Amendment to be duly executed as of this 25th day of
February, 1998.
STATIA TERMINALS CORPORATION N.V.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
By: /S/ XXXXX X. XXXXXXX
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Title: Director
STATIA TERMINALS DELAWARE, INC.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
STATIA TERMINALS, INC.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
STATIA TERMINALS N.V.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
STATIA DELAWARE HOLDCO II, INC.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
SABA TRUST COMPANY N.V.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
BICEN DEVELOPMENT CORPORATION N.V.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
STATIA TERMINALS SOUTHWEST, INC.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
W.P. COMPANY, INC.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
SEVEN SEAS STEAMSHIP COMPANY, INC.
By: /S/ XXXXXX X.XXXXX, XX.
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Title: Treasurer and Assistant Secretary
STATIA TUGS N.V.
By: /S/ XXXXX X. XXXXXXX
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Title: Director
SEVEN SEAS STEAMSHIP COMPANY
(SINT EUSTATIUS) N.V.
By: /S/ XXXXXX X.XXXXX, XX.
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Title: Treasurer and Assistant Secretary
POINT XXXXXX MARINE SERVICES LIMITED
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
STATIA LABORATORY SERVICES, N.V.
By: /S/ XXXXX X. XXXXXXX
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Title: Vice President
