SHARE PLEDGE AGREEMENT
SHARE PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of
November 27, 1996, by and between Statia Terminals
International N.V., a company incorporated under the laws of
the Netherlands Antilles having its corporate seat at L.B.
Smittplein 3, Curacao, Netherlands Antilles ("Pledgor") and
Marine Midland Bank, a New York banking corporation and trust
company having its registered office at 140 Broadway, 12th
Floor, New York, NY 10005-1180, as trustee (in such capacity
and together with any successors and assigns in such capacity,
"Pledgee") pursuant to the Indenture (as hereinafter defined)
and the Additional Lender Intercreditor Agreement as defined
in the Indenture, if any.
WITNESSETH:
WHEREAS, Pledgor, Statia Terminals Canada Incorporated
(together with the Pledgor hereafter collectively referred to
as the "Issuers"), certain subsidiaries of Pledgor and
Pledgee are contemporaneously with the execution and delivery
of this Pledge Agreement entering into a certain indenture,
dated as of November 27, 1996 (as amended, restated,
supplemented or otherwise modified from time to time, the
"Indenture") pursuant to which the Issuers are issuing
11 3/4% first mortgage notes due 2003 (the "First Mortgage
Notes"), in the aggregate principal amount of US$135,000,000;
WHEREAS, it is contemplated that the Issuers may, after
the date hereof, (i) issue exchange notes pursuant to the
Indenture (the "Exchange Notes"; together with the First
Mortgage Notes, the "Notes") and (ii) incur certain
additional indebtedness ("Additional Secured Indebtedness")
in accordance with the provisions of Section 4.04 and Section
4.14 of the Indenture
2
which shall be equally and ratably secured by the
Pledged Collateral (as hereinafter defined);
WHEREAS, the Pledgor is entering into this Pledge
Agreement with Pledgee acting for the benefit of itself, the
holders of the Notes and the holders of Additional Secured
Indebtedness (collectively the "Secured Parties") for the
purpose, among other things, of securing and providing for the
payment of all amounts of principal, premium, if any, interest,
costs, charges, fees, expenses, commissions, reimbursements,
indemnities and all other amounts from time to time due and
payable by the Pledgor to the Secured Parties (whether at
stated maturity, by acceleration or otherwise, including,
without limitation, the payments of interest and other amounts
which would accrue and become due but for the filing of a
petition in bankruptcy or the operation of any stay under any
Bankruptcy Law (as defined in the Indenture)) under the
Indenture, the Notes, this Pledge Agreement, and any other
instrument governing the obligations of Pledgor with respect to
the Additional Secured Indebtedness (the ("Additional
Indebtedness Instrument", together with the Indenture, the
Notes, and this Pledge Agreement collectively the "Secured
Instruments"), as well as the performance and payment of all
other obligations and liabilities, now existing or hereafter
arising whatsoever which are now or at any time hereafter may
be or become due, owing or payable under any of the Secured
Instruments, in any form or currency, to the Secured Parties by
the Pledgor, actually or contingently, solely or jointly and/or
severally with another or others, as principal or surety, or by
virtue of any current or other account in connection with any
advance, loan, credit, instrument, guarantee or indemnity made
or issued to, for or at the request of the Pledgor pursuant to
any Secured Instrument and costs, for the purpose hereof
including,
3
but not limited to, costs of collection of any amount due to
the Secured Parties (collectively, the "Secured
Obligations");
WHEREAS, the Indenture is governed by the laws of State of
New York;
WHEREAS, the Pledgor is of the opinion that the execution
and delivery of this Agreement and the performance of its
obligations hereunder is in its corporate interest and does
not prejudice the rights of its creditors;
NOW, THEREFORE, in consideration of the foregoing premises
the Pledgor agrees with the Pledgee as follows:
Section 1 Definitions
Capitalized terms used herein and not defined shall have
the meanings assigned to them in the Indenture.
Section 2 Obligations Owed to Pledgee as Trustee
2.1 In order to ensure that a valid pledge is created pursuant
to this Pledge Agreement, Pledgor hereby agrees and
covenants with Pledgee that it shall (i) pay to Pledgee (as
and when due by the Pledgor in accordance with the
provisions of the applicable Secured Instruments) all
amounts of money due and payable to the holders of the Notes
and to the holders of the Additional Secured Indebtedness
under their respective Secured Instruments, in order to
permit Pledgee to make the payments required under the
applicable Secured Instrument, as and when due, to the
holders of the Notes and to the holders of Additional
Secured Indebtedness, and (ii) perform all of its other
4
obligations to the holders of the Notes and the holders of
the Additional Secured Indebtedness in accordance with their
respective Secured Instruments. The agreements, covenants
and obligations of Pledgor set forth in the immediately
preceding sentence shall hereinafter be referred to as the
"Debtholder Obligations". It is the intention of the parties
that the Debtholder Obligations shall be identical and
equal, but alternative to the obligations of Pledgor to the
holders of the Notes and to the holders of Additional
Secured Indebtedness under their respective Secured
Instruments.
2.2 The Pledgor and the Pledgee agree and acknowledge that the
Debtholder Obligations are obligations and liabilities of
the Pledgor to the Pledgee, as trustee and paying agent,
separate and independent from and without prejudice to the
liabilities which the Pledgor has or may have to the holders
of the Notes and to the holders of the Additional Secured
Indebtedness, provided that the total amount due and payable
under the Debtholder Obligations shall be decreased to the
extent that the Pledgor shall have paid any amounts to the
Pledgee, which are due, payable and owing to any holder of
the Notes and any holder of Additional Secured Indebtedness
in accordance with their respective Secured Instruments.
