FIDUCIARY ASSIGNMENT OF INTANGIBLE ASSETS AGREEMENT
FIDUCIARY ASSIGNMENT OF INTANGIBLE ASSETS AGREEMENT (the "Agreement"),
dated as of November 27, 1996 by and between Statia Terminals International
N.V., a company incorporated under the laws of the Netherlands Antilles, having
its corporate seat at __________________________ ("STI"), Statia Terminals
Corporation NV., a company incorporated under the laws of the Netherlands
Antilles, having its corporate seat at __________________________ ("STC"),
Statia Terminals N.V., a company incorporated under the laws of the Netherlands
Antilles, having its corporate seat at __________________________ ("Terminals"),
Saba Trustcompany 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"), 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 Tugs N.V., a company incorporated under the laws of the
Netherlands Antilles, having its corporate seat at __________________________
("Tugs") (STI, STC, Terminals, Saba, Bicen, Labs, Seven Seas and Tugs each
individually an "Assignor" and collectively the "Assignors") and Marine Midland
Bank, a New York banking corporation and trust company, having its registered
office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, as trustee (in such
capacity and together with any successors and assigns in such capacity, the
"Assignee") pursuant to the Indenture (as
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hereinafter defined) and the Additional Lender Intercreditor Agreement (as
defined in the Indenture), if any.
WITNESSETH:
WHEREAS, STI, Statia Terminals Canada Incorporated (together with STI
hereafter collectively referred to as the "Issuers"), the other Assignors 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 1l-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 Assignor (other than STI) is jointly and
severally guaranteeing the payment and performance of all of the obligations of
the Issuers arising under or in connection with the Notes and the Indenture
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and each Assignor's obligations under such Guarantee are intended to be secured
hereunder;
WHEREAS, each Assignor is entering into this Agreement with Assignee 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 Assignor 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 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 Assignor 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 Assignor, 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 Assignor
pursuant to any Secured Instrument and costs, for the purpose hereof including,
but not limited to, costs of
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collection of any amount due to the Secured Parties (collectively, the "Secured
Obligations");
WHEREAS, the Indenture is governed by the laws of the State of New York;
WHEREAS, each Assignor has informed the Assignee that the execution and
delivery of this Agreement and the performance of the 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 Assignor
agrees with the Assignee as follows:
Section 1. Definitions
Capitalized terms used herein and not defined shall have the meanings assigned
to them in the Indenture. The following terms shall have the following meaning:
"Copyrights" shall mean, collectively, copyrights, whether statutory or
common law, and all applications, registrations and recordings relating to such
copyrights in the Netherlands Antilles, or in any political subdivision thereof
or in any other country, including, without limitation, the copyrights and
applications, registrations and recordings described in Schedule 3 hereto,
together with any and all (i) rights and privileges arising under applicable law
with respect to each Assignor's use of any copyrights, (ii) reissues,
extensions, continuations and renewals thereof, (iii) income, fees, royalties,
damages and payments now and hereafter due and/or payable with respect thereto,
including, without limitation, damages and payments for past or future
infringements
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thereof, (iv) rights corresponding thereto throughout the world and (v) rights
to ▇▇▇ for past, present and future infringements thereof.
"Goodwill" shall mean all goodwill connected with the use of, and
symbolized by, any of the Intellectual Property.
"Intellectual Property" shall mean, collectively, all Copyrights, Patents,
Trademarks and Licenses.
"Inventory" shall have the meaning ascribed to such term in the appropriate
Access Intercreditor Agreement.
"License" shall mean; collectively, all license and distribution agreements
with any other party with respect to a Patent, Trademark or Copyright, whether
each Assignor is a licensor or licensee, distributor or distributee under any
such license or distribution agreement, including, without limitation, the
license and distribution agreements listed in Schedule 3 hereto, along with any
and all (i) renewals, extensions, supplements and continuations thereof, (ii)
income, royalties, damages and payments now and hereafter due and/or payable to
each Assignor with respect thereto, including, without limitation, damages and
payments for past or future infringements or violations thereof and (iii) rights
to ▇▇▇ for past, present and future infringements or violations thereof.
"Patents" shall mean, collectively, all patents and all applications,
registrations and recordings relating thereto as may at any time be filed in the
Netherlands Antilles, or in any political subdivision thereof or in any other
country, including, without limitation, those patents, applications,
registrations and recordings described in Schedule 3 hereto, together with any
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and all (i) rights and privileges arising under applicable law with respect to
each Assignor's use of any patents, (ii) inventions and improvements described
and claimed therein, (iii) reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, (iv) income, fees, royalties,
damages and payments now and hereafter due and/or payable under and with respect
thereto, including, without limitation, damages and payments for past or future
infringements thereof, (v) rights corresponding thereto throughout the world,
and (vi) rights to ▇▇▇ for past, present and future infringements thereof.
