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DEBENTURE DELIVERY AGREEMENT
Made on November 27, 0000
Xxxxxxx
XXXXXX XXXXXXXXX XXXXXX, INCORPORATED
and
MARINE MIDLAND BANK, as Trustee
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XXXXXXXX XXXXX
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BARRISTERS & SOLICITORS
THIS DEBENTURE DELIVERY AGREEMENT dated on this 27th day of November, 1996.
BETWEEN:
STATIA TERMINALS CANADA INCORPORATED
(the "Debtor")
- and -
MARINE MIDLAND BANK, as Trustee
WITNESSES THAT FOR VALUE RECEIVED Debtor covenants and agrees with the Trustee
as follows:
1. Definitions. In this agreement:
(a) "Additional Indebtedness Instrument" means any instrument governing the
obligations of Debtor with respect to the Additional Secured Indebtedness.
(b) "Additional Secured Indebtedness" has the meaning given to it in the
Indenture.
(c) "Debenture" means a fixed and floating charge debenture issued by the Debtor
in favour of the Trustee dated November 27, 1996 in the principal amount of
U.S.$500,000,000 as amended, modified, replaced or restated from time to time;
(d) "Indenture" means the indenture as amended, modified, replaced or restated
from time to time made on November 27, 1996 between the Debtor and Statia
(collectively, the "Issuers"), certain subsidiaries of the Issuers, as
guarantors, and the Trustee, as trustee, pursuant to which the Issuers are
issuing the Notes;
(e) "Notes" means 11 3/4% first mortgage notes of the Issuers due 2003, in the
aggregate principal amount of U.S.$135,000,000 and the exchange notes of the
Issuers to be issued from time to time, in each case, pursuant to the terms of
the Indenture;
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(f) "Noteholders" means the holders of the Notes;
(g) "Secured Obligations", means the obligations, indebtedness and liabilities
of the Debtor to the Trustee, the Noteholders and the holders of Additional
Secured Indebtedness, if any, under or in connection with the Indenture, the
Notes (including, without limitation, the obligations of Debtor to pay principal
of, premium, if any, and interest on the Notes when due and payable) and the
Additional Secured Indebtedness and all other charges, fees, premiums,
indemnities and other amounts due or to become due to the Trustee, the
Noteholders and the holders of Additional Secured Indebtedness, if any, in
connection with the Indenture, the Notes and the Debenture whether present or
future, direct or indirect, absolute or contingent, matured or not, extended or
renewed, wheresoever and howsoever incurred and any ultimate unpaid balance
thereof and whether the same is from time to time thereafter reduced, increased
or entirely extinguished and thereafter incurred again and whether Debtor be
bound alone or with another or others and whether as principal or as surety;
(h) "Statia" means Statia Terminals International N.V., and its successors and
assigns in such capacity, a Netherlands Antilles corporation; and
(i) "Trustee" means Marine Midland Bank and its successors and assigns in its
capacity as trustee for and on behalf of itself and for the benefit of the
Noteholders and the holders of Additional Secured Indebtedness under the
Indenture and the Additional Lender Intercreditor Agreement, if any.
2. Collateral Security. The Debenture is hereby lodged and deposited with and
delivered, pledged, hypothecated, assigned and transferred to the Trustee to be
held by it as general and continuing collateral security for the payment and
fulfilment of the Secured Obligations. Upon repayment of all Secured Obligations
and upon the request of the Debtor, the Trustee shall execute a release and
discharge of the Debenture, in accordance with the provisions of the Indenture.
3. Demand. The Trustee may, but shall not be obligated to, in addition to any
other action permitted by law, demand payment under the Debenture upon the
happening of an "Event of Default" as defined in the Indenture.
