SHARE PLEDGE AGREEMENT
SHARE PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of November 27,
1996, by and between Seven Seas Steamship Company, Inc., a company incorporated
under the laws of ___________________ having its corporate seat at
_________________ ("Pledgor") and Marine Midland Bank, a New York banking
corporation and trust company having its registered office at 000 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000-0000, as trustee (in such capacity and together with
any successors and assigns in such capacity, "Pledgee") pursuant to the
Indenture (as hereinafter defined) and the Additional Lender Intercreditor
Agreement as defined in the Indenture, if any.
WITNESSETH:
WHEREAS, Statia Terminals International N.V. ("STI"), a company
incorporated under the laws of the Netherlands Antilles, Statia Terminals Canada
Incorporated (together with Terminals hereafter collectively referred to as the
"Issuers"), Pledgor, 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
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provisions of Section 4.04 and Section 4.14 of the Indenture which shall be
equally and ratably secured by the Pledged Collateral (as hereinafter defined);
WHEREAS, 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,
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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
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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.
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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 Seven Seas Steamship Company
(St. Eustatius), N.V. ("SSSC"), a company incorporated under the
laws of the Netherlands Antilles, and all issued and outstanding
shares of Seven Seas Steamship Company N.V. ("Steamship"), a company
incorporated under the laws of the Netherlands Antilles (together
with SSSC hereinafter referred to as the "Companies"), all as listed
in Schedule I hereto (the "Pledged Shares");
(ii) all additional shares of capital stock of the Companies from time to
time acquired by Pledgor in
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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 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,
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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 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
Companies 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 Companies 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 Companies 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
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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 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 Companies 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 own 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,
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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 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 Companies or any other issues of Additional
Shares or (y) to dissolve and liquidate the Companies or any other issuer
of Additional Shares or (z) to issue any shares in
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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.
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
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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
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 Companies 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 Companies 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
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remain entitled to exercise such powers and rights and receive such
Distributions and the Companies 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
termination of the Event of Default from the Pledgee to the Companies 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, convey, pledge, 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 Companies 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,
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securities or other property is distributed in respect of outstanding
shares or partnership interests of any other constituent corporation or
partnership.
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 Companies
or of the issuer of Additional Shares pursuant to Section 4.2 hereof.
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(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, 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,
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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.
(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
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Schedule relating to the Pledged Collateral is accurate and complete in all
respects.
(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
beschikkingsbevoegd") 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.
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(4) No right or charge, including but not limited to any "limited right"
("beperkt recht") exists on or with 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 Companies has not been
dissolved and no resolution to dissolve Pledgor or the Companies 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
Companies 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 Companies 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
Companies or its general meeting of shareholders to amend the articles
of association of the Companies as at the date hereof.
(10) The Companies 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
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of the Companies, nor to any dividend rights, options, warrants, claim
rights or similar rights.
(12) The attached copy of the shareholder register of the Companies, 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 Collateral, 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
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disposition is to take place shall be commercially reasonable notification
of such matters. No notification need be given 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 Companies or any other issuer of Pledged Collateral
to (a) register the offer and sale of any securities constituting the
Pledged Collateral under such
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securities laws or (b) should Pledgee so request, provide Pledgee with such
available material and financial and other 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.
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Pledgee shall have the right, at any time upon the occurrence of an Event
of Default and without notice to Pledgor, to endorse, assign or otherwise
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
22
preserve rights against any Person with respect to any Pledged Collateral.
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 ("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.
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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 been given when delivered in
person, or received by telecopy or
25
telex; or one (1) Business Day after delivery to the office of such overnight
courier service; or five (5) Business Days after deposit in the United States
mail, registered or certified, with postage prepaid and properly addressed;
provided, however, that notice to 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 00 Xxxxxxx
Xxxxxxx 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 provisions of the Indenture and/or the Additional
Lender
26
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.
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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
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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.
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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.
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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.
SEVEN SEAS STEAMSHIP COMPANY, INC.
as pledgor
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Attorney-in-Fact
MARINE MIDLAND BANK, in its capacity as trustee,
as pledgee
By: /s/Xxxxxx X. Xxxxxx
------------------------
Title: Assistant Vice President
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SCHEDULE I
Shares pledged
---------------------------------------------------------------------------------------------
Percentage of all
Capital [or other
Description Share Nos./ Equity Interest]
Issuer of Shares Certificate Nos. Par Value No. of Shares of Issuer
------ --------- ---------------- --------- ------------- ---------
33
SCHEDULE II
SEVEN SEAS STEAMSHIP COMPANY (ST. EUSTATIUS), N.V.
Acknowledgement
Seven Seas Steamship company (St. Eustatius), N.V. (the "Company"), hereby
represented by (two of) its managing director(s), accepts notice of and
acknowledges the pledge created by the attached share pledge agreement between
Seven Seas Steamship Company, Inc. (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
SEVEN SEAS STEAMSHIP COMPANY (ST. EUSTATIUS), N.V.
/s/Xxxxxx X. Xxxxx /s/Xxxxx X. Xxxxxxx
------------------------------- ---------------------------------
By: Xxxxxx X. Xxxxx By: Xxxxx X. Xxxxxxx
Managing Director Managing Director
35
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
Capital [or other
Description Share Nos./ Equity Interest]
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:
36
37
Acknowledgement
Seven Seas Steamship Company (St. Eustatius) N.V./Seven Seas Steamship Company
N.V. ([each] 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 Seven Seas Shipping Co., Inc.
(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
SSSC/ Steamship/ISSUER
------------------------------- ---------------------------------
By: By:
Managing Director Managing Director
