STATIA TERMINALS INTERNATIONAL N.V.
STATIA TERMINALS CANADA, INCORPORATED
$135,000,000 11 3/4% First Mortgage Notes due 2003
PURCHASE AGREEMENT
November 22, 1996
New York, New York
Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Statia Terminals International N.V., a Netherlands Antilles
corporation ("Statia"), and Statia Terminals Canada, Incorporated, a Nova
Scotia, Canada corporation ("Statia Canada" and, together with Statia, the
"Issuers"), agree with you as follows:
1. ISSUANCE OF NOTES. The Issuers propose to issue and sell to
Dillon, Read & Co. Inc. (the "Purchaser") an aggregate of $135,000,000 principal
amount of 11 3/4% Series A First Mortgage Notes due 2003 (the "Series A First
Mortgage Notes"). The Series A First Mortgage Notes will be issued pursuant to
an indenture (the "Indenture"), to be dated the Closing Date (as defined below),
by and among the Issuers, each of Statia Terminals Corporation N.V., Statia
Terminals Delaware, Inc., Statia Terminals, Inc., Statia Terminals N.V., Statia
Delaware Holdco II, Inc., Saba Trustcompany N.V., Bicen Development Corporation
N.V., Statia Terminals Southwest, Inc., W.P. Company, Inc., Seven Seas Steamship
Company, Inc., Seven Seas Steamship Company (Sint Eustatius) N.V., Point Tupper
Marine Services Limited, Statia Laboratory Services N.V. and Statia Tugs N.V.
(collectively, the "Subsidiary Guarantors") and Marine Midland Bank, as trustee
(the "Trustee"). The Issuers' obligations under the Series A First Mortgage
Notes and the Series B First Mortgage Notes (as defined below) will be
unconditionally guaranteed on a senior basis by each of the Subsidiary
Guarantors pursuant to each of their guarantees (the "Subsidiary Guarantees").
Capitalized terms used
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but not otherwise defined herein shall have the meanings given to such terms in
the Indenture or the Offering Memorandum (as defined below).
The Series A First Mortgage Notes will be offered and sold to the
Purchaser pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended (the "Act"). The Issuers have prepared a
preliminary offering memorandum, dated November 5, 1996 (the "Preliminary
Offering Memorandum"), and a final offering memorandum, dated and available for
distribution on the date hereof (the "Offering Memorandum"), relating to the
Issuers, the Subsidiary Guarantors and the Series A First Mortgage Notes.
The Purchaser has advised the Issuers that the Purchaser intends, as
soon as it deems advisable after this Purchase Agreement has been executed and
delivered, to resell (the "Exempt Resales") the Series A First Mortgage Notes
purchased by the Purchaser under this Purchase Agreement (this "Agreement") in
private sales exempt from registration under the Act on the terms set forth in
the Offering Memorandum, as amended or supplemented, solely to (i) persons whom
the Purchaser reasonably believes to be "qualified institutional buyers," as
defined in Rule 144A under the Act ("QIBs"), (ii) institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under Regulation D of
the Act) that make certain representations and agreements (each, an
"Institutional Accredited Investor") and (iii) other eligible purchasers
pursuant to offers and sales that occur outside the U.S. within the meaning of
Regulation S under the Act; the persons specified in clauses (i)-(iii) are
sometimes collectively referred to herein as the "Eligible Purchasers." The
Purchaser acknowledges that the Notes have not been qualified for sale under the
securities laws of Canada or any province or territory thereof and may not be
offered or sold, directly or indirectly, in Canada or to any resident thereof.
Holders (including subsequent transferees) of the Series A First
Mortgage Notes will have the registration rights set forth in the registration
rights agreement (the "Registration Rights Agreement"), to be dated the Closing
Date, in the form of Exhibit A to this Agreement, for so long as such Series A
First Mortgage Notes constitute "Transfer Restricted Securities" (as defined in
the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Issuers and the Subsidiary Guarantors will agree to (A) file with
the Securities and Exchange Commission (the "Commission"), under the
circumstances set forth in the Registration Rights Agreement, (i) a registration
statement under the Act (the "Exchange Offer Registration State-
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ment") relating to the 11 3/4% Series B First Mortgage Notes due 2003 (the
"Series B First Mortgage Notes"; and, together with the Series A First Mortgage
Notes, the "Notes," which term includes the Subsidiary Guarantees related
thereto) to be offered in exchange for the Series A First Mortgage Notes (the
"Exchange Offer") and/or (ii) a shelf registration statement pursuant to Rule
415 under the Act (the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, the "Registration Statements") relating
to the resale by certain holders of the Series A First Mortgage Notes, and (B)
use their best efforts to cause such Registration Statements to be declared
effective as soon as practicable. This Agreement, the Notes, the Indenture, the
Registration Rights Agreement and the Security Documents (as defined in the
Indenture) are hereinafter sometimes referred to collectively as the "Operative
Documents."
Upon original issuance of the Series A First Mortgage Notes and
until such time as the same is no longer required under the applicable
requirements of the Act, the Series A First Mortgage Notes shall bear the
following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE ISSUERS THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE U.S. TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUERS SO
REQUEST), (2) TO THE ISSUERS OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
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ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S. OR
ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.
"THE NOTES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED AS PART OF
THEIR INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER, DIRECTLY OR
INDIRECTLY, OTHER THAN TO AFFILIATES OF THE ISSUERS CONTROLLING, UNDER
COMMON CONTROL WITH OR CONTROLLED BY THE ISSUERS, PENSION FUNDS, INSURANCE
COMPANIES, SECURITIES FIRMS AND OTHER INVESTMENT INSTITUTIONS, CENTRAL
GOVERNMENTS, INTERNATIONAL ORGANIZATIONS CREATED UNDER PUBLIC
INTERNATIONAL LAW AND OTHER COMPARABLE ENTITIES, INCLUDING INTER ALIA,
FINANCE COMPANIES OF INDUSTRIAL AND FINANCIAL ENTERPRISES, WHO OR WHICH
ARE ACTIVE ON A REGULAR AND PROFESSIONAL BASIS IN THE FINANCIAL MARKETS
FOR THEIR OWN ACCOUNT, AND OTHERWISE IN ACCORDANCE WITH THE LEGEND SET
FORTH ON THE COVER PAGE OF THE OFFERING MEMORANDUM."
The Notes are being issued and sold in connection with the
acquisition by Statia and Statia Canada (the "Acquisition") of the acquired
companies as set forth on Schedule A hereto (the "Acquired Companies") pursuant
to an Amended and Restated Stock Purchase and Sale Agreement (the "Stock
Purchase Agreement") dated as of November 4, 1996 by and among Statia Terminals
Group N.V., Statia, Statia Canada and Praxair, Inc. In connection with the
Acquisition and the offering of the Notes hereby, (i) Statia Terminals Group
N.V. will issue an aggregate of $101.0 million of preferred stock and common
stock and will use substantially all of the proceeds therefrom to make a capital
contribution to Statia pursuant to a Capital Contribution Agreement (the
"Capital Contribution Agreement") in the amount of $98.5 million in return for
common equity; (ii) Statia will enter into a $17.5 million senior secured
revolving credit facility (the "New Bank Credit Facility" and, together with the
Capital Contribution Agreement and the Stock Purchase Agreement, the
"Transaction Documents"). The Notes and the Subsidiary Guarantees will be
secured by a first priority or, in the case of Inventory, Accounts Receivable
and proceeds thereof, second priority, lien on and security interests in
substantially all of the (i) real and personal property, plant and equipment
(other than the assets of the Brownsville facility, vehicles, marine vessels and
emergency and spill response equipment) of the Issuers and Subsidiary Guarantors
located at and/or used in connection with the St. Eustatius
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and Point Tupper facilities, and (ii) all of the shares of capital stock and
other securities or interests evidencing equity ownership of (x) the Subsidiary
Guarantors outstanding on the date hereof or hereafter acquired and (y) all
Restricted Subsidiaries hereafter acquired. The collateral securing the Notes
will be pledged pursuant to the terms of the Security Documents.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained in this Agreement, the Issuers
agree to issue and sell to the Purchaser, and the Purchaser agrees to purchase
from the Issuers, the aggregate principal amount of the Series A First Mortgage
Notes. The purchase price for the Series A First Mortgage Notes shall be 97% of
their principal amount. The Issuers shall cause each Subsidiary Guarantor to
unconditionally guarantee on a senior basis by such Subsidiary Guarantor the
Issuers' obligations under the Notes.
3. DELIVERY AND PAYMENT. Delivery of, and payment of the purchase
price for, the Series A First Mortgage Notes shall be made at 9:00 a.m., New
York City time, on the third business day following the date of this Agreement
(the "Closing Date") at the offices of White & Case, 1155 Avenue of the
Americas, New York, New York 10036. The Closing Date and the location of
delivery of and the form of payment for the Series A First Mortgage Notes may be
varied by mutual agreement between the Purchaser and the Issuers.