2.3 In connection with the performance of the provisions of this
Pledge Agreement, the Pledgee (in its capacity as Trustee)
shall have the duties, and shall be entitled to the
benefits, set forth in the Indenture and/or the Additional
Lender Intercreditor Agreement, if any, all to the extent
permitted by applicable law.
5
2.4 The relationship of the holders of the Notes, the holders of
Additional Secured Indebtedness and the Pledgee are or will
be, as the case may be, governed by the Indenture and the
applicable Intercreditor Agreements, which are or will be,
as the case may be, governed by and construed in accordance
with the laws of the State of New York.
Section 3 Pledge
3.1 In order to secure and to provide for the payment and
performance when due of all Secured Obligations, Pledgor
hereby grants and, in the case of Pledged Collateral
hereafter acquired or obtained, agrees to grant to Pledgee
for the benefit of the Secured Parties and Pledgee hereby
accepts from the Pledgor a first right of pledge ("eerste
pandrecht") (the "Pledge"), to all of the right, title and
interest of Pledgor in, to and over the following whether
now existing or hereafter acquired (collectively, the
"Pledged Collateral"):
(i) all issued and outstanding shares of Statia Terminals
Corporation N.V. (the "Company"), a company
incorporated under the laws of the Netherlands
Antilles, listed in Schedule I hereto (the "Pledged
Shares");
(ii) all additional shares of capital stock of the Company
from time to time acquired by Pledgor in any manner
(including, without limitation) all stock dividends,
bonus shares, rights of issue, options and warrants at
any time and from time to time received, receivable or
otherwise distributed with respect to the Pledged
Shares and all issued
6
and outstanding shares of capital stock or other
equity interests of each other Netherlands Antilles
Person which, after the date hereof, is or becomes, as
a result of any occurrence, a Restricted Subsidiary of
Pledgor (collectively the "Additional Shares");
(iii) dividends, cash, distributions from retained earnings,
returns of paid up nominal share capital, return of
paid in capital surplus income, profits and other
property, interests or proceeds at any time and from
time to time received, receivable or otherwise
distributed with respect to the Pledged Shares and
Additional Shares (the "Distributions");
(iv) all interest of Pledgor in the entries on the books of
any financial intermediary pertaining to the Pledged
Collateral; and
(v) (a) any and all proceeds of any insurance (except
payments made to a Person which is not a party to this
Pledge Agreement), indemnity, warranty or guarantee
payable to Pledgee or to Pledgor from time to time
with respect to any of the Pledged Collateral, (b)
payments (in any form whatsoever) made or due and
payable to Pledgor from time to time in connection
with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the
Pledged Collateral by any governmental authority (or
any Person acting under color of governmental
authority), (c) instruments representing obligations
to pay
7
amounts in respect of Pledged Shares, (d) products of
the Pledged Collateral, and (e) other amounts from
time to time paid or payable under or in connection
with any of the Pledged Collateral.
Section 4 Notification; Delivery of Pledged Collateral
4.1 The Pledge granted hereunder has been notified to and
acknowledged by the Company as set forth in Schedule II.
Upon acquisition by Pledgor of any and all Additional
Shares, Pledgor shall cause the Pledge granted hereunder to
be notified to and acknowledged by the Company or the issuer
of such Additional Shares, as the case may be, and with due
observance to the provisions of this section 4.
4.2 Immediately upon this Pledge Agreement becoming effective
with respect to the Pledged Shares and promptly upon each
receipt or acquisition thereof with respect to Additional
Shares, the Pledgor will deliver or cause to be delivered to
the Pledgee a duly authenticated extract from the register
of shareholders of the Company and any issuer of Additional
Shares evidencing the entry in such register of the Pledge
granted hereunder, and if in respect of any one or more of
the Pledged Shares or Additional Shares, as the case may be,
share certificates have been issued, the Pledgor shall in
addition deliver to the Pledgee the originals of such share
certificates, duly endorsed to evidence the Pledge granted
hereunder. All Pledged Shares and Additional Shares shall be
in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance necessary or
appropriate to complete the Pledge and give the Pledgee the
right to
8
transfer the Pledged Shares and Additional Shares under the
terms hereof.
4.3 Pledgor shall, upon obtaining any Additional Shares of any
Person, promptly (and in any event within five Business
Days) deliver to Pledgee a pledge amendment, duly executed
by Pledgor, in substantially the form of Schedule III hereto
(each, a "Pledge Amendment"), in respect of the additional
Pledged Shares which are to be pledged pursuant to this
Pledge Agreement, and an acknowledgement of such Pledge
Amendment by the Company or the issuer of such Additional
Shares, as the case may be, confirming the Pledge hereby
created on and in respect of such Additional Shares. Pledgor
hereby authorizes Pledgee to attach each Pledge Amendment to
this Pledge Agreement and agrees that all Additional Shares
listed on any Pledge Amendment delivered to Pledgee shall
for all purposes hereunder be considered Pledged Collateral
from and after the date of such Pledge Amendment.
