Exhibit 4.1e
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STATIA TERMINALS INTERNATIONAL N.V.,
STATIA TERMINALS CANADA, INCORPORATED,
as Issuers,
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
HSBC BANK USA
(formerly known as Marine Midland Bank),
as TRUSTEE
11-3/4% First Mortgage Notes due 2003, Series A
11-3/4% First Mortgage Notes due 2003, Series B
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FIFTH AMENDMENT TO INDENTURE
Dated as of September 30, 2001
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FIFTH AMENDMENT TO INDENTURE
FIFTH AMENDMENT (this "AMENDMENT"), dated as of September 30, 2001, 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 HSBC Bank
USA, formerly known as Marine Midland Bank (the "TRUSTEE"), as Trustee.
Capitalized terms used but not defined herein shall have the respective meaning
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 sales, transfers or other dispositions of assets between Wholly-Owned
Restricted Subsidiaries are, subject to the fulfillment of certain conditions,
excluded from the definition of "Asset Sale";
WHEREAS, the Indenture clearly intends to exclude from the
definition of "Asset Sale," sales, transfers or other dispositions of assets
between Wholly-Owned Restricted Subsidiaries, subject to the fulfillment of
certain conditions, since a Wholly-Owned Restricted Subsidiary could sell,
transfer or dispose of assets to Statia and Statia could then transfer the
assets to another Wholly-Owned Restricted Subsidiary without any such sale,
transfer or disposition constituting, subject to the fulfillment of certain
conditions, an "Asset Sale";
WHEREAS, the Issuers believe that the failure to provide for
an exclusion, subject to the fulfillment of certain conditions, for sales,
transfers or dispositions of assets between Wholly-Owned Restricted Subsidiaries
from the definition of "Asset Sale" 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; and
WHEREAS, Statia Terminals Canada Holdings, Inc. ("STCHI"), a
corporation organized under the laws of Nova Scotia, Statia Terminals Canada
Partnership ("STCP"), a general partnership organized under the laws of Nova
Scotia, are newly formed Wholly-Owned Restricted Subsidiaries of Statia.
NOW, THEREFORE, IT IS AGREED:
1. AMENDMENT. Clause (i) of the definition of "Asset Sale" in Section
1.01 of the Indenture is hereby amended and restated in its entirety as follows:
"(i) any sale, transfer or other disposition between
Statia and any of its Wholly-Owned Restricted
Subsidiaries or between two or more Wholly-Owned
Restricted Subsidiaries; PROVIDED, that in the event
any assets which constitute a portion of the
Collateral are so sold,
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transferred or disposed of, Statia or the appropriate
Wholly-Owned Restricted Subsidiary, as the case may
be, shall acquire such Collateral subject to the Lien
of this Indenture and the Security Documents and
shall take or cause to be taken all action necessary
or appropriate to maintain, preserve and protect the
Security Interest in such Collateral granted by the
Security Documents,"
2. ASSUMPTION. Each of STCHI and STCP expressly assumes and affirms all
the obligations of a Subsidiary Guarantor and Wholly-Owned Restricted Subsidiary
under the Indenture.
3. 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.
4. 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.
5. 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.
6. INDENTURE NOT OTHERWISE AMENDED. The terms and provisions of the
Indenture not amended hereby shall continue to remain in full force and effect.
7. REFERENCES. From and after the date hereof, all references in the
Indenture shall be deemed to be references to the Indenture as amended hereby.
8. 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 the 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 30 day of September, 2001.
STATIA TERMINALS INTERNATIONAL N.V.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATIA TERMINALS CANADA, INCORPORATED, on
its own behalf and as managing partner of
STATIA TERMINALS CANADA PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATIA TERMINALS CANADA HOLDINGS, INC.,
on its own behalf and as managing partner
of STATIA TERMINALS CANADA PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
HSBC BANK USA, as TRUSTEE
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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IN WITNESS WHEREOF, each of the undersigned Subsidiary Guarantors has caused
this Amendment to be duly executed as of this 30 day of September, 2001.
STATIA TERMINALS CORPORATION N.V.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx
Title: Controller
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATIA TERMINALS DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATIA TERMINALS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATIA TERMINALS N.V.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
SABA TRUST COMPANY N.V.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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BICEN DEVELOPMENT CORPORATION N.V.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
SEVEN SEAS STEAMSHIP COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx Xx.
Title: Treasurer
STATIA TUGS N.V.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SEVEN SEAS STEAMSHIP COMPANY (SINT
EUSTATIUS) N.V.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx Xx.
Title: Treasurer
POINT XXXXXX MARINE
SERVICES LIMITED, on its
own behalf and as managing
partner of STATIA TERMINALS
CANADA PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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STATIA LABORATORY SERVICES N.V.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATIA TERMINALS NEW JERSEY, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATIA TERMINALS ANTILLES N.V.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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