EXHIBIT 4.1
SHARE PLEDGE AGREEMENT
SHARE PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
June 28, 1999, by and among Statia Terminals Antilles N.V., a company
incorporated under the laws of the Netherlands Antilles having its corporate
seat in Curacao ("Statia Antilles"), Statia Terminals Delaware, Inc. ("STDI",
and collectively with Statia Antilles, the "Pledgors") and HSBC Bank USA
(formerly known as 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.
W I T N E S S E T H :
WHEREAS, Statia Terminals International N.V. ("Statia
International"), a company incorporated under the laws of the Netherlands
Antilles, Statia Terminals Canada Incorporated (together with Statia
International hereafter collectively referred to as the "Issuers"), STDI, as
Subsidiary Guarantor, the other Subsidiary Guarantors parties thereto and
Pledgee have entered 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 issued 11 3/4% first mortgage notes
due 2003 (the "Notes"), in the aggregate principal amount of US$135,000,000;
WHEREAS, Statia Antilles has executed a Guarantee, dated as of
June 28, 1999, pursuant to which it has guaranteed payment of the Notes;
WHEREAS, it is contemplated that the Issuers may, after the
date thereof, incur certain additional indebtedness ("Additional Secured
Indebtedness") in accordance with the provisions of Section 4.04 and Section
4.14 of the Indenture which shall be equally and ratably secured by the Pledged
Collateral (as hereinafter defined);
WHEREAS, the Issuers, STDI, as Subsidiary Guarantor, the other
Subsidiary Guarantors and Pledgee have entered into that certain Fourth
Amendment to Indenture and Consent Under Securities Pledge Agreements, dated as
of April 26, 1999, in connection with the transfer of all of the shares of
capital stock held by Statia Terminals Corporation N.V. of Saba Trust Company
N.V., Bicen Development Corporation N.V. and Statia Terminals N.V. by Statia
Terminals Corporation N.V. to Statia International and thereafter to Statia
Antilles, and such shares were thereafter so transferred;
WHEREAS, the Pledgors are 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 Pledgors 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 the Pledgors 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 Pledgors, 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 Pledgors pursuant to any Secured
Instrument and costs, for the purpose hereof including, but not limited to,
costs of collection of any amount due to the Secured Parties (collectively, the
"Secured Obligations");
WHEREAS, the Indenture is governed by the laws of the State of
New York;
WHEREAS, each 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
each Pledgor agrees with 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, each Pledgor hereby agrees and covenants with Pledgee
that it shall (i) pay to Pledgee (as and when due by such 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
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Instrument, as and when due, to the holders of the Notes and to the holders of
Additional Secured Indebtedness, and (ii) perform all of its other obligations
to the holders of the Notes and the holders of the Additional Secured
Indebtedness in accordance with their respective Secured Instruments. The
agreements, covenants and obligations of the Pledgors 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
the Pledgors to the holders of the Notes and to the holders of Additional
Secured Indebtedness under their respective Secured Instruments.
2.2 Each of the Pledgors and the Pledgee agree and acknowledge
that the Debtholder Obligations are obligations and liabilities of each such
Pledgor to the Pledgee, as trustee and paying agent, separate and independent
from and without prejudice to the liabilities which each such 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 such 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.
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, each 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 each such Pledgor a first right of pledge ("eerste pandrecht") (the
"Pledge"), to all of the right, title and interest of each such Pledgor in, to
and over the following whether now existing or hereafter acquired (collectively,
the "Pledged Collateral"):
(i) all issued and outstanding common shares (Common B-shares)
of Statia Terminals N.V. ("Terminals"), a company incorporated under
the laws of the Netherlands Antilles, all issued and outstanding shares
of Saba Trust Company N.V. ("Saba"), a company incorporated under the
laws of the Netherlands Antilles, and all issued and outstanding shares
of Bicen Development Companies N.V. ("Bicen"), a company incorporated
under the laws of the Netherlands Antilles (together with Terminals and
Saba, hereinafter referred to as the "Companies"), all as listed in
Schedule I hereto (the "Pledged Shares");
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(ii) all additional shares of capital stock of the Companies
from time to time acquired by such Pledgors 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 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 either 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 such Pledgors 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 such Pledgors
from time to time with respect to any of the Pledged Collateral, (b)
payments (in any form whatsoever) made or due and payable to such
Pledgors 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 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
either Pledgor of any and all Additional Shares, such 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 Pledgors 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 Pledgors 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
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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 Each 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 such 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 acknowledgment 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. The Pledgors hereby
authorize Pledgee to attach each Pledge Amendment to this Pledge Agreement and
agree 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 Each Pledgor shall further promptly (and in any event
within five Business Days) upon obtaining any Additional Shares, deliver to
Pledgee written notice that such 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 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
Pledgors to exercise, so long as no Event of Default shall have occurred and be
continuing, 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
Pledgors 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 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.
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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 Pledgors
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 either
Pledgor, be received for the benefit of Pledgee, be segregated from the other
property or funds of such 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 Pledgors to exercise the voting and/or consensual
rights and powers which they are 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 Pledgors' 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 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, each 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 Pledgors 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 each 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 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.
