S H A R E P L E D G E
A G R E E M E N T
(in relation to shares in Navion ASA)
between
N O R S K T E E K A Y H O L D I N G S L T D.
N O R S K T E E K A Y
A S
and
D E N N O R S K E
B A N K A S A
THIS SHARE PLEDGE AGREEMENT IS
DATED 26 JUNE, 2003 BETWEEN:
| (1) |
NORSK
TEEKAY HOLDINGS LTD., a company incorporated under the law of the
Xxxxxxxx Islands with its registered office at c/o Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000 and its
principal place of business at TK House, Bayside Executive Park, West Bay
Street & Blake Road, Nassau, The Bahamas (the “Pledgee”) |
| (2) |
NORSK
TEEKAY AS (Enterprise No. 985 030 235) (the “Company”);
and |
| (3) |
DEN
NORSKE BANK ASA (the “Agent” as agent and trustee for
the Finance Parties (as defined below). |
BACKGROUND:
The Company enters into this Share
Pledge Agreement in connection with a loan agreement dated 26 June 2003 made between the
Pledgee as lender and the Company as borrower (the “Intercompany Facility
Agreement”). This Share Pledge Agreement is supplemental to the pledge agreement
on the letterhead of the Agent and known as “to take or give security in shares
registered in the Norwegian Securities Register i.e. VPS” (the “Standard
Pledge Agreement”).
IT IS AGREED as follows:
In this Share Pledge
Agreement:
| |
“Act” |
means the Norwegian Enforcement Act of 1992. |
| |
“Assignment Agreement” |
means the deed of assignment of even date herewith made between the Pledgee, the Company and
the Agent of (inter alia) the Intercompany Facility Agreement and this Share Pledge
Agreement. |
| |
“Business Day” |
has the meaning given to it in the Intercompany Facility Agreement. |
| |
“Event of Default” |
has the meaning given to it in the Intercompany Facility Agreement. |
| |
“Facility Agreement” |
means the revolving credit facility agreement dated 26 June 2003
and entered into between the banks listed in Schedule 1 to the Facility Agreement
(the “Banks”), the Agent, the arrangers listed in Schedule 2 to the
Facility Agreement (the “Arrangers”) and the Pledgee as borrower in the
maximum principal amount of USD 550,000,000. |
| |
“Finance Party(-ies)” |
means the Pledgee and/or the Arrangers and/or the Banks and/or the
Agent. |
| |
“Further Shares” |
means any further shares in Navion ASA at anytime issued to the Company
whether in addition to or in exchange or substitution for or any replacement of any of the
existing Shares. |
| |
“Related Rights” |
means any dividend or interest paid or payable in relation to any Shares
or any Further Shares and any rights, moneys or property accruing or offered at any time
in relation to any Shares or any Further Shares by way of redemption, substitution,
exchange, bonus or preference, under option rights or otherwise. |
| |
“Secured Liabilities” |
means all present and future obligations and liabilities (whether
actual or contingent and whether owed jointly or severally or in any other capacity
whatsoever) of the Company to the Pledgee under the Intercompany Facility Agreement. |
| |
“Security Assets” |
means the Shares and all other assets of the Company which are the
subject of any security created by this Share Pledge Agreement (including without
limitation the Further Shares, to the extent permissible under Norwegian law). |
| |
“Security Documents” |
has the meaning given to it in the Facility Agreement. |
| |
“Security Interest” |
means any mortgage, pledge, lien, charge, assignment by way of
security, hypothecation or security interest or any other agreement or arrangement having
a similar effect. |
| |
“Security Period” |
means the period beginning on the date of this Share Pledge Agreement and
ending on the date on which all the Secured Liabilities have been unconditionally and
irrevocably paid and discharged in full. |
| |
“Shares” |
means all the shares in Navion ASA, enterprise no 979 199 325 consisting of 1,687,500
shares each with par value of NOK 1000 and registered on VPS Account number 07909 0000000
with the Norwegian Securities Register. |
| |
The
Company as security for the payment of all the Secured Liabilities hereby charges, pledges
and assigns in favour of the Pledgee: |
| |
(a) |
all
the Shares and all Related Rights in respect thereof; and |
| |
(b) |
to
the extent permissible under Norwegian law, the Further Shares and all
Related Rights in respect thereof. |
| 2.2 |
Perfection
of security |
| |
The security shall be perfected pursuant to Standard Pledge Agreement. |
| |
The Company hereby undertakes to register any future pledge over the Further Shares in favour
of the Pledgee in the Norwegian Securities Register. |
| 3. |
PRESERVATION OF SECURITY |
| |
The
security constituted by this Share Pledge Agreement is continuing and will extend to the
ultimate balance of all the Secured Liabilities regardless of any intermediate payment or
discharge in whole or in part. |
| |
The security constituted by this Share Pledge Agreement is in addition to and is not in anyway
prejudiced by any other security now or subsequently held by any Finance Party. |
