EXHIBIT J
UNITED STATES SECURITIES PLEDGE
AND SECURITY AGREEMENT
UNITED STATES SECURITIES PLEDGE AND SECURITY AGREEMENT (the
"Agreement"), dated as of November 27, 1996, by and among STATIA TERMINALS
INTERNATIONAL N.V., a Netherlands Antilles corporation ("Statia International"),
STATIA DELAWARE HOLDCO II, INC., a Delaware corporation ("HoldCo"), STATIA
TERMINALS DELAWARE, INC., a Delaware corporation ("Statia Delaware"), STATIA
TERMINALS, INC., a Delaware corporation ("Statia") and W.P. COMPANY, INC., a
Delaware corporation ("WP Inc."; Statia International, HoldCo, Statia and
WPInc., each a "Pledgor"; collectively, the "Pledgors") in favor of MARINE
MIDLAND BANK, as trustee (in such capacity and together with any successors and
assigns in such capacity, the "Trustee") pursuant to the Indenture (as
hereinafter defined).
R E C I T A L S :
A. Pledgors, certain other parties and Trustee are contemporaneously
with the execution and delivery of this Agreement, entering into a certain
indenture (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Indenture"), dated as of November 27, 1996, pursuant to
which Statia International and Statia Terminals Canada Incorporated
(collectively, the "Issuers"), are issuing their 11-3/4% first mortgage notes
due 2003, (the "First Mortgage Notes") in the aggregate principal amount of U.S.
$135,000,000. 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") pursuant to Section 4.04 and
Section 4.14 of the Indenture which shall be equally and ratably secured by the
Pledged Collateral (as hereinafter defined).
B. Each Pledgor is the legal and beneficial owner of the Pledged
Collateral.
C. This Agreement is given by each Pledgor in favor of Trustee for
its benefit and the benefit of the holders of the Notes and the holders of the
Additional Secured Indebtedness (collectively, the "Secured Parties") to secure
the payment and performance of the Secured Obligations (as hereinafter defined).
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A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby agrees with the Trustee as follows:
SECTION 1. Definitions. Capitalized terms used herein but not
otherwise defined shall have the meanings assigned to such terms in the
Indenture. Such definitions shall be applicable equally to the singular and
plural forms of the terms defined. The following terms shall have the following
meanings.
"Additional Shares" shall mean, collectively, (i) all additional
shares of Capital Stock of any issuer of the Pledged Shares from time to time
acquired by any Pledgor in any manner and (ii) all issued and outstanding shares
of Capital Stock of each Person which, after the date of this Agreement, is or
becomes, as a result of any occurrence, a Restricted Subsidiary of any Pledgor
(which, in each case, are and shall remain at all times until this Agreement
terminates, certificated shares) including the certificates representing such
additional shares and any interest of any Pledgor in the entries on the books of
any financial intermediary pertaining to such additional shares.
"Capital Stock" of any Person means any and all shares,
participations or other equivalents of or interest in (however designated) the
equity (including, without limitation, common stock, preferred stock and
partnership, membership or other such interests) of such Person.
"Collateral Account" shall mean the collateral accounts established
and maintained pursuant to the Indenture and all funds from time to time on
deposit therein, all investments of such funds (including, without limitation,
Financial Instruments) and all certificates and instruments from time to time
representing or evidencing such investments, all notes, certificates of deposit,
checks and other instruments from time to time hereafter delivered to or
otherwise possessed by Trustee for or on behalf of any Pledgor in substitution
for, or in addition to, any or all of the Pledged Collateral, and all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the items constituting Pledged Collateral.
"Distributions" shall mean all dividends, cash, options, warrants,
rights, instruments, distributions,
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partnership distributions, returns of capital, income, profits and other
property, interests or proceeds from time to time received, receivable or
otherwise distributed to any Pledgor in respect of or in exchange for any or all
of the Pledged Shares.
"Documents" shall mean, collectively, all "documents", as such term
is defined in the UCC, relating to any of the Pledged Collateral and shall also
include, without limitation, any and all books, records, ledgers, printouts,
computer recording media, data files, tapes, file materials and other papers
containing information relating to any of the Pledged Collateral.