"Trademarks" shall mean, collectively, all trademarks (including service
marks), trademark registrations, trade styles and trade names and applications
therefor as may at any time be filed in the Netherlands Antilles, or in any
political subdivision thereof or in any other country, including, without
limitation, the trademark registrations and applications therefor listed in
Schedule 3 hereto, together with any and all (i) rights and privileges arising
under applicable law with respect to each Assignor's use of any trademarks, (ii)
reissues, continuations, extensions and renewals thereof, (iii) income, fees,
royalties, damages and payments now and hereafter due and/or payable under and
with respect thereto, including, without limitation, damages and payments for
past or future infringements thereof, (iv) all rights corresponding thereto
throughout the world and (v) rights to ▇▇▇ for past, present and future
infringements thereof.
Section 2. Obligations Owed to Assignee as Trustee
2.1 In order to ensure that a valid fiduciary assignment is created pursuant to
this Agreement, each Assignor hereby agrees and covenants with Assignee
that it shall (i) pay to Assignee (as and when due by each Assignor in
accordance
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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 Instruments,
in order to permit Assignee 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 Assignor
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 to,
but alternative to, the obligations of each Assignor to the holders of the
Notes and to the holders of Additional Secured Indebtedness under their
respective Secured Instruments.
2.2 Each Assignor and the Assignee agree and acknowledge that the Debtholder
Obligations are obligations and liabilities of each Assignor to the
Assignee, as trustee and paying agent, separate and independent from and
without prejudice to the liabilities which each Assignor 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 Assignor
shall have paid any amounts to the Assignee, 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.
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2.3 In connection with the performance of the provisions of this Agreement, the
Assignee (in its capacity as Trustee) shall have the duties and shall be
entitled to the benefits, set 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 Assignee 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. Assignment
3.1 As security for the payment and performance of the Secured. Obligations,
each Assignor hereby assigns and, in the case of Pledged Collateral
hereafter arising or acquired, agrees to assign by way of fiduciary
assignment (fiduciaire cessie) to the Assignee for the benefit of the
Secured Parties, who accepts such assignment from each Assignor (and, to
the extent the laws of the State of New York are applicable to the
creation, validity or perfection of the security interest in the items or
types of Pledged Collateral described in clause (v) of this Section 3.1,
Assignor hereby assigns, transfers and grants to Assignee (for its benefit
and the benefit of the Secured Parties) a continuing security interest in
and pledge of) all of the right, title and interest of each Assignor in, to
and under the following property, whether now existing or hereafter arising
or acquired ("schuidvorderingen op naam en andere
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onlichamelijke zaken") (collectively, the "Pledged Collateral"):
(i) all general intangibles and contract rights of every kind and nature
relating to any item or type of Collateral (other than Inventory and
Accounts (as hereinafter defined) in respect of which Assignee has
been granted a security right under the Security Documents executed
and delivered substantially in the form of Exhibits G, I-1 and K-1
to the Indenture (such Collateral, the "Other Collateral") whether
or not contained in a tangible asset (including, without limitation,
any and all documents relating to any item or type of Other
Collateral including, without limitation, any and all lists, books,
records, ledgers, printouts, computer programs, computer disks or
tape files, computer runs and other computer prepared information,
files (whether in printed form or stored electronically), tapes and
other papers or materials containing information relating to any
item or type of Other Collateral), all of the above including,
without limitation, any and all rights in, to and under all
throughput, storage, blending and/or supply contracts, any and all
goodwill, descriptions, name plates, claims, causes of action,
catalogs, confidential information, consulting agreements,
engineering contracts, and such other assets which relate to the
goodwill of the business of each Assignor and rights to refund or
indemnification to the extent the foregoing relate to any item or
type of Other Collateral, deposits and deposit accounts, letters of
credit, documents, instruments, chattel paper, bankers' acceptances
and guarantees, and
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income tax refunds to the extent relating to any item or type of
Other Collateral, claims for tax or other refunds against any
(federal) government or province, or any agency or authority or
other subdivision thereof relating to any item or type of Other
Collateral, corporate or other business records relating to any item
or type of Other Collateral and all reserves, deferred payments and
claims of every kind or character relating thereto, any and all
permits, licenses, franchises, certificates, consents, approvals and
authorizations (however characterized) issued or in any way
furnished, whether necessary or not for the operation and use of the
Mortgaged Property (as defined in the Mortgage encumbering the Real
Property located in the Netherlands Antilles) including, without
limitation, building permits, articles of occupancy, environmental
certificates, industrial permits or licenses and certificates of
operation (collectively, the "Contract Rights");
(ii) any and all of each Assignor's now existing or hereafter arising
rights, title and interest in, to and under that certain amended and
restated stock purchase and sale agreement (the "Stock Purchase