4. Remedies. Upon the occurrence of an Event of Default, the Trustee or its
nominee shall be entitled to sell at public or private sale or otherwise realize
upon the security of the Debenture and to otherwise exercise and enforce all the
rights and remedies of the Trustee under law and the terms of the Indenture, the
Notes and the Debenture free from any control of the Debtor; provided, however,
that the Trustee shall not be bound to deal with the Debenture in any way or to
exercise any rights or remedies as aforesaid and shall not be liable for any
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loss which may be occasioned by any failure to do so. If the foregoing is not
sufficient to satisfy all of the Secured Obligations, the Debtor shall continue
to be liable for any Secured Obligations remaining outstanding and the Trustee
shall be entitled to pursue full payment thereof.
5. Dealings by Trustee, etc. The Trustee may grant extensions of time and other
indulgences, take and give up securities, accept compositions, grant releases
and discharges and otherwise deal with the Debtor and all other parties and
securities as the Trustee may see fit, all without prejudice to the debts,
liabilities or obligations of the Debtor to the Trustee, the Noteholders and the
holders of Additional Secured Indebtedness or to the rights of the Trustee in
respect of the Debenture and the security hereby constituted.
6. Additional Security. The Debenture and the security hereby constituted are in
addition to and not in substitution for any other security now or hereafter held
by the Trustee and shall not operate as a merger of any simple contract debt or
suspend the fulfilment of, or affect the rights, remedies or powers of the
Trustee, the Noteholders and the holders of Additional Secured Indebtedness in
respect of any present or future debts, liabilities or obligations of the Debtor
to the Trustee, the Noteholders and the holders of Additional Secured
Indebtedness or any securities now or hereafter held by the Trustee or the
Noteholders or any of them for the payment or fulfilment thereof.
7. Payment of Interest and Principal. Payment by the Debtor to the Trustee of
interest for any period in respect of the Secured Obligations in accordance with
the provisions of the Indenture and the Notes shall be deemed payment in full
satisfaction of the interest payment for the same period provided for under the
"Acknowledgment and Promise to Pay" provision of the Debenture. Payment by the
Debtor to the Trustee of all other amounts in respect of the Secured Obligations
shall be deemed payment in full satisfaction of the principal payment provided
for under the "Acknowledgment and Promise to Pay" provision of the Debenture.
8. Headings. The headings in this agreement shall not affect the interpretation
of this agreement.
9. Governing Law and Submission to Jurisdiction. This agreement and the
Debenture shall be governed by and construed in accordance with the laws of the
Province of Nova Scotia and of Canada applicable therein. The Debtor irrevocably
submits to the non-exclusive jurisdiction of the courts of the Province of Nova
Scotia and of Canada in any action or proceeding arising out of or relating to
this agreement or the Debenture and irrevocably agrees that all such actions and
proceedings may be heard and determined in such courts, and irrevocably waives,
to the fullest extent possible, the defence of an inconvenient forum. A judgment
or order in any such action or proceeding may be enforced in any jurisdiction in
any manner provided by law. For greater certainty, the Trustee may serve legal
process in any
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manner permitted by law and may bring an action or proceeding
against the Debtor or the property or assets of the Debtor in the courts of any
jurisdiction.
10. Severability. If any provisions of this agreement, as amended from time to
time, shall be deemed invalid or void, in whole or in part, by any court of
competent jurisdiction, the remaining terms and provisions of this agreement
shall remain in full force and effect.
11. Binding Effect and Enurement. This agreement shall be binding upon the
Debtor and its respective successors and permitted assigns and shall enure to
the benefit of the and its successors and assigns, as permitted in accordance
with the provisions of the Trust Indenture.
12. Counterparts and Multiple Copies Executed. This agreement may be executed in
any number of counterparts, each of which when so executed will be deemed to be
an original and all of which, when taken together, will constitute one and the
same agreement. Each original copy of this agreement may be executed by any
number of different individuals on behalf of the Debtor and the Trustee, and
each such original copy shall constitute one and the same agreement.
IN WITNESS WHEREOF the undersigned have executed this agreement on
November 27, 1996 at ____ a.m. (Halifax, Nova Scotia time).
STATIA TERMINALS CANADA,
INCORPORATED, as Debtor
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
MARINE MIDLAND BANK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