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Notwithstanding the provisions of this Section 5.6, each
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 The Pledgors 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 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, securities or other property is distributed in respect of outstanding
shares or partnership interests of any other constituent corporation or
partnership.
6.2 Each 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 such 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 Each Pledgor represents, warrants and covenants to the
Pledgee as follows:
(a) ENFORCEABILITY; NO FILINGS. This Pledge Agreement has been
duly executed and delivered by such Pledgor and constitutes the valid
and legally binding obligation of such Pledgor, enforceable against
such 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 such 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.
(b) AUTHORITY; NO CONFLICT. Each 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 such Pledgor, judicial
order, security right, contract, agreement or other instrument binding
on such Pledgor or affecting such Pledgor'S properties, or any
impediment or disability
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which would conflict with or in any way prevent the execution, delivery
or performance by such Pledgor or the enforcement against such 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 such Pledgor of this
Pledge Agreement and the performance by such 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. Each Pledgor holds and, in the case of Pledged
Collateral acquired or obtained hereafter to the extent applicable,
shall at all times hold title to the Pledged Collateral subject to no
Lien other than the Pledge created hereby. Each 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 such 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. The principal place of
business of Statia Antilles is located at x/x Xxxxxxxx Xxxxxxxx X.X.,
XX Xxxxxxxxxx 0, Xxxxxxx, Xxxxxxxxxxx Antilles. The principal
place of business of STDI is 000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx.
Neither Pledgor shall move its principal place of business except to
such new location as such Pledgor may establish in accordance with the
last sentence of this subsection. Neither Pledgor shall 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, such 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 the Pledgors 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.
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(h) NO OPTIONS, WARRANTS, ETC. There are no options, warrants,
calls, rights, commitments or agreements of any character to which the
Pledgors are party or by which they are bound obligating the Pledgors
to issue, deliver or sell or cause to be issued, delivered or sold,
additional Pledged Shares or obligating such Pledgors 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 the Pledgors are 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) Each Pledgor has the full legal capacity ("IS
VOLLEDIG BESCHIKKINGSBEVOEGD") to pledge the Pledged
Collateral in favor of Pledgee.
(2) Neither Pledgor has 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) Neither Pledgor has created in advance ("BIJ
VOORBAAT") any other security interest, regardless of 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
respect to the Assets, except for the rights ("RECHTEN") of
the Pledgors.
(5) The Pledged Collateral have not been attached
("VRIJ VAN BESLAG").
(6) The Pledgors have not been dissolved and the
Companies have not been dissolved and no resolution to
dissolve the Pledgors or the Companies has been adopted by its
general meeting of shareholders.
(7) No depository receipts ("CERTIFICATEN") have been
issued for the Pledged Shares.
(8) Except as permitted or contemplated under the
Indenture, neither the Companies nor any 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 the Pledgors or the Companies
pursuant to which any of them has transferred or is obliged to
transfer any rights attached to the Pledged Shares or any
Additional Shares or pursuant to which any of them has granted
options, warrants or similar rights with respect to the
Pledged or Additional Shares.
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(9) Except as otherwise set forth in Schedule 7.1(h)
hereto, 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 (other than the holder of Shares A
in the share capital of Terminals) have no shareholder(s)
other than the Pledgors.
(11) At the date hereof the Pledgors are not entitled
to any rights to subscribe for shares in the share capital of
the Companies, nor to any 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. Each Pledgor agrees that, to the extent
notice of sale shall be required by law, five (5) days notice to such 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 to such 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 respective offerees
and purchasers
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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. Each 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,
each 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 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. Each 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 any 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 the Pledgors, and each 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, at any time upon the occurrence
of an Event of Default and without notice to the Pledgors, 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,
-11-
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.
Section 11. EXPENSES. The Pledgors will immediately upon
demand pay to Pledgee, without duplication, 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 the Pledgors to perform or observe any of the
provisions hereof. All amounts payable by the Pledgors 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. The Pledgors' obligations under this Section 11 shall survive the
termination of this Agreement and the discharge of the Pledgors' 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.
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, each of the Pledgors and the 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 the Pledgors from the performance of any term, covenant,
condition or agreement on Pledgors' 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
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obligation on Pledgee to perform or observe any such term, covenant, condition
or agreement on Pledgors' part to be so performed or observed shall impose any
liability on Pledgee for any act or omission on the part of either Pledgor
relating thereto or for any breach of any representation or warranty on the part
of either 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. Each 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 such Pledgor of
Additional Shares), at the sole cost and expenses of each such Pledgor, each
such 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 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 each of the Pledgors, 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 each of such 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
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
-13-
(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 either 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 such Pledgor immediately
upon the Pledgee's demand therefor, with interest at a per annum rate equal to
the Default Rate. Each Pledgor'S obligations under this Section 19 shall survive
the termination of this Pledge Agreement and the discharge of such Pledgor'S
obligations under this Pledge Agreement.