One or more of the Series A First Mortgage Notes in global form or
certificated form, as the case may be, registered in such names as the Purchaser
may request upon at least one business day's notice prior to the Closing Date,
having an aggregate principal amount corresponding to the aggregate principal
amount of the Series A First Mortgage Notes sold pursuant to Exempt Resales to
QIBs and Institutional Accredited Investors, in the case of the Notes in global
form, and to other Eligible Purchasers, in the case of Notes in certificated
form sold pursuant to Regulation S, shall be delivered by the Issuers to the
Purchaser (or as the Purchaser directs), against payment by the Purchaser of the
purchase price therefor by means of transfer of immediately available funds
(including book transfer) reasonably acceptable to the Purchaser and the Issuers
to the order of Statia and Statia Canada. The Series A First Mortgage Notes in
global form shall be made available to the Purchaser for inspection not later
than 9:30 a.m. on the business day immediately preceding the Closing Date.
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4. AGREEMENTS OF THE ISSUERS. Each of the Issuers covenants and
agrees with the Purchaser as follows:
(a) To furnish the Purchaser and those persons identified by the
Purchaser, without charge, with as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments or supplements
thereto, as the Purchaser may reasonably request for purposes contemplated
by the Act. The Issuers consent to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant to this Agreement, by the Purchaser in
connection with Exempt Resales that are in compliance with Sections 5(b)
and 5(c) of this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless the Purchaser shall previously have been advised of,
and shall not have objected to (any such objection not to be
unreasonable), such amendment or supplement within a reasonable time, but
in any event not longer than five days after being furnished with a copy
of such amendment or supplement. The Issuers shall promptly prepare, upon
the Purchaser's reasonable request, any amendment or supplement to the
Offering Memorandum that may be necessary or advisable in connection with
Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to
be delivered in connection with any Exempt Resales or market-making
transactions after the date of this Agreement and prior to the
consummation of the Exchange Offer, any event shall occur that, in the
judgment of the Issuers or in the judgment of counsel to the Purchaser,
makes any statement of a material fact in the Offering Memorandum untrue
or that requires the making of any additions to or changes in the Offering
Memorandum in order to make the statements in the Offering Memorandum, in
the light of the circumstances under which they are made, not misleading,
or if it is necessary to amend or supplement the Offering Memorandum to
comply with all applicable laws, the Issuers shall promptly notify the
Purchaser of such event and prepare an appropriate amendment or supplement
to the Offering Memorandum so that (i) the statements in the Offering
Memorandum as amended or supplemented will, in the light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not be misleading and (ii) the Offering
Memorandum will comply with applicable law.
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(d) To cooperate with the Purchaser and counsel to the Purchaser in
connection with the qualification or registration of the Series A First
Mortgage Notes under the securities or Blue Sky laws of such jurisdictions
as the Purchaser may request and to continue such qualification in effect
so long as required for the Exempt Resales. Notwithstanding the foregoing,
the Issuers shall not be required to qualify as foreign corporations in
any jurisdiction in which they are not so qualified or to file a general
consent to service of process in any such jurisdiction or subject
themselves to taxation in excess of a nominal dollar amount in any such
jurisdiction where they are not then so subject.
(e) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to
pay all costs, expenses, fees, disbursements (including fees, expenses and
disbursements of counsel) and stamp, documentary or similar taxes imposed
by the U.S., the Netherlands Antilles or Canada incident to and in
connection with: (i) the preparation, printing, filing and distribution of
the Preliminary Offering Memorandum and the Offering Memorandum
(including, without limitation, financial statements) and all amendments
and supplements thereto, (ii) the preparation and delivery of the
Operative Documents and all other agreements, memoranda, correspondence
and documents prepared and delivered in connection with this Agreement and
with the Exempt Resales, (iii) the issuance, transfer and delivery by the
Issuers and the Subsidiary Guarantors of the Notes and the Subsidiary
Guarantees, respectively, to the Purchaser, (iv) the qualification or
registration of the Notes for offer and sale under the securities or Blue
Sky laws of the several states (including, without limitation, the cost of
printing and mailing a preliminary and final Blue Sky memorandum and the
fees and disbursements of counsel to the Purchaser relating thereto), (v)
the furnishing of such copies of the Preliminary Offering Memorandum and
the Offering Memorandum, and all amendments and supplements thereto, as
may be reasonably requested for use in connection with Exempt Resales,
(vi) the preparation of certificates for the Notes (including, without
limitation, printing and engraving thereof), (vii) the application for
quotation of the Notes in the National Association of Securities Dealers,
Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), including,
but not limited to, all listing fees and expenses, (viii) the approval of
the Notes by The Depository Trust Company ("DTC") for "book-
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entry" transfer, (ix) the rating of the Notes by rating agencies, (x) the
fees and expenses of the Trustee and Collateral Agent and its counsel and
(xi) the performance by the Issuers and the Subsidiary Guarantors of their
other obligations under the Operative Documents, including, but not
limited to, the fees, disbursements and expenses of the Issuers' counsel
and accountants.
(f) To use the proceeds from the sale of the Series A First Mortgage
Notes in the manner described in the Offering Memorandum under the caption
"Use of Proceeds."
(g) To do and perform all things required to be done and performed
under this Agreement by it prior to or after the Closing Date and to
satisfy all conditions precedent on its part to the delivery of the Series
A First Mortgage Notes.
(h) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Series A First Mortgage
Notes in a manner that would require the registration under the Act of the
sale of the Series A First Mortgage Notes to the Purchaser or any Eligible
Purchaser.
(i) From and after the Closing Date, for so long as any of the
Series A First Mortgage Notes remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act and during
any period in which the Issuers are not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to
make available the information required by Rule 144A(d)(4) under the Act
to (i) any Holder or beneficial owner of Series A First Mortgage Notes in
connection with any of such Notes and (ii) any prospective purchaser of
such Series A First Mortgage Notes from any such Holder or beneficial
owner designated by the Holder or beneficial owner.
(j) To comply with all of its agreements set forth in the
Registration Rights Agreement and all agreements set forth in the
representations letter of the Issuers to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer.
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(k) To use its best efforts to effect the inclusion of the Series A
First Mortgage Notes in PORTAL and to obtain approval of the Notes by DTC
for "book-entry" transfer.
(l) From and after the Closing Date, the Issuers shall cause each of
the Subsidiary Guarantors to indemnify and hold harmless the Purchaser in
accordance with Sections 6 and 7 of this Agreement.
(m) From and after the Closing Date, for so long as any of the Notes
remain outstanding, to deliver without charge to the Purchaser, promptly
upon their becoming available, copies of all reports and other
communications (financial or otherwise) that the Issuers shall mail or
otherwise make available to their securityholders and all reports or
financial statements furnished to or filed by each of the Issuers and the
Subsidiary Guarantors with the Commission or any national securities
exchange.
(n) Prior to the Closing Date, to furnish to the Purchaser, as soon
as they have been prepared by the Issuers and the Subsidiary Guarantors, a
copy of any regularly prepared internal financial statements of each of
the Issuers and the Subsidiary Guarantors for any period subsequent to the
period covered by the financial statements appearing in the Offering
Memorandum and prior to the Closing Date.
(o) Not to distribute prior to the Closing Date any offering
material in connection with the offer and sale of the Series A First
Mortgage Notes other than the Preliminary Offering Memorandum and the
Offering Memorandum.
5. REPRESENTATIONS AND WARRANTIES. (a) Each of the Issuers
represents and warrants to the Purchaser that:
(i) Each of the Preliminary Offering Memorandum and the Offering
Memorandum has been prepared in connection with the Exempt Resales.
Neither the Preliminary Offering Memorandum nor the Offering Memorandum,
or any supplement or amendment thereto, contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Issuers make
no representation or warranty with respect to information contained in or
omitted from the Preliminary Offering Memorandum or the Offering
Memorandum, as supplemented or amended, in reliance
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upon and in conformity with information furnished to the Issuers in
writing by the Purchaser expressly for inclusion in the Preliminary
Offering Memorandum or the Offering Memorandum or any supplement or
amendment thereto. No order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Act has been issued or threatened.
(ii) There are no securities of either of the Issuers or any of the
Subsidiary Guarantors that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or that are quoted in a
United States automated interdealer quotation system.
(iii) Except for Statia Terminals Puerto Rico Corporation, Statia
Steamship Agency, Inc., Statia Terminals Virgin Island Corporation, Seven
Seas Steamship Company N.V. and Statia Shipping N.V., which are inactive
Subsidiaries with virtually no assets and are currently being liquidated,
the Subsidiary Guarantors and Statia Canada will be, upon the closing of
the Acquisition, the only direct or indirect subsidiaries of Statia.
Statia will own, upon the closing of the Acquisition, 100% of the
outstanding capital stock and other securities evidencing equity ownership
of the Subsidiary Guarantors and Statia Canada, in each case (other than
the Lien granted to the Collateral Agent) free and clear of any pledge,
fiduciary transfer, security interest, claim, lien, limitation on voting
rights or encumbrance, and all such securities will have been duly
authorized and validly issued, fully paid and nonassessable and will not
have been issued in violation of, or subject to, any preemptive or similar
rights. Upon the closing of the Acquisition, there will not be any
outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interest of any Subsidiary Guarantor and Statia Canada.
