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SECURITIES PLEDGE AGREEMENT
Made on November 27, ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
as Pledgor
and
MARINE MIDLAND BANK
as Trustee
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BARRISTERS & SOLICITORS
TABLE OF CONTENTS
RECITALS................................................................... 1
SECTION 1 -- DEFINITIONS................................................... 2
1.1 ............................................................... 2
(1) Additional Shares........................................ 2
(2) Capital Stock............................................ 2
(3) Distributions............................................ 2
(4) Documents................................................ 2
(5) Event of Default......................................... 2
(6) Intangibles.............................................. 2
(7) Lien..................................................... 2
(8) Pledged Collateral....................................... 3
(9) Pledged Shares........................................... 3
(10) Proceeds ................................................ 3
(11) security interest ....................................... 3
(12) Secured Obligations...................................... 3
(13) Termination Date ........................................ 3
(14) Trustee ................................................. 3
SECTION 2 -- PLEDGE........................................................ 3
2.1 ............................................................... 3
SECTION 3 -- SECURED OBLIGATIONS........................................... 4
3.1 ............................................................... 4
SECTION 4 -- NO RELEASE.................................................... 4
4.1 ............................................................... 4
SECTION 5 -- DELIVERY OF PLEDGED COLLATERAL................................ 5
5.1 ............................................................... 5
5.2 ............................................................... 5
SECTION 6 -- SUPPLEMENTS, FURTHER ASSURANCES............................... 5
6.1 ............................................................... 5
6.2 ............................................................... 5
SECTION 7 -- REPRESENTATIONS, WARRANTIES AND COVENANTS..................... 6
7.1 ............................................................... 6
(1) No Liens................................................. 6
(2) Authorization, Enforceability............................ 6
(3) No Consents, etc......................................... 6
(4) Due Authorization and Issuance........................... 6
(5) Chief Executive Office................................... 6
(i)
(6) Delivery of Pledged Collateral; Filings.................. 7
(7) Pledged Collateral....................................... 7
(8) No Violations, etc....................................... 7
(9) Ownership of Pledged Collateral.......................... 7
(10) No Options, Warrants, etc................................ 7
(11) Preservation of Title.................................... 7
7.2 ............................................................... 7
SECTION 8 -- VOTING RIGHTS; DISTRIBUTIONS; ETC............................. 8
8.1 ............................................................... 8
8.2 ............................................................... 8
8.3 ............................................................... 9
8.4 ............................................................... 9
8.5 ............................................................... 9
SECTION 9 -- TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES.................. 10
9.1 ............................................................... 10
9.2 ............................................................... 10
SECTION 10 -- REASONABLE CARE.............................................. 10
10.1 ............................................................... 10
SECTION 11 -- REMEDIES UPON DEFAULT; DECISIONS RELATING TO EXERCISE
OF REMEDIES.......................................................... 10
11.1 ............................................................... 10
11.2 ............................................................... 11
11.3 ............................................................... 11
11.4 ............................................................... 12
11.5 ............................................................... 12
SECTION 12 -- APPLICATION OF PROCEEDS...................................... 12
12.1 ............................................................... 12
SECTION 13 -- EXPENSES..................................................... 12
13.1 ............................................................... 12
SECTION 14 -- NO WAIVER; CUMULATIVE REMEDIES............................... 12
14.1 ............................................................... 12
14.2 ............................................................... 13
SECTION 15 -- TRUSTEE...................................................... 13
15.1 ............................................................... 13
SECTION 16 -- TRUSTEE MAY PERFORM; TRUSTEE APPOINTED ATTORNEY-IN-
FACT................................................................. 13
(ii)
16.1 ............................................................... 13
SECTION 17 -- REINSTATEMENT................................................ 14
17.1 ............................................................... 14
SECTION 18 -- MISCELLANEOUS................................................ 14
18.1 Notices........................................................ 14
18.2 Continuing Lien; Assignment.................................... 14
18.3 Governing Law and Submission to Jurisdiction................... 14
18.4 Severability of Provisions..................................... 15
18.5 Execution in Counterparts...................................... 15
18.6 Headings....................................................... 15
18.7 Obligations Absolute........................................... 15
18.8 Limitation on Interest Payable................................. 16
(iii)
SECURITIES PLEDGE AGREEMENT
This Agreement is made on this 27th day of November, 1996, between
Statia Terminals Canada, Incorporated
as Pledgor (the "Pledgor")
and
Marine Midland Bank
as Trustee
RECITALS
A. Pledgor and Statia Terminals International N.V., as issuers, certain
subsidiaries of the issuers 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 November 27, 1996, pursuant to which Pledgor is issuing its
113/4% first mortgage notes due 2003 (the "First Mortgage Notes"), in the
aggregate principal amount of U.S.$135,000,000. It is contemplated that Pledgor
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" as
defined pursuant to the Indenture) which shall be equally and rateably secured
by the Pledged Collateral (as hereinafter defined).