4.4 Pledgor shall further promptly (and in any event within five
Business Days) upon obtaining any Additional Shares, deliver
to Pledgee written notice that Pledgor is delivering all
documents evidencing or representing the Pledged Collateral,
if any, to the Pledgee, at its offices or in deposit with
another institution at such place or places as the Pledgee
may from time to time elect, and all such documents shall be
held subject to the terms, covenants and conditions herein
set forth. Neither the Pledgee nor any director, officer or
employee of the Pledgee, shall be liable for any action
taken or omitted to be taken by it or them relative to any
of such documents except for its or their own gross
negligence, willful
9
misconduct, or bad faith and the Pledgee shall not be liable
for any action or omission to act on the part of any agent
appointed and selected by the Pledgee with reasonable care
to act with respect to such documents (or any part thereof).
Section 5 Voting Rights; Distributions
5.1 Pledgee shall have the voting rights and other consensual
rights and powers pertaining to the Pledged Collateral or
any part thereof, except that Pledgee hereby authorizes, and
grants power of attorney to the Pledgor to, so long as no
Event of Default shall have occurred and be continuing,
exercise any and all of such voting and/or consensual rights
and powers relating or pertaining to the Pledged Collateral
or any part thereof, for any purpose not inconsistent with
the terms or purpose of this Pledge Agreement, the Indenture
and the applicable Secured Instrument, provided, however,
that the Pledgor shall not (i) exercise such rights which
may have an adverse effect on the value of the Pledged
Collateral or the pledge granted by this Pledge Agreement
and (ii) without the prior written approval of the Pledgee,
vote in respect of any one or more of the Pledged Shares or
Additional Shares in favor of a proposal (x) to amend the
Articles of Association of the Company or any other issues
of Additional Shares or (y) to dissolve and liquidate the
Company or any other issuer of Additional Shares or (z) to
issue any shares in addition to or in substitution for the
Pledged Shares or any Additional Shares or to re-issue
shares that have been repurchased, except in accordance with
the provisions of section 6.2 hereof.
10
5.2 So long as no Event of Default shall have occurred and
subject to and in accordance with the provisions of the
Indenture, the Pledgor shall be entitled to receive, retain
and utilize the Distributions, free from the Pledge hereby
created; provided, however, that (i) such Distributions are
made in accordance with the provisions of this Pledge
Agreement and the Indenture and (ii) any and all such
Distributions consisting of rights or interests in the form
of securities shall be, and shall be forthwith delivered to
Pledgee to hold as Pledged Collateral and shall, if received
by Pledgor, be received for the benefit of Pledgee, be
segregated from the other property or funds of Pledgor, and
be forthwith delivered to Pledgee as Pledged Collateral in
the same form as so received (with any necessary or
appropriate endorsement).
5.3 Upon the occurrence and during the continuance of an Event
of Default, all rights of the Pledgor to exercise the voting
and/or consensual rights and powers which it is entitled to
exercise pursuant to Section 5.1 shall cease, and all such
rights shall thereupon be exercised by the Pledgee in
accordance with Section 5.5, which shall have the sole and
exclusive right and authority to exercise the voting and/or
consensual rights and powers relating or pertaining to the
Pledged Collateral or any part thereof.
5.4 Upon or at any time after the occurrence of an Event of
Default, the Pledgor's rights to receive Distributions in
accordance with Section 5.2, shall automatically cease and
the Pledgee shall be entitled to, and shall have the right
to collect, any and all Distributions, provided that the
Pledgee shall at its option apply any and all cash amounts
so collected to satisfy the Secured Obligations, to the
11
fullest extent permitted by Netherlands Antilles law or hold
such Distributions as Pledged Collateral. Any Distributions
in the form of non-cash assets shall be received subject to
the Pledge hereby created to the fullest extent permitted by
or possible under Netherlands Antilles law or any other law
governing such assets or the creation of an encumbrance
thereover. Without limiting the generality of the
immediately preceding sentence, Pledgor shall, at its sole
cost and expense, from time to time execute and deliver to
Pledgee any and all documents necessary or appropriate to
confirm and protect the Pledge granted or purported to be
granted in the Distributions as contemplated in this Section
5.4 and to enable Pledgee to exercise and enforce its rights
and remedies with respect thereto.
5.5 Pledgee shall have no responsibility to the Pledgor or any
other Person for its exercise or failure to exercise such
voting or consensual rights and powers.
5.6 A notice from the Pledgee to the Company or other issuer of
Additional Shares with a copy to the Pledgor stating that an
Event of Default has occurred shall be sufficient for the
Company or other issuer of Additional Shares to accept the
Pledgee as being exclusively entitled to (i) the voting
and/or consensual rights and powers which it is entitled to
exercise pursuant to Section 5.1 and (ii) receive and
collect the Distributions. The Pledgee shall remain entitled
to exercise such powers and rights and receive such
Distributions and the Company or other issuer of Additional
Shares shall accept the Pledgee as being exclusively
entitled to such powers and rights and receive such
Distributions until the earlier of (i) a notice of
12
termination of the Event of Default from the Pledgee to the
Company or other issuer of Additional Shares or (ii) a
decision by a competent court that no Event of Default
exists.
Notwithstanding the provisions of this Section 5.6, Pledgor
shall (at its sole cost and expense) from time to time
execute and deliver to Pledgee appropriate instruments as
Pledgee may reasonably request in order to permit Pledgee to
exercise its voting and consensual and other rights which it
may be entitled to exercise and to receive all Distributions
which it may be entitled to receive under this Section 5.