| |
At any time after the Security under this Share Pledge Agreement has become enforceable, the
Pledgee (or any assignee, trustee or agent on its behalf) may: |
| |
(a) |
without
affecting the liability of the Company under this Share Pledge Agreement: |
| |
(i) |
refrain from applying or enforcing any other moneys, security or rights held or
received by the Pledgee (or any assignee, trustee or agent on its behalf) in
respect of those amounts; or |
| |
(ii) |
apply
and enforce them in such manner and order as it sees fit (whether against those
amounts or otherwise); and |
| |
(b) |
hold in an interest-bearing suspense account any moneys received from the Company or on account of the Company’s liability under this
Share Pledge Agreement, such account to bear interest for the account
of the Company at the rate reasonably considered by the Pledgee to be
a fair market rate, provided that such interest need not be paid to
the Company until the end of the Security Period. |
| |
(a) |
If any discharge
(whether in respect of the obligations of the Company, any security for those obligations or otherwise) or arrangement is made
in whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of the Company under this Share Pledge Agreement shall
continue as if the discharge or arrangement had not occurred to the
extent such payment, security or other deposition is avoided. |
| |
(b) |
The
Pledgee may, acting reasonably, concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration. |
| 4. |
REPRESENTATIONS
AND WARRANTIES |
| 4.1 |
Representations
and warranties |
| |
The Company makes the representations and warranties set out in this Clause 4 to the
Pledgee. |
| |
(a) |
The
Shares and, to the extent applicable, the other Security Assets are fully
paid. |
| |
(b) |
The
Company is the sole legal and beneficial owner of the Security Assets. |
| |
(c) |
There
are no agreements, rights or other matters whatsoever which might
adversely affect the Security Assets. |
| |
(d) |
Save
for the Security Interest created under this Share Pledge Agreement, the
Security Assets are free from any Security Interest. |
| 4.3 |
Times for making representations and warranties |
| |
The
representations and warranties set out in this Clause 4 are made on the date of this
Share Pledge Agreement and are deemed to be repeated by the Company on each date during
the Security Period with reference to the facts and circumstances then existing. |
| |
The
undertakings in this Clause 5 remain in force throughout the Security Period. |
| 5.2 |
Restrictions
on dealing |
| |
(a) |
create
or permit to subsist any Security Interest on any Security Asset other
than any Security Interest created by this Share Pledge Agreement; |
| |
(b) |
sell,
transfer or otherwise dispose of, any Security Asset; |
| |
(c) |
take
or permit the taking of any action which may result in the rights attaching
to any of the Security Assets being altered or further shares in
Navion ASA being issued. |
| 5.3 |
Calls and other obligations |
| |
(a) |
The
Company shall pay all calls or other payments due and payable in respect of
any of the Security Assets and if the Company fails to do so the
Pledgee may pay the calls or other payments on behalf of the Company.
The Company shall forthwith on demand reimburse the Pledgee for any
payment made by the Pledgee pursuant to this paragraph (a). |
| |
(b) |
The
Company shall promptly copy to the Pledgee and to the Agent and comply with
all requests for information which is within its knowledge and which
are made under Chapter 5 section VII of the Norwegian Limited
Liability Companies Act of 1997 no 44 and/or Chapter 5 section VII of
the Norwegian Public Limited Liability Companies Act of 1997 no 45 or
any similar provision contained in any articles of association or
other constitutional document relating to any of the Security Assets
and if its fails to do so the Pledgee and/or the Agent may elect to
provide such information as it may have on behalf of the Company. |
| |
(c) |
The
Company shall comply with all other conditions and obligations assumed by,
imposed on or otherwise applicable to it in respect of any of the
Security Assets. |
| |
(d) |
The
Pledgee is not obliged to carry out any obligation of the Company in respect
of the Security Assets or to make any payment, or to make any enquiry
as to the nature or sufficiency of any payment received by it or the
Company, or to present or file any claim or take any other action to
collect or enforce the payment of any amount to which it may be
entitled under this Share Pledge Agreement. |
| 6. |
WHEN
SECURITY BECOMES ENFORCEABLE |
| |
The
security constituted by this Share Pledge Agreement shall become immediately enforceable
upon and at any time after the occurrence of an Event of Default which is continuing. |
| |
At any time when the security constituted by this Share Pledge Agreement is enforceable, the
Pledgee may in its absolute discretion enforce all or any part of the security as it sees
fit. |
| 7. |
ENFORCEMENT OF SECURITY |
| |