B. Pledgor is the owner of the Pledged Collateral (as hereinafter defined).
C. This Agreement is given by Pledgor in favour 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).
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor and Trustee hereby agree as follows:
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SECTION 1 -- DEFINITIONS
1.1 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.
(1) 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
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 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 Pledgor in the entries on the books of any financial
intermediary pertaining to such additional shares.
(2) 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.
(3) Distributions shall mean all dividends, cash, options, warrants, rights,
instruments, distributions, partnership distributions, returns of capital,
income, profits and other property, interests or proceeds from time to time
received, receivable or otherwise distributed to Pledgor in respect of or in
exchange for any or all of the Pledged Shares.
(4) Documents shall mean, collectively, all documents 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.
(5) Event of Default means an "Event of Default" as defined in the Indenture.
(6) Intangibles shall mean all personal property relating to any of the Pledged
Collateral, including choses in action, that is not goods, chattel paper,
documents of title, instruments, money or securities.
(7) Lien means, with respect to any asset or property, any mortgage, deed of
trust, debenture, fiduciary transfer, lien (statutory or other), pledge, lease,
easement, restriction, covenant, charge, security interest or other encumbrance
of any kind or nature in respect of such asset or property, whether or not
filed, recorded or otherwise perfected under applicable law (including without
limitation any conditional sale or other title retention agreement, and any
lease in the nature thereof, any option or other agreement to sell, and any
filing of, or agreement to give, any financing statement under the Uniform
Commercial Code (or equivalent statutes of any jurisdiction)).
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(8) Pledged Collateral shall have the meaning assigned to such term in Section 2
of this Agreement.
(9) 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 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 Pledgor, all Additional Shares.
(10) Proceeds shall include, without limitation, any and all (i) proceeds of any
insurance (except payments made to a Person which is not a party to this
Agreement), indemnity, warranty or guarantee payable to Trustee or to 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 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.
(11) security interest means an interest in personal property that secures
payment or performance of an obligation, and includes, whether or not the
interest secures payment or performance of an obligation, the interest of a
transferee of an account or chattel paper.
(12) Secured Obligations shall have the meaning assigned to such term in Section
3 of this Agreement.
(13) Termination Date means the date on which Pledgor shall have complied with
all of the conditions precedent set forth in Article Eight of the Indenture for
satisfaction and discharge of the Indenture.
(14) Trustee means Marine Midland Bank and its successors and assigns in its
capacity as trustee for and on behalf of itself and for the benefit of the
Secured Parties.
SECTION 2 -- PLEDGE
2.1 As collateral security for the payment and performance when due of all the
Secured Obligations, Pledgor hereby pledges, assigns, hypothecates, mortgages,
delivers, deposits and transfers to Trustee for its benefit and the benefit of
the Secured Parties, and creates a continuing first priority security interest
in, all of the right, title and interest of Pledgor in, to and under the
following property, whether now existing or hereafter acquired (collectively,
the "Pledged Collateral"):
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(1) all Pledged Shares;
(2) all Additional Shares;
(3) all Distributions;
(4) all Intangibles;
(5) all Documents; and
(6) all Proceeds of any of the foregoing.
SECTION 3 -- SECURED OBLIGATIONS
3.1 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 accrue and become due but for Pledgor or
any property or assets of Pledgor becoming the subject of a bankruptcy or
similar proceeding under the Bankruptcy and Insolvency Act (Canada) or the
Companies Creditors' Arrangement Act (Canada) or any other applicable insolvency
or bankruptcy legislation, or Pledgor becoming a party to any bankruptcy,
insolvency, moratorium or similar proceeding which gives rise to a stay which
has the effect of preventing Trustee from enforcing its rights hereunder), of
(i) all Obligations of Pledgor now existing or hereafter arising under or in
respect of the Indenture and the Notes (including, without limitation, the
obligation of 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
under or in connection with the Indenture, the Notes and the Additional Secured
Indebtedness and (ii) without duplication of the amounts described in clause
(i), all obligations, indebtedness and liabilities of 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) and (ii) of this Section 3, collectively, the "Secured
Obligations").
