FIDUCIARY TRANSFER OF TANGIBLE ASSETS AGREEMENT
FIDUCIARY TRANSFER OF TANGIBLE ASSETS AGREEMENT (the "Agreement"), dated
as of November 27, 1996, by and between Statia Terminals N.V., a company
incorporated under the laws of the Netherlands Antilles, having its corporate
seat at ("Statia Terminals"), Saba Trust Company N.V., a company incorporated
under the laws of the Netherlands Antilles, having its corporate seat at
____________________ ("Saba"), Bicen Development Corporation N.V., a company
incorporated under the laws of the Netherlands Antilles, having its corporate
seat at __________________ ("Bicen"), Statia Laboratory Services N.V., a company
incorporated under the laws of the Netherlands Antilles, having its corporate
seat at ________________ ("Labs"), Saba Tugs N.V., a company incorporated under
the laws of the Netherlands Antilles, having its corporate seat at
___________________ ("Tugs") and Seven Seas Steamship Company (St. Eustatius)
N.V., a company incorporated under the laws of the Netherlands Antilles, having
its corporate seat at ________________ ("Seven Seas") (Statia Terminals, Saba,
Bicen, Labs, Tugs and Seven Seas individually a "Transferor" and collectively
the "Transferors") and Marine Midland Bank, a New York banking corporation and
trust company, having its registered office at 000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000-0000, as trustee (in such capacity and together with any
successors and assigns in such capacity, the "Transferee") pursuant to the
Indenture (as hereinafter defined) and the Additional Lender Intercreditor
Agreement (as defined in the Indenture), if any.
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WITNESSETH:
WHEREAS the Transferors, Statia Terminals International N.V. ("Statia
International"), Statia Terminals Canada Incorporated ("Statia Canada" together
with Statia International hereafter collectively referred to as the "Issuers"),
and certain other parties are contemporaneously with the execution and delivery
of this Agreement entering into a certain indenture dated as of November 27,
1996, (as amended, restated, supplemented or otherwise modified from time to
time, the "Indenture"), pursuant to which the Issuers are issuing 11 3/4% first
mortgage notes due 2003 (the "First Mortgage Notes"), in the aggregate principal
amount of US$135,000,000;
WHEREAS, it is contemplated that the Issuers may, after the date hereof,
(i) issue exchange notes pursuant to the Indenture (the "Exchange Notes";
together with the First Mortgage Notes, the "Notes") and (ii) incur certain
additional indebtedness ("Additional Secured Indebtedness") in accordance with
the provisions of Section 4.04 and Section 4.14 of the Indenture which shall be
equally and ratably secured by the Pledged Collateral (as hereinafter defined);
WHEREAS, pursuant to the Indenture and the guarantee set forth in Article
Ten thereof (the "Guarantee") , each Transferor is jointly and severally
guaranteeing the payment and performance of all the obligations of the Issuers
arising under or in connection with the Notes and Indenture and each
Transferor's obligations under such Guarantee are intended to be secured
hereunder;
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WHEREAS, each Transferor is entering into this Agreement with Transferee
acting for the benefit of itself, the holders of the Notes and the holders of
Additional Secured Indebtedness (collectively the "Secured Parties") for the
purpose, among other things, of securing and providing for the payment of all
amounts of principal, premium, if any, interest, costs, charges, fees, expenses,
commissions, reimbursements, indemnities and all other amounts from time to time
due and payable by each Transferor to the Secured Parties (whether at stated
maturity, by acceleration or otherwise, including, without limitation, the
payments of interest and other amounts which would accrue and become due but for
the filing of a petition in bankruptcy or the operation of any stay under any
Bankruptcy Law (as defined in the Indenture)) under the Indenture, the Notes,
the Guarantee, this Agreement, and any other instrument governing the
obligations of each Transferor with respect to the Additional Secured
Indebtedness (the "Additional Indebtedness Instrument"; together with the
Indenture, the Notes, the Guarantee and this Agreement, the "Secured
Instruments"), as well as the performance and payment of all other obligations
and liabilities, now existing or hereafter arising whatsoever which are now or
at any time hereafter may be or become due, owing or payable under any of the
Secured Instruments, in any form or currency, to the Secured Parties by each
Transferor, actually or contingently, solely or jointly and/or severally with
another or others, as principal or surety, or by virtue of any current or other
account in connection with any advance, loan, credit, instrument, guarantee or
indemnity made or issued to, for or at the request of each Transferor pursuant
to any Secured Instrument and costs, for the purpose hereof including, but not
limited to, costs of collection of any amount due to the Secured Parties
(collectively, the "Secured Obligations");
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WHEREAS, pursuant to Netherlands Antilles private international law, the
vesting of security rights on tangible assets shall be governed by the laws of
the state or country in which such tangible assets are located at the moment of
vesting security rights thereon ("lex rei sitae");
WHEREAS, the Indenture is governed by the laws of the State of New York;
WHEREAS, each Transferor has advised the Transferee that the execution and
delivery of this Agreement and the performance of its obligations under this
Agreement is in its corporate interest and does not prejudice the rights of its
creditors;
NOW, THEREFORE, in consideration of the foregoing premises each Transferor
agrees with the Transferee as follows:
Section 1 Definitions
Capitalized terms used herein and not defined shall have the meanings assigned
to them in the Indenture.