(iv) Each of the Issuers and the Subsidiary Guarantors has been duly
incorporated or organized, as the case may be, is validly existing as a
corporation in good standing under the laws of its respective jurisdiction
of incorporation and has all requisite corporate power and authority, and
all necessary authorizations, approvals, orders, licenses, certificates
and permits of and from regulatory or governmental officials, bodies and
tribunals, except where the failure to obtain such authorizations,
approvals, orders, licenses, certificates and permits would not result
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in a Material Adverse Effect, to (a) carry on its business as it is
currently being conducted and as described in the Offering Memorandum and
(b) own, lease, license and operate its respective properties in
accordance with its business as currently conducted. Each of the Issuers
and the Subsidiary Guarantors is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified
would not, either individually or in the aggregate, result in a Material
Adverse Effect. A "Material Adverse Effect" means any material adverse
effect on the business, condition (financial or other), properties,
assets, liabilities, results of operations or prospects of the Issuers and
the Subsidiary Guarantors taken as a whole.
(v) Each of the Issuers and the Subsidiary Guarantors has all
requisite corporate power and authority to execute, deliver and perform
all of its obligations under the Operative Documents and to consummate the
transactions contemplated by the Operative Documents, and, without
limitation, each of the Issuers has all requisite corporate power and
authority to issue, sell and deliver the Notes and each of the Subsidiary
Guarantors has all requisite corporate power and authority to execute,
deliver and perform all of its obligations under the Subsidiary
Guarantees.
(vi) This Agreement has been duly and validly authorized, executed
and delivered by each of the Issuers.
(vii) The Indenture has been, or upon the Closing Date will be, duly
and validly authorized by each of the Issuers and the Subsidiary
Guarantors and, when duly executed and delivered by each of the Issuers
and the Subsidiary Guarantors, will be a legal, valid and binding
obligation of each of the Issuers and the Subsidiary Guarantors,
enforceable against each of them in accordance with its terms, except that
enforceability of the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought. The Indenture, when executed and delivered, will conform in all
material respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
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(viii) The Series A First Mortgage Notes have been duly and validly
authorized for issuance and sale to the Purchaser by the Issuers and, when
issued, authenticated and delivered by the Issuers against payment by the
Purchaser in accordance with the terms of this Agreement and the
Indenture, the Series A First Mortgage Notes will be legal, valid and
binding obligations of the Issuers, entitled to the benefits of the
Indenture and enforceable against the Issuers in accordance with their
terms, except that enforceability of the Series A First Mortgage Notes may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity and the discretion of the court before
which any proceedings therefor may be brought. The Series A First Mortgage
Notes, when issued, authenticated and delivered, will conform in all
material respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
(ix) The Series B First Mortgage Notes have been duly and validly
authorized for issuance by the Issuers and, when issued, authenticated and
delivered by the Issuers in accordance with the terms of the Exchange
Offer and the Indenture, the Series B First Mortgage Notes will be legal,
valid and binding obligations of the Issuers, entitled to the benefits of
the Indenture and enforceable against the Issuers in accordance with their
terms, except that enforceability of the Series B First Mortgage Notes may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity and the discretion of the court before
which any proceedings therefor may be brought. The Series B First Mortgage
Notes, when issued, authenticated and delivered, will conform in all
material respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
(x) The Subsidiary Guarantees delivered on the Closing Date will be
duly and validly authorized by the Subsidiary Guarantors and, when
executed and delivered in accordance with the terms of the Indenture and
the Registration Rights Agreement, will be legal, valid and binding
obligations of the Subsidiary Guarantors, enforceable against each of them
in accordance with their terms, except that (a) enforceability of the
Subsidiary Guarantees may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
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equity and (b) any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy
considerations and the discretion of the court before which any
proceedings therefor may be brought. The Subsidiary Guarantees, when
executed and delivered, will conform in all material respects to the
description thereof in the Preliminary Offering Memorandum and the
Offering Memorandum.
(xi) Each of the Security Documents has been, or upon the Closing
Date, will be, duly and validly authorized by each of the Issuers and
Subsidiary Guarantors party thereto and, as of the Closing Date, will have
been duly executed and delivered by each of the Issuers and the Subsidiary
Guarantors party thereto and, upon such execution and delivery, each
Security Document will constitute the legal, valid and binding obligation
of each of the Issuers and the Subsidiary Guarantors party thereto,
enforceable against each of them in accordance with its terms, except that
(a) enforceability of the Security Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought and (b) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public
policy considerations. The Security Documents, when executed and
delivered, will conform in all material respects to the description
thereof in the Preliminary Offering Memorandum and the Offering
Memorandum.
(xii) The Registration Rights Agreement has been, or upon the
Closing Date, will be, duly and validly authorized, executed and delivered
by each of the Issuers and the Subsidiary Guarantors and is a legal, valid
and binding obligation of each of the Issuers and the Subsidiary
Guarantors, enforceable against each of them in accordance with its terms,
except that (a) enforceability of the Registration Rights Agreement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before which
any proceedings therefor may be brought and (b) any rights to indemnity or
contribution thereunder may be limited by federal and state securities
laws and public policy considerations. The Registration Rights Agreement
will conform in all material respects to
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the description thereof in the Preliminary Offering Memorandum and the
Offering Memorandum.
(xiii) The Transaction Documents have been duly and validly
authorized, executed and delivered by each of the Issuers and the
Subsidiary Guarantors, party thereto, and constitute the legal, valid and
binding obligations of the Issuers and the Subsidiary Guarantors, as
applicable, enforceable against the Issuers and the Subsidiary Guarantors,
as applicable, in accordance with their terms, except that (a)
enforceability of the Transaction Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought and (b) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public
policy considerations. The Transaction Documents conform in all material
respects to the description thereof in the Preliminary Offering Memorandum
and the Offering Memorandum.
(xiv) None of the Issuers or the Subsidiary Guarantors is (A) in
violation of its charter, constitutive documents or bylaws or (B) in
default (or, with notice or lapse of time or both, would be in default) in
the performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note, indenture, mortgage,
deed of trust, loan agreement, note, lease, license, franchise agreement,
authorization, permit, certificate or other agreement or instrument to
which any of them is a party or by which any of them is bound or to which
any of their assets or properties is subject (collectively, "Material
Agreements"), or (C) in violation of any law, statute, rule, regulation,
judgment or court decree of any domestic or foreign court with
jurisdiction over any of them or any of their assets or properties or
other governmental or regulatory authority, agency or other body, that, in
the case of clauses (B) and (C) above, would result in a Material Adverse
Effect. There exists no condition that, with notice, the passage of time
or otherwise, would constitute a default by any of the Issuers or the
Subsidiary Guarantors under any such document or instrument or result in
the imposition of any penalty or the acceleration of any indebtedness,
other than penalties, defaults or conditions that would not result in a
Material Adverse Effect.
-15-
(xv) None of (A) the execution, delivery or performance by the
Issuers and the Subsidiary Guarantors (as applicable) of this Agreement
and the other Operative Documents, (B) the execution, delivery and
performance by the Issuers and the Subsidiary Guarantors of the
Transaction Documents to which they are a party or (C) the consummation of
the Acquisition and the transactions contemplated thereby does or will
violate, conflict with or constitute a breach of any of the terms or
provisions of, or a default under (or an event that with notice or the
lapse of time, or both, would constitute a default), or require consent
under, or result in the creation or imposition of a lien, charge or
encumbrance on any property or assets of the Issuers or any of the
Subsidiary Guarantors or an acceleration of any indebtedness of any of the
Issuers or the Subsidiary Guarantors pursuant to, (i) the charter,
constitutive documents or bylaws of either of the Issuers or any of the
Subsidiary Guarantors, (ii) any Material Agreement, (iii) any statute,
rule or regulation applicable to any of the Issuers or the Subsidiary
Guarantors or their assets or properties or (iv) any judgment, order or
decree of any domestic or foreign court or governmental agency or
authority having jurisdiction over any of the Issuers or the Subsidiary
Guarantors or their assets or properties that, in the case of clauses
(ii), (iii) and (iv) above, would result in a Material Adverse Effect.
Assuming the accuracy of the representations and warranties of the
Purchaser in Section 5(b) of this Agreement, no consent, approval,
authorization or order of, or filing, registration, qualification, license
or permit of or with, any court or governmental agency, body or
administrative agency, domestic or foreign, is required to be obtained or
made by the Issuers for (1) the execution, delivery and performance by the
Issuers and the Subsidiary Guarantors of this Agreement or any of the
other Operative Documents, (2) the execution, delivery and performance by
the Issuers of the Transaction Documents or (3) the consummation of the
Acquisition or any of the transactions contemplated thereby, except (i)
such as have been or will be obtained or made prior to Closing, (ii)
registration of the Notes under the Act pursuant to the Registration
Rights Agreement or (iii) such as may be required by the NASD. No consents
or waivers from any other person or entity are required for the execution,
delivery and performance of this Agreement or any of the other Operative
Documents, the execution, delivery and performance of the Transaction
Documents or the consummation of the Acquisition or any of the
transactions contemplated thereby,
-16-
other than such consents and waivers as have been or will be obtained.