Agreement") dated as of November 4, 1996, between Statia Terminals
Group N.V., STC, Statia Terminals Delaware, Inc., Statia Delaware
Holdco II, Inc. Statia Terminals Canada Incorporated, Praxair, CBI
Investments, Inc. and Statia Terminals, Inc. and all documents,
agreements and other instruments executed and/or delivered in
connection therewith or relating thereto (such documents, agreements
and other
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instruments, together with the Stock Purchase Agreement, the
"Acquisition Documents") including, without limitation (i) all
rights and remedies relating to monetary damages, including
indemnification rights and remedies and claims for damages or other
relief pursuant to or in respect of the Acquisition Documents and
(ii) all rights and remedies relating to monetary damages, including
indemnification rights and remedies and claims for monetary damages
in respect of the agreements, documents and instruments referred to
in the Acquisition Documents or related thereto;
(iii) any and all Intellectual Property and Goodwill;
(iv) all accounts (including, without limitation, all rights of each
Assignor to payment for inventory sold or leased or for services
rendered, which are not evidenced by instruments or chattel paper
and whether or not earned by performance) chattel paper, documents,
instruments and other forms of payment, in each case, relating to or
evidencing the payment of money arising out of the sale, lease or
other disposition of inventory or rendition of services in the
ordinary course of business; all monies and securities to the extent
relating to the foregoing and the proceeds thereof, now or hereafter
held or received or held by, or in transit to, Congress Financial
Corporation ("Lender") or Assignee or any of their respective
affiliates or participants, whether for safekeeping, pledge,
custody, transmission, collection or otherwise; deposits (general or
special) and balances to the extent relating to the
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foregoing; all right, title and interest in, to and in respect of
all goods relating to, or which by sale have resulted in any of the
foregoing, including, without limitation, all goods described in
invoices, documents, contracts or instruments with respect to, or
otherwise representing or evidencing, any of same, including,
without limitation, all returned, reclaimed or repossessed goods,
all right, title and interest, and all enforcement and other rights,
remedies and security and liens, in, to and in respect of any of the
foregoing, including, without limitation, rights of stoppage in
transit, replevin, repossession, sequestration and reclamation and
other rights and remedies of an unpaid vendor, lienor or secured
party, guarantees, or other contracts of suretyship with respect
thereto, or deposits or other security for the obligation of any
account debtor, credit and other insurance to the extent relating to
the foregoing; to proceeds of all the foregoing; and all ledgers,
books of accounts, records, tapes, cards, computer programs,
computer disks or tapes, computer printouts, computer runs and other
computer-prepared information to the extent relating to the
foregoing (collectively, "Accounts"), and all contracts, contract
rights, licenses and general intangibles to the extent relating to
the Accounts and the Inventory, including, without limitation,
contract rights which evidence or support Accounts, causes of
actions or claims arising out of Accounts or with respect to
inventory, agreements or arrangements with sales agents,
distributors or the like and/or consignees, warehouses or other
third persons in possession of Inventory, deposit accounts,
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letters of credit, documents which evidence rights to Inventory,
instruments (relating to Accounts and Inventory), guaranty or
warranty claims with respect to Accounts or Inventory, and the
proceeds of all of the foregoing (collectively, "Lender
Intangibles"); provided, however, that the fiduciary assignment of
Accounts and Lender Intangibles contemplated under this Section
3.l(iv) 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)
and/or any other release by Lender; provided, further that in the
event the Assignors 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 (i) of
Section 4.04 of the Indenture (the "Permitted Revolving
Indebtedness"), the parties hereto intend that a valid fiduciary
assignment 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 Assignors and the
holder of such Permitted Revolving Indebtedness of the documentation
evidencing same, the fiduciary assignment of Accounts and Lender
Intangibles granted to Assignee hereunder shall be deemed to have
been automatically terminated in order that the applicable Assignors
may grant a valid fiduciary assignment of Accounts and Lender
Intangibles to the holder of such Permitted Revolving Indebtedness;
provided, further that upon the payment
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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 assignment of Accounts and Lender
Intangibles granted hereunder to Assignee shall, once again, become
immediately effective (it being understood, however, that the
Assignors shall execute and deliver any and all documents necessary
to effect the foregoing provisions of this Section 3.1(iv));
(v) the Collateral Account established and maintained pursuant to the
Indenture and all funds from time to time on deposit therein, all
investments of such funds (including, without limitation, Financial
Instruments) and all certificates and instruments from time to time
representing or evidencing such investments, all notes, certificates
of deposit, checks and other instruments from time to time hereafter
delivered to or otherwise possessed by Trustee for or on behalf of
Assignor in substitution for, or in addition to, any or all of the
Pledged Collateral or Other Collateral, and all interest, dividends,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the time constituting Pledged Collateral or Other
Collateral;
(vi) all proceeds of any and all of the foregoing (other than Accounts
and Lender Intangibles).