Section 2 Obligations Owed to Transferee, as Trustee
2.1 In order to ensure that a valid fiduciary transfer is created pursuant to
this Agreement, each Transferor hereby agrees and covenants with Transferee
that it shall (I) pay to Transferee (as and when due by each Transferor in
accordance with the provisions of the applicable Secured Instruments) all
amounts of money due and payable to the holders of the Notes and to the
holders of the Additional Secured Indebtedness under their respective
Secured
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Instruments, in order to permit Transferee to make the payments under the
applicable Secured Instrument, as and when due to the holders of the Notes
and to the holders of Additional Secured Indebtedness, and (ii) perform all
of its other obligations to the holders of the Notes and the holders of the
Additional Secured Indebtedness in accordance with their respective Secured
Instruments. The agreements, covenants and obligations of each Transferor
set forth in the immediately preceding sentence shall hereinafter be
referred to as the "Debtholder Obligations". It is the intention of the
parties that the Debtholder Obligations shall be identical and equal, but
alternative to, the obligations of each Transferor to the holders of the
Notes and to the holders of Additional Secured Indebtedness under their
respective Secured Instruments.
2.2 Each Transferor and the Transferee agree and acknowledge that the
Debtholder Obligations are obligations and liabilities of each Transferor
to the Transferee, as trustee and paying agent, separate and independent
from and without prejudice to the liabilities which each Transferor has or
may have to the holders of the Notes and to the holders of the Additional
Secured Indebtedness, provided that the total amount due and payable under
the Debtholder Obligations shall be decreased to the extent that each
Transferor shall have paid any amounts to the Transferee, which are due,
payable and owing to any holder of the Notes and any holder of Additional
Secured Indebtedness in accordance with their respective Secured
Instruments.
2.3 In connection with the performance of the provisions of this Agreement, the
Transferee (in its capacity as Trustee) shall have the duties, and shall be
entitled to the benefits, set
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forth in the Indenture and/or the Additional Lender Intercreditor
Agreement, if any, all to the extent permitted by applicable law.
2.4 The relationship of the holders of the Notes, the holders of Additional
Secured Indebtedness and the Transferee are or will be, as the case may be,
governed by the Indenture and the applicable Intercreditor Agreements,
which are or will be, as the case may be, governed by and construed in
accordance with the laws of the State of New York.
Section 3 Transfer
3.1 As security for the payment and performance of the Secured Obligations,
each Transferor hereby transfers (and, in the case of Pledged Collateral
hereafter arising or acquired, agrees to transfer) title by way of
fiduciary transfer (fiduciaire eiGendomsoverdracht) to the Transferee for
the benefit of the Secured Parties, who accepts such title from each
Transferor in and to all of the right, title and interest of each
Transferor in, to and under the following property, whether now existing or
hereafter arising or acquired (collectively, the "Pledged Collateral"):
(I) any and all equipment of any kind or nature (other than vehicles,
marine vessels and emergency and spill response equipment) located at
or used in connection with the operation of each Transferor's business
conducted at the Mortgaged Property (as defined in the Indenture)
located in the Netherlands Antilles, whether or not affixed to such
Mortgaged Property, and all machinery, apparatus, equipment, fittings,
fixtures, improvements and articles of personal
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property of every kind and nature whatsoever now or hereafter attached
or affixed to such Mortgaged Property or used in connection with the
use and enjoyment thereof or the maintenance or preservation thereof,
including, without limitation, all immoveable property (to the extent
not registered with the relevant property register), truck racks,
jetties, docks, hose stations and tanks (to the extent not
constituting real property), spheres, pipelines, monopiles or pumps
whether floating, fixed or permanent, offshore single point mooring
buoys and other buoys, atmospheric distillation, storage, blending and
loading equipment, utility systems, fire sprinkler and alarm systems
or other fire prevention or extinguishing apparatus materials, HVAC
equipment, boilers, all switchboards, electronic data processing,
telecommunications or computer equipment, office machinery, computers
and computer hardware and software (whether owned or licensed), all
indoor or outdoor furniture, tools, materials, refrigeration,
electronic monitoring, water or lighting systems, power, sanitation,
waste removal, elevators, maintenance or other systems or equipment,
and all other articles used or useful in connection with the use or
operation of any part of such Mortgaged Property, including, without
limitation the items of equipment specified in Exhibit I hereto,
together with all modifications, renewals, substitutions, attachments,
improvements, accessions, alterations, additions, replacements and
repairs thereto and other property now or hereafter affixed thereto or
used in connection therewith (collectively, the "Equipment");
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(ii) all inventory (including, without limitation, all raw materials,
work-in-process, finished and semifinished inventory or goods of any
kind, nature or description), held for sale, exchange or lease or
furnished or to be furnished under a contract of service or an
exchange arrangement or used or consumed in the business or in
connection with the manufacturing, package, shipping, advertising,
selling or finishing of such goods, and all right, title and
interest therein and thereto, and the proceeds (including, without
limitation, all proceeds of insurance with respect thereto,
including the proceeds of any applicable casualty insurance to the
extent relating thereto) and products of all of the foregoing, and