Section 6 Transfers and Other Liens
6.1 Pledgor shall not (i) sell, pledge, convey, assign or
otherwise dispose of, or grant any option, right or warrant
with respect to, any of the Pledged Collateral except as
permitted by the Indenture, (ii) create or permit to exist
any Lien upon or with respect to any Pledged Collateral
other than the Pledge granted to Pledgee under this Pledge
Agreement, or (iii) permit the Company or any other issuer
of Additional Shares to merge, consolidate or change its
legal form, unless all of the outstanding capital stock or
partnership interests of the surviving or resulting
corporation or partnership as the case may be is, upon such
merger or consolidation, pledged hereunder and no cash,
securities or other property is distributed in respect of
outstanding shares or partnership interests of any other
constituent corporation or partnership.
13
6.2 Pledgor shall (i) cause each issuer of the Pledged
Collateral not to issue any shares in its capital stock or
other securities in addition to or in substitution for the
Pledged Shares and Additional Shares issued by such issuer,
except to Pledgor and (ii) pledge hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any
and all additional shares of capital stock or other equity
securities of the issuer of the Pledged Collateral which are
required to be pledged hereunder.
Section 7 Representations, Warranties and Covenants
7.1 The Pledgor represents, warrants and covenants to the
Pledgee as follows:
(a) Enforceability; No Filings
This Pledge Agreement has been duly executed and delivered
by the Pledgor and constitutes the valid and legally binding
obligation of the Pledgor, enforceable against the Pledgor
in accordance with its terms. This Pledge Agreement creates
a valid first priority pledge ("eerste pandrecht") on the
Pledged Collateral. No filings, registrations or recordings
are necessary or appropriate to create, preserve and protect
the Pledge granted by Pledgor to Pledgee pursuant to this
Pledge Agreement, other than the registration of the Pledge
in the register of shareholders of the Company or of the
issuer of Additional Shares pursuant to Section 4.2 hereof.
(b) Authority; No Conflict
Pledgor has the requisite corporate power, authority and
legal right to pledge and grant the Pledge hereunder in all
the Pledged Collateral and there is no law, regulation,
14
provision having the force of law on the Pledgor, judicial
order, security right, contract, agreement or other
instrument binding on the Pledgor or affecting the Pledgor's
properties, or any impediment or disability which would
conflict with or in any way prevent the execution, delivery
or performance by the Pledgor or the enforcement against the
Pledgor of this Pledge Agreement.
(c) No Consents
All authorizations, approvals, consents, permissions of, or
other action by or notice or filings with, any governmental
authorities (including exchange controls) or any other
Persons which are required to be obtained, taken, or made
(i) in connection with the execution and delivery by the
Pledgor of this Pledge Agreement and the performance by the
Pledgor of the Secured Obligations or (ii) for the exercise
by Pledgee of its rights and remedies hereunder have been
duly obtained, taken, or made and are in full force and
effect.
(d) No Lien
The Pledgor holds and, in the case of Pledged Collateral
acquired or obtained hereafter, shall at all times hold
title to the Pledged Collateral subject to no Lien other
than the Pledge created hereby. Pledgor is, and at the time
of delivery of the Pledged Collateral to Pledgee in
accordance with Sections 4 and 14 of this Pledge Agreement
will be, the sole legal and beneficial owner of the Pledged
Collateral. All Pledged Collateral is on the date hereof,
and, in the case of Pledged Collateral acquired or obtained
hereafter, will be, so owned by Pledgor free and clear of
any Lien except for the Lien granted to Pledgee pursuant to
this Agreement.
15
(e) Due Authorization and Issuance
All of the Pledged Shares have been and the Additional
Shares will be duly authorized and validly issued and fully
paid and nonassessable.
(f) Principal Place of Business
Pledgor's principal place of business is located at
________________________. Pledgor shall not move its
principal place of business except to such new location as
Pledgor may establish in accordance with the last sentence
of this subsection. Pledgor shall not establish a new
location for its chief executive office nor shall it change
its name until (i) it shall have given Pledgee not less than
forty-five (45) days prior written notice of its intention
so to do, clearly describing such new location or name and
providing such other information in connection therewith as
Pledgee may request, and (ii) with respect to such new
location or name, Pledgor shall have taken all action
necessary or required by any and all existing or future
laws, or as Pledgee shall from time to time reasonably
request, to maintain the validity and priority of the Pledge
granted hereby.
(g) Pledged Collateral
Schedule I sets forth an accurate and complete description
of all of the outstanding capital stock of each Restricted
Subsidiary of the Issuers owned by Pledgor as of the date
hereof and all information set forth herein and on such
Schedule relating to the Pledged Collateral is accurate and
complete in all respects.
16
(h) No Options, Warrants, etc.
There are no options, warrants, calls, rights, commitments
or agreements of any character to which Pledgor is a party
or by which it is bound obligating Pledgor to issue, deliver
or sell or cause to be issued, delivered or sold, additional
Pledged Shares or obligating Pledgor to grant, extend or
enter into any such option, warrant, call, right, commitment
or agreement. There are no voting trusts or other agreements
or understandings to which Pledgor is a party with respect
to the voting of the capital stock of any issuer of the
Pledged Shares.
(i) General
To the extent not represented and warranted above:
(1) Pledgor has the full legal capacity ("is volledig
beschikkingsbevoogd") to pledge the Pledged Collateral
in favor of Pledgee.