"Intangibles" shall mean, collectively, all "general intangibles",
relating to any of the Pledged Collateral and, in any event, shall include,
without limitation, any and all contract rights, goodwill, descriptions, name
plates, claims, choses-in-action, causes of action, catalogs, confidential
information, consulting agreements, engineering contracts, and such other assets
which relate to the goodwill of the business of any Pledgor and rights to refund
or indemnification to the extent the foregoing relate to Pledged Collateral,
deposits and deposit accounts, letters of credit, documents, instruments,
chattel paper, bankers' acceptances and guarantees, and income tax refunds to
the extent relating to Pledged Collateral, claims for tax or other refunds
against any city, county or state or federal government, or any agency or
authority or other subdivision thereof relating to Pledged Collateral, corporate
or other business records relating to Pledged Collateral and all other general
intangibles of every kind and description relating to Pledged Collateral.
"Pledged Collateral" shall have the meaning assigned to such term in
Section 2 of this Agreement.
"Pledged Shares" shall mean, collectively, (i) all issued and
outstanding shares of capital stock of each Person described in Schedule A
hereto (which are and shall remain at all times until this Agreement terminates,
certificated shares), including the certificates representing the Pledged Shares
and any interest of any Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares and (ii) as of the date of
acquisition thereof by any Pledgor, all Additional Shares.
"Proceeds" shall have the meaning assigned to the term "proceeds"
under the UCC, and in any event, shall include, without limitation, any and all
(i) proceeds of any insurance
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(except payments made to a Person which is not a party to this Agreement),
indemnity, warranty or guarantee payable to Trustee or to any Pledgor from time
to time with respect to any of the Pledged Collateral, (ii) payments (in any
form whatsoever) made or due and payable to any Pledgor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Pledged Collateral by any governmental
authority (or any Person acting under color of a governmental authority), (iii)
instruments representing obligations to pay amounts in respect of Pledged
Shares, (iv) products of the Pledged Collateral, and (v) other amounts from time
to time paid or payable under or in connection with any of the Pledged
Collateral.
"Secured Obligations" shall have the meaning assigned to such term
in Section 3 of this Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect in any
applicable jurisdiction.
SECTION 2. Pledge. As collateral security for the payment and
performance when due of all the Secured Obligations, each Pledgor hereby
pledges, assigns, transfers and grants to Trustee for its benefit and the
benefit of the Secured Parties, a continuing first priority security interest in
and to all of the right, title and interest of each Pledgor in, to and under the
following property, whether now existing or hereafter acquired (collectively,
the "Pledged Collateral"):
(i) all Pledged Shares;
(ii) all Additional Shares;
(iii) all Distributions;
(iv) the Collateral Account;
(v) all Intangibles;
(vi) all Documents; and
(vii) all Proceeds of any of the foregoing.
SECTION 3. Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would
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accrue and become due but for the filing of a petition in bankruptcy or the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. ss. 362(a)), of (i) all Obligations of Statia International now existing
or hereafter arising under or in respect of the Indenture, the Guarantee and the
Additional Lender Intercreditor Agreement (including, without limitation, the
obligation of Statia International to pay principal of, premium, if any, and
interest on the Notes when due and payable) and all other charges, fees,
expenses, commissions, reimbursements, premiums, indemnities and all other
amounts due or to become under or in connection with the Indenture, the
Guarantee and the Additional Lender Intercreditor Agreement (ii) all Obligations
of each Pledgor (other than Statia International) now existing or hereafter
arising under or in respect of the Indenture, the Notes, the Guarantee and the
Additional Lender Intercreditor Agreement (including, without limitation, the
obligation of such Pledgor to pay principal of, premium, if any, and interest on
the Notes when due and payable) and all other charges, fees, expenses,
commissions, reimbursements, premiums, indemnities and all other amounts due or
to become due under or in connection with the Indenture, the Notes, the
Guarantee and the Additional Lender Intercreditor Agreement and (iii) without
duplication of the amounts described in clauses (i) and (ii) of this Section 3,
all obligations, indebtedness and liabilities of each Pledgor now existing or
hereafter arising under or in respect of this Agreement, including, without
limitation, with respect to all charges, fees, expenses, commissions,
reimbursements, premiums, indemnities and other payments related to or in
respect of the obligations contained in this Agreement (the obligations
described in clauses (i), (ii) and (iii) of this Section 3, collectively, the
"Secured Obligations").