all ledgers, books of account, records, tapes, cards, computer
programs, computer disks or tapes, computer printouts, computer
runs, and other computer-prepared information to the extent relating
to any of the foregoing (collectively, "Inventory"); provided,
however, that the fiduciary transfer of Inventory contemplated by
this Section 3.1(ii) is subject to, conditioned, and shall become
immediately effective (without any act or delivery by any Person)
upon, the payment and satisfaction in full, or other termination, of
the Lender Debt (as defined in the appropriate Access Intercreditor
Agreement) (the "Lender Debt") and/or any other release by Lender
(as defined in the appropriate Access Intercreditor Agreement);
provided, further that in the event the Transferors shall at any
time, subsequent to the termination and satisfaction of the Lender
Debt, incur Indebtedness of the type permitted by, and in accordance
with the provisions of clause
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(i) of Section 4.04 of the Indenture (the "Permitted Revolving
Indebtedness"), the parties hereto intend that a valid fiduciary
transfer shall be granted to the holder of the Permitted Revolving
Indebtedness and that upon the incurrence of such Indebtedness and the
execution and delivery by the applicable Transferors and the holder of
such Permitted Revolving Indebtedness of the documentation evidencing
same, the fiduciary transfer of Inventory granted to Transferee
hereunder shall be deemed to have been automatically terminated in
order that the applicable Transferors may grant a valid fiduciary
transfer of Inventory to the holder of such Permitted Revolving
Indebtedness; provided, further that upon the payment and satisfaction
in full or other termination of the Permitted Revolving Indebtedness
and/or any other release by the holder of such Indebtedness, the
fiduciary transfer of Inventory granted hereunder to Transferee shall,
once again, become immediately effective (it being understood,
however, that the Transferors shall execute and deliver any and all
documents necessary to effect the foregoing provisions of this Section
3.1(ii));
(iii) any and all documents and records relating to all or any portion of
the Equipment and any item or type of other Pledged Collateral (other
than Inventory, Accounts and Intangibles (each as defined in the
appropriate Access Intercreditor Agreement)) in respect of which
Transferee has been granted a security right under the Security
Documents executed and delivered substantially in the form of Exhibits
G, I-1 and K-2 to the Indenture, including, but not
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limited to books, records, surveys, drawings, plans, specifications,
contracts, file materials, operating and maintenance records,
catalogues, lists, correspondence, operating manuals, warranties,
guarantees, appraisals, studies and data, permits, licenses,
franchises, certificates, consents, approvals, authorizations, ledger
cards and invoices, tapes, cards, computer programs, computer disks or
tapes, computer printouts, computer runs and other computer-prepared
information, evidences of the filing of security agreements, lien
instruments and other statements, if any, and the registration of
other instruments in connection with any of the foregoing and
amendments thereto, notices to other creditors or secured parties, and
certificates from filing or other registration officers, credit
information, reports and memoranda and maintenance contracts,
(collectively the "Documents"); and
(iv) all proceeds and products of any and all of the foregoing (other than
Inventory).
Notwithstanding the foregoing, the Pledged Collateral shall not include (x)
property or assets hereafter acquired by each Transferor in accordance with
clause (ix) of the definition of Permitted Liens in the Indenture;
provided, however, that at such time as such property or asset is no longer
subject to such Lien or security interest, such property shall (without any
act or delivery by any Person) constitute Pledged Collateral hereunder or
(y) vehicles, marine vessels and emergency and spill response equipment.
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3.2 Each Transferor herewith agrees with the Transferee that the Transferee
shall at all times have access to and the right to receive copies of all
Documents relating to all or any portion of the Pledged Collateral.
It is the intention of the parties hereto that this Agreement grant to the
Transferee a fiduciary transfer of all of each Transferor's rights, title
and interest in each and every item or type of Pledged Collateral currently
owned or held by each Transferor and acquired or obtained after the date
hereof thereby. The fiduciary transfer of rights, title, and interest in
the Pledged Collateral acquired or obtained hereafter shall be effected
upon the acquisition thereof in accordance with section 3.3 of this
Agreement.
3.3 Each Transferor shall, (I) immediately after obtaining or acquiring any
item or type of property which would constitute Pledged Collateral having a
fair market value in excess of US$50,000, and (ii) no later than the fifth
Business Day following the end of each calendar month deliver to Transferee
an amendment to this Agreement, duly executed by each Transferor, in
substantially the form of Schedule 1 attached hereto (each an "Amendment")
(x) identifying each item or type of Pledged Collateral acquired or
obtained after the date hereof or after the date of the immediately
preceding Amendment, as the case may be, and (y) confirming the fiduciary
transfer of title granted hereunder in respect of such after-acquired
Pledged Collateral. Each Transferor hereby authorizes Transferee to attach
each Amendment to this Agreement and agrees that all Pledged Collateral
listed on any Amendment delivered to Transferee shall for all purposes
hereunder be considered
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Pledged Collateral from and after the date of such Amendment.
3.4 Notwithstanding any provision to the contrary set forth in this Agreement,
it is the intention of the parties that, with respect to Inventory, the
Transferee's interest therein shall be subject and subordinate to the
rights of no Person other than the Lender.