(2) Pledgor has not created in advance ("bij voorbaat") a
pledge which is still in existence on any of the
Pledged Collateral in favor of any party, under the
laws of the Netherlands Antilles or under the laws of
any other jurisdiction.
(3) Pledgor has not created in advance ("bij voorbaat") any
other security interest, regardless its form, which is
still in existence, in the Pledged Collateral under the
laws of the Netherlands Antilles or under the laws of
any other jurisdiction.
(4) No right or charge, including but not limited to any
"limited right" ("beperkt recht") exists on or with
17
respect to the Assets, except for the rights
("rechten") of Pledgor.
(5) The Pledged Collateral have not been attached ("vrij
van beslag").
(6) Pledgor has not been dissolved and the Company has not
been dissolved and no resolution to dissolve Pledgor or
the Company has been adopted by its general meeting of
shareholders.
(7) No depositary receipts ("certificaten") have been
issued for the Pledged Shares.
(8) Except as permitted or contemplated under the
Indenture, neither the Company nor Pledgor has entered
into any agreement pursuant to which it is obliged to
do anything which would cause the foregoing to be
untrue and incorrect, nor has any agreement or other
instrument been entered into or signed by Pledgor or
the Company pursuant to which it has transferred or is
obliged to transfer any rights attached to the Pledged
Shares or any Additional Shares or pursuant to which it
has granted options, warrants or similar rights with
respect to the Pledged or Additional Shares.
(9) No resolution or other action has been adopted or
taken by the Company or its general meeting of
shareholders to amend the articles of association of
the Company as at the date hereof.
(10) The Company has no shareholder(s) other than Pledgor.
(11) At the date hereof Pledgor is not entitled to any
rights to subscribe for shares in the share capital of
the Company, nor to any dividend rights, options,
warrants, claim rights or similar rights.
18
(12) The attached copy of the shareholder register of the
Company, is complete and correct as at the date hereof.
Section 8 Remedies
8.1 Upon the occurrence of an Event of Default, Pledgee may, but
shall not be obliged to, in addition to any other action
permitted by law (and not limited in any manner to the
remedies contained in the Notes, the Indenture or any other
Secured Instrument), take one or more of the following
actions, in accordance with the terms of and at the times
specified in the Indenture and the Additional Lender
Intercreditor Agreement, if any, whether or not it shall
have resorted to any other property securing the Secured
Obligations or shall have proceeded against any party liable
for any of the Secured Obligations.
8.2 Upon the occurrence of an Event of Default, Pledgee may, to
the fullest extent permitted by applicable law, (i) without
notice (except as herein set forth), advertisement, hearing
or process of law of any kind, sell any or all of the
Pledged ColIateral, at any public or private sale wherever
held, without prejudice to the provisions of Sections 1180,
1181 and 1182 of the Civil Code of the Netherlands Antilles
and (ii) retain and apply the Distributions received
pursuant to Section 5.4 hereof to the Secured Obligations in
accordance with Section 9 hereof. Pledgor agrees that, to
the extent notice of sale shall be required by law, five (5)
days notice to Pledgor of the time and place of any public
sale or the time after which any private sale or other
intended disposition is to take place shall be commercially
reasonable notification of such matters. No notification
need be given
19
to Pledgor if it has signed, after the occurrence of an
Event of Default, an agreement renouncing or modifying any
right to notification of sale or other intended disposition.
Pledgee shall not be obligated to make any sale of the
Pledged Collateral regardless of notice of sale having been
given. Pledgee may adjourn any public or private sale from
time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made
at the time and place to which it was so adjourned. In
connection with any sale, Pledgee shall have the right to
impose such limitations and restrictions on the sale of the
Pledged Collateral as Pledgee may deem to be necessary or
appropriate to comply with any applicable law rule or
regulation having applicability to the sale, including,
without limitation, restrictions on the number and
qualifications of the offerees and purchasers and
requirements for any necessary governmental approvals, and
the Pledgee shall be authorized at any such sale (if it
seems advisable to do so) to restrict the prospective
offerees and purchasers to persons who will represent and
agree that they are purchasing securities included in the
Pledged Collateral for their own account for investment and
not with a view to the distribution or sale thereof in
violation of applicable securities laws. The Pledgor shall
cooperate with the Pledgee in obtaining any necessary
consents of any competent banking authority and agrees to
cooperate with the Pledgee so that the sale of the Pledged
Collateral does not violate any applicable securities laws.
Without limiting the generality of the foregoing, the
Pledgor will cause the Company or any other issuer of
Pledged Collateral to (a) register the offer and sale of any
securities constituting the Pledged Collateral under such
securities laws or (b) should Pledgee so request, provide
Pledgee with such available material and financial and other
20
information which counsel to Pledgee shall require in order
to be able to give an opinion to the effect that the offer
and sale of such Pledged Collateral does not require an
effective registration statement under such securities laws
whichever is requested by the Pledgee. The Pledgor hereby
expressly waives, to the fullest extent permitted by
applicable law, (i) any and all notices (except as herein
set forth), advertisements, hearings or process of law in
connection with the exercise by the Pledgee of any of its
rights and remedies hereunder and (ii) any claims against
Pledgee arising by reason of the fact that the price at
which any Pledged Collateral may have been sold at any
private sale was less than the price which might have been
obtained at a public sale, even if Pledgee accepts the first
offer received and does not offer such Pledged Collateral to
more than one offeree. Pledgee may be the purchaser of any
or all of the Pledged Collateral at any such sale and shall
be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any
portion of the Pledged Collateral sold at such sale, to use
and apply any of the Secured Obligations owed to Pledgee as
a credit on account of the purchase price of any Pledged
Collateral payable by Pledgee at such sale. Each purchaser
at any such sale shall acquire the property sold absolutely
free from any claim or right on the part of Pledgor, and
Pledgor hereby waives, to the fullest extent permitted by
law, all rights of redemption, stay and/or appraisal which
it now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted.