SECTION 4. No Release. Nothing set forth in this Agreement shall
relieve any Pledgor from the performance of any term, covenant, condition or
agreement on such 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
Trustee or any Secured Party to perform or observe any such term, covenant,
condition or agreement on any Pledgor's part to be so performed or observed or
shall impose any liability on Trustee or any Secured Party for any act or
omission on the part of any Pledgor relating thereto or for any breach of any
representation or warranty on the part of any Pledgor contained in this
Agreement, or under or in respect of the Pledged Collateral or made in
connection herewith or therewith.
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SECTION 5. Delivery of Pledged Collateral.
(a) All certificates, agreements or instruments representing or
evidencing the Pledged Collateral, to the extent not previously delivered to
Trustee, shall immediately upon receipt thereof by each Pledgor be delivered to
and held by or on behalf of Trustee pursuant hereto. All Pledged Collateral
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 satisfactory to Trustee. Trustee shall have the right, at any time
upon the occurrence and during the continuance of an Event of Default and
without notice to any Pledgor, to endorse, assign or otherwise transfer to or to
register in the name of Trustee or any of its nominees any or all of the Pledged
Collateral. In addition, Trustee shall have the right at any time to exchange
certificates representing or evidencing Pledged Collateral for certificates of
smaller or larger denominations.
(b) If the issuer of Pledged Shares is incorporated in a
jurisdiction which does not permit the use of certificates to evidence equity
ownership, then the applicable Pledgor shall, to the extent permitted by
applicable law, record such pledge on the stock register of the issuer, execute
any customary stock pledge forms or other documents necessary or appropriate to
complete the pledge and give Trustee the right to transfer such Pledged Shares
under the terms hereof and provide to Trustee an Opinion of Counsel, in form and
substance reasonably satisfactory to Trustee, confirming such pledge.
SECTION 6. Supplements, Further Assurances.
(a) Each Pledgor agrees that at any time and from time to time, at
the sole cost and expense of such Pledgor, such Pledgor shall promptly execute
and deliver all further instruments and documents, including, without
limitation, supplemental or additional UCC-1 financing statements, and take all
further action that may be necessary or that Trustee may reasonably request, in
order to perfect and protect the pledge, security interest and Lien granted or
purported to be granted hereby or to enable Trustee to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral.
(b) Each Pledgor shall, upon obtaining any Pledged Shares of any
Person, promptly (and in any event within five Business Days) deliver to Trustee
(i) a pledge amendment, duly executed by such Pledgor, in substantially the form
of Exhibit I hereto (each, a "Pledge Amendment"), in respect of the additional
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Pledged Shares which are to be pledged pursuant to this Agreement, and
confirming the attachment of the Lien hereby created on and in respect of such
additional shares and (ii) reasonable notification that Pledgor is delivering to
Pledgee such additional shares. Each Pledgor hereby authorizes Trustee to attach
each Pledge Amendment to this Agreement and agrees that all Pledged Shares
listed on any Pledge Amendment delivered to Trustee shall for all purposes
hereunder be considered Pledged Collateral from and after the date of such
Pledge Amendment.
SECTION 7. Representations, Warranties and Covenants. Each Pledgor
represents, warrants and covenants as follows (as to itself only):
(a) No Liens. Each Pledgor is, and at the time of any delivery of
any Pledged Collateral to Trustee pursuant to Section 5 of this Agreement
will be, the sole legal and beneficial owner of the Pledged Collateral.
All Pledged Collateral is on the date hereof, and will be, so owned by
such Pledgor free and clear of any Lien except for the Lien granted to
Trustee pursuant to this Agreement.