3.5 Anything to the contrary contained herein notwithstanding, by accepting the
fiduciary transfer arising from this Agreement, Transferee shall not be
deemed to be obligated to perform any of the covenants, conditions or
provisions contained in, or otherwise deal with, the Pledged Collateral or
to make any payment thereunder or with respect thereto and Transferee shall
have no liability under any Pledged Collateral, and each Transferor shall
remain solely liable to perform all the obligations and make all payments
under the Pledged Collateral.
3.6 Further Assurances
Each Transferor agrees that at any time and from time to time (including,
without limitation, in connection with any amendment, restatement,
supplement or modification of the Indenture) at the sole cost and expense
of each Transferor, each Transferor shall promptly execute and deliver all
further instruments and documents, including, without limitation,
supplemental or additional fiduciary transfer agreements, and take all
further actions that may be necessary or required by any and all existing
or future law, or that Transferee may from time to time reasonably request,
to carry into effect the purposes of this Agreement and in order to protect
the validity and priority of the fiduciary
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transfer granted or purported to be granted hereby or to enable each
Transferor to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral.
Section 4 Power of Attorney; Exercise of Rights
4.1 The Transferee shall have an undivided interest in the Pledged Collateral
(other than Inventory until such time as the Lender Debt shall be paid and
satisfied in full) and, if an Event of Default shall have occurred and be
continuing, each Transferor hereby designates the Transferee, subject to
the provisions of the applicable Intercreditor Agreements, to represent
each Transferor's interest, if any, in the Pledged Collateral in all
respects and each Transferor herewith authorizes and grants full power of
attorney to the Transferee, subject to the provisions of the applicable
Intercreditor Agreements, to perform on its behalf any and all acts
necessary to protect its interest and to realize its rights as a
Transferee, it being understood that this appointment is coupled with an
interest and is irrevocable.
4.2 In case of an Event of Default, the Transferee shall be entitled, and each
Transferor hereby irrevocably authorizes the Transferee, subject to the
provisions of the applicable Intercreditor Agreements, to exercise all
rights which each Transferor would have had if the Pledged Collateral would
not have been subject to this fiduciary transfer.
Section 5 Termination
Upon satisfaction in full of the Secured Obligations, the Transferee shall,
upon each Transferor's written request,
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promptly execute and deliver to each Transferor, at each Transferor's
expense, termination statements for all security agreements and lien
instruments filed by the Transferee against each Transferor and such
transfers and retransfers as each Transferor shall reasonably require in
order to terminate or rescind any transfer of title as meant in section 3.1
and 3.3 of this Agreement, in each case without recourse or warranty by the
Transferee. In addition to the foregoing, the security interest and
fiduciary transfer of title granted to Transferee in the Inventory
hereunder shall, to the extent, in accordance with, and in the manner
contemplated by Section 5 of the applicable Access Intercreditor Agreement,
automatically terminate.
Section 6 Representations, Warranties and Covenants
Each Transferor represents, warrants and covenants to the Transferee as
follows:
(a) Enforceability; No Filings
This Agreement has been duly executed and delivered by each Transferor
and constitutes the valid and legally binding obligation of each
Transferor enforceable against it in accordance with its terms. This
Agreement creates a valid first priority fiduciary transfer of the
Pledged Collateral. No filings, registrations or recordings are
necessary or appropriate to create, preserve and protect the fiduciary
transfer of the Pledged Collateral by each Transferor to Transferee
pursuant to this Agreement.
(b) Authority; No Conflict
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Each Transferor has the requisite corporate power, authority and legal
right to enter into this Agreement and grant the fiduciary transfer
contemplated herein and there is no law, regulation or provision
having the force of law on each Transferor, judicial order, security
right, contract, agreement or other instrument binding on each
Transferor or affecting each Transferor's properties, or any
impediment or disability which would conflict with or in any way
prevent the execution, delivery or performance by each Transferor or
the enforcement against each Transferor of this Agreement.
(c) No Consents
All authorizations, approvals, consents, permissions of or other
action by, or notice or filings with, any governmental authorities
(including exchange controls) or any other Persons, creditors,
supervisory directors and shareholders of each Transferor which are
required to be obtained, taken or made in connection with (I) the
fiduciary transfer by each Transferor of the Pledged Collateral
pursuant to this Agreement, (ii) the execution and delivery by each
Transferor of this Agreement and the performance by each Transferor of
its Secured Obligations hereunder or (iii) the exercise by Transferee
of the remedies in respect of the Pledged Collateral pursuant to this
Agreement, in each case have been duly obtained, taken or made, and
are in full force and effect.
(d) No Security Rights
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Each Transferor is as of the date hereof, and, as to the Pledged
Collateral acquired by it from time to time after the date hereof,
each Transferor will be, the owner of the Pledged Collateral having
full and unencumbered title thereto free from any and all Liens,
except Liens permitted by section 6(e) of this Agreement. This
Agreement creates a valid fiduciary transfer of the Pledged Collateral
superior and prior to the rights of all other Persons therein and
subject to (I) in the case of Pledged Collateral (other than
Inventory), no Liens other than the Liens described in Schedule 2
hereto as "Prior Liens" and (ii) in the case of Inventory, no Liens
other than the Lien granted to the Lender to secure the Lender Debt.