Pledgee shall have the right to the extent permitted by law,
at any time upon the occurrence of an Event of Default and
without notice to Pledgor, to endorse, assign or otherwise
21
transfer to or to register in the name of the Pledgee or any
of its nominees any or all of the Pledged Collateral. In
addition, Pledgee shall have the right at any time to
exchange certificates representing or evidencing Pledged
Collateral for certificates of smaller or larger
denominations.
Section 9 Application of Proceeds
The proceeds received by Pledgee in respect of any sale of,
collection from or other realization upon all or any part of the
Pledged Collateral pursuant to the exercise by Pledgee of its
remedies as a secured creditor as provided in Section 8 hereof
shall be applied, together with any other sums then held by
Pledgee pursuant to this Agreement, promptly by Pledgee in the
manner set forth in the Indenture and/or the Additional Lender
Intercreditor Agreement, if any.
Section 10 Reasonable Care
Pledgee shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged Collateral in its
possession, if any, if such Pledged Collateral is accorded
treatment substantially equivalent to that which Pledgee, in its
individual capacity, accords its own property consisting of
similar instruments or interests, it being understood that
Pledgee shall have any responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to any Pledged
Collateral, whether or not Pledgee has or is deemed to have
knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any Person with respect to any Pledged
Collateral.
22
Section 11 Expenses
Pledgor will immediately upon demand pay to Pledgee the amount of
any and all expenses, including the fees and expenses of its
counsel (including, without limitation, any local or foreign
counsel) and the allocated costs of Pledgee's internal counsel
and the fees and expenses of any experts and agents which Pledgee
may incur in connection with (i) the collection of the Secured
Obligations, (ii) the enforcement and administration of this
Pledge Agreement, (iii) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the
Pledged Collateral, (iv) the exercise or enforcement of any of
the rights of Pledgee or (v) the failure by Pledgor to perform or
observe any of the provisions hereof. All amounts payable by
Pledgor under this Section 11 shall be due upon immediate demand,
shall bear interest from the date advanced to the date of
repayment thereof at a rate of 2% in excess of the highest rate
payable under the Notes (the "Default Rate"), and shall be part
of the Secured Obligations. Pledgor's obligations under this
Section 11 shall survive the termination of this Agreement and
the discharge of Pledgor's other obligations hereunder.
In addition to any of the other rights and remedies hereunder,
Pledgee shall have the right to institute a proceeding seeking
specific performance in connection with any of the agreements or
obligations hereunder.
23
Section 12 No Waiver; Cumulative Remedies
12.1 No failure on the part of the Pledgee to exercise, no
course of dealing with respect to, and no delay on the part
of the Pledgee in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or
remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or
remedy. The remedies herein provided are cumulative and are
not exclusive of any other remedies provided by law.
12.2 In the event Pledgee shall have instituted any proceeding
to enforce any right, power or remedy under this Pledge
Agreement by foreclosure, sale, entry or otherwise, and
such proceeding shall have been discontinued or abandoned
for any reason or shall have been determined adversely to
Pledgee, then and in every such case, Pledgor and Pledgee
shall be restored to their respective former positions and
rights hereunder with respect to the Pledged Collateral,
and all rights, remedies and power of Pledgee shall
continue as if no such proceeding had been instituted.
Section 13 No Release
Nothing set forth in this Pledge Agreement shall relieve Pledgor
from the performance of any term, covenant, condition or
agreement on Pledgor's part to be performed or observed under or
in respect of any of the Pledged Collateral or from any liability
to any Person under or in respect of any of the Pledged
Collateral or shall impose any obligation on Pledgee to perform
or observe any such term, covenant, condition or agreement on
Pledgor's part to be so performed or observed shall impose any
24
liability on Pledgee for any act or omission on the part of
Pledgor relating thereto or for any breach of any representation
or warranty on the part of Pledgor contained in this Pledge
Agreement, or under or in respect of the Pledged Collateral or
made in connection herewith or therewith.
Section 14 Supplements, Further Assurances
Pledgor agrees that at any time and from time to time (including,
without limitation, in connection with (i) any amendment,
amendment and restatement, supplement or modification of the
Indenture or (ii) any acquisition by Pledgor of Additional
Shares), at the sole cost and expenses of Pledgor, Pledgor shall
promptly execute and deliver all further instruments and
documents, including, without limitation, supplemental or
additional pledge agreements, and take all further actions that
may be necessary or required by any and all existing and future
laws or that Pledgee may from time to time reasonably request, in
order to protect the validity and priority of the Pledge granted
or purported to be granted hereby or to enable Pledgee to
exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral.