(b) Authorization, Enforceability. Each Pledgor has the requisite
corporate power, authority and legal right to pledge and grant a security
interest in all the Pledged Collateral pursuant to this Agreement, and
this Agreement constitutes the legal, valid and binding obligation of such
Pledgor, enforceable against such Pledgor in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally or by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or
at law).
(c) No Consents, etc. No consent of any party (including, without
limitation, stockholders or creditors of any Pledgor) and no consent,
authorization, approval, or other action by, and no notice to or filing
with, any governmental authority or regulatory body or other Person is
required (i) for the pledge by any Pledgor of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance
of this Agreement by any Pledgor, or (ii) for the exercise by Trustee of
the voting or other rights provided for in this Agreement, or (iii) for
the exercise by Trustee of the remedies in respect of the Pledged
Collateral pursuant to this Agreement and except for
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consents, authorizations, approvals and other filings and notices required
under the Securities Act or under state or "Blue Sky" securities laws.
(d) Due Authorization and Issuance. All of the Pledged Shares have
been, and to the extent hereafter issued will be upon such issuance, duly
authorized and validly issued and fully paid and nonassessable.
(e) Chief Executive Office. Each Pledgors' chief executive office is
located in the State set forth on Annex A hereto. No Pledgor shall (i)
move its chief executive office except to such new location as such
Pledgor may establish in accordance with the last sentence of this
subsection 7(e). No Pledgor shall establish a new location for its chief
executive office nor shall it change its name until (i) it shall have
given Trustee 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 Trustee or any
Secured Party may request, and (ii) with respect to such new location or
name, such Pledgor shall have taken all action satisfactory to Trustee to
maintain the perfection and priority of the security interest of Trustee
for the benefit of the Secured Parties in the Pledged Collateral intended
to be granted hereby.
(f) Delivery of Pledged Collateral; Filings. Each Pledgor has
delivered to Trustee all certificates representing the Pledged Shares
owned on the date hereof and has caused to be filed with the Secretary of
State of New York and the State or States set forth next to such Pledgor's
name on Annex A hereto and the chief executive office of such Pledgor,
UCC-1 financing statements evidencing the Lien created by this Agreement,
and such delivery, filing and pledge of the Pledged Collateral pursuant to
this Agreement creates a valid and perfected first priority security
interest in the Pledged Collateral securing the payment of the Secured
Obligations pursuant to the UCC in effect in each applicable jurisdiction,
including, without limitation, the State of New York and the State or
States set forth next to such Pledgor's name on Annex A hereto.
(g) Pledged Collateral. All information set forth herein, including,
the Schedules annexed hereto, and all information contained in any
documents, schedules and lists heretofore delivered to any Secured Party
in connection with
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this Agreement, in each case, relating to the Pledged Collateral is
accurate and complete in all respects.
(h) No Violations, etc. The pledge of the Pledged Collateral
pursuant to this Agreement does not violate Regulation G, T, U or X of the
Federal Reserve Board.
(i) Ownership of Pledged Collateral. Except as otherwise permitted
by the Indenture, each Pledgor at all times will be the sole beneficial
owner of the Pledged Collateral.
(j) No Options, Warrants, etc. There are no options, warrants,
calls, rights, commitments or agreements of any character to which any
Pledgor is a party or by which it is bound obligating any Pledgor to
issue, deliver or sell or cause to be issued, delivered or sold,
additional Pledged Shares or obligating any 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
any Pledgor is a party with respect to the voting of the capital stock of
any issuer of the Pledged Shares.
SECTION 8. Voting Rights; Distributions; etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Collateral or any
part thereof for any purpose not inconsistent with the terms or purpose of
this Agreement and the Indenture; provided, however, that no Pledgor
shall, in any event, exercise such rights in any manner which may have an
adverse effect on the value of the Pledged Collateral or the security
intended to be provided by this Agreement.