SECTION 4 -- NO RELEASE
4.1 Nothing set forth in this Agreement shall relieve Pledgor from the
performance of any term, covenant, condition or agreement on Pledgor's part to
be performed or observed under or in respect of any of the Pledged Collateral or
from any liability to any Person under or in respect of any of the Pledged
Collateral or shall impose any obligation on Trustee or any Secured Party to
perform or observe any such term, covenant, condition or agreement on 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 Pledgor relating
thereto or for any breach
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of any representation or warranty on the part of Pledgor contained in this
Agreement, or under or in respect of the Pledged Collateral or made in
connection herewith or therewith.
SECTION 5 -- DELIVERY OF PLEDGED COLLATERAL
5.1 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 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 powers of
attorney endorsed 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 Pledgor, to endorse,
assign or otherwise transfer to or to obtain registration 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. If requested by Trustee at any time, Pledgor will execute and
deliver to Trustee a stock transfer direction to the transfer agent of the
Pledged Collateral, if applicable; provided that Trustee will only exercise such
stock transfer direction upon the occurrence of and during the continuance of an
Event of Default.
5.2 If the issuer of Pledged Shares is incorporated in a jurisdiction which does
not permit the use of certificates to evidence equity ownership, then 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
6.1 Pledgor agrees that at any time and from time to time, at the sole cost and
expense of Pledgor, Pledgor shall promptly execute and deliver all further
instruments and documents, and take all further action that may be necessary or
that Trustee may reasonably request, in order to protect the pledge 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.
6.2 Pledgor shall, upon obtaining any Pledged Shares of any Person, promptly
(and in any event within five Business Days) deliver to Trustee a pledge
amendment, duly executed by Pledgor, in substantially the form of Exhibit I
hereto (each, a "Pledge Amendment"), in respect of the additional 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. 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
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date of such Pledge Amendment. All certificates, instruments or other documents
evidencing or representing any additional Pledged Shares hereinafter acquired by
Pledgor shall forthwith after issuance be delivered to and remain in the custody
of Trustee or its nominee.
SECTION 7 -- REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Pledgor represents, warrants and covenants as follows:
(1) No Liens. 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
holder of record and the sole beneficial owner of the Pledged Collateral. All
Pledged Collateral is on the date hereof, and will be, so owned by Pledgor free
and clear of any Lien except for the Lien granted to Trustee pursuant to this
Agreement.
(2) Authorization, Enforceability. Pledgor has the requisite corporate power,
authority and legal right to pledge, assign, hypothecate, mortgage, transfer,
deliver and deposit all the Pledged Collateral pursuant to this Agreement, and
this Agreement constitutes the legal, valid and binding obligation of Pledgor,
enforceable against 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).
(3) No Consents, etc. No consent of any party (including, without limitation,
stockholders or creditors of 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 Pledgor of
the Pledged Collateral pursuant to this Agreement or for the execution, delivery
or performance of this Agreement by 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, except for consents, authorizations, approvals and
other filings and notices as may be required in connection with any disposition
of the Pledged Collateral by applicable laws affecting the offering and sale of
securities generally and the resolution of the board of directors of Pledgor
approving the transfer of the Pledged Collateral executed on the date hereof and
delivered to Trustee.
(4) 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.
(5) Chief Executive Office. Pledgor's chief place of business is located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇. Pledgor shall
not move its chief place of business except to such new location as Pledgor may
establish in accordance with the last sentence of this subsection 7.1(5).
Pledgor shall not establish a new location for its chief place of business nor
shall it change its name until it shall have given Trustee not less
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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 with respect to such new location or name, Pledgor shall have taken all
action necessary or required by any and all existing or future applicable laws
or as Trustee shall from time to time reasonably request to maintain the
validity of Trustee's interests in the Pledged Collateral intended to be granted
hereby.