(e) Transfers and Other Security Rights
Except as specifically permitted under the provisions of the
Indenture, each Transferor shall not sell, pledge, convey, assign,
lease or transfer any of the Pledged Collateral to any Person and
shall not allow any Person to have an interest in any Pledged
Collateral. Each Transferor will not create or assume or permit to
exist any Lien on or against any of the Pledged Collateral except for
(I) Prior Liens, (ii) Liens granted to Transferee pursuant to this
Agreement, (iii) Liens granted to Lender with respect to Inventory,
and (iv) Liens of the type described in clauses (I) and (ii) of the
definition of Permitted Liens in the Indenture; provided, that each of
the Liens permitted by this clause (iv) of this Section 6(e) shall in
all respects be subject and subordinate in priority to the fiduciary
transfer
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granted pursuant to this Agreement except to the extent that the law
or regulation creating or authorizing such Lien provides that such
Lien must be superior to the Lien of this Agreement. Each Transferor
will defend the Pledged Collateral against all claims and demands of
all Persons at any time claiming any interest therein adverse to
Transferee or any Secured Party.
(f) Principal Place of Business; Change of Name
Each Transferor's principal place of business is located at
_______________________________________________________. All of the
Documents are located at the address set forth in the immediately
preceding sentence. Each Transferor shall neither establish a new
location for its principal place of business nor shall it change its
name nor shall it move the Documents until (I) it shall have given the
Transferee not less than forty-five (45) days prior written notice of
its intention to do so, clearly describing such new location and
providing such other information in connection therewith as the
Transferee or any Secured Party may request, and (ii) with respect to
such new location or name, each Transferor shall have taken all
actions necessary or required by any and all existing or future laws
or as the Transferee may from time to time reasonably request to
maintain the perfection and priority of the secured interest of the
Transferee in the Pledged Collateral intended to be granted hereby,
including, without limitation, obtaining waivers of landlord's or
warehouseman's liens with respect to such new location.
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(g) Location of Pledged Collateral
All Pledged Collateral (other than the Documents) held on the date
hereof by each Transferor is located at the locations shown in
Schedule 3 hereto. All Pledged Collateral now held or subsequently
acquired shall be kept at one or more locations shown in Schedule 3
hereto, or such new location as each Transferor may establish if (I)
it shall have given to the Transferee at least forty-five (45) days
prior written notice of its intention to do so, clearly describing
such new location and providing such other information in connection
therewith as the Transferee may request, and (ii) with respect to such
new location, each Transferor shall have taken all actions necessary
or required by any and all existing or future laws or as the
Transferee may from time to time reasonably request to maintain the
priority of the security interest of the Transferee in the Pledged
Collateral granted hereby, including, without limitation, obtaining
waivers of landlord's or warehouseman's liens with respect to such new
location.
(h) Pledged Collateral
All information set forth herein, including, without limitation, the
Schedules and Exhibits annexed hereto, and all information contained
in any documents, schedules and lists heretofore delivered to the
Transferee in connection with this Agreement, in each case, relating
to the Pledged Collateral is accurate and complete in all respects.
Section 7 Remedies Upon Event of Default
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7.1 Obtaining Possession of the Pledged Collateral
If an Event of Default shall have occurred and be continuing, then and in
every such case, Transferee may, but shall not be obligated to, in addition
to any other action permitted by law (and not limited in any manner to the
remedies contained in the Notes, the Indenture or any other Secured
Instrument) take one or more of the following actions, in accordance with
the terms of and at the times specified in the Indenture and/or the
applicable Intercreditor Agreements:
(I) personally, or by agents or attorney, immediately take possession of
the Pledged Collateral or any part thereof, from each Transferor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon
each Transferor's premises where any of the Pledged Collateral is
located and remove such Pledged Collateral and use in connection with
such removal any and all services, supplies, aids and other facilities
of each Transferor;
(ii) sell, assign or otherwise liquidate, or direct each Transferor to
sell, assign or otherwise liquidate, any or all investments made in
whole or in part with the Pledged Collateral or any part thereof, and
take possession of the proceeds of any such sale, assignment or
liquidation; and
(iii) take possession of the Pledged Collateral or any part thereof, by
directing each Transferor in writing to deliver the same to Transferee
at any place or place designated by Transferee, in which event each
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Transferor shall at its own expense (x) forthwith cause the same to be
moved to the place or places so designated by Transferee and there
delivered to Transferee; (y) store and keep any Pledged Collateral so
delivered to Transferee at such place or places pending further action
by Transferee and (z) while the Pledged Collateral shall be so stored
and kept, provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain them in
good condition. Each Transferor's obligation to deliver the Pledged
Collateral is of the essence of this Agreement. To the extent
permitted under applicable law, upon application to a competent court,
Transferee shall be entitled to a decree requiring specific
performance by each Transferor of such obligation.