3.2 The Pledged Collateral existing in writing or otherwise at the time of
execution of this Agreement is described or
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listed in Schedule 1 attached hereto so as to ensure that the assigned
Pledged Collateral will be sufficiently identifiable. It is the intention
of the parties hereto that Schedule 1 sets forth all material items of
Pledged Collateral herein and shall in no way whatsoever be construed to be
a complete list or to limit or otherwise prejudice the rights of Assignee
pursuant to this Agreement and any Pledged Collateral omitted therefrom
shall not be construed as an exclusion of such Pledged Collateral from the
fiduciary assignment arising from this Agreement.
3.3 It is the intention of the parties hereto that this Agreement grant to the
Assignee a fiduciary assignment of all of each Assignor's right, title and
interest in each and every item or type of Pledged Collateral currently
owned or held by each Assignor and acquired or obtained after the date
hereof thereby. The fiduciary assignment of rights, title and interest in
the Pledged Collateral acquired or obtained hereafter shall be perfected
upon the coming into existence of the legal relationship on which such
Pledged Collateral is based ("ontstaan van de rechtsverhouding waarin de
vordering haar onmiddellijke grondslag vindt"). Each Assignor shall (i)
immediately after obtaining or acquiring any item or type of 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 Assignee an amendment to this Agreement, duly executed by each
Assignor, substantially in the form of Schedule 2 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 assignment granted
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hereunder in respect of such after-acquired Pledged Collateral. Each
Assignor hereby authorizes Assignee to attach each Amendment to this
Agreement and agrees that all Pledged Collateral listed on each Amendment
delivered to Assignee shall for all purposes hereunder be considered
Pledged Collateral from and after the date of such Amendment. A copy of any
such Pledged Collateral acquired or obtained hereafter shall be delivered
to Assignee together with each revised Schedule 2 delivered as contemplated
by this Section 3.3.
3.4 Anything to the contrary contained herein notwithstanding, by accepting the
fiduciary assignment arising from this Agreement, Assignee shall not be
deemed to be obligated to perform any of the covenants, conditions or
provisions contained in the Pledged Collateral or to make any payment
thereunder and Assignee shall have no liability under any Pledged
Collateral, and Each Assignor shall remain solely liable to perform all the
obligations and make all payments under the Pledged Collateral.
3.5 Further Assurances
Each Assignor 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 expenses
of such Assignor, such Assignor shall promptly execute and deliver all
further instruments and documents, including, without limitation,
supplemental or additional fiduciary assignment agreements, and take all
further actions that may be necessary or required by any and all existing
or future laws or that Assignee may from time to time reasonably request,
in order to protect the validity and priority of the fiduciary
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assignment granted or purported to be granted hereby or to enable Assignee
to exercise and enforce its rights and remedies hereunder with respect to
any Pledged Collateral.
3.6 Termination
If at any time any Assignor has paid and performed all of the Secured
Obligations, Assignee will (in accordance with the provisions of the
Indenture and at the request and cost of such Assignor) to the extent
required to terminate the fiduciary assignment created by this Agreement
reassign its right, title and interest in and to the Pledged Collateral to
the such Assignor or as such Assignor may direct pursuant to an instrument
of assignment or reconveyance in form acceptable to Assignee, which
instrument shall not contain any recourse or warranty by Assignee. In
addition to the foregoing, the security interest and fiduciary assignment
of title granted to Assignee in the Accounts and Lender Intangibles
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 4. Covenants
Special Provisions relating to Intellectual Property
4.1 Except in the ordinary course of business consistent with prudent business
practice, and as may also otherwise be specified in Section 11.03 of the
Indenture, such Assignor shall not abandon any right to file an application
relating to any Intellectual Property, without the prior written consent of
Assignee.
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4.2 Each Assignor shall not license the Intellectual Property or any portion
thereof, or amend or permit the amendment of any of the Licenses in either
case in a manner that adversely affects the right to receive any material
amount of payments thereunder, or, except as otherwise permitted under
Section 11.03 of the Indenture, in any manner adverse to the interests of
Assignee in the Intellectual Property, without the prior written consent of
Assignee.