(6) Delivery of Pledged Collateral; Filings. Pledgor has delivered to Trustee
all certificates representing the Pledged Shares and has caused to be made all
filings required under applicable law (which filings are set forth in Schedule B
annexed hereto) in connection with the Lien created by this Agreement, and such
delivery, filing and pledge of the Pledged Collateral pursuant to this Agreement
creates a valid and first priority Lien in the Pledged Collateral securing the
payment of the Secured Obligations pursuant to the laws in effect in each
applicable jurisdiction.
(7) 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
this Agreement, in each case, relating to the Pledged Collateral is accurate and
complete in all respects.
(8) No Violations, etc. The pledge of the Pledged Collateral pursuant to this
Agreement does not violate any laws of any of the applicable jurisdictions that
this agreement is or may be subject to, including, without limitation,
Regulation G, T, U or X of the Federal Reserve Board.
(9) Ownership of Pledged Collateral. Except as otherwise permitted by the
Indenture, Pledgor at all times will be the sole beneficial owner of the Pledged
Collateral.
(10) No Options, Warrants, etc. There are no options, warrants, calls, rights,
commitments or agreements of any character to which Pledgor is a party or by
which it is bound obligating Pledgor to issue, deliver or sell or cause to be
issued, delivered or sold, additional Pledged Shares or obligating Pledgor to
grant, extend or enter into any such option, warrant, call, right, commitment or
agreement. There are no voting trusts or other agreements or understandings to
which Pledgor is a party with respect to the voting of the capital stock of any
issuer of the Pledged Shares.
(11) Preservation of Title. Pledgor has and will defend title to the Pledged
Collateral and the Liens of Trustee thereon against the claim of any Person and
will maintain and preserve such title and Liens until the Termination Date.
7.2 The representations and warranties set forth in Section 7.1 shall survive
the execution and delivery of this Agreement.
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SECTION 8 -- VOTING RIGHTS; DISTRIBUTIONS; ETC.
8.1 So long as no Event of Default shall have occurred and be continuing:
(1) 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 Pledgor
shall not 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 or have the
effect of imposing any restriction on the transferability or
marketability of the Pledged Collateral.
(2) Subject to the terms of the Indenture, 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 Pledgor, be received in trust for the benefit
of Trustee, be segregated from the other property or funds of
Pledgor, and be forthwith delivered to Trustee as Pledged Collateral
in the same form as so received (with any necessary endorsement).
(3) Trustee shall be deemed without further action or formality to have
granted to Pledgor all necessary consents relating to voting rights
and shall, if necessary, upon written request of Pledgor and at
Pledgor's sole cost and expense, from time to time execute and
deliver (or cause to be executed and delivered) to Pledgor all such
instruments as Pledgor may reasonably request in order to permit
Pledgor to exercise the voting and other rights which it is entitled
to exercise pursuant to subsection 8.1(1) hereof and to receive the
Distributions which it is authorized to receive and retain pursuant
to subsection 8.1(2) hereof.
8.2 Upon the occurrence and during the continuance of an Event of Default:
(1) All rights of Pledgor to exercise the voting and other consensual
rights it would otherwise be entitled to exercise pursuant to
subsection 8.1(1) 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 as though it were
the outright owner thereof.
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(2) Without limitation to the foregoing, Trustee may exercise any and
all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to the Pledged Collateral
as if it were the absolute owner thereof including, without
limitation, the right to exchange at its discretion such Pledged
Collateral upon the merger, consolidation, reorganization,
recapitalization or other readjustment of any Person or upon the
exercise by any Person or Trustee of any right, privilege or option
pertaining to such Pledged Collateral, and in connection therewith,
to deposit and deliver such Pledged Collateral with any committee,
depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as it may determine, all without
liability except to account for property actually received by it.
(3) All rights of Pledgor to receive Distributions which it would
otherwise be authorized to receive and retain pursuant to subsection
8.1(2) 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.
8.3 Pledgor hereby revokes all previous proxies with regard to the Pledged
Collateral and grants a proxy to Trustee to attend and vote at any and all
meetings of the shareholders of the Subsidiaries of Pledgor that issued the
Pledged Collateral, and any adjournments thereof, held on or after the date
hereof and prior to the Termination Date and to execute any and all written
consents of shareholders in connection therewith, with the same effect as if
Pledgor had personally attended the meetings or had personally voted its shares
or had personally signed the written consents. Pledgor hereby authorizes Trustee
to substitute another Person as the proxyholder and hereby authorizes and
directs such proxyholder to file this proxy and any substitution instrument with
the secretary of the appropriate Subsidiary. This proxy is coupled with an
interest and is irrevocable until the Termination Date. The Trustee shall not
exercise its rights under the proxy granted pursuant to this subsection 8.3
unless an Event of Default shall have occurred and be continuing.