7.2 Disposition of the Pledged Collateral
Upon the occurrence of an Event of Default, Transferee may (in accordance
with the terms of and at the times specified in the Indenture and/or the
applicable Intercreditor Agreements) to the extent permitted under
applicable law, in respect of the Pledged Collateral, in addition to the
other rights and remedies provided for herein or otherwise available to it,
without notice except as specified below, sell the Pledged Collateral or
any part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of Transferee's offices or elsewhere,
for cash, on credit or for future delivery, and at such price or prices and
upon such other terms as Transferee may deem commercially reasonable.
Transferee may bid for and be the purchaser of any or all of the Pledged
Collateral at any such sale and shall be entitled, for the
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purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Pledged Collateral sold at such sale, to
deliver any outstanding Note or any other note evidencing the Additional
Secured Indebtedness (each, an "Additional Note") or claims for interest
thereon in lieu of cash, which Note, Additional Note or claims for interest
thereon shall be applied to the payment of such purchase price. In the
event that the amount payable in respect of the purchase price of the
Pledged Collateral purchased at any such sale shall be less than the amount
due on such Note or such Additional Note, such Note or such Additional Note
shall be returned to the Transferee after being appropriately stamped to
show partial payment. Each purchaser at any such sale shall acquire the
property sold absolutely free from any claim or right on the part of each
Transferor, and each Transferor hereby waives, to the fullest extent
permitted by law, all rights of redemption, stay or appraisal hereafter
enacted. Transferee shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. Transferee may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. Each Transferor
hereby waives, to the fullest extent permitted by law, any claims against
Transferee arising by reason of the fact that the price at which any
Pledged Collateral may have been sold at such a private sale was less than
the price which might have been obtained at a public sale, even if
Transferee accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree. Each Transferor agrees that, to the
extent notice of sale shall be required by law, five (5) days' notice from
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Transferee of the time and place of any public sale or of the time after
which a private sale or other intended disposition is to take place shall
be commercially reasonable notification of such matters. No notification
need be given to each Transferor if it has signed, after the occurrence of
an Event of Default, a statement renouncing or modifying any right to
notification of sale or other intended disposition.
7.3 Waiver of Claims
Except as otherwise provided herein, each Transferor hereby waives, to the
fullest extent permitted by applicable law, notice or judicial hearing in
connection with Transferee's taking possession or Transferee's disposition
of any of the Pledged Collateral, including, without limitation, any and
all prior notice and hearing for any prejudgment remedy or remedies and any
such right which each Transferor would otherwise have under law, and each
Transferor hereby further waives, to the fullest extent permitted by
applicable law: (I) all damages occasioned by such taking of possession;
(ii) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of Transferee's rights
hereunder and (iii) all rights of redemption, appraisal, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law.
Any sale of, or the grant of options to purchase, or any other realization
upon, any Pledged Collateral shall operate to divest all right, title,
interest, claim and demand, either at law or in equity or in accordance
with the principles of reasonableness and fairness, of each Transferor
therein and thereto, and shall be a perpetual bar both at law and in equity
as well as according to the principles of reasonableness and fairness
against each
23
Transferor and against any and all Persons claiming or attempting to claim
the Pledged Collateral so sold, optioned or realized upon, or any part
thereof, from, through or under each Transferor.
7.4 Certain Sales of Pledged Collateral
Each Transferor recognizes that, by reason of certain prohibitions
contained in law, rules, regulations or orders of any foreign governmental
authority, Transferee may be compelled, with respect to any sale of all or
any part of the Pledged Collateral, to limit purchasers to those who meet
the requirements of such foreign governmental authority. Each Transferor
acknowledges that any such sales may be at prices and on terms less
favorable to Transferee than those obtainable through a public sale without
such restrictions, and, notwithstanding such circumstances, agrees that any
such restricted sale shall be deemed to have been made in a commercially
reasonable manner.
Section 8 Application of Proceeds
The proceeds received by Transferee in respect of any sale of, collection from
or other realization upon all or any part of the Pledged Collateral pursuant to
the exercise by Transferee of its remedies as a secured creditor as provided in
Section 7 hereof shall be applied, together with any other sums then held by
Transferee pursuant to this Agreement, promptly by Transferee in the manner set
forth in the Indenture and/or the applicable Intercreditor Agreements.
Section 9 Provisions Concerning All Pledged Collateral
24
(a) Insurance. Each Transferor shall at all times keep the Pledged Collateral
insured in favor of Transferee, at each Transferor's own expense, against
fire, theft and all other risks to which the Pledged Collateral may be
subject, in such amounts and with such deductibles as from time to time
would be maintained by a prudent operator of businesses similar to the
business of each Transferor. Each policy or certificate with respect to
such insurance shall be endorsed, to the extent appropriate, in the manner
contemplated by Section 1.7.2 of the Mortgage encumbering the Real Property
located in the Netherlands Antilles and shall name Transferee as an
additional named insured or loss payee as its interest may appear, as
appropriate, and such policy or certificate shall be delivered to
Transferee. Each such policy shall state that it cannot be canceled without
thirty (30) days prior written notice to Transferee. At least thirty (30)
days prior to the expiration of any such policy of insurance, each
Transferor shall deliver to Transferee an extension or renewal policy or an
insurance certificate evidencing renewal or extension of such policy. If
any Transferor shall fail to insure such Pledged Collateral in the manner
contemplated by this Section or if any Transferor shall fail to so endorse
and deposit, or to extend or renew, all such insurance policies or
certificates with respect thereto, Transferee shall have the right (but
shall be under no obligation), to advance funds to procure or renew or
extend such insurance and each Transferor agrees to reimburse Transferee,
immediately upon demand therefor, for any and all
25
costs and expenses thereof, with interest on all such funds from the date
advanced to the date of repayment thereof, at the rate per annum (the
"Default Rate") equal to two percent in excess of the rate then payable
under the Notes. Subject to the provisions of the applicable Intercreditor
Agreements, in case of any loss or damage to any of the Pledged Collateral,
all proceeds of insurance maintained by each Transferor shall be paid to
Transferee as Trust Moneys pursuant to Article Twelve of the Indenture and
shall be subject to retention and disbursement by Transferee in accordance
with the terms of the Indenture.