Upon the occurrence of an Event of Default and in accordance with Clause 6 of this Share Pledge
Agreement, the Pledgee shall, to the extent possible under Norwegian law be entitled to: |
| |
(a) |
exercise
any and all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to the Security Assets as if
it were the absolute owner thereof, including, without limitation,
the right to exchange at its discretion, any and all of such shares
upon the merger, consolidation, reorganisation, recapitalisation or
other readjustment of Navion ASA upon the exercise by the Pledgee of
any right, privilege or option pertaining to the Security Assets; and |
| |
(b) |
collect
any Related Rights and apply them against the Secured Liabilities in
accordance with Clause 8 below. |
| |
Upon
the occurrence of an Event of Default and in accordance with Clause 6 of this Share Pledge
Agreement, the Pledgee shall, having given 14 days’ notice to the Company or such
lesser period of notice (if any) permitted from time to time by the Act or other
applicable law, be entitled to: |
| |
(a) |
subject
to the provisions of the Act or any succeeding act, require the forced
use of the Security Assets and thereby exercise all voting rights in
connection therewith or require a sale by way of forced auction
through the courts or forced sale by a manager appointed by the
enforcement officer of all or any part of the Security Assets; |
| |
(b) |
subject
to a separate agreement as provided for in Section 1-3 of the Act having
been entered into between the relevant parties after such Event of
Default has occurred, to sell, assign or convert into money all or
any part of the Security Assets in such a manner and upon such terms
(i.e. by private sale) and for such consideration (whether in cash,
securities or other assets) as is then agreed; |
| |
(c) |
apply
any and all proceeds of such sales in satisfaction of all amounts owing to
the Pledgee in accordance with Clause 8 below; and |
| |
(d) |
take
any other action in relation to the Security Assets permitted by the Act or
the Norwegian Liens Act of 1980. |
| |
After
the security constituted by this Share Pledge Agreement has become enforceable, the
Pledgee may exercise (in the name of the Company and without any further consent or
authority on the part of the Company) any voting rights and any powers or rights which may
be exercised by the person or persons in whose name any Share(s) any Further Share(s) or
their Related Rights are registered or who is the holder of any of them or otherwise.
Until that time, the voting rights, powers and other rights in respect of the Shares and
if applicable any Further Shares shall (if exercisable by the Pledgee) be exercised in any
manner which the Company may direct in writing and all dividends or other income paid or
payable in relation to any Shares and if applicable any Further Shares shall be paid
directly to the Company. |
| 7.3 |
Protection
of purchaser |
| |
No
person (including a purchaser) dealing with the Pledgee or its assignee or its agents will
be concerned to enquire: |
| |
(a) |
whether
the Secured Liabilities have become payable; |
| |
(b) |
whether
any power which the Pledgee is purporting to exercise has become exercisable; |
| |
(c) |
whether
any money remains due under the Security Documents; or |
| |
(d) |
how
any money paid to the Pledgee is to be applied. |
| 8. |
APPLICATION OF PROCEEDS |
| |
Any
moneys received by the Pledgee after this Security has become enforceable may be applied
by (i) the Pledgee in accordance with the Intercompany Facility Agreement only with the
prior written consent of the Agent or (ii) the Agent as assignee of the Pledgee in
accordance with the Facility Agreement as contemplated by Clause 13.1 below. |
| 9. |
EXPENSES
AND INDEMNITY The Company and/or the Pledgee must: |
| |
(a) |
immediately
on demand pay all reasonable costs and expenses (including legal fees) properly
incurred in connection with this Share Pledge Agreement by the Agent or any
attorney, manager, agent or other person appointed by the Agent under this
Agreement; and |
| |
(b) |
keep
each of them indemnified against any failure or delay in paying the same. |
| |
The
Pledgee may delegate by power of attorney or in any other manner to any person any right,
power or discretion exercisable by the Pledgee under this Agreement. |
| |
Any
such delegation may be made upon the terms (including power to subdelegate) and subject to
any regulations which the Pledgee may think fit. |
| |
The Company must, at its own expense, take whatever action the Pledgee may reasonably require
for: |
| |
(a) |
creating,
perfecting or protecting any security intended to be created by this
Agreement over any Security Asset; or |
| |
(b) |
facilitating
the realisation of any Security Asset or the exercise of any right,
power or discretion exercisable by the Pledgee or any of its
delegates or sub-delegates in respect of any Security Asset. |
| |
This includes (without limitation): |
| |
(i) |
the
execution of any transfer, conveyance, assignment or assurance of any