8.4 Pledgor shall, at Pledgor's sole cost and expense, from time to time execute
and deliver to Trustee additional instruments as Trustee may request in order to
permit Trustee to exercise the voting and other rights which it may be entitled
to exercise pursuant to subsections 8.2(1) and 8.2(2) hereof and to receive all
Distributions which it may be entitled to receive under Subsection 8.2(3)
hereof.
8.5 All Distributions which are received by Pledgor contrary to the provisions
of subsection 8.2(3) hereof shall be received in trust for the benefit of
Trustee, shall be segregated from other funds of Pledgor and shall immediately
be paid over to Trustee as Pledged Collateral in the same form as so received
(with any necessary endorsement).
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SECTION 9 -- TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES
9.1 Pledgor shall not (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.
9.2 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 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
10.1 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.
SECTION 11 -- REMEDIES UPON DEFAULT; DECISIONS RELATING TO EXERCISE OF REMEDIES
11.1 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, subject to any
restrictions contained in the applicable Intercreditor Agreement, (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 all applicable laws in effect 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, to the extent permitted by applicable
law) 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
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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 Pledgor, and Pledgor hereby
waives, to the fullest extent permitted by law, all rights of redemption,
stay and/or appraisal which it now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted. Pledgor
acknowledges and agrees that, to the extent notice of sale shall be required by
law, ten days notice to Pledgor of the time and place of any public sale or the
time after which any private sale or other intended disposition is to take place
shall constitute reasonable notification of such matters. No notification need
be given to 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 which it was so adjourned. 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.
11.2 Pledgor acknowledges that any such private sales may be at prices and on
terms less favourable 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 of 1933 (15 USCS @
77a (1996)), as amended from time to time or a prospectus qualifying the Pledged
Collateral for distribution in the Province of Nova Scotia and/or the other
provinces of Canada), 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 qualify a prospectus under applicable
Canadian securities laws or register it for a form of public sale requiring
registration under any other applicable securities laws, even if such issuer
would agree to do so.
11.3 If Trustee determines to exercise its right to sell any or all of the
Pledged Collateral, upon written request, 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 pursuant to prospectus and registration exemptions under
applicable Canadian securities laws or as exempt transactions under the
Securities Act of 1933 and the rules of the Securities and Exchange Commission
thereunder, as the same are from time to time in effect.
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11.4 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. Pledgor acknowledges that any such sales
may be at prices and on terms less favourable to Trustee than those obtainable
through a public sale without such restrictions, and, notwithstanding such
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.
11.5 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
12.1 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 applicable Intercreditor Agreement.
SECTION 13 -- EXPENSES
13.1 Pledgor will 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 Pledgor to perform or observe any of the
provisions hereof. All amounts payable by Pledgor under this Section 13.1 shall
be due upon demand and shall be part of the Secured Obligations. Pledgor's
obligations under this Section 13.1 shall survive the termination of this
Agreement and the discharge of Pledgor's other obligations hereunder.
SECTION 14 -- NO WAIVER; CUMULATIVE REMEDIES
14.1 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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14.2 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, 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
15.1 Trustee has been appointed as trustee hereunder pursuant to the Indenture.
The actions of Trustee hereunder are subject to the provisions of the Indenture.
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 and the Indenture.
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
16.1 If Pledgor shall fail to do any act or thing that it has covenanted to do
hereunder or if any warranty on the part of 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 Pledgor immediately upon demand therefor, with interest
at 2% in excess of the rate then payable under the Notes (the "Default Rate")
during the period from and including the date on which such funds were so
expended to the date of repayment. Pledgor's obligations under this Section 16
shall survive the termination of this Agreement and the discharge of Pledgor's
other obligations under this Agreement. Pledgor hereby appoints Trustee its
attorney-in-fact with an interest, with full authority in the place and stead of
Pledgor and in the name of 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. Pledgor hereby
ratifies all that such attorney shall lawfully do or cause to be done by virtue
and in accordance with the terms hereof.