4.3 In addition to the other rights and remedies provided for herein or
otherwise available to it, Assignee may, in accordance with the terms of,
and at the times specified, if any, in the Indenture, license or sublicense
(whether general, special or otherwise, and whether on an exclusive or non-
exclusive basis) all or any portion of the Intellectual Property throughout
the world for a term or terms, on such conditions and in such manner as
Assignee shall determine. Upon request by Assignee, such Assignor shall
execute and deliver to Assignee any powers of attorney, in form and
substance satisfactory to Assignee, for the implementation of any lease,
assignment, license, sublicense, grant of option, sale or other disposition
of any Intellectual Property.
Special Provisions Relating to Acquisition Documents
4.4 Each Assignor shall perform and comply with the terms and conditions of all
Acquisition Documents. Each Assignor shall not without the consent of
Assignee (i) cancel or terminate any of the Acquisition Documents or
consent to or accept any cancellation or termination thereof, (ii) amend,
supplement or otherwise modify any of the Acquisition Documents (in each
case in effect on the date hereof), (iii) waive any default under or breach
of any of the Acquisition Documents
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or waive, fail to enforce, forgive or release any right, interest or
entitlement of any kind, howsoever arising, under or in respect of such
Acquisition Documents or, vary or agree to the variation of any of the
provisions of such Acquisition Documents or (iv) petition, request or take
any other legal or administrative action which seeks, or may be expected,
to rescind, terminate or suspend, any of the Acquisition Documents or amend
or modify any thereof. Each Assignor shall notify Assignee in the event it
receives any notice or communication with respect to the Acquisition
Documents including, without limitation, notices of default, and shall
forward promptly copies of any such notices or communications to Assignee.
Special Provisions Concerning Accounts
4.5 As of the time when each of its Accounts arises, such Assignor shall be
deemed to have represented and warranted that, to the best of such
Assignor's knowledge, such Accounts and all records, papers and documents
relating thereto (i) represent the legal, valid and binding obligation of
the account debtor arising out of the performance of labor or services or
the sale or lease and delivery of the merchandise listed therein, or both,
(ii) constitute and evidence true and valid obligations, subject to
customary set-offs, rights of return, deductions and discounts, and (iii)
are in compliance and conform in all respects with all applicable laws of
any relevant foreign jurisdiction.
4.6 Each Assignor shall keep and maintain at its own cost and expense complete
records of each Account for at least three (3) years from the date on which
such Account comes into existence, including, without limitation, records
of all
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payments received, all credits granted thereon, all merchandise returned
and all other documentation relating thereto, and each Assignor shall make
the same available to Assignee for inspection (any inspection to be at such
Assignor's cost and expense) at any and all times upon demand.
4.7 Each Assignor shall not rescind or cancel any indebtedness evidence by any
Account or modify any term thereof or make any adjustment with respect
thereto, or extend or renew the same, or compromise or settle any dispute,
claim, suit or legal proceeding relating thereto, or sell any Account or
interest therein, except in accordance with sound commercial practices and
consistent with each Assignor's historical practices with respect to
Accounts.
4.8 Each Assignor shall take all commercially reasonable actions to cause to be
collected from the account debtor of each of the Accounts, as and when due
(including, without limitation, Accounts that are delinquent, such Accounts
to be collected in accordance with generally accepted and lawful commercial
collection procedures), any and all amounts owing under or on account of
such Account, and apply forthwith upon receipt thereof all such amounts as
are so collected to the outstanding balance of such Account. The cost and
expenses (including, without limitation, attorneys' fees) of collection,
whether incurred by such Assignor or Assignee (to the extent permitted to
be incurred by Assignee in accordance with the terms of the applicable
Access Intercreditor Agreement for so long as the applicable Access
Intercreditor Agreement is in effect) shall be paid by such Assignor.
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Provisions Relating to Collateral Account
4.9 All Trust Moneys received by the Assignee shall be deposited, held, applied
and/or disbursed by the Assignee in accordance with the provisions of
Article Twelve of the Indenture.
Section 5. Representations and Warranties
Each Assignor represents, warrants and covenants to the Assignee that:
(a) Enforceability; No Filings
This Agreement has been duly authorized, executed and delivered by
each Assignor and constitutes the valid and legally binding obligation
of each Assignor enforceable against it in accordance with its terms.
This Agreement creates a valid fiduciary assignment of the Pledged
Collateral. No filings, registrations or recordings are necessary or
appropriate to create, preserve and protect the fiduciary assignment
of the Pledged Collateral by each Assignor to Assignee pursuant to
this Agreement.