(xvi) There is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the knowledge of the Issuers or the Subsidiary
Guarantors, threatened or contemplated to which any of the Issuers or the
Subsidiary Guarantors is or may be a party or to which the business,
assets or property of such person is or may be subject, (ii) no statute,
rule, regulation or order that has been enacted, adopted or issued or, to
the knowledge of the Issuers or the Subsidiary Guarantors, that has been
proposed by any governmental body or agency, domestic or foreign, (iii) no
injunction, restraining order or order of any nature by a federal or state
court or foreign court of competent jurisdiction to which any of the
Issuers or the Subsidiary Guarantors is or may be subject that, (x) in the
case of clause (i) above, except for those described in the Offering
Memorandum under the caption "Business -- Legal Proceedings," if
determined adversely to the Issuers or the Subsidiary Guarantors, would be
reasonably likely to, either individually or in the aggregate, (1) result
in a Material Adverse Effect, or (2) interfere with or adversely affect
the issuance of the Notes or the Subsidiary Guarantees in any jurisdiction
or adversely affect the consummation of the transactions contemplated by
any of the Operative Documents or the Transaction Documents and, (y) in
the case of clauses (ii) and (iii) above, would, either individually or in
the aggregate, (1) result in a Material Adverse Effect, or (2) interfere
with or adversely affect the issuance of the Notes or the Subsidiary
Guarantees in any jurisdiction or adversely affect the consummation of the
transactions contemplated by any of the Operative Documents or the
Transaction Documents. Every request of any securities authority or agency
of any jurisdiction for additional information with respect to Notes that
has been received by the Issuers, Subsidiary Guarantors or their counsel
prior to the date hereof, has been, or will prior to the Closing Date be,
complied with in all material respects.
(xvii) The Issuers have delivered to the Purchaser true and correct
executed copies of the Transaction Documents and there have been no
amendments, alterations or modifications thereto or waivers of any of the
provisions thereof. The representations and warranties of the Issuers set
forth in the Transaction Documents are true and correct as of the date of
this Agreement and will be true and correct as of
-17-
the Closing Date (except to the extent that any such representation or
warranty was expressly made as of any other date, in which case such
representation and warranty was true and correct as of such date).
(xviii) No labor disturbance by the employees of any of the Issuers
or the Subsidiary Guarantors exists or, to the actual knowledge of the
Issuers or the Subsidiary Guarantors, is imminent that might reasonably be
expected to have a Material Adverse Effect; the Issuers and the Subsidiary
Guarantors are in compliance in all respects with, as applicable and
except where a failure to so comply would not have a Material Adverse
Effect, (1) all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA") or (2) any similar
Netherlands Antilles or Canadian federal or provincial legislation; no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Issuers or the
Subsidiary Guarantors would have any liability; none of the Issuers or the
Subsidiary Guarantors has incurred or expects to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); each "pension plan" that is
maintained or contributed to by the Issuers or the Subsidiary Guarantors
that is intended to be qualified under Section 401(a) of the Code is so
qualified and nothing has occurred, whether by action or by failure to
act, that would cause the loss of such qualification; and each employee
benefit or pension plan that the Issuers or the Subsidiary Guarantors (as
applicable) maintain or to which they are obligated to contribute and that
is subject to the Pension Benefits Standards Act, 1985 (Canada), to any
other Canadian federal law regulating employee benefit or pension plans or
to any provincial law regulating employee benefit plans (a "Canadian
Plan") is in compliance in all material respects with such laws, to the
extent applicable. None of the Issuers or the Subsidiary Guarantors has
incurred any material liability under any such Canadian Plan or otherwise
on account of any failure to meet the contribution or minimum funding
requirements applicable to, or the administration or termination of, any
such Canadian Plan, and no event has occurred and no conditions exist that
present a material risk that the Issuers and the Subsidiary
-18-
Guarantors will incur liabilities on account of the foregoing
circumstances that are material in the aggregate.
(xix) Except as set forth in the Offering Memorandum, each of the
Issuers and the Subsidiary Guarantors (i) is in compliance with, or
subject to costs or liabilities under, all local, state, provincial,
federal and foreign laws, regulations, rules of common law, orders and
decrees, as in effect as of the date hereof, and any present judgments and
injunctions issued or promulgated thereunder relating to pollution or
protection of public and employee health and safety and the environment
applicable to it or its business or operations or ownership or use of its
property ("Environmental Laws"), other than noncompliance or such costs or
liabilities that would not result in a Material Adverse Effect, and (ii)
possesses all permits, licenses or other approvals required under
applicable Environmental Laws, other than permits, licenses or approvals
the lack of which would not result in a Material Adverse Effect. All
currently pending and, to their knowledge, threatened proceedings, notices
of violation, demands, notices of potential responsibility or liability,
suits and existing environmental conditions with respect to which the
Issuers or the Subsidiary Guarantors could reasonably be expected to have
any material liability are fully and accurately described in all material
respects in the Offering Memorandum.
(xx) Each of the Issuers and the Subsidiary Guarantors has (i) good
and marketable title to all of the properties and assets described in the
Offering Memorandum as owned by it and good and marketable title to the
leasehold estates in the real and personal property described in the
Offering Memorandum as leased by it, free and clear of all Liens, except
for Liens described in the Offering Memorandum, Liens permitted under the
Indenture and the Security Documents and such Liens as would not have a
Material Adverse Effect, (ii) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made
all declarations and filings with, all federal, state, local and foreign
authorities, all self-regulatory authorities and all courts and other
tribunals (each, an "Authorization") necessary to engage in the business
conducted by it in the manner described in the Offering Memorandum, except
where failure to hold such Authorizations would not have a Material
Adverse Effect, and (iii) no reason to believe that any governmental body
or agency, domestic or foreign, is considering limiting, suspending or
revoking any such
-19-
Authorization, other than revocations that would not result in a Material
Adverse Effect. Except where the failure to be in full force and effect
would not have a Material Adverse Effect, all such Authorizations are
valid and in full force and effect and each of the Issuers and the
Subsidiary Guarantors is in compliance in all material respects with the
terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities having jurisdiction with respect
to such Authorizations. All leases to which any of the Issuers or the
Subsidiary Guarantors is a party are valid and binding, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought and no default has occurred and is continuing thereunder, other
than defaults that would not result in a Material Adverse Effect.
(xxi) Each of the Issuers and the Subsidiary Guarantors owns,
possesses or has the right to employ all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "Intellectual Property") necessary to conduct the
businesses operated by it as described in the Offering Memorandum, other
than such Intellectual Property that would not result in a Material
Adverse Effect. None of the Issuers or the Subsidiary Guarantors has
received any notice of infringement of or conflict with (and neither knows
of any such infringement or a conflict with) asserted rights of others
with respect to any of the foregoing that, if such assertion of
infringement or conflict were sustained, would have a Material Adverse
Effect. The use of the Intellectual Property in connection with the
business and operations of the Issuers and the Subsidiary Guarantors does
not infringe on the rights of any person.
(xxii) All tax returns required to be filed by each of the Issuers
and the Subsidiary Guarantors have been filed in all jurisdictions where
such returns are required to be filed; and all taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities or that are due and
payable have been paid, other than those being contested in good faith and
for which reserves have been provided in
-20-
accordance with generally accepted accounting principles or those
currently payable without penalty or interest, except where the failure to
make any such filing or payment would not have a Material Adverse Effect.
To the knowledge of each of the Issuers and the Subsidiary Guarantors,
there are no material proposed additional tax assessments against any of
them or their assets or property.
(xxiii) None of the Issuers or the Subsidiary Guarantors is an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or analogous foreign laws and regulations.
(xxiv) Except with respect to the Notes, there are no holders of
securities of any of the Issuers or the Subsidiary Guarantors who have, or
will have upon consummation of the Acquisition, the right to request or
demand that any of the Issuers or the Subsidiary Guarantors register under
the Act or analogous foreign laws and regulations any of such securities
held by any such holders.
(xxv) Each of the Issuers and the Subsidiary Guarantors maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that: (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of its financial statements in
conformity with United States generally accepted accounting principles and
to maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for its assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxvi) Each of the Issuers and the Subsidiary Guarantors maintains
insurance covering its properties, assets, operations, personnel and
businesses, and such insurance is of such type and in such amounts in
accordance with customary industry practice to protect the Issuers and the
Subsidiary Guarantors and their businesses. None of the Issuers or the
Subsidiary Guarantors has received notice from any insurer or agent of
such insurer that any material capital improvements or other material
expenditures will have to be made in order to continue any insurance
maintained by any of them other than capital improvements and
-21-
other expenditures that have been budgeted by the Issuers and the
Subsidiary Guarantors, as the case may be.
(xxvii) None of the Issuers, the Subsidiary Guarantors or their
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
(A) taken, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Issuers to facilitate the
sale or resale of the Series A First Mortgage Notes or (B) since the date
of the Preliminary Offering Memorandum (x) sold, bid for, purchased or
paid any person any compensation for soliciting purchases of the Series A
First Mortgage Notes in a manner that would require registration of the
Series A First Mortgage Notes under the Act or (y) paid or agreed to pay
to any person any compensation for soliciting another to purchase any
other securities of any of the Issuers or the Subsidiary Guarantors in a
manner that would require registration of the Series A First Mortgage
Notes under the Act.
(xxviii) No registration under the Act of the Series A First
Mortgage Notes is required for the sale of the Series A First Mortgage
Notes to the Purchaser as contemplated by this Agreement or for the Exempt
Resales, assuming in each case that (A) the purchasers who buy the Series
A First Mortgage Notes in the Exempt Resales are either QIBs or Accredited
Investors and (B) the accuracy of and compliance with the Purchaser's
representations, warranties and covenants contained in Section 5(b) of
this Agreement. No form of general solicitation or general advertising
(prohibited by the Act in connection with offers or sales such as the
Exempt Resales) was used by the Issuers, any of the Subsidiary Guarantors
or any of their representatives in connection with the offer and sale of
any of the Series A First Mortgage Notes or in connection with Exempt
Resales, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising.