property whether to the Pledgee or to its nominees; and |
| |
(ii) |
the
giving of any notice, order or direction and the making of any registration,
which in any such case, the Pledgee may think expedient. |
| |
The
Company, subject to the provisions of the Act, irrevocably appoints the Pledgee and any of
its delegates or sub-delegates to be its attorney to take any action which the Company is
obliged to take under this Share Pledge Agreement. The Company ratifies and confirms
whatever any attorney does or purports to do in accordance with the provisions of this
Share Pledge Agreement pursuant to its appointment under this Clause. |
| 13.1 |
Covenant
to pay and Acknowledgement of Notice of Assignment |
| |
The
Company shall pay or discharge the Secured Liabilities in the manner provided for in the
Intercompany Facility Agreement. The Company hereby acknowledges that (inter alia) the
Intercompany Facility Agreement and this Share Pledge Agreement will be assigned by the
Pledgee to the Agent as security for the obligations of the Pledgee under the Facility
Agreement and the other Security Documents to which it is a party. The Company hereby
agrees that any payment to be made by the Company under the Intercompany Facility
Agreement to the Pledgee shall be paid in accordance with the Assignment Agreement. |
| 14. |
CHANGES
TO THE PARTIES |
| 14.1 |
Transfers
by the Company |
| |
The
Company may not assign, transfer, novate or dispose of its rights and/or obligations under
this Share Pledge Agreement. |
| 14.2 |
Transfers
by Pledgee |
| |
The
Pledgee may freely assign, transfer, novate or dispose of all or any part of its rights
and/or obligations under this Share Pledge Agreement to the Agent. |
| |
If
a provision of this Share Pledge Agreement is or becomes illegal, invalid or unenforceable
in any jurisdiction, that shall not affect: |
| |
(a) |
the
validity or enforceability in that jurisdiction of any other provision of
this Share Pledge Agreement; or |
| |
(b) |
the
validity or enforceability in other jurisdictions of that or any other
provision of this Share Pledge Agreement. |
| |
This
Share Pledge Agreement may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy of this Share
Pledge Agreement. |
| |
All
notices or other communications under or in connection with this Share Pledge Agreement
shall be given in writing and, unless otherwise stated, may be made by, facsimile. Any
such notice will be deemed to be given as follows: |
| |
(a) |
if
by letter, when delivered; and |
| |
(b) |
if
by facsimile, when received in legible form. |
| |
However,
a notice given in accordance with the above but received on a non-working day or after
business hours in the place of receipt will only be deemed to be given on the next working
day in that place. |
| 17.2 |
Addresses for notices |
| |
(a) |
The
address and facsimile number of the Pledgee and the Company is: |
| |
|
x/x Xxxxxx Xxxxxxxx (Xxxxxx) Xxx
Xxxxx 0000,
Xxxxxxx 5,
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
telefax no. x0 000 000 0000
Attention: Finance Director |
| |
or
such other as the Company may notify to the Pledgee and the Agent by not less than
five Business Days' notice; and |
| |
(b) |
The
address and facsimile number of the Agent is: |
| |
|
N-0021 Oslo, Norway
telefax no. x00 00 00 00 00
Attention: Credit Administration shipping; |
| |
or
such other as the Agent may notify to the Company and the Pledgee by not less than five
Business Days’ notice. |
| |
Upon
the expiry of the Security Period (but not otherwise), the Pledgee shall, at the request
and cost of the Company, take whatever action is necessary to release the Security Assets
from the security constituted by this Share Pledge Agreement. |
| |
For
the benefit of the Agent and the Pledgee, each of the Company and the Pledgee agrees that
the courts of Norway have jurisdiction to settle any disputes in connection with this
Share Pledge Agreement and accordingly submits to the jurisdiction of the Norwegian
courts, the venue to be Oslo City Court. |
| |
Nothing
in this Clause 19 limits the right of the Agent and/or the Pledgee to bring
proceedings against the Company in connection with this Share Pledge Agreement:- |
| |
(a) |
in
any other court of competent jurisdiction; or |
| |
(b) |
concurrently
in more than one jurisdiction. |
| |
This Share Pledge Agreement is governed by Norwegian law. |
| |
This Share Pledge Agreement has been entered into on the date stated at the beginning of this
Share Pledge Agreement. |
NORSK TEEKAY HOLDINGS
LTD.
_____________________________________________________
Signature
_____________________________________________________
Name with block letters
NORSK TEEKAY AS
_____________________________________________________
Signature
_____________________________________________________
Name with block letters
DEN NORSKE BANK ASA
_____________________________________________________
Signature
_____________________________________________________
Name with block letters