(b) Further Actions. Each Transferor shall, at its sole cost and expense, make,
execute, endorse, acknowledge, file and/or deliver to Transferee from time
to time such lists, descriptions and designations of the Pledged
Collateral, copies of warehouse receipts, receipts in the nature of
warehouse receipts, bills of lading, documents of title, vouchers, invoices
and schedules relating to the Pledged Collateral.
(c) Notation on Books and Records. Each Transferor shall place on its books and
records with respect to the Pledged Collateral a notation stating that
Transferee has a security interest therein.
26
Section 10 Reasonable Care
Transferee shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equivalent to that which
Transferee, in its individual capacity, accords its own property, it being
understood that Transferee shall not have responsibility for taking any
necessary steps to preserve rights against any Person with respect to any
Pledged Collateral.
Section 11 Expenses
Each Transferor will immediately upon demand pay to Transferee the amount of any
and all expenses, including the reasonable fees and expenses of its counsel
(including, without limitation, any local or foreign counsel) and the allocated
costs of Transferee's internal counsel and the fees and expenses of any experts
and agents which Transferee may incur in connection with (I) the collection of
the Secured Obligations, (ii) the enforcement and administration of this
Agreement, (iii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Pledged Collateral, (iv) the
exercise or enforcement of any of the rights of Transferee or (v) the failure by
each Transferor to perform or observe any of the provisions hereof. All amounts
payable by each Transferor under this Section 11 shall be due immediately upon
demand, shall bear interest from the date advanced to the date of the repayment
thereof at the Default Rate, and shall be part of the Secured Obligations. Each
Transferor's obligations under this Section 11 shall survive the termination of
this Agreement and the discharge of each Transferor's other obligations
hereunder.
27
Section 12 No Waiver; Cumulative Remedies
12.1 No failure on the part of Transferee to exercise, no course of dealing with
respect to, and no delay on the part of Transferee in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law.
12.2 In the event Transferee shall have instituted any proceeding to enforce any
right, power or remedy under this Agreement by foreclosure, sale, entry or
otherwise, and such proceeding shall have been discontinued or abandoned
for any reason or shall have been determined adversely to Transferee, then
and in every such case, each Transferor and Transferee shall be restored to
their respective former positions and rights hereunder with respect to the
Pledged Collateral, and all rights, remedies and powers of Transferee shall
continue as if no such proceeding had been instituted.
Section 13 Trustee
Transferee has been appointed as trustee pursuant to the Indenture and the
Additional Lender Intercreditor Agreement, if any. The actions of Transferee
hereunder are subject to the provisions of the Indenture and/or the applicable
Intercreditor Agreements. Transferee shall have the right hereunder to make
demands, to give notices, to exercise or refrain from exercising any rights, and
to take or refrain from taking action (including,
28
without limitation, the release or substitution of Pledged Collateral), in
accordance with this Agreement, the Indenture and/or the applicable Lender
Intercreditor Agreements. Transferee may resign from its position as Transferee
and a successor Transferee may be appointed in the manner provided in the
Indenture and/or the Additional Lender Intercreditor Agreements, if any. Upon
the acceptance of any appointment as Transferee by a successor Transferee, that
successor Transferee shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Transferee under this
Agreement, and the retiring Transferee shall thereupon be discharged from its
duties and obligations under this Agreement. After any retiring Transferee's
resignation, the provisions of this Agreement shall inure to its benefit as to
any actions taken or omitted to be taken by it under this Agreement while it was
Transferee.
Section 14 Transferee May Perform
If any Transferor shall fail to do any act or thing that it has covenanted to do
hereunder or if any warranty on the part of each Transferor contained herein
shall be breached, Transferee may (but shall not be obligated to) do the same or
cause it to be done or remedy any such breach, and may expend funds for such
purpose. Any and all amounts so expended by Transferee shall be paid by each
Transferor immediately after demand therefor, with interest at the Default Rate
during the period from and including the date on which such funds were so
expended to the date of repayment. Each Transferor's obligations under this
Section 14 shall survive the termination of this Agreement and the discharge of
each Transferor's other obligations under this Agreement.