(xxix) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Notes and Subsidiary Guarantees to
be purchased by the QIBs and the Accredited Investors will not involve any
prohibited transaction within the meaning of Section 406(a) of ERISA or
Section 4975(c)(1)(A)-(D) of the Code. The representation
-22-
made by each of the Issuers and the Subsidiary Guarantors in the preceding
sentence is made in reliance upon and subject to the accuracy of, and
compliance with, the representations and covenants made or deemed made by
the QIBs and the Accredited Investors as set forth in the Offering
Memorandum under the caption "Transfer Restrictions."
(xxx) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, and each amendment or supplement thereto, as
of its date, contain the information specified in, and meet the
requirements of, Rule 144A(d)(4) under the Act.
(xxxi) As of December 31, 1995, neither of the Issuers nor any of
the Subsidiary Guarantors had any material liabilities or obligations,
direct or contingent, that were not set forth in Statia's consolidated
balance sheet as of December 31, 1995 or in the notes thereto. Since
December 31, 1995 and up to the Closing Date, except as set forth in the
Offering Memorandum, (a) none of the Issuers or the Subsidiary Guarantors
has (1) incurred any liabilities or obligations, direct or contingent,
that are not in the ordinary course of business that would have a Material
Adverse Effect or (2) entered into any material transaction not in the
ordinary course of business, (b) there has not been any event or
development in respect of the business, development or financial condition
of either of the Issuers that would, either individually or in the
aggregate, result in a Material Adverse Effect and (c) there has been no
dividend or distribution of any kind declared, paid or made by either of
the Issuers or any of the Subsidiary Guarantors on any class of their
capital stock.
(xxxii) Neither of the Issuers nor any of the Subsidiary Guarantors
(nor any agent thereof acting on behalf of it) has taken, and none of them
will take, any action that might cause this Agreement or the issuance or
sale of the Notes to violate Regulation G (12 C.F.R. Part 207), Regulation
T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X
(12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve
System or analogous foreign laws and regulations, in each case as in
effect, or as the same may hereafter be in effect, on the Closing Date.
(xxxiii) The accountants who have certified or shall certify the
financial statements included or to be included as part of the Offering
Memorandum are independent accountants within the meaning of the Act. The
historical
-23-
financial statements of the Issuers and the pro forma financial statements
of the Issuers comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under the
Act and present fairly in all material respects the financial position and
results of operations of the Issuers at the respective dates and for the
respective periods indicated. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods presented (except as
disclosed in the Offering Memorandum) and comply as to form with the rules
and regulations promulgated under the Act. The pro forma financial
statements included in the Offering Memorandum have been prepared on a
basis consistent with such historical statements, except for the pro forma
adjustments specified therein, and give effect to assumptions made on a
reasonable basis and present fairly in all material respects the
historical and proposed transactions contemplated by this Agreement, the
other Operative Documents and the Transaction Documents and comply as to
form with the rules and regulations promulgated under the Act. The other
financial and statistical information and data included in the Offering
Memorandum, historical and pro forma, are accurately presented in all
material respects and prepared on a basis consistent with the financial
statements and the books and records of the Issuers and the Subsidiary
Guarantors.
(xxxiv) None of the Issuers or the Subsidiary Guarantors (A) is
"insolvent" as that term is defined in Section 101(32) of the United
States Bankruptcy Code (the "Bankruptcy Code") (11 U.S.C. ss. 101(32)),
Section 2 of the Uniform Fraudulent Transfer Act ("UFTA") or Section 2 of
the Uniform Fraudulent Conveyance Act ("UFCA"), (B) is an "insolvent
person" as that term is defined in Section 2 of the Bankruptcy and
Insolvency Act (Canada) (the "BIA") or has committed an "act of
bankruptcy" for the purposes of Section 42 of the BIA or is the "debtor
company" as defined in Section 2 of the Companies' Creditors Arrangement
Act (Canada), (C) has "unreasonably small capital" as that term is used in
Section 548(a)(2)(ii) of the Bankruptcy Code or Section 5 of the UFCA, (D)
is engaged or about to engage in a business or transaction for which its
remaining property is "unreasonably small" in relation to the business or
transaction as that term is used in Section 4 of the UFTA or (E) is unable
to pay its debts as they mature or become due, within the meaning of
Section 548(a)(2)(B)(iii) of the
-24-
Bankruptcy Code, Section 4 of the UFTA and Section 6 of the UFCA. Each of
the Issuers and Subsidiary Guarantors now owns assets having a value both
at "fair valuation" and at "present fair saleable value" greater than the
amount required to pay its "debts" as such terms are used in Section 2 of
the UFTA and Section 2 of the UFCA. None of the Issuers or the Subsidiary
Guarantors will be rendered insolvent by the execution and delivery of any
of the Operative Documents or Transaction Documents or by the transactions
contemplated hereunder or thereunder.
(xxxv) Except as described in the section entitled "Certain
Relationships and Related Transactions" in the Offering Memorandum, there
are no contracts, agreements or understandings between the Issuers or any
of the Subsidiary Guarantors and any other person other than the Purchaser
that would give rise to a valid claim against the Issuers, the Subsidiary
Guarantors or the Purchaser for a brokerage commission, finder's fee or
like payment in connection with the issuance, purchase and sale of the
Notes.
(xxxvi) No consent, approval, authorization, exemption, order or
decree of any Canadian court or governmental or regulatory agency or body
not otherwise obtained prior to the Closing Date is required to permit
Statia Canada to effect payments of principal of, premium and interest on
the Notes, if any, or any payments on a non-judicial winding-up of Statia
Canada, in United States dollars.
(xxxvii) The Issuers have the authorized, issued and outstanding
capitalization set forth in the Offering Memorandum under the caption "Pro
Forma Capitalization"; all of the outstanding capital stock of the Issuers
has been duly authorized and validly issued, is or will be on the Closing
Date fully paid and nonassessable and was not issued in violation of any
preemptive or similar rights.
(xxxviii) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources that the Issuers
believe to be reliable and accurate in all material respects and represent
the Issuers' good faith estimates that are made on the basis of data
derived from such sources.
(xxxix) Each certificate signed by any officer of the Issuers or any
of the Subsidiary Guarantors and delivered to the Purchaser or counsel for
the Purchaser pursuant to, or in connection with, this Agreement shall be
deemed to be a
-25-
representation and warranty by the Issuers or the Subsidiary Guarantors to
the Purchaser as to the matters covered by such certificate.
(xl) Upon execution and delivery by the parties thereto on the
Closing Date and assuming due recording, each Mortgage will create and
constitute (A) a valid and enforceable mortgage lien on the real property
and fixtures described therein (the "Real Property") and (B) a valid and
enforceable security interest in such of the Mortgaged Property (as
defined in the applicable Mortgages), other than the Real Property, in
which a security interest can be created under the laws of the Netherlands
Antilles and Canada, as the case may be, where such Mortgaged Property is
located (the "Personal Property"), in each case subject to no liens other
than Prior Liens (as defined in the applicable Mortgage). The Mortgages
will be in proper form under the laws of the Netherlands Antilles and the
Province of Nova Scotia, Canada, as the case may be, to be accepted for
recording in the provinces or other appropriate jurisdictions where the
Mortgaged Property encumbered thereby is located.
(xli) Upon execution and delivery of the Security Agreements by the
Issuers and the Subsidiary Guarantors on the Closing Date, the Security
Agreements will create and constitute valid, enforceable and, subject to
all required filings contemplated by clause (xliii) below and actions
contemplated by clause (xliv) below, perfected security interests in,
liens on or pledges of all of the Pledged Collateral (as defined in the
Security Agreements collectively).
(xlii) Upon (A) execution and delivery of the Security Documents
(other than the Securities Pledge Agreements) by the appropriate Issuers
and Subsidiary Guarantors on the Closing Date, and (B)(1) with respect to
the Mortgaged Property (as defined in each Mortgage encumbering Real
Property located in Canada), the registration of each such Mortgage with
(x) the local registry office in the local jurisdiction in which such
Mortgaged Property is located and (y) the Central Registry for the
Corporation Securities Registration Act and (2) with respect to the
Mortgaged Property (as defined in each mortgage encumbering Real Property
located in the Netherlands Antilles), the registration of each such
Mortgage with the Registrar of Mortgages in the county in which such
Mortgaged Property is located, the security interest, lien or pledge
created by
-26-
the Security Documents (other than the Securities Pledge Agreements) in
the Collateral encumbered thereby will be a perfected security interest
prior to all other claims or security interests therein, except for Prior
Liens permitted by the applicable Security Document.
(xliii) Upon (A) execution and delivery of the Securities Pledge
Agreements by the appropriate Issuers and Subsidiary Guarantors on the
Closing Date, (B) notification by each Pledgor (as defined in each
Securities Pledge Agreement delivered on the Closing Date substantially in
the form of Exhibit I-1 of the Indenture) to the issuers of the Pledged
Shares (as defined in each such Securities Pledge Agreement) pledged by
such Pledgor and acknowledgment of such pledge by the issuers thereof, and
(C) delivery of certificates representing the Pledged Shares provided that
the Collateral Agent holds such certificates in accordance with applicable
Securities Pledge Agreement), the Securities Pledge Agreements will create
and constitute a valid, enforceable and perfected security interest in,
lien on and pledge of all of the Pledged Collateral (as defined in the
Securities Pledge Agreements) prior to all other claims or security
interests therein.