(b) Authority; No Conflict
Each Assignor has the requisite corporate power, authority and legal
right to enter into this Agreement and grant the fiduciary assignment
contemplated herein and there is no law, regulation or provision
having the force of law on each Assignor, judicial order, security
right, contract, agreement or other instrument binding on each
Assignor or affecting each Assignor's properties, or any impediment or
disability which would conflict
22
with or in any way prevent the execution, delivery or performance by
each Assignor or the enforcement against each Assignor 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 Assignor which are
required to be obtained, taken or made in connection with (i) the
fiduciary assignment by each Assignor of the Pledged Collateral
pursuant to this Agreement, (ii) the execution and delivery by each
Assignor of this Agreement and the performance by each Assignor of its
obligations hereunder or (iii) the exercise by Assignee 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
Each Assignor is as of the date hereof, and, as to the Pledged
Collateral acquired by it from time to time after the date hereof,
each Assignor 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 5(e) of this Agreement. This Agreement
creates a valid fiduciary assignment of the Pledged Collateral
superior and prior to the rights of all other Persons therein, subject
to (i) in the case of Pledged Collateral (other than Accounts and
Lender Intangibles), no
23
Liens other than the Liens described in Schedule 4 hereto as "Prior
Liens" and (ii) in the case of Accounts and Lender Intangibles, no
Liens other than the Liens granted to Lender to secure the Lender
Debt.
(e) Transfers and Other Security Rights
Except as specifically permitted under the provisions of the
Indenture, each Assignor shall not sell, pledge, convey, assign, lease
or transfer any Pledged Collateral to any Person and shall not allow
any Person to have an interest in any Pledged Collateral.
No Assignor will 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 Assignee pursuant to this Agreement (iii) Liens
granted to Lender with respect to Accounts and Lender Intangibles 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 5(e) shall in
all respects be subject and subordinate in priority to the fiduciary
assignment 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
Assignor will defend the Pledged Collateral against all claims and
demands of all Persons at any time claiming any interest therein
adverse to Assignee.
(f) Principal Place of Business; Change of Name
24
Each Assignor's principal place of business is located at the
addresses specified in Schedule 5. All of the documents, books and
records evidencing or relating to any item or type of Pledged
Collateral are located at the address set forth in the immediately
preceding sentence. No Assignor shall establish a new location for its
principal place of business nor shall it change its name until (i) it
shall have given the Assignee 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 Assignee may request, and (ii) with respect to such new
location or name, such Assignor shall have taken all actions necessary
or required by any and all existing or future laws or as the Assignee
may from time to time reasonably request to maintain the perfection
and priority of the secured interest of the Assignee 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.
(g) Pledged Collateral
All information set forth herein, including, without limitation, the
Schedules annexed hereto, and all information contained in any
documents, schedules and lists heretofore delivered to the Assignee in
connection with this Agreement, in each case, relating to the Pledged
Collateral is accurate and complete in all respects.
25
Section 6. Remedies upon Event of Default
6.1 If an Event of Default shall have occurred and be continuing, each Assignor
hereby designates the Assignee to represent such Assignor's interest in the
Pledged Collateral in all respects and each Assignor herewith authorizes
and, to the extent necessary, grants full power of attorney to the
Assignee, in accordance with the terms and at the times specified in the
Indenture and/or 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 Assignee, it being understood that this appointment is
coupled with an interest and is irrevocable.
6.2 If an Event of Default shall have occurred and be continuing, then and in
every such case, Assignee 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, if any, specified in the Indenture and/or
the applicable Intercreditor Agreements:
(i) the Assignee shall be authorized to notify (betekenen) the debtors
or any other third-party concerned (the "Debtors") of the fiduciary
assignment of the Pledged Collateral;
(ii) upon notification of the Debtors of the fiduciary assignment of the
Pledged Collateral pursuant to section 6.2 (i), the Assignee shall
have the sole right, to the exclusion of each Assignor, to (i)
26
demand payment or other performance from the notified Debtor of the
amounts due under the Pledged Collateral which have become due and
payable and (ii) receive payment of such payments under the Pledged
Collateral; and
(iii) following notification of the Debtors, the Assignee may without any
further notice exercise all remedies available to the fullest extent
permitted under Netherlands Antilles law.
6.3 Each Assignor herewith agrees with the Assignee that the Assignee shall at
all times have access to and the right to receive copies of all documents
and records relating to the Pledged Collateral, including, but not limited
to:
(i) books, records, ledger cards and invoices;
(ii) 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; and
(iii) credit information, reports and memoranda.
