EXHIBIT 10.4a
FIRST AMENDMENT TO
STORAGE AND THROUGHPUT AGREEMENT(1)
This Amendment, entered into as of the ____ day of October, 1999, and
effective as of January 3, 2000, amends that certain Storage and Throughput
Agreement which was effective as of [******] [**], [****], between Statia
Terminals N.V., a corporation duly incorporated in the Netherlands Antilles (the
"Terminal Company") with offices at St. Eustatius, Netherlands Antilles, and
Bolanter Corporation N.V., a corporation duly incorporated in [***]
[***********] [********] (the "User") with offices at [*******], [***********]
[********] (the "Agreement").
WHEREAS, the initial Term of the Agreement expires at midnight on
January 30, 2000; and
WHEREAS, the parties desire to extend the Agreement beyond the
expiration of the initial Term and to amend certain provisions of the Agreement
as such are set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto mutually agree as follows:
1. Amend the definition of "Minimum Monthly Charge" in Article I of the
Agreement by deleting "USD [***,***]" and inserting in place thereof
"USD [***,***]".
2. Amend Article I, Definitions, in the Agreement by deleting the
definitions corresponding to those below and replacing them with the
following corresponding definitions and by deleting, without
replacement, the definition of "Completion Notice":
"EXCESS THROUGHPUT CHARGE" means USD [*.****] per Barrel, or
the amount resulting from the application of Section 5.4.
"GROSS STANDARD VOLUME" or "GSV" means the total volume of all
petroleum liquids and S&W, excluding Free Water, corrected by the
appropriate volume correction factor for the Observed Temperature and
API Gravity, relative density, or density to a standard temperature of
60(degree)F or 15(degree)C.
"NET STANDARD VOLUME" or "NSV" means the total volume of all
petroleum liquids, excluding S&W and Free Water, corrected by the
appropriate volume correction factor for the Observed Temperature and
API Gravity, relative density, or density to a standard temperature of
60(degree)F or 15(degree)C.
"TOTAL CALCULATED VOLUME" or "TCV" means the total volume of
all petroleum liquids and S&W, corrected by the appropriate volume
correction
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1 Asterisks indicate redacted language that has been granted confidential
treatment pursuant to Section 552(b)(24) of the Freedom of Information Act. 5
U.S.C.ss.552(b)(4) (1996); See 17 C.F.R.ss.200.80(b)(4) (1996).
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factor for the Observed Temperature and API Gravity, relative density,
or density to a standard temperature of 60(degree)F or 15(degree)C, and
all Free Water measured at Observed Temperature (Gross Standard Volume
plus Free Water).
3. Add the following definitions to Article I, Definitions, of the
Agreement in the proper alphabetical order:
"EFFECTIVE DATE" means January 31, 2000.
"OBSERVED TEMPERATURE" means the temperature of any
Commodities at the time of testing as determined by a temperature
sensing device or thermometer.
4. Amend Article I, Definitions, of the Agreement and Article 2,
Definitions, of the Terminal Regulations by deleting the definition of
"Operational Date".
5. Amend the Agreement and the Terminal Regulations throughout by deleting
"Operational Date" and inserting in place thereof "Effective Date".
6. Amend Article 2, Definitions, of the Terminal Regulations (i) by
deleting the definitions corresponding to those in Paragraph 2 above
and replacing them with the corresponding definitions from Paragraph 2,
and (ii) by inserting in the proper alphabetical order the definitions
in Paragraph 3 above.
7. Amend Article IV, Term of Agreement, of the Agreement by deleting the
entire Article IV and replacing it with the following:
ARTICLE IV
TERM OF AGREEMENT
4.1 TERM. The initial Term of this Agreement shall commence at
12:01 a.m. on the Effective Date, and shall end at midnight on January
30, 2003, subject to the provisions of Article VI.
4.2 ADDITIONAL TERM. Upon the expiration of the initial three
(3) year Term hereof, this Agreement shall automatically be extended
for an additional [***] [***] [****] period, and [********] thereafter
for [***] [***] [**********] [****] (each such [***] [***] [****]
period being the "Additional Term" and each of which constitutes a part
of the Term) on the same terms and conditions, including, but not
limited to, the provisions of Section 5.4 regarding the adjustment of
the Minimum Monthly Charge and Excess Throughput Charge; provided
however, that either Terminal Company or User may elect to terminate
this Agreement upon expiration of the initial three (3) year Term or at
the end of any subsequent [***] [***] [****] Additional Term thereafter
by providing the other party with [***] [***] [******] written notice
prior to the expiration of the then current Term (i.e.,
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such notice must be made on or before the [****] [**] immediately
preceding the end of the then current Term).
8. Amend Section 5.1 of the Agreement by deleting from the words ", and
where the Operational Date at the beginning of the Term" to the end of
Section 5.1 and inserting a period after the words "Term divided by 30
days".
9. Amend Section 5.2 of the Agreement by deleting "after the Dedicated
Storage has reached at least [*,***,***] Barrels" and inserting "during
the Term" in place thereof.
10. Amend Section 5.3 of the Agreement by deleting from the words "and
where the Operational Date at the beginning of the Term" to the end of
Section 5.3 and inserting a period after the words "Term divided by 30
days".
11. Amend Section 5.4 of the Agreement by deleting "[*******] [*], [****]"
in the first line and inserting in place thereof "[*******] [*],
[****]" and by deleting "[********] [**], [****]" at the end of the
first sentence and inserting in place thereof "[********] [**],
[****]".
12. Amend the Agreement by deleting Sections 9.3 and 9.4 in their entirety.
13. Unless otherwise amended herein, all other terms and conditions of the
Agreement and the Terminal Regulations, including any attachments
thereto, shall remain in full force and effect.
14. Capitalized terms not otherwise defined herein shall have the meaning
ascribed to such terms in the Agreement or the Terminal Regulations, as
appropriate.
IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto as of the day first herein specified.
STATIA TERMINALS N.V. BOLANTER CORPORATION N.V.
By: ____________________________ By: ____________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Director Name: ____________________________
Title: ____________________________
By: ____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director
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