Section 15 Notices
Unless otherwise provided herein any notice or other
communication herein required or permitted to be given shall be
given in the manner and at the address set forth in the
Indenture, or as to any party at such other address as shall be
designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 15. All
such notices and other communications shall be deemed to have
25
been given when delivered in person, or received by telecopy or
telex; or one (l) Business Day after delivery to the office of
such overnight courier service; or five (5) Business Days after
deposit in the United States mail, registered or certified, with
postage prepaid and properly addressed; provided, however, that
notice to Pledgee shall not be effective until received by
Pledgee.
Section 16 Continuing Security Interest; Assignment
This Pledge Agreement shall create a continuing security interest
in the Pledged Collateral and shall (i) be binding upon Pledgor,
its successors and assigns, and (ii) inure, together with the
rights and remedies of Pledgee hereunder, to the benefit of
Pledgee and each of their respective successors, transferees and
assigns; no other Persons (including, without limitation, any
other creditor of the Pledgor) shall have any interest herein or
any right or benefit with respect hereto.
Section 17 Severability of Provisions
Any provision of this Pledge Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 18 Pledgee
Pledgee has been appointed as trustee hereunder pursuant to the
Indenture and the Additional Lender Intercreditor Agreement, if
any. The actions of Pledgee hereunder are subject to the
26
provisions of the Indenture and/or the Additional Lender
Intercreditor Agreement, if any. Pledgee shall have the right
hereunder to make demands, to give notice, to exercise or refrain
from exercising any rights, and to take or refrain from taking
action (including, without limitation the release or substitution
of Pledged Collateral), in accordance with this Pledge Agreement,
the Indenture and the Additional Lender Intercreditor Agreement,
if any. Pledgee may resign its position as trustee and a
successor Pledgee may be appointed in the manner provided in the
Indenture and the Additional Lender Intercreditor Agreement, if
any. Upon the acceptance of any appointment as Pledgee by a
successor Pledgee, that successor Pledgee shall thereupon succeed
to and become vested with all the rights, powers, privileges and
duties of the retiring Pledgee under this Pledge Agreement, and
the retiring Pledgee shall thereupon be discharged from its
duties and obligations under this Pledge Agreement. After any
retiring Pledgee's resignation, the provisions of this Pledge
Agreement shall inure to its benefit as to any actions taken or
omitted to be taken by it under this Pledge Agreement while it
was Pledgee.
Section 19 Pledgee may Perform
If the Pledgor shall fail to do any act or things which it has
covenanted to do hereunder, the Pledgee may (but shall not be
obligated to) do the same or cause it to be done or remedy any
such breach, and may expend its funds for such purpose. Any and
all amounts so expended by the Pledgee shall be repayable to it
by the Pledgor immediately upon the Pledgee's demand therefor,
with interest at a per annum rate equal to the Default Rate.
Pledgor's obligations under this Section 19 shall survive the
termination of this Pledge Agreement and the discharge of
Pledgor's obligations under this Pledge Agreement.
27
Section 20 Pledgee Appointed Attorney-in-Fact
The Pledgor hereby appoints the Pledgee the Pledgor's
attorney-in-fact with an interest, with full power of
substitution, for the purpose of taking such action and executing
agreements, instruments and other documents, in the name of the
Pledgor or otherwise as the Pledgee may deem necessary or
advisable to accomplish the purposes hereof, which appointment is
coupled with an interest and is irrevocable. Pledgee will notify
the Pledgor of such action and provide the Pledgor with copies of
such documents prior to or substantially contemporaneously with
the taking or filing thereof.
Section 21 Termination
This Pledge Agreement and the Pledge created hereby shall
automatically terminate when all Secured Obligations shall have
been fully paid and satisfied in accordance with the provisions
of the Indenture. At that time, the Pledgee shall (without
recourse upon, or any warranty whatsoever by, Pledgee) deliver to
Pledgor all Pledged Collateral and related documents then in the
custody or possession of the Pledgee, if any, all without
recourse upon, or warranty whatsoever by the Pledgee and at the
cost and expense of the Pledgor. The Pledgee, at the cost and
expense of the Pledgor, shall do such further acts and things,
and execute and deliver to the Pledgor such additional releases,
assignments and instruments, as the Pledgor may reasonably
require or reasonably deem advisable to carry into effect the
purpose of this Section 21.
Section 22 Limitation on Interest Payable
28
It is the intention of the parties to conform strictly to the
usury laws, whether state or federal, that are applicable to the
transaction of which this Pledge Agreement is a part. All
agreements between Pledgor and Pledgee, whether now existing or
hereafter arising and whether oral or written, are hereby
expressly limited so that in no contingency or event whatsoever
shall the amount paid or agreed to be paid by Pledgor for the
use, forbearance or detention of the money to be loaned or
advanced under the Indenture or any related document, or for the
payment or performance of any covenant or obligation contained
herein or in the Indenture, exceed the maximum amount permissible
under applicable usury laws. If under any circumstances
whatsoever fulfillment of any such provision, at the time
performance of such provision shall be due, shall involve
exceeding the limit of validity prescribed by law, then the
obligation to be fulfilled shall be reduced to the limit of such
validity. If under any circumstances Pledgor shall have paid an
amount deemed interest by applicable law, which would exceed the
highest lawful rate, such amount that would be excessive interest
under applicable usury laws shall be applied to the reduction of
the principal amount owing in respect of the Secured Obligations
and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal and any other amounts due
hereunder, the excess shall be refunded to Pledgor by the holders
of the Notes. All sums paid or agreed to be paid for the use,
forbearance or detention of the principal under any extension of
credit or advancement of funds by Marine Midland Bank, as
trustee, shall, to the extent permitted by applicable law, and to
the extent necessary to preclude exceeding the limit of validity
prescribed by law, be amortized, prorated, allocated and spread
from the date of this Pledge Agreement until payment in full of
the Secured Obligations so that the actual rate of interest on
29
account of such principal amounts is uniform throughout the term
hereof.