6.4 Disposition of the Pledged Collateral
Upon the occurrence of an Event of Default, Assignee 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
27
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 Assignee's offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as
Assignee may deem commercially reasonable. Assignee 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 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 Assignee
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 Assignor, and each Assignor hereby
waives, to the fullest extent permitted by law, all rights of redemption,
stay or appraisal hereafter enacted. Assignee shall not be obligated to
make any sale of Pledged Collateral regardless of notice of sale having
been given. Assignee 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
28
and place to which it was so adjourned. Each Assignor hereby waives, to
the fullest extent permitted by law, any claims against Assignee 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 Assignee accepts the first offer
received and does not offer such Pledged Collateral to more than one
offeree. Each Assignor agrees that, to the extent notice of sale shall be
required by law, five (5) days' notice from Assignee 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 any
Assignor 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.
6.5 Waiver of Claims
Except as otherwise provided herein, each Assignor hereby waives, to the
fullest extent permitted by applicable law, notice or judicial hearing in
connection with Assignee's taking possession or Assignee'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 Assignor would otherwise have under applicable law,
and each Assignor 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 Assignee's rights
hereunder and
29
(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 Assignor 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
Assignor 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 Assignor.
6.6 Certain Sales of Pledged Collateral
Each Assignor recognizes that, by reason of certain prohibitions contained
in law, rules, regulations or orders of any governmental authority,
Assignee 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 governmental authority. Each Assignor acknowledges
that any such sales may be at prices and on terms less favorable to
Assignee 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 7. Application of Proceeds
30
The proceeds received by Assignee 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 Assignee of its remedies as a secured creditor as provided in
Section 6 hereof shall be applied, together with any other sums then held by
Assignee pursuant to this Agreement, promptly by Assignee in the manner set
forth in the Indenture and/or the applicable Intercreditor Agreements.
Section 8. Provisions Concerning All Pledged Collateral
8.1 Insurance. Each Assignor shall at all times keep the Pledged Collateral
insured in favor of Assignee, at each Assignor'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 Assignor. 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 Assignee as an additional named insured
or loss payee as its interest may appear, as appropriate and such policy or
certificate shall be delivered to Assignee. Each such policy shall state
that it cannot be cancelled without thirty (30) days prior written notice
to Assignee. At least thirty (30) days prior to the expiration of any such
policy of insurance, each Assignor shall deliver to Assignee an extension
or renewal policy or an insurance certificate evidencing renewal or
extension of such policy. If any Assignor shall fail to insure such
Pledged Collateral in the manner contemplated by the Section or if
31
such Assignor shall fail to so endorse and deposit, or to extend or renew,
all such insurance policies or certificates- with respect thereto, Assignee
shall have the right (but shall be under no obligation), to advance funds
to procure or renew or extend such insurance and such Assignor agrees to
reimburse Assignee, immediately upon demand therefor, for any and all 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 Assignor shall be paid to
Assignee as Trust Moneys pursuant to Article Twelve of the Indenture and
shall be subject to retention and disbursement by Assignee in accordance
with the terms of the Indenture.
8.2 Further Actions Each Assignor shall, at its sole cost and expense, make,
execute, endorse, acknowledge, file and/or deliver to Assignee 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.
8.3 Notation on Books and Records. Each Assignor shall place on its books and
records with respect to the Pledged Collateral a notation stating that
Assignee has a security interest therein.
32
Section 9. Reasonable Care
Assignee 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
Assignee, in its individual capacity, accords its own property, it being
understood that Assignee shall not have responsibility for taking any necessary
steps to preserve rights against any Person with respect to any Pledged
Collateral.
Section 10. Expenses
Each Assignor will immediately upon demand pay to Assignee 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 Assignee's internal counsel and the fees and expenses of any experts
and agents which Assignee 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 Assignee or (v) the failure by any Assignor
to perform or observe any of the provisions hereof. All amounts payable by Each
Assignor under this Section 10 shall be due immediately upon demand, shall bear
interest from the date advanced to the date of repayment thereof at the Default
Rate, and shall be part of the Secured Obligations. Each Assignor's obligations
under this Section 10 shall survive the termination of this Agreement and the
discharge of each Assignor's other obligations hereunder.
33
Section 11. No Waiver; Cumulative Remedies
11.1 No failure on the part of Assignee to exercise, no course of dealing with
respect to, and no delay on the part of Assignee 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.
11.2 In the event Assignee shall have instituted any proceeding to enforce any
right, power or remedy under this Agreement by foreclosure, collection,
sale, entry or otherwise, and such proceeding shall have been discontinued
or abandoned for any reason or shall have been determined adversely to
Assignee, then and in every such case, each Assignor and Assignee shall be
restored to their respective former positions and rights hereunder with
respect to the Pledged Collateral, and all rights, remedies and powers of
Assignee shall continue as if no such proceeding had been instituted.