29
Section 15 Notices
Unless otherwise provided herein any notice or other communication herein
required or permitted to be given shall be given in the manner and at the
address set forth in the Indenture, or as to any party at such other address as
shall be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 15. All such notices and
other communications shall be deemed to have been given when delivered in
person, or received by telecopy or telex; or one (1) Business Day after delivery
to the office of such overnight courier service; or five (5) Business Days after
deposit in the United States mail, registered or certified, with postage prepaid
and properly addressed; provided, however, that notice to Transferee shall not
be effective until received by Transferee.
Section 16 Continuing Security Interest
This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (I) be binding upon each Transferor, its successors and
assigns, and (ii) inure, together with the rights and remedies of Transferee
hereunder, to the benefit of Transferee and its successors, transferees and
assigns; no other Persons (including, without limitation, any other creditor of
each Transferor) shall have any interest herein or any right or benefit with
respect hereto.
Section 17 Headings
The Section headings used in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
30
Section 18 Severability of Provisions
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 19 Limitation on Interest Payable
It is the intention of the parties to conform strictly to the usury laws,
whether state or federal, that are applicable to the transaction of which this
Agreement is a part. All agreements between each Transferor and Transferee,
whether now existing or hereafter arising and whether oral or written, are
hereby expressly limited so that in no contingency or event whatsoever shall the
amount paid or agreed to be paid by each Transferor for the use, forbearance or
detention of the money to be loaned or advanced under the Indenture or any
related document, or for the payment or performance of any covenant or
obligation contained herein or in the Indenture, exceed the maximum amount
permissible under applicable usury laws. If under any circumstances whatsoever
fulfillment of any such provision, at the time performance of such provision
shall be due, shall involve exceeding the limit of validity prescribed by law,
then the obligation to be fulfilled shall be reduced to the limit of such
validity. If under any circumstances each Transferor shall have paid an amount
deemed interest by applicable law, which would exceed the highest lawful rate,
such amount that would be excessive interest under applicable usury laws shall
be applied to the reduction of the principal amount owing in respect of the
Secured Obligations and not to the payment of interest, or if
31
such excessive interest exceeds the unpaid balance of principal and any other
amounts due hereunder, the excess shall be refunded to each Transferor. All sums
paid or agreed to be paid for the use, forbearance or detention of the principal
under any extension of credit or advancement of funds by Marine Midland Bank, as
trustee, shall, to the extent permitted by applicable law, and to the extent
necessary to preclude exceeding the limit of validity prescribed by law, be
amortized, prorated, allocated and spread from the date of this Agreement until
payment in full of the Secured Obligations so that the actual rate of interest
on account of such principal amounts is uniform throughout the term hereof.
Section 20 Indemnification
Each and every obligation of the Issuers to indemnify and hold harmless the
Trustee in the Indenture contained in Section 7.07 thereof is incorporated
herein mutatis mutandis as an obligation of each Transferor hereunder to
indemnify Transferee, and Marine Midland Bank, in its individual capacity, and
the officers, directors, employees, agents and affiliates thereof.
Section 21 Governing Law; Consent to Jurisdiction
This Agreement shall be governed by the laws of the Netherlands Antilles. The
competent courts of the Netherlands Antilles in Curacao shall have non-exclusive
jurisdiction.
Section 22 Execution in Counterparts
This Agreement and any amendments, waivers, consents or supplements hereto may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of
32
which when so executed and delivered shall be deemed to be an original, but all
such counterparts together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on __________, 1996.
STATIA TERMINALS N.V., as Transferor
By:/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
SABA TRUSTCOMPANY N.V., as Transferor
By:/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
BICEN DEVELOPMENT CORPORATION N.V., as Transferor
By:/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
STATIA LABORATORY SERVICES N.V., as Transferor
By:/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
STATIA TUGS N.V., as Transferor
By:/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
SEVEN SEAS STEAMSHIP COMPANY (ST. EUSTATIUS) N.V., as Transferor
By:/s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
MARINE MIDLAND BANK, as Transferee
By:/s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assstant Vice President
35
Schedule 1
to the
Fiduciary Transfer
of
Tangible Assets Agreement
This Amendment dated [date], is delivered pursuant to section 3 of the Agreement
referred to below. The undersigned hereby agrees that this Amendment may be
attached to the Fiduciary Transfer of Tangible Assets Agreement dated November
27, 1996 by and between [Transferor], a company incorporated under the laws of
the Netherlands Antilles, as Transferor, and Marine Midland Bank, as Transferee
(the "Agreement"; capitalized terms defined therein being used herein as therein
defined) and that the items or types of property listed on this Amendment shall
be deemed to be part of the Pledged Collateral and shall secure the Secured
Obligations as provided in the Agreement.
[Transferor]
BY:
TITLE:
Description of Location of
Pledged Collateral Pledged Collateral
36
Schedule 2
to the
Fiduciary Transfer of
Tangible Assets Agreement
Prior Liens
None.
37
Schedule 3
to the
Fiduciary Transfer of
Tangible Assets Agreement
Location of Pledged Collateral
Tumbledown Dick Bay
St. Eustatius, Netherland Antilles
38
Exhibit I
to the
Fiduciary Transfer
of
Tangible Assets Agreement
Description of Pledged Collateral
See attached list