(ii) Subject to the terms of the Indenture, each Pledgor shall be
entitled to receive and retain, and to utilize free and clear of the Lien
of this Agreement, any and all Distributions, but only if and to the
extent made in accordance with the provisions of the Indenture; provided,
however, that any and all such Distributions consisting of rights or
interests in the form of securities shall be, and shall be forthwith
delivered to Trustee to hold, as Pledged Collateral and shall, if received
by any Pledgor, be received in trust for the benefit of Trustee, be
segregated
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from the other property or funds of such Pledgor, and be forthwith
delivered to Trustee as Pledged Collateral in the same form as so received
(with any necessary endorsement).
(iii) Trustee shall be deemed without further action or formality to
have granted to each Pledgor all necessary consents relating to voting
rights and shall, if necessary, upon written request of any Pledgor and at
such Pledgor's sole cost and expense, from time to time execute and
deliver (or cause to be executed and delivered) to such Pledgor all such
instruments as such Pledgor may reasonably request in order to permit such
Pledgor to exercise the voting and other rights which it is entitled to
exercise pursuant to subsection 8(a)(i) hereof and to receive the
Distributions which it is authorized to receive and retain pursuant to
subsection 8(a)(ii) hereof.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) All rights of any Pledgor to exercise the voting and other
consensual rights it would otherwise be entitled to exercise pursuant to
subsection 8(a)(i) hereof without any action or the giving of any notice
shall cease, and all such rights shall thereupon become vested in Trustee,
which shall thereupon have the sole right to exercise such voting and
other consensual rights.
(ii) All rights of any Pledgor to receive Distributions which it
would otherwise be authorized to receive and retain pursuant to subsection
8(a)(ii) hereof shall cease and all such rights shall thereupon become
vested in Trustee, which shall thereupon have the sole right to receive
and hold as Pledged Collateral such Distributions.
(c) Each Pledgor shall, at such Pledgor's sole cost and expense,
from time to time execute and deliver to Trustee appropriate instruments as
Trustee may reasonably request in order to permit Trustee to exercise the voting
and other rights which it may be entitled to exercise pursuant to subsection
8(b)(i) hereof and to receive all Distributions which it may be entitled to
receive under subsection 8(b)(ii) hereof.
(d) All Distributions which are received by any Pledgor contrary to
the provisions of subsection 8(b)(ii) hereof shall be received in trust for the
benefit of Trustee, shall be segregated from other funds of such Pledgor and
shall immediately
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be paid over to Trustee as Pledged Collateral in the same form as so received
(with any necessary endorsement).
SECTION 9. Transfers and Other Liens; Additional Shares.
(a) No Pledgor shall (i) sell, 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 Lien and
security interest granted to Trustee under this Agreement, or (iii) permit any
issuer of the Pledged 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 the outstanding shares or partnership
interests of any other constituent corporation or partnership.
(b) Each Pledgor shall (i) cause each issuer of the Pledged Shares
not to issue any stock or other securities in addition to or in substitution for
the Pledged 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 Shares which are required to be pledged hereunder.
SECTION 10. Reasonable Care. Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equivalent to that which Trustee, in its individual capacity,
accords its own property consisting of similar instruments or interests, it
being understood that neither Trustee nor any of the Secured Parties shall have
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 Trustee or any other Secured Party 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.
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SECTION 11. Remedies upon Default; Decisions Relating to Exercise of
Remedies.
(a) If any Event of Default shall have occurred and be continuing,
Trustee shall have the right, in addition to other rights and remedies provided
for herein or otherwise available to it, to be exercised in accordance with the
terms of, and at the times, if any, specified in the Indenture, (i) to retain
and apply the Distributions to the Secured Obligations as provided in Section 12
hereof, and (ii) to exercise all the rights and remedies of a secured party on
default under the Uniform Commercial Code in effect in the State of New York at
that time, and Trustee may also in its sole discretion, without notice except as
specified below, sell the Pledged Collateral or any part thereof (including,
without limitation, any partial interest in the Pledged Shares) in one or more
parcels at public or private sale, at any exchange, broker's board or at any of
Trustee's offices or elsewhere, for cash, on credit or for future delivery, and
at such price or prices and upon such other terms as Trustee may deem
commercially reasonable, irrespective of the impact of any such sales on the
market price of the Pledged Collateral. Trustee or any other Secured Party 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 such Person
as a credit on account of the purchase price of any Pledged Collateral payable
by such Person 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 any
Pledgor, 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. Each Pledgor acknowledges and agrees that, to the extent
notice of sale shall be required by law, ten 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 constitute 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, a statement
renouncing or modifying any right to notification of sale or other intended
disposition. Trustee shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. Trustee 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
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which it was so adjourned. Each Pledgor hereby waives, to the fullest extent
permitted by law, any claims against Trustee arising by reason of the fact that
the price at which any Pledged Collateral may have been sold at such a private
sale was less than the price which might have been obtained at a public sale,
even if Trustee accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree.