(xliv) Each of the Issuers and the Subsidiary Guarantors represents,
warrants and covenants that the Mortgaged Property comprises all of the
Real Property owned and/or leased by the appropriate Issuer and Subsidiary
Guarantor, as reflected in the applicable registry, other than the Real
Property located in Brownsville, Texas.
(xlv) Each of the Issuers and the Subsidiary Guarantors represents,
warrants and covenants that all of the assets (other than the assets of
the Brownsville Facility (as defined in the Indenture), vehicles, marine
vessels and emergency spill response equipment) of the Issuers and the
Subsidiary Guarantors have been legally and validly pledged in accordance
with the Security Documents.
(xlvi) Each of the Issuers and Subsidiary Guarantors represents and
warrants that the issuance of Notes and the entering into of the Operative
Documents is in its corporate interest and does not prejudice the rights
of its creditors.
Each of the Issuers and the Subsidiary Guarantors acknowledges that
the Purchaser and, for purposes of the opinions to be delivered to the Purchaser
pursuant to Section 8 of this Agreement, the various law firms acting as counsel
to the Issuers
-27-
and each of the Subsidiary Guarantors and counsel to the Purchaser will rely
upon the accuracy and truth of the foregoing representations and the Issuers and
each Subsidiary Guarantor hereby consent to such reliance.
(b) The Purchaser represents, warrants and covenants (as to itself
only) to the Issuers that it is a QIB with such knowledge and experience in
financial and business matters as are necessary in order to evaluate the merits
and risks of an investment in the securities. The Purchaser represents, warrants
and agrees (as to itself only) with the Issuers that (i) it has not and will not
solicit offers for, or offer or sell, the Notes by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act and (ii) it has and will solicit offers for the Notes
only from, and will offer the Notes only to (x) persons whom the Purchaser
reasonably believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to the Purchaser that each such account is
a QIB, to whom notice has been given that such sale or delivery is being made in
reliance on Rule 144A, and, in each case, in transactions under Rule 144A, (y) a
limited number of other institutional investors reasonably believed by the
Purchaser to be Institutional Accredited Investors that, prior to their purchase
of the Notes, deliver to the Purchaser a letter containing the representations
and agreements set forth in Annex B to the Offering Memorandum or (z) persons
other than U.S. persons outside the U.S. in reliance on Regulation S.
The Purchaser represents and warrants that the source of funds being
used by it to acquire the Notes does not include the assets of any "employee
benefit plan" (within the meaning of Section 3 of ERISA) or any "plan" (within
the meaning of Section 4975 of the Code).
The Purchaser understands that the Issuers and, for purposes of the
opinion to be delivered to them pursuant to Section 8(f) hereof, counsel to the
Issuers, will rely upon the accuracy and truth of the foregoing representations,
and the Purchaser hereby consents to such reliance.
6. INDEMNIFICATION. (a) Each of the Issuers jointly and severally
agrees to indemnify and hold harmless the Purchas- er, each person, if any, who
controls the Purchaser within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, the agents, employees, officers and directors of the
Pur-
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chaser and the agents, employees, officers and directors of any such controlling
person from and against any and all losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to reasonable attorneys' fees and
any and all reasonable expenses whatsoever incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) to which they or any of them may become subject under the Act, the
Exchange Act or otherwise insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum, or in any supplement
thereto or amendment thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Issuers
will not be liable (i) in any such case to the extent, but only to the extent,
that any such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information relating to the Purchaser furnished to the Issuers by or on behalf
of the Purchaser expressly for use therein or (ii) with respect to the
Preliminary Offering Memorandum, to the extent that any such loss, claim, damage
or liability arises solely from the fact that the Purchaser sold Series A First
Mortgage Notes to a person to whom there was not sent or given, on or prior to
the written confirmation of such sale, a copy of the Offering Memorandum, as
amended and supplemented, if the Issuers shall have previously furnished copies
thereof to the Purchaser in accordance with this Agreement and the Offering
Memorandum, as amended and supplemented, would have corrected any such untrue
statement or omission; provided, however, that the Issuers shall sustain the
burden of proving that the Purchaser sold Series A First Mortgage Notes to the
Person alleging such loss, claim, damage or expense without sending or giving,
at or prior to the written confirmation of such sale, a copy of the Offering
Memorandum. This indemnity agreement will be in addition to any liability that
the Issuers may otherwise have, including, but not limited to, under this
Agreement.
(b) The Purchaser agrees to indemnify and hold harmless the Issuers,
each person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, and each of their agents,
employees,
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officers and directors and the agents, employees, officers and directors of such
controlling person from and against any losses, liabilities, claims, damages and
reasonable expenses whatsoever (including but not limited to reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all reasonable amounts paid in
settlement of any claim or litigation) to which they or any of them may become
subject under the Act, the Exchange Act or otherwise insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information relating to the
Purchaser furnished to the Issuers by the Purchaser expressly for use therein.
The Issuers and the Purchaser acknowledge that the information set forth in
Section 9 is the only information furnished in writing by the Purchaser to the
Issuers expressly for use in the Offering Memorandum.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, suit or proceeding
(collectively, an "action"), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of the
commencement of such action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have
under this Section 6 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may otherwise
have). In case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement of such action, the
indemnifying party will be entitled to participate in such action, and to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense of such action with counsel
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satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii)
such indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them that are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses of counsel shall be borne by the indemnifying parties. In
no event shall the indemnifying party be liable for the fees and expenses of
more than one counsel (together with appropriate local counsel) at any time for
all indemnified parties in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. Anything in this subsection to
the contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, the Issuers and the Purchaser shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any reasonable investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action or any claims asserted) to which the Issuers and the
Purchaser may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Issuers, on the one hand, and the Purchaser,
on the other hand, from the offering of the Series A First Mortgage Notes or, if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Issuers, on the one hand, and the Purchaser, on the
other hand, in connection with
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the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuers, on the one hand, and the
Purchaser, on the other hand, shall be deemed to be in the same proportion as
(x) the total proceeds from the offering of Series A First Mortgage Notes (net
of discounts and commissions but before deducting expenses) received by the
Issuers and (y) the total discounts and commissions received by the Purchaser as
set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Issuers, on the one hand, and the Purchaser, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
or the Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission. The provisions set forth in Section 6 with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 7; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 6 for purposes of indemnification.
The Issuers and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall the Purchaser be required to contribute
any amount in excess of the amount by which the total discount and commissions
applicable to the Series A First Mortgage Notes pursuant to this Agreement
exceeds the amount of any damages that the Purchaser have otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls the Purchaser within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as the
Purchaser, and each person, if any, who controls the Issuers within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as the Issuers, subject in each case to clauses (i)
and (ii) of this Section 7. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action against
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such party in respect of which a claim for contribution may be made against
another party or parties under this Section 7, notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 7 or
otherwise. No party shall be liable for contribution with respect to any action
or claim settled without its written consent, provided, however, that such
written consent was not unreasonably withheld.
8. CONDITIONS OF PURCHASER'S OBLIGATIONS. The obligations of the
Purchaser to purchase and pay for the Se- ries A First Mortgage Notes, as
provided for in this Agreement, shall be subject to satisfaction of the
following conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Issuers
contained in this Agreement shall be true and correct on the date of this
Agreement and on the Closing Date. Each of the Issuers shall have
performed or complied with all of the agreements contained in this
Agreement and required to be performed or complied with by it at or prior
to the Closing Date.
(b) No stop order suspending the qualification or exemption from
qualification of the Series A First Mortgage Notes in any jurisdiction
shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency that would, as of the Closing Date, prevent the issuance of the
Series A First Mortgage Notes or the consummation of the Acquisition or
the Exchange Offer; no action, suit or proceeding shall have been
commenced and be pending against or affecting or, to the best knowledge of
the Issuers and the Subsidiary Guarantors, threatened against the Issuers
and/or the Subsidiary Guarantors before any court or arbitrator or any
governmental body, agency or official that, if adversely determined, would
result in a Material Adverse Effect.
(d) Since December 31, 1995, except as contemplated by the Offering
Memorandum, neither of the Issuers nor any of the Subsidiary Guarantors
had any material liabilities or obligations, direct or contingent, that
were not set forth
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in Statia's consolidated balance sheet as of December 31, 1995 or in the
notes thereto. Since December 31, 1995 and up to the Closing Date, except
as set forth in the Offering Memorandum, (a) none of the Issuers or the
Subsidiary Guarantors has (1) incurred any liabilities or obligations,
direct or contingent, that are material to any of them or (2) entered into
any material transaction not in the ordinary course of business, (b) there
has not been any event or development that would result in a Material
Adverse Effect and (c) there has been no dividend or distribution of any
kind declared, paid or made by either of the Issuers or any of the
Subsidiary Guarantors on any class of their capital stock.
(e) The Purchaser shall have received certificates, dated the
Closing Date, signed by (i) a Managing Director, Director, Chief Executive
Officer or any Executive Vice President or Senior Vice President and (ii)
the chief financial or accounting officer or director of each of the
Issuers confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Purchaser shall have received on the Closing Date an opinion
dated the Closing Date, addressed to the Purchaser, of White & Case,
special counsel to the Issuers, in form and substance as set forth in
Exhibit B hereto.