Section 12. Trustee
Assignee has been appointed as trustee pursuant to the Indenture and the
Additional Lender Intercreditor Agreement, if any. The actions of Assignee
hereunder are subject to the provisions of the Indenture and/or the applicable
Intercreditor Agreements. Assignee 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, without
34
limitation, the release or substitution of Pledged Collateral), in accordance
with this Agreement, the Indenture and/or the applicable Intercreditor
Agreements. Assignee may resign from its position as Assignee and a successor
Assignee may be appointed in the manner provided in the Indenture and/or the
Additional Lender Intercreditor Agreement, if any. Upon the acceptance of any
appointment as Assignee by a successor Assignee, that successor Assignee shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Assignee under this Agreement, and the retiring
Assignee shall thereupon be discharged from its duties and obligations under
this Agreement. After any retiring Assignee'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 Assignee.
Section 13. Assignee May Perform
If any Assignor shall fail to do any act or thing that it has covenanted to do
hereunder or if any warranty on the part of any Assignor contained herein shall
be breached, Assignee 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 Assignee shall be paid by such Assignor
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 Assignor's obligations under this Section 13 shall
survive the termination of this Agreement and the discharge of each Assignor's
other obligations under this Agreement.
35
Section 14. 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 14. 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 Assignee shall not be
effective until received by Assignee.
Section 15. Continuing Security Interest; Assignment
This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) be binding upon each Assignor, its successors and
assigns, and (ii) inure, together with the rights and remedies of Assignee
hereunder, to the benefit of Assignee, its successors, transferees and assigns;
no other Persons (including, without limitation, any other creditor of each
Assignor) shall have any interest herein or any right or benefit with respect
hereto.
Section 16. Headings
The Section headings used in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
36
Section 17. 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 18. 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 Assignor and Assignee, 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 Assignor 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 any Assignor 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
37
Secured Obligations and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal and any other amounts due
hereunder, the excess shall be refunded to each Assignor. 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 19. 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 Assignor hereunder to indemnify
Assignee and Marine Midland Bank in its individual capacity and the officers,
directors, employees, agents and affiliates thereof.
Section 20. Governing Law; Consent to Jurisdiction
This Agreement shall be governed by the laws of the Netherlands Antilles except
to the extent that the creation, validity or perfection of the security interest
intended to be granted hereunder is governed by the laws of a jurisdiction other
than the Netherlands Antilles. The competent courts of the Netherlands Antilles
in Curacao shall have non-exclusive jurisdiction.
38
Section 21. 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 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 INTERNATIONAL SEVEN SEAS STEAMSHIP COMPANY
N.V., as Assignor (ST. EUSTATIUS) N.V., as Assignor,
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact Title: Managing Director
STATIA TERMINALS CORPORATION STATIA TUGS N.V., as
N.V., as Assignor Assignor
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact Title: Managing Director
STATIA TERMINALS N.V. MARINE MIDLAND BANK,
as Assignor as Assignee
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director Title: Assistant Vice President
SABA TRUSTCOMPANY N.V.
as Assignor,
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BICEN DEVELOPMENT CORPORATION
N.V., as Assignor
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
STATIA LABORATORY SERVICES
N.V., as Assignor
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
41
Schedule 1
to the
Fiduciary Assignment
of
Intangible Assets Agreement
List of Collateral
Name Description Description
[Debtor] Agreement/Rights Payment Terms
-------- ---------------- -------------
The Undersigned hereby confirms that this list constitutes a List of Collateral
within the meaning of Section 3.2 and 3.3 of the Fiduciary Assignment of
Intangible Assets Agreement between [Assignor] and Assignee, and confirms
receipt thereof on ________________, 199 [ ].
---------------------------------
Assignee
42
Schedule 2
to the
Fiduciary Assignment
of
Intangible Assets Agreement
This Amendment dated [date], is delivered pursuant to Section 3 of the Agreement
referred to below. The undersigned hereby agrees hat this Amendment may be
attached to the Fiduciary Assignment of Intangible Assets Agreement dated
November 27, 1996 by and between [Assignor), a company incorporated under the
laws of the Netherlands Antilles, as Assignor, and Marine Midland Bank, as
Assignee, (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.
[Assignor]
By:
Title:
Description of
Pledged Collateral
43
Schedule 3
to the
Fiduciary Assignment
of
Intangible Assets Agreement
Copyrights
----------
None
Licenses
--------
None
Patents
-------
None
Trademarks
----------
None
44
Schedule 4
to the
Fiduciary Agreement
of
Intangible Assets Agreement
Prior Liens
-----------
None.
45
Schedule 5
to the
Fiduciary Agreement
of
Intangible Assets Agreement
Principal Place of Business of Assignor