(b) Each Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended (the "Securities Act"), and
applicable state securities laws, Trustee may be compelled, with respect to any
sale of all or any part of the Pledged Collateral, to limit purchasers to
Persons who will agree, among other things, to acquire the Pledged Collateral
for their own account, for investment and not with a view to the distribution or
resale thereof. Each Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable to Trustee than those obtainable through a
public sale without such restrictions (including, without limitation, a public
offering made pursuant to a registration statement under the Securities Act),
and, notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that Trustee
shall have no obligation to engage in public sales and no obligation to delay
the sale of any Pledged Collateral for the period of time necessary to permit
the issuer thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state securities laws,
even if such issuer would agree to do so.
(c) If Trustee determines to exercise its right to sell any or all
of the Pledged Collateral, upon written request, each Pledgor shall from time to
time furnish to Trustee all such information as Trustee may request in order to
determine the number of securities included in the Pledged Collateral which may
be sold by Trustee as exempt transactions under the Securities Act and the rules
of the Securities and Exchange Commission thereunder, as the same are from time
to time in effect.
(d) Each Pledgor recognizes that, by reason of certain prohibitions
contained in laws, rules, regulations or orders of any foreign governmental
authority, Trustee may be compelled, with respect to any sale of all or any part
of the Pledged Collateral, to limit purchasers to those who meet the
requirements of such foreign governmental authority. Each Pledgor acknowledges
that any such sales may be at prices and on terms less favorable to Trustee than
those obtainable through a public sale without such restrictions, and,
notwithstanding such
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circumstances, agrees that any such restricted sale shall be deemed to have been
made in a commercially reasonable manner and that, except as may be required by
applicable law, Trustee shall have no obligation to engage in public sales.
(e) In addition to any of the other rights and remedies hereunder,
Trustee shall have the right to institute a proceeding seeking specific
performance in connection with any of the agreements or obligations hereunder.
SECTION 12. Application of Proceeds. The proceeds received by
Trustee 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 Trustee of its
remedies as a secured creditor as provided in Section 11 hereof shall be
applied, together with any other sums then held by Trustee pursuant to this
Agreement, promptly by Trustee in the manner set forth in the Indenture and/or
the Additional Lender Intercreditor Agreement.
SECTION 13. Expenses. Each Pledgor will immediately upon demand pay
to Trustee the amount of any and all expenses, including the fees and expenses
of its counsel and the fees and expenses of any experts and agents which Trustee
may incur in connection with (i) the collection of the Secured Obligations, (ii)
the enforcement and administration of this Agreement, (iii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iv) the exercise or enforcement of any of the rights
of Trustee or any Secured Party hereunder or (v) the failure by any Pledgor to
perform or observe any of the provisions hereof. All amounts payable by each
Pledgor under this Section 13 shall be due immediately upon demand and shall be
part of the Secured Obligations. Each Pledgor's obligations under this Section
13 shall survive the termination of this Agreement and the discharge of such
Pledgor's other obligations hereunder.
SECTION 14. No Waiver; Cumulative Remedies.
(a) No failure on the part of Trustee to exercise, no course of
dealing with respect to, and no delay on the part of Trustee in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein provided are cumulative and are not
exclusive of any remedies provided by law.