(g) The Purchaser shall have received on the Closing Date an opinion
dated the Closing Date addressed to the Purchases, of Smeets Thesseling
Van Bokhorst Spigt, Netherlands Antilles counsel to the Issuers, in form
and substance as set forth in Exhibit C hereto.
(h) The Purchaser shall have received on the Closing Date an opinion
dated the Closing Date of Stewart McKelvey Stirling Scales, Nova Scotia
counsel to the Purchaser, in form and substance as set forth in Exhibit D
hereto.
(i) The Purchaser shall have received on the Closing Date an opinion
(satisfactory in form and substance to the Purchaser) dated the Closing
Date of Cahill Gordon & Reindel, special counsel to the Purchaser,
covering such matters as are customarily covered in such opinions.
(j) The Purchaser shall have received on the Closing Date an opinion
(satisfactory in form and substance to the Purchaser and counsel to the
Purchaser) of De Brauw Blackstone Westbroek, Netherlands Antilles counsel
to the
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Purchaser, covering such matters as are customarily covered in such
opinions.
(k) The Purchaser shall have received on the Closing Date an opinion
(satisfactory in form and substance to the Purchaser and counsel to the
Purchaser) dated the Closing Date of McMillan Binch, Nova Scotia, Canadian
counsel to the Purchaser, covering such non-tax matters as are customarily
covered in such opinions.
(l) The Purchaser shall have received on the Closing Date an opinion
(satisfactory in form and substance to the Purchaser and counsel to the
Purchaser) dated the Closing Date of Coopers & Lybrand LLP, special
Netherlands Antilles tax counsel to the Issuers and of Arthur Andersen,
special Canadian tax counsel to the Issuers.
(m) Prior to the execution of this Agreement, the Purchaser shall
have received a "comfort letter" from Arthur Andersen LLP, independent
public accountants for the Issuers, dated as of the date of this
Agreement, addressed to the Purchaser and in form and substance
satisfactory to the Purchaser and counsel to the Purchaser. In addition,
as of the Closing Date, the Purchaser shall have received a "bring-down
comfort letter" from Arthur Andersen LLP in form and substance
satisfactory to the Purchaser and counsel to the Purchaser covering the
same items and matters as covered in the "comfort letter" but as of a date
that is not more than five days prior to the date thereof and any changes
and additions to the Preliminary Offering Memorandum that were made
producing the Offering Memorandum.
(n) The Purchaser shall have received from Ernst & Young/Wright
Killen (satisfactory in form and substance to the Purchaser and counsel to
the Purchaser) the Replacement Cost Appraisal relating to the St.
Eustatius and Point Tupper facilities.
(o) The Issuers, the Subsidiary Guarantors and the Trustee shall
have entered into the Indenture and the Purchaser shall have received
counterparts, conformed as executed, thereof.
(p) The Purchaser shall have received from Houlihan, Lokey, Howard &
Zukin, Inc. (satisfactory in form and substance to the Purchaser and
counsel to the Purchaser) a solvency opinion relating to the Issuers.
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(q) The Issuers, the Subsidiary Guarantors and the Trustee shall
have entered into the Registration Rights Agreement and the Purchaser
shall have received counterparts, conformed as executed, thereof.
(r) The Issuers shall have entered into the New Revolving Bank
Credit Facility, which shall be in form and substance satisfactory to the
Purchaser and counsel to the Purchaser; and the Purchaser shall have
received counterparts, conformed as executed thereof.
(s) Prior to or simultaneously with the closing of the transactions
contemplated by this Agreement, each condition precedent to the
consummation of the Acquisition shall have been satisfied and the
Acquisition shall have been consummated. There shall exist at and as of
the Closing Date (after giving effect to the transactions contemplated by
this Agreement) no conditions that would constitute a default (or an event
that with notice or the lapse of time, or both, would constitute a
default) under the Transaction Documents.
(t) Cahill Gordon & Reindel, counsel to the Purchaser, shall have
been furnished with such documents as they may reasonably request to
enable them to review or pass upon the matters referred to in this Section
8 and in order to evidence the accuracy, completeness or satisfaction in
all material respects of any of the representations, warranties or
conditions contained in this Agreement.
(u) The Purchaser shall have been furnished with certified copies of
such documents as they may reasonably request, including, but not limited
to, certified copies of the Transaction Documents, the Castle Harlan
Agreement and all closing documents from the closings of the transactions
contemplated hereby.
(v) On or before the Closing Date, the Issuers shall have caused to
be delivered to the Purchaser and the Collateral Agent the following
documents and instruments with regard to each Mortgaged Property:
(i) a Mortgage encumbering the Issuers' or applicable
Subsidiary Guarantor's interest in each such Mortgaged Property,
duly executed and acknowledged by the owner or holder of the fee
and/or other interest constituting such Mortgaged Property, dated on
or before the Closing Date, and to the extent that such
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Mortgaged Property consists of real estate situated in the
Netherlands Antilles, a declaration from the relevant Property
Register of the Netherlands Antilles evidencing that a first
mortgage has been, is or shall be granted to the Collateral Agent
for the benefit of the holders of the Notes as submitted on or prior
to the Closing Date, and otherwise in form for recording in the
appropriate recording office of the political subdivision where such
Mortgaged Property is situated, together with such certificates,
affidavits, questionnaires or returns as shall be required in
connection with the recording or filing thereof and such statements
as are contemplated in respect of such Mortgage by the counsel
opinions set forth in paragraphs (g) and (h) of this Section 8, and
any other instruments necessary to grant the interests purported to
be granted by such Mortgage under the laws of any applicable
jurisdiction, which Mortgage and other instruments shall be
effective to create a Lien on such Mortgaged Property in favor of
the Collateral Agent, subject to no Liens other than Liens permitted
to be outstanding pursuant to such Mortgage;
(ii) with respect to each Mortgaged Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination
agreements or other instruments as shall be necessary in order for
the owner or holder of the fee interest to grant the Lien
contemplated by the Mortgage with respect to such Mortgaged
Property;
(iii) with respect to each Mortgage, a title and zoning
Opinion of Counsel (satisfactory in form and substance to the
Purchaser and the Collateral Agent) dated the Closing Date,
substantially to the effect that the Lien of such Mortgage is a
valid first mortgage Lien on the Mortgaged Property encumbered
thereby, subordinate only to those Liens specified in such Mortgage
as "Prior Liens";
(iv) with respect to Mortgaged Property located in (A) the
Netherlands Antilles, a property and contour plan (a) prepared by
Chicago Bridge & Iron Company (or an Affiliate thereof), (b) dated
November 15, 1996, (c) indicating the contours and bounderies of the
portion of such Mortgaged Property constituting Real Property (and
all buildings, structures and improvements located thereon) and (d)
certified by the
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appropriate Subsidiary Guarantors to the effect that (x) such plan
is in all material respects a true and accurate depiction of all the
Mortgaged Property other than portions of the Mortgaged Property
which are not material to the conduct of the Issuers' and the
Subsidiary Guarantors' business and (y) there are no encroachments
other than as set forth in such plan and (B) Canada, (a) a location
plan (the "Location Plan") prepared by a surveyor who is a member of
the Association of Nova Scotia Land Surveyors constituted by the
Land Surveyors Act (Nova Scotia) (a "NS Surveyor") dated no earlier
than one month before the Closing Date, containing, in all material
respects a visual illustration of the portion of such Mortgaged
Property constituting Real Property (and all buildings, structures
and improvements located within the amount of certification shown in
the Location Plan), together with (b) a certificate of the NS
Surveyor, dated as of the date of the Location Plan, certifying to
the Initial Purchaser and the Trustee that the legal description
attached to such certificate in all material respects describes the
Real Property shown in the compiled plan annexed thereto (the
"Compiled Plan") and (c) an Officers' Certificate of Statia Canada
stating that the area represented on the Location Plan constitutes
all material portions of such Mortgaged Property constituting Real
Property (and all buildings, structures and improvements located
thereon) and, to his/her knowledge, accurately depicts in all
material respects such Property;
(v) with respect to each Mortgaged Property, policies or
certificates of insurance as required by the Mortgages relating
thereto, which policies or certificates shall bear mortgagee
endorsements of the character required by such Mortgages, and copies
evidencing payment of the relevant insurance premiums;
(vi) with respect to Mortgaged Property and other Collateral
located in Nova Scotia, Canada, personal property lien searches
confirming that the personal property comprising a part of such
Mortgaged Property is subject to no Liens other than Prior Liens (as
defined in the applicable Mortgage) or other liens permitted by the
applicable Security Documents;
(vii) with respect to each Mortgaged Property, such
affidavits, certificates and instruments of
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indemnification as shall be required to induce counsel to issue the
opinions contemplated in subparagraph (iii) above;
(viii) checks payable to the appropriate public officials in
payment of all recording costs and transfer taxes due in respect of
the execution, delivery or recording of such Mortgages;
(ix) with respect to each Mortgaged Property, copies of all
Leases (as defined in the Mortgages), all of which Leases shall, to
the extent not previously approved in writing by the Purchaser, be
acceptable to the Purchaser in its reasonable judgment; and
(x) with respect to each Mortgaged Property, a certificate of an
officer of the Issuers or Subsidiary Guarantors, as applicable, certifying
that, as of the date of delivery of such certificate, there has been
issued and is in effect a valid and proper certificate of occupancy or
legal equivalent, if required by local code or ordinances for the use then
being made of the applicable Mortgaged Property and that there is no
outstanding citation, violation or similar notice indicating that such
Mortgaged Property contains conditions which are not in compliance with
local codes or ordinances relating to building or fire safety or
structural soundness.