Section 23 Headings
Section headings used in this Pledge Agreement are for
convenience of reference only and shall not affect the
construction of this Pledge Agreement.
Section 24 Amendments
No amendment, modification, supplement, termination or waiver of
or to any provision of this Pledge Agreement, nor any consent to
any departure by the Pledgor from any provision of this Pledge
Agreement, shall be effective unless the same shall be in writing
and signed by the Pledgee. Any amendment, modification or
supplement of or to any provision of this Pledge Agreement, any
waiver of any provision of this Pledge Agreement, and any consent
to any departure by the Pledgor from the terms of any provision
of this Pledge Agreement shall be effective only in the specific
instance and for the specific purpose for which made or given. No
notice to or demand upon the Pledgor in any instance hereunder
shall entitle the Pledgor to any other or further notice or
demand in similar or other circumstance.
30
Section 25 Indemnification
Each and every obligation of the Issuers to indemnify and hold
harmless the Trustee in the Indenture contained in Section 7.07
thereof is incorporated herein mutatis mutandis as an obligation
of Pledgor hereunder to indemnify Pledgee, and Marine Midland
Bank, in its individual capacity, and the officers, directors,
employees, agents and applicants thereof.
Section 26 Governing law; Consent to Jurisdiction
This Pledge Agreement shall be governed by and construed in
accordance with the laws of the Netherlands Antilles. The
competent courts of the Netherlands Antilles in Curacao shall
have non-exclusive jurisdiction.
Section 27 Execution in Counterparts
This Pledge Agreement may be executed in any number of
counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto executed or have caused
this Pledge Agreement to be executed by their respective managing
directors or officers thereunto duly authorized, as the case may
be, as of the day and year first above written.
STATIA TERMINALS INTERNATIONAL N.V.,
as pledgor
By: /s/ David B. Pittaway
Title: Attorney-in-fact
MARINE MIDLAND BANK, in its capacity as trustee,
as pledgee
By: /s/ Eileen M. Hughes
Title: Assistant Vice President
32
SCHEDULE I
Shares pledged
- --------------------------------------------------------------------------------
Percentage
of all
Description Share Nos./ Capital
Issuer of Shares Certificate Nos. Par Value No. of shares of Issuer
- ------ ----------- ---------------- --------- ------------- ----------
SCHEDULE II
Acknowledgement
Statia Terminals Corporation N.V. (the "Company"), hereby
represented by two of its managing directors, accepts notice of
and acknowledges the pledge created by the attached share pledge
agreement between Statia Terminals International N.V. (the
"Pledgor") and Marine Midland Bank, as trustee (the "Pledgee")
(the "Share Pledge Agreement"), agrees to and acknowledges the
contents of the Share Pledge Agreement, undertakes to register
the pledge of Shares in the shareholder register of the Company,
including the transfer of voting rights to the Pledgee in
accordance with Section 5 and to maintain such registration until
the Pledgee has instructed in writing otherwise, and undertakes
to Pledgee during the existence of the pledge created thereby to
comply with the provisions of the Share Pledge Agreement so long
as the pledge is in effect.
Dated
STATIA TERMINALS CORPORATION N.V.
/s/ David B. Pittaway /s/ Justin Wender
By: David B. Pittaway By: Justin Wender
Managing Director Managing Director
34
Schedule III
[Form of Pledge Amendment]
To: the Pledgee
This is to inform you that we have acquired or obtained the following Additional
Shares as defined in the Share Pledge Agreement dated November 27, 1996, between
yourselves and ourselves:
Shares pledged
- --------------------------------------------------------------------------------
Percentage
of all
Description Share Nos./ Capital
Issuer of Shares Certificate Nos. Par Value No. of shares of Issuer
- ------ ----------- ---------------- --------- ------------- ----------
and that these Additional Shares are, and to the extent required, are hereby
made, subject to the Pledge as defined in said Share Pledge Agreement. This
Pledge Amendment forms an integral part of the Share Pledge Agreement.
___________________________________
Pledgor
Date:
35
Acknowledgement
Statia Terminals Corporation N.V. (the "Company")/[ ] (the
"Issuer"), hereby represented by [two of] its managing
director[s], accepts notice of and acknowledges the pledge
created by the attached Pledge Amendment between Statia Terminals
International N.V. (the "Pledgor") and Marine Midland Bank, as
trustee (the "Pledgee") pursuant to the Share Pledge Agreement
(as defined therein), agrees to and acknowledges the contents of
the Share Pledge Agreement (including the Pledge Amendment),
undertakes to register the pledge of Additional Shares in the
shareholder register of the Company/Issuer, including the
transfer of voting rights to the Pledgee in accordance with
Section 5 and to maintain such registration until the Pledgee has
instructed in writing otherwise, and undertakes to Pledgee during
the existence of the pledge created thereby to comply with the
provisions of the Share Pledge Agreement so long as the pledge is
in effect.
Dated
STATIA TERMINALS CORPORATION N.V./ISSUER
By: By:
Managing Director Managing Director