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(b) In the event Trustee shall have instituted any proceeding to
enforce any right, power or remedy under this 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 Trustee,
then and in every such case, each Pledgor, Trustee and each holder of any of the
Secured Obligations shall be restored to their respective former positions and
rights hereunder with respect to the Pledged Collateral, and all rights,
remedies and powers of Trustee and the Secured Parties shall continue as if no
such proceeding had been instituted.
SECTION 15. Trustee. Trustee has been appointed as trustee hereunder
pursuant to the Indenture and the Additional Lender Intercreditor Agreement. The
actions of Trustee hereunder are subject to the provisions of the Indenture and
the Additional Lender Intercreditor Agreement. Trustee shall have the right
hereunder to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking action (including,
without limitation, the release or substitution of Pledged Collateral), in
accordance with this Agreement, the Indenture and the Additional Lender
Intercreditor Agreement. Trustee may resign and a successor Trustee may be
appointed in the manner provided in the Indenture. Upon the acceptance of any
appointment as Trustee by a successor Trustee, that successor Trustee shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Trustee under this Agreement, and the retiring
Trustee shall thereupon be discharged from its duties and obligations under this
Agreement. After any retiring Trustee's resignation, the provisions of this
Agreement shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Agreement while it was Trustee.
SECTION 16. Trustee May Perform; Trustee Appointed Attorney-in-Fact.
If any Pledgor shall fail to do any act or thing that it has covenanted to do
hereunder or if any warranty on the part of such Pledgor contained herein shall
be breached. Trustee or any Secured Party may (but shall not be obligated to) do
the same or cause it to be done or remedy any such breach, and may expend funds
for such purpose. Any and all amounts so expended by Trustee or such Secured
Party shall be paid by such Pledgor within five Business Days after demand
therefor, with interest at the Default Rate during the period from and including
the date on which such funds were so expended to the date of repayment. Each
Pledgor's obligations under this Section 16 shall survive the termination of
this Agreement and the discharge of such Pledgor's other obligations under this
Agreement. Each
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Pledgor hereby appoints Trustee its attorney-in-fact with an interest, with full
authority in the place and stead of such Pledgor and in the name of such
Pledgor, or otherwise, from time to time in Trustee's discretion to take any
action and to execute any instrument consistent with the terms of this Agreement
and the Indenture which the Trustee may deem necessary or advisable to
accomplish the purposes of this Agreement. The foregoing grant of authority is a
power of attorney coupled with an interest and such appointment shall be
irrevocable for the term of this Agreement. Each Pledgor hereby ratifies all
that such attorney shall lawfully do or cause to be done by virtue and in
accordance with the terms hereof.
SECTION 17. Notices. Unless otherwise provided herein, any notice or
other communication herein required or permitted to be given shall be given in
the manner 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 17. 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 notices to
Trustee shall not be effective until received by Trustee.
SECTION 18. Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) be binding upon each Pledgor, its successors and assigns, and (ii) inure,
together with the rights and remedies of Trustee hereunder, to the benefit of
Trustee and the other Secured Parties and each of their respective successors,
transferees and assigns; no other Person (including, without limitation, any
other creditor of Pledgor) shall have any interest herein or any right or
benefit with respect hereto. Without limiting the generality of the foregoing
clause (ii), any Secured Party may assign or otherwise transfer any Note held by
it secured by this Agreement to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Secured Party, herein or otherwise, subject however, to the provisions of the
Indenture.
SECTION 19. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT
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REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR PROPERTY ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 20. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PLEDGOR
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. EACH PLEDGOR DESIGNATES AND APPOINTS CT CORPORATION SYSTEM,
WITH AN ADDRESS AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ AND SUCH OTHER
PERSONS AS MAY HEREAFTER BE SELECTED BY SUCH PLEDGOR IRREVOCABLY AGREEING IN
WRITING TO SO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF, SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY SUCH PLEDGOR TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO
SUCH PLEDGOR AT ITS ADDRESS PROVIDED FOR IN SECTION 17 HEREOF EXCEPT THAT UNLESS
OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT
AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY ANY PLEDGOR
REFUSES TO RECEIVE AND FORWARD SUCH SERVICE, SUCH PLEDGOR HEREBY AGREES THAT
SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF TRUSTEE TO BRING PROCEEDINGS AGAINST SUCH PLEDGOR IN THE
COURTS OF ANY OTHER JURISDICTION.