Section 20. PLEDGEE APPOINTED ATTORNEY-IN-FACT. Each of the
Pledgors hereby appoints the Pledgee its 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 such 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 Pledgors of such action and provide the
Pledgors 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 the Pledgors 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 Pledgors. The Pledgee, at the cost and expense of the
Pledgors, shall do such further acts and things, and execute and deliver to the
Pledgors such additional releases, assignments and instruments, as the Pledgors
may reasonably require or reasonably deem advisable to carry into effect the
purpose of this Section 21.
Section 22. LIMITATION ON INTEREST PAYABLE. It is the
intention of the parties to conform strictly to the usury laws, whether state or
federal, that are applicable to the transaction of which this Pledge Agreement
is a part. All agreements between each 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
-14-
by such 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 either 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 such 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 HSBC Bank USA (formerly known as 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 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 Pledgors 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 Pledgors 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 Pledgors in any instance hereunder shall entitle
the Pledgors to any other or further notice or demand in similar or other
circumstance.
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
the Pledgors hereunder to indemnify Pledgee, and HSBC Bank USA (formerly known
as 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.
-15-
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.
STATIA TERMINALS ANTILLES N.V.,
as Pledgor
By: /S/ XXXXX X. XXXXXXX
----------------------------------
Title: Managing Director
By: /S/ XXXX X. XXXX
----------------------------------
Title: Secretary
STATIA TERMINALS DELAWARE,
INC., as Pledgor
By: /S/ XXXXX X. XXXXXXX
----------------------------------
Title: President
HSBC BANK USA, in its capacity as
Trustee, as Pledgee
By: /S/ XXXXX X. XXXXXX
----------------------------------
Title: Vice President
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SCHEDULE 7.1(h)
The articles of incorporation of Statia Terminals N.V. was amended by
shareholders resolution dated April 27, 1999 and shareholders resolution dated
June 2, 1999.
SCHEDULE I
SHARES PLEDGED
PLEDGED BY STATIA TERMINALS ANTILLES N.V.
DESCRIPTION OF SHARE NOS./ PERCENTAGE OF ALL ISSUED
ISSUER SHARES CERTIFICATE NOS. PAR VALUE NO. OF SHARES CAPITAL OF ISSUER
------ -------------- ---------------- --------- ------------- ------------------------
Statia Terminals N.V. Common B1 to B19,395,001 US$ 1 19,395,001 90%
B-shares
Saba Trust Company N.V. Common Shares 1 to 12 US$ 1,000 12 100%
Bicen Development Corporation N.V. Common Shares 1 to 12 US$ 1,000 12 100%
PLEDGED BY STATIA TERMINALS DELAWARE, INC.
DESCRIPTION OF SHARE NOS./ PERCENTAGE OF ALL ISSUED
ISSUER SHARES CERTIFICATE NOS. PAR VALUE NO. OF SHARES CAPITAL OF ISSUER
------ -------------- ---------------- --------- ------------- ------------------------
Statia Terminals N.V. Preferred 1 to 2,155,000 US$ 1 2,155,000 10%
D-Shares
SCHEDULE II
STATIA TERMINALS N.V.
ACKNOWLEDGMENT
Statia Terminals 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 among Statia Terminals Antilles
N.V. and Statia Terminals Delaware, Inc. (collectively, the "Pledgors") and HSBC
Bank USA (formerly known as 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 N.V.
-------------------------------- ----------------------------------
By: By:
Managing Director Managing Director
SCHEDULE II
Page 2
SABA TRUST COMPANY N.V.
ACKNOWLEDGMENT
SABA TRUST COMPANY 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 among Statia Terminals Antilles
N.V. and Statia Terminals Delaware, Inc. (collectively, the "Pledgors") and HSBC
Bank USA (formerly known as 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:
SABA TRUST COMPANY N.V.
-------------------------------- ----------------------------------
By: By:
Managing Director Managing Director
SCHEDULE II
Page 3
BICEN DEVELOPMENT COMPANY
ACKNOWLEDGMENT
Bicen Development Company 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 among
Statia Terminals Antilles N.V. and Statia Terminals Delaware, Inc.
(collectively, the "Pledgors") and HSBC Bank USA (formerly known as 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:
BICEN DEVELOPMENT COMPANY N.V.
-------------------------------- ----------------------------------
By: By:
Managing Director Managing Director
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 as of June __, 1999, among
Statia Terminals Antilles N.V., Statia Terminals Delaware, Inc. and yourselves:
SHARES PLEDGED
----------------------------------------------------------------------------------------
DESCRIPTION SHARE NOS./ PERCENTAGE OF ALL
ISSUER OF SHARES CERTIFICATE NOS. PAR VALUE NO. OF SHARES CAPITAL 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.
-----------------------------------
[Name of Pledgor]
ACKNOWLEDGMENT
Statia Terminals N.V./Saba Trustcompany N.V./Bicen Development Corporation 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 among Statia Terminals Antilles N.V. and Statia
Terminals Delaware, Inc. (collectively, the "Pledgors") and HSBC Bank USA
(formerly known as 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:
TERMINALS/SABA/BICEN/ISSUER
-------------------------------- ----------------------------------
By: By:
Managing Director Managing Director