(w) On or before the Closing Date, the Issuers and the Subsidiary
Guarantors shall have caused to be delivered the following documents and
instruments with regard to the Collateral (other than the Mortgaged
Property):
(i) to the Purchaser and the Collateral Agent the Security
Agreements and Securities Pledge Agreements, duly executed by the
Issuers and the Subsidiary Guarantors party thereto, together with
evidence of all registrations or filings in each of the offices
where such registrations or filings are necessary or, in the opinion
of the Purchaser, desirable to perfect the Liens created or intended
to be created thereby;
(ii) to the Collateral Agent certificates (or the foreign
equivalent thereof) representing all of the issued and outstanding
capital stock of all of the Subsidiary Guarantors, together with
stock powers executed in blank and/or powers of attorney (as
appropriate), and caused to be made all filings and
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caused to be provided all additional documents necessary or, in the
opinion of the Purchaser, desirable to perfect the Liens created or
intended to be created by the Securities Pledge Agreements;
(iii) to the Purchaser evidence satisfactory to it of the
payment of all filing fees and taxes in connection with the filings
and registrations contemplated in clauses (i) and (ii) above and
acknowledgment copies of all such filings;
(iv) to Purchaser and Collateral Agent policies or
certificates of insurance as required by the Security Documents
(other than the Mortgages) which policies or certificates shall bear
endorsements of the character required by such Security Documents,
and copies evidencing payment of the relevant insurance premiums;
and
(v) to Purchaser and Collateral Agent evidence that all other
actions necessary to perfect and protect the Liens created by the
Security Documents have been taken.
If any of the conditions specified in this Section 8 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Purchaser on notice to the Issuers at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except that the Issuers shall
reimburse the Purchaser for all of their reasonable out-of-pocket expense,
including the reasonable expense of Purchaser's counsel, incurred by the
Purchaser in connection with this Agreement. Notwithstanding any such
termination, the provisions of Sections 4(e), 6, 7, 11(d) and 14 shall remain in
effect.
The Issuers' obligation under this Agreement to sell the Series A
First Mortgage Notes to the Purchaser on the Closing Date is subject to the
Purchaser purchasing and paying for all of the Series A First Mortgage Notes.
9. PURCHASER'S INFORMATION. The Issuers and the Purchaser severally
acknowledge that the statements with respect to the offer and sale of the Series
A First Mortgage Notes set forth in the last paragraph of the cover page and the
third and fourth paragraphs under the caption "Plan of Distribution" in the
Offering Memorandum constitute the only information furnished in
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writing by the Purchaser expressly for use in the Offering Memorandum.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations
and warranties, covenants and agreements contained in this Agreement, including
the agreements contained in Sections 4(e) and 11(d), the indemnity agreements
contained in Section 6 and the contribution agreements contained in Section 7
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Purchaser or any controlling person
thereof or by or on behalf of the Issuers, any of the Subsidiary Guarantors or
any controlling person of any thereof, and shall survive delivery of and payment
for the Series A First Mortgage Notes to and by the Purchaser. The
representations contained in Section 5 and the agreements contained in Sections
4(e), 6, 7, 11(d) and 14 shall survive the termination of this Agreement,
including pursuant to Section 11.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION. (a) This Agreement
shall become effective upon execution and delivery of a counterpart hereof by
each of the parties hereto.
(b) The Purchaser shall have the right to terminate this Agreement
at any time prior to the Closing Date by notice to the Issuers from the
Purchaser, without liability (other than with respect to Sections 6 and 7) on
the Purchaser's part to the Issuers if, on or prior to such date, (i) the
Issuers or any of the Subsidiary Guarantors shall have failed, refused or been
unable to perform in any material respect any agreement on its part to be
performed under this Agreement, (ii) any other condition of the obligations of
the Purchaser under this Agreement as provided in Section 8 is not fulfilled
when and as required in any material respect, (iii) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange shall
have been suspended or materially limited, or minimum prices shall have been
established on such exchange by the Commission, or by such exchange or other
regulatory body or governmental authority having jurisdiction, (iv) a general
banking moratorium shall have been declared by federal, New York, Canadian or
Netherlands Antilles authorities, or if a moratorium in foreign exchange trading
by major international banks or persons shall have been declared, (v) there is
an outbreak or escalation of armed hostilities involving the United States on or
after the date of this Agreement, or if there has been a declaration by the
United States of a national emergency or war, the effect of which shall be, in
the Purchaser's judgment, to make it inadvisable or impracticable to proceed
with the offering or delivery of the Series A First Mortgage Notes on the terms
and in the manner
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contemplated in the Offering Memorandum or (vi) there shall have been such a
material adverse change in general economic, political or financial conditions
or the effect of international conditions on the financial markets in the United
States shall be such as, in the Purchaser's judgment, to make it inadvisable or
impracticable to proceed with the offering or delivery of the Series A First
Mortgage Notes on the terms and in the manner contemplated in the Offering
Memorandum.
(c) Any notice of termination pursuant to this Section 11 shall be
given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to clause (i) or
(ii) of Section 11(b), or if the sale of the Series A First Mortgage Notes
provided for in this Agreement is not consummated because any condition to the
obligations of the Purchaser set forth in this Agreement is not satisfied or
because of any refusal, inability or failure on the part of either of the
Issuers to perform any agreement in this Agreement or comply with any provision
of this Agreement, the Issuers will, subject to demand by the Purchaser,
reimburse the Purchaser for all of their reasonable out-of-pocket expenses
(including the reasonable fees and expenses of all of Purchaser's counsel)
incurred in connection with this Agreement and the Transactions.
12. NOTICE. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Purchaser, shall be mailed, delivered,
or telexed, telegraphed or telecopied and confirmed in writing to Dillon, Read &
Co. Inc., 535 Madison Avenue, New York, New York 10022 (telephone: (212)
906-7000), Attention: Corporate Finance Department, telecopy number: (212)
593-0164; and if sent to the Issuers, shall be mailed, delivered or telexed,
telegraphed or telecopied and confirmed in writing to Statia Terminals, Inc.,
800 Fairway Drive, Suite 295, Deerfield Beach, Florida 33441 (telephone: (954)
698-0705), Attention: James F. Brenner, telecopy number: (954) 698-0706;
provided, however, that any notice pursuant to Section 7 shall be mailed,
delivered or telexed, telegraphed or telecopied and confirmed in writing.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when
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receipt acknowledged if telecopied; and one business day after being timely
delivered to a next-day air courier.
13. PARTIES. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Purchaser and the Issuers and the controlling
persons and agents referred to in Sections 6 and 7, and their respective
successors and assigns, and no other person shall have or be construed to have
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term "successors
and assigns" shall not include a purchaser, in its capacity as such, of Series A
First Mortgage Notes from the Purchaser.
14. CONSTRUCTION. This Agreement shall be construed in accordance
with the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law) and each of the parties hereto
consent to the jurisdiction of the courts of the State of New York. Each of the
parties hereto agrees to submit to the jurisdiction of the courts of the State
of New York and the U.S. Federal Courts sitting in the City of New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Indenture. The Issuers hereby designate and appoint CT Corporation System, 1633
Broadway, New York, New York 10019, as its agent to receive on its behalf
service of all process in any proceedings in any court sitting in New York, New
York, such service being hereby acknowledged by the Issuers to be effective and
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to the Issuers at the address specified in Section 12
hereof, except that unless otherwise provided by applicable law, any failure to
mail such copy shall not affect the validity of service of process. If any agent
appointed by the Issuers refuses to accept service, the Issuers hereby agree
that service upon them by mail shall constitute sufficient notice. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or shall limit the right of the Purchaser to bring proceedings against the
Issuers in the courts of any other jurisdiction.
15. CAPTIONS. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
16. COUNTERPARTS. This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.
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STATIA TERMINALS INTERNATIONAL
N.V.
By: /s/ David B. Pittaway
-----------------------------------
Name: David B. Pittaway
Title: Attorney-in-Fact
STATIA TERMINALS CANADA,
INCORPORATED
By: /s/ David B. Pittaway
-----------------------------------
Name: David B. Pittaway
Title: President, Director
Confirmed and accepted as
of the date first above
written:
DILLON, READ & COMPANY INC.
By: /s/ John G. Brim
----------------------------
Name: John G. Brim
Title: Managing Director
Schedule A
Acquired Companies
- ------------------
Statia Terminals, Inc.
Statia Terminals International N.V.
Statia Point Tupper Corporation
Statia Terminals Point Tupper, Inc.
Statia Terminals Southwest, Inc.
Point Tupper Marine Services, Ltd.
Saba Trustcompany N.V.
Bicen Development Corporation N.V.
W.P. Company, Inc.
Statia Laboratory Services N.V.
Statia Tugs N.V.
Seven Seas Steamship Company, Inc.
Exhibit A
Form of Registration Rights Agreement