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SECTION 17 -- REINSTATEMENT
17.1 This Pledge Agreement shall remain in full force and effect and continue to
be effective should any petition be filed by or against Pledgor for liquidation
or reorganization, should Pledgor become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Secured Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned, and
in any such case, the Secured Obligations shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
SECTION 18 -- MISCELLANEOUS
18.1 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 18.1. 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 an overnight courier service; or five (5)
Business Days after deposit in the mail, registered or certified, with postage
prepaid and properly addressed; provided, however, that notices to Trustee shall
not be effective until received by Trustee.
18.2 Continuing Lien; Assignment. This Agreement shall create a continuing Lien
in the Pledged Collateral and shall (i) be binding upon Pledgor, its successors
and assigns, and (ii) inure, together with the rights and remedies of 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.
18.3 Governing Law and Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the Province of Nova
Scotia and of Canada applicable therein. Pledgor irrevocably submits to the
non-exclusive jurisdiction of the courts of the Province of Nova Scotia and of
Canada sitting in Nova Scotia in any action or proceeding arising out of or
relating to this Agreement and irrevocably agrees that all such actions and
proceedings may be heard and determined in such courts, and irrevocably waives,
to the fullest extent possible, the defence of an inconvenient forum. A judgment
or order in any such action or proceeding may be enforced in any jurisdiction in
any manner provided by law. For greater certainty, Trustee may serve legal
process in any manner permitted by law
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and may bring an action or proceeding against Pledgor or the property or assets
of Pledgor in the courts of any jurisdiction.
18.4 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.
18.5 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 such
counterparts together shall constitute one and the same Agreement.
18.6 Headings. The Section headings used in this Agreement are for convenience
of reference only and shall not affect the construction of this Agreement.
18.7 Obligations Absolute. All obligations of Pledgor hereunder shall be
absolute and unconditional irrespective of:
(1) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of Pledgor;
(2) any lack of validity or enforceability of the Indenture or the
Notes, or any other agreement or instrument relating thereto;
(3) 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;
(4) any exchange or 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;
(5) any exercise or non-exercise, or any waiver of any right, remedy,
power or privilege under or in respect of this agreement, the
Indenture or the Notes except as specifically set forth in a waiver
granted pursuant to the provisions of the Indenture; or
(6) any other circumstances which might otherwise constitute a defence
available to, or a discharge of, Pledgor.
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18.8 Limitation on Interest Payable. It is the intention of the parties to
conform strictly to all laws relating to the eligibility and rate of interest
chargeable that are applicable to the transaction of which this Agreement is a
part. All agreements between 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 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 laws. If under any
circumstances whatsoever fulfilment of any such provision, at the time
performance of such provision shall be due, shall involve exceeding the limit of
validity prescribed by law, then the obligation to be fulfilled shall be reduced
to the limit of such validity. If under any circumstances Pledgor shall have
paid an amount deemed interest by applicable law, which would exceed the highest
lawful rate, such amount that would be excessive interest under applicable laws
shall be applied to the reduction of the principal amount owing in respect of
the Secured Obligations and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal and any other amounts due
hereunder, the excess shall be refunded to Pledgor. 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 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.
The parties have executed this Agreement on November 27, 1996 at __ a.m.
(Halifax, Nova Scotia time).
STATIA TERMINALS CANADA,
INCORPORATED, as Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
MARINE MIDLAND BANK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
SCHEDULE A
Pledged Shares
PERCENTAGE
OF ALL
NUMBER OF CAPITAL OR
SHARES OTHER
AUTHORIZED, EQUITY
CLASS OF PAR CERTIFICATE ISSUED AND INTERESTS OF
ISSUER STOCK VALUE NO(S). OUTSTANDING ISSUER
------ -------- ----- ----------- ----------- -------------
Point ▇▇▇▇▇▇ common None 6 5,000 authorized; 100%
Marine 2 issued and
Services outstanding
Limited
SCHEDULE B
Filings
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 Securities Pledge 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:
Pledged Shares
PERCENTAGE OF
ALL CAPITAL OR
OTHER EQUITY
CLASS PAR CERTIFICATE NUMBER INTERESTS OF
ISSUER OF STOCK VALUE NO(S). OF SHARES ISSUER
------ -------- ----- ----------- --------- --------------