SECTION 21. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 22. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all
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such counterparts together shall constitute one and the same Agreement.
SECTION 23. Headings. The Section headings used in this Agreement
are for convenience of reference only and shall not affect the construction of
this Agreement.
SECTION 24. Obligations Absolute. All obligations of each Pledgor
hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or the like of any Pledgor;
(ii) any lack of validity or enforceability of the Indenture or the Notes,
or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other amendment or
waiver of or any consent to any departure from the Indenture or the Notes, or
any other agreement or instrument relating thereto;
(iv) any exchange, release or non-perfection of any other collateral, or
any release or amendment or waiver of or consent to any departure from any
guarantee, for all or any of the Secured Obligations;
(v) any exercise or non-exercise, or any waiver of any right, remedy,
power or privilege under or in respect of this Agreement, the Indenture, the
Notes or the Guarantee except as specifically set forth in a waiver granted
pursuant to the provisions of the Indenture; or
(vi) any other circumstances which might otherwise constitute a defense
available to, or a discharge of, any Pledgor.
SECTION 25. Limitation on Interest Payable. It is the intention of
the parties to conform strictly to the usury laws, whether state or federal,
that are applicable to the transaction of which this Agreement is a part. All
agreements between each Pledgor and Trustee, 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
such Pledgor for the use, forbearance or
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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 federal or state usury laws. If under any
circumstances whatsoever fulfillment of any such provision, at the time
performance of such provision shall be due, shall involve exceeding the limit of
validity prescribed by law, then the obligation to be fulfilled shall be reduced
to the limit of such validity. If under any circumstances any 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 Marine Midland Bank, as trustee, shall, to the extent permitted by applicable
law, and to the extent necessary to preclude exceeding the limit of validity
prescribed by law, be amortized, prorated, allocated and spread from the date of
this Agreement until payment in full of the Secured Obligations so that the
actual rate of interest on account of such principal amounts is uniform
throughout the term hereof.
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be executed
and delivered by its duly authorized officer as of the date first above
written.
PLEDGORS:
STATIA TERMINALS INTERNATIONAL N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
STATIA DELAWARE HOLDCO II, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
STATIA TERMINALS DELAWARE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
STATIA TERMINALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board
and President
W.P. COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President Finance and
Secretary
MARINE MIDLAND BANK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Schedule A
Pledged Shares
PERCENTAGE
OF ALL
CLASS CERTI- CAPITAL OR
PLEDGOR OF PAR FICATE NUMBER OTHER EQUITY
OF ISSUER ISSUER STOCK VALUE NO(S). OF SHARES INTERESTS
--------- ------ ----- ----- ------ --------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Common $.01 1 1,000 100%
Terminals Delaware
International Holdco II,
N.V. Inc.
Statia Common $.01 1 1,000 100%
Terminals
Delaware,
Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Common $1.00 10 1,000 100%
Terminals Terminals,
Delaware, Inc.
Inc.
W.P. Company, Seven Seas Common $1.00 1 1,000 100%
Inc. Steamship
Company,
Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Common $.01 3,4 1,000,000 100%
Delaware Terminals
Holdco II, Southwest,
Inc. Inc.
EXHIBIT I
PLEDGE AMENDMENT
This Pledge Amendment, dated ______________, is delivered pursuant
to Section 6 of the Agreement referred to below. The undersigned hereby agrees
that this Pledge Amendment may be attached to the United States Securities
Pledge and Security Agreement, dated as of ____________________, between the
undersigned and _______________________________________ (the "Agreement";
capitalized terms used herein and not defined have the meanings ascribed to them
in the Agreement) and that the Pledged Shares listed on this Pledge Amendment
shall be deemed to be and shall become part of the Pledged Collateral and shall
secure all Secured Obligations.
________________________________,
as Pledgor
By:______________________________
Name:
Title: