ASSIGNMENT AGREEMENT
(in relation to a loan granted by
Norsk Teekay Holdings Ltd to Norsk Teekay AS)
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 ASSIGNMENT AGREEMENT IS
DATED 26 June, 2003 between:
| (1) |
NORSK
TEEKAY HOLDINGS LTD., incorporated under the laws of the Xxxxxxxx Islands
(the “Pledgee”) |
| (2) |
NORSK
TEEKAY AS, incorporated under the laws of Norway (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 Pledgee and the Company have
entered into a loan agreement dated 26 June 2003 (the “Intercompany Facility
Agreement”) whereunder the Pledgee has granted a loan in the amount of USD
640,000,000 (the “Intercompany Loan”) to the Company on terms and
conditions set out therein and attached as Appendix 1 hereto.
As security for its obligations under
the Intercompany Facility Agreement the Company has assigned and charged to the Pledgee
(inter alia) all its interests in and to the shares in Navion ASA pursuant to a Share
Pledge Agreement dated 26 June 2003 made between the Company, the Agent and the Pledgee
(the “Shares Pledge”).
The Finance Parties, the Agent and
the Pledgee have entered into a loan agreement dated 26 June 2003 whereunder the Finance
Parties have granted a loan in the amount of USD 550,000,000 to the Pledgee pursuant to
the terms and conditions set out in therein (the “Facility Agreement”).
The Facility Agreement requires the Pledgee to assign the Intercompany Loan, the
Intercompany Facility Agreement, the Shares Pledge, and any other connected security under
the Intercompany Facility Agreement to the Agent on behalf of the Finance Parties.
IT IS AGREED as follows:
In this Assignment
Agreement
| |
“Business Day” |
has the meaning given to it in the Facility Agreement. |
| |
“Event of Default” |
has the meaning given to it in the Facility Agreement. |
| |
“Finance Parties” |
means the Banks and/or the Arrangers and/or the Agent each as defined
pursuant to the Facility Agreement. |
| |
“Further Shares” |
has the meaning ascribed to it in the Shares Pledge. |
| |
“Liability” |
means any
Intercompany Facility Agreement and any amount pursuant to the Intercompany Facility
Agreement owed by the Company to the Pledgee. |
| |
“Related Rights” |
has the meaning ascribed to it in the Shares Pledge. |
| |
“Security Documents” |
has the meaning given to it in the Facility Agreement. |
| |
“Secured Liabilities” |
means all present and future obligations and liabilities of the
Pledgee to the Finance Parties under the Security Documents to which the Pledgee is a
party. |
| |
“Security Assets” |
means all assets of the Pledgee the subject of any security created by
this Assignment 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 Assignment Agreement and
ending on the date on which all the Secured Liabilities have been unconditionally and
irrevocably paid and discharged in full. |
| |
“Shares” |
has
the meaning ascribed to it in the Shares Pledge. |
| |
“Standard Pledge Agreement” |
means the pledge agreement on the letterhead of the Agent and
known as "to take or give security in
shares registered on account number 07909
0000000 in the Norwegian Securities Register i.e. VPS". |
| |
(a) |
an
entity as defined as a subsidiary in Sections 1-3 of the Norwegian Public
Limited Companies Act of 13th June, 1997, No. 45; and |
| |
(b) |
an
entity of which a person has direct or indirect control or owns directly or
indirectly more than 50% of the voting capital or similar right of ownership
and “control” for this purpose means the legal power to direct or
cause the direction of the management and the policies of the person whether
through the ownership of voting capital, by contract or otherwise. |
| |
(i) |
is
created in favour of the Agent on behalf of itself and the other Finance
Parties; |
| |
(ii) |
is
created over the present and future liability of the Company to the Pledgee;
and |
| |
(iii) |
is
security for the payment of all the Secured Liabilities. |
| 2.2 |
Pledgee’s
Assignment of Liability |
| |
The
Pledgee assigns absolutely all of its present and (to the extent permitted under Norwegian
law) future rights in respect of the Liability and any Security Interest related thereto
to the Agent on behalf of itself and the other Finance Parties. |
| 2.3 |
Pledgee’s
Assignment of Shares Pledge |
| |
The
Pledgee assigns absolutely all its present and (to the extent permitted under Norwegian
law) future rights, title and interest in and to (i) the Shares and all Related Rights in
respect thereof (ii) to the extent permissible under Norwegian law, the Further Shares and
all Related Rights in respect thereof and (iii) the Shares Pledge and the Standard Pledge
Agreement, to the Agent on behalf of itself and the other Finance Parties. |
| 3.
|
PRESERVATION
OF SECURITY
|
| |
This
Security is in addition to and is not in anyway prejudiced by any other security now or
subsequently held by any Finance Party. |
| |
(a) |
The
Company shall, subject to the proviso hereto, pay any amounts owed to the
Pledgee under the Intercompany Facility Agreement to interest-bearing suspense
account no. 7095.04.43457 of the Pledgee with the Agent and any moneys standing
on the account are hereby pledged to the Agent on behalf of the Finance
Parties, such account to bear interest for the account of the Pledgee at the
rate reasonably considered by the Agent to be a fair market rate, provided that
such interest does not accrue and need not be paid to the Pledgee until the end
of the Security Period. The Agent may apply any amount on the account for
payments due under the Facility Agreement. PROVIDED ALWAYS that subject to and
conditional upon: |
| |
(i) |
no
Event of Default then being in existence; and |
| |
(ii) |
the
amount outstanding (after any such payment) under the Intercompany Loan
Agreement being equal to or greater than the amount drawn and/or
committed but undrawn under the Facility Agreement |
| |
then
the Company may make payments of principal and interest under the Intercompany Loan
Agreement direct to the Pledgee. |
| |
(b) |
At
any time after this Assignment Agreement has become enforceable, the Agent (or
any trustee or agent on its behalf) may, without affecting the liability of the
Pledgee: |
| |
(i) |
refrain
from applying or enforcing any other moneys, security or rights held or
received by the Agent (or any 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); or |
| |
(iii) |
exercise
all right and powers of the Pledgee under the Shares Pledge (including,
without limitation, Clauses 6, 7, 10 and 12 of the Shares Pledge
(acting on the instructions of the Majority Banks)). |
| |
(a) |
If
any discharge (whether in respect of the obligations of the Pledgee, or any
security for those obligations or otherwise) or arrangement is made in
whole or in part 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 Pledgee
shall continue as if the discharge or arrangement had not occurred to the
extent such payment, security or other disposition is avoided. |
| |
(b) |
The
Agent, on behalf of the Majority Banks acting reasonably, may concede or
compromise any claim that any payment, security or other disposition is
liable to avoidance or restoration. |
| 4.
|
REPRESENTATIONS
— GENERAL
|
| |
The
Pledgee represents to the Agent (for the benefit of the Agent and the other Finance
Parties) that: |
| |
(a) |
Its
entryinto and performance of this Assignment Agreement will not
conflict with any terms or provisions in relation to the Intercompany
Facility Agreement or the Shares Pledge. |
| |
(b) |
Save
for the Security Interests created under this Assignment Agreement, the
Security Assets are free from any Security Interest. |
| |
(c) |
It
will register any future pledge over the Further Shares in favour of the
Agent in the Norwegian Securities Register. |
| |
(d) |
It
has not created or permitted to be created any Security Interest on any
Security Asset other than hereunder. |
| 4.2 |
Times
for making representations |
| |
(a) |
The
representations set out in this Assignment Agreement (including in this
Clause) are made on the date of this Assignment Agreement. |
| |
(b) |
Unless
a representation is expressed to be given at a specific date, each
representation under this Assignment Agreement is deemed to be repeated by
the Pledgee on each date during the Security Period. |
| |
(c) |
When
a representation is repeated, it is applied to the circumstances existing
at the time of repetition. |
| 5.
|
RESTRICTIONS
ON DEALINGS
|
| |
Except as reflected in the Facility Agreement the Pledgee shall not: |
| |
(a) |
create
or permit to subsist any Security Interest on any Security Asset; or |
| |
(b) |
sell,
transfer, pledge or otherwise dispose of any Security Asset. |
| |
(a) |
The
Pledgee and the Company must: |
| |
(i) |
duly
and promptly perform its obligations, and diligently pursue its rights in
relation to the terms and provisions of the Intercompany Facility
Agreement and the Shares Pledge; and |
| |
(ii) |
supply
the Agent with any information and documentation relating to the Intercompany Facility
Agreement and/or the Shares Pledge requested by the Agent. |
| |
(b) |
The
Company shall not exercise any set-off of any amounts owed by the Company to
the Pledgee against any amounts owed by the Pledgee to the Company or
subject to Clause 3.3 make any prepayments under the Intercompany Facility
Agreement. |
| |
(c) |
The
Pledgee and the Company must not vary, amend or prematurely terminate the
Intercompany Facility Agreement. |
| 6.2 |
Notices
of assignment |
| |
The
Company acknowledges that and consents to the assignment of (inter alia) the Liability,
the Shares Pledge, the Shares and the Related Rights in respect thereof, any Further
Shares and any Related Rights in respect thereof to the Agent on behalf of the Finance
Parties and confirms that all amounts owed will (subject to the proviso to Clause 3.3(a))
be directed to the account referred to in Clause 3.3 (a) or such other account appointed
by the Agent. |
| 7.
|
WHEN
SECURITY BECOMES ENFORCEABLE
|
| |
The
Pledgee and the Company agree that if an Event of Default occurs under the Facility
Agreement, the Agent may (i) accelerate the Intercompany Facility Agreement by notice to
both the Pledgee and the Company so that all amounts owed thereunder (including but not
limited to unpaid interest thereon) become due and payable with immediate effect and
(ii) enforce all other rights, powers, remedies and privileges of the Pledgee and/or
itself under or pursuant to the Intercompany Facility Agreement and (iii) enforce all
rights, powers, remedies and privileges of the Pledgee under or pursuant to the Shares
Pledge. |
| 7.2 |
The
Agent shall act only on the written instructions of the Majority Banks when enforcing any
security under or pursuant to this Assignment Agreement. |
| 8. |
ENFORCEMENT OF SECURITY |
| 8.1 |
Protection
of third parties |
| |
No
person (including a purchaser) dealing with the Agent or its agents will be concerned to
enquire: |
| |
(a) |
whether
the Secured Liabilities have become payable; |
| |
(b) |
whether
any power which the Agent is purporting to exercise has become exercisable or is being
properly exercised; |
| |
(c) |
whether
any money remains due under the Security Documents; or |
| |
(d) |
how
any money paid to the Agent is to be applied. |
| 8.2 |
Redemption
of prior mortgages |
| |
(a) |
Without
prejudice to Clause 4.1(d) of this Assignment Agreement, at any time after
all or any part of the security under this Assignment Agreement has become
enforceable, the Agent may: |
| |
(i) |
redeem
any prior Security Interest against any Security Asset; and/or |
| |
(ii) |
procure
the transfer of that Security Interest to itself; and/or |
| |
(iii) |
settle
and pass the accounts of the prior mortgagee, chargee or encumbrancer; any
accounts so settled and passed will be, in the absence of manifest
error, conclusive and binding on the Pledgee. |
| |
(b) |
The
Pledgee must pay to the Agent, immediately on demand, the reasonable costs
and expenses properly incurred by the Agent in connection with any such
redemption and/or transfer, including the payment of any principal or
interest. |
| |
If
this Security is enforced at a time when no amount is due under the Security Documents but
at a time when amounts may or will become due, the Agent may pay the proceeds of any
recoveries effected by it into a suspense account, such account to bear interest for the
account of the Pledgee at the rate reasonably considered by the Security Agent to be a
fair market rate, provided that such interest need not be paid to the Pledgee until the
end of the Security Period. |
| 9.
|
APPLICATION OF PROCEEDS
|
| |
Any
moneys received by the Agent after all or any part of the security under this Assignment
Agreement has become enforceable must be applied in accordance with the Facility
Agreement. |
| 10. |
EXPENSES AND INDEMNITY
|
| |
(a) |
immediately
on demand pay all reasonable costs and expenses (including legal fees)
properly incurred in connection with this Assignment Agreement by the
Agent or other person appointed by the Agent under this Assignment
Agreement; and |
| |
(b) |
keep
each of them indemnified against any failure or delay in paying those costs
or expenses. |
| |
The
Agent may delegate by power of attorney or in any other manner to any person any right,
power or discretion exercisable by it under this Assignment Agreement. |
| |
Any
such delegation may be made upon any terms (including power to sub-delegate) which the
Agent may think fit. |
| |
None
of the Finance Parties will be in any way liable or responsible to the Pledgee and the
Company for any loss or liability arising from any act, default, omission or misconduct on
the part of any delegate or sub-delegate. |
| |
The
Pledgee must, at its own expense, take whatever action the Agent may reasonably require
for: |
| |
(a) |
creating,
perfecting or protecting any security intended to be created by this Assignment
Agreement; or |
| |
(b) |
facilitating
the realisation of any Security Asset, or the exercise of any right, power
or discretion exercisable, by the Agent or any of its delegates or
sub-delegates in respect of any Security Asset. |
| |
This
includes (without limitation): |
| |
a. |
the
execution of any transfer, conveyance, assignment or assurance of any
property, whether to the Agent or to its nominee; or |
| |
b. |
the
giving of any notice, order or direction and the making of any registration, |
| |
which,
in any such case, the Agent may think expedient. |
| |
The
Pledgee, irrevocably and unconditionally appoints the Agent and any of its delegates or
sub-delegates to be its attorney to take any action (including, for the avoidance of
doubt, any action towards the Agent or any other Finance Party) which the Pledgee is
obliged to take under this Assignment Agreement. The Pledgee ratifies and confirms
whatever any attorney does or purports to do in accordance with the terms of this
Assignment Agreement under its appointment under this Clause. |
| |
The
Pledgee must pay or discharge the Secured Liabilities in the manner provided for in the
Security Documents. |
| 15. |
CHANGES TO THE PARTIES |
| 15.1 |
Transfers
by the Pledgee |
| |
The
Pledgee may not assign, transfer, novate or dispose of its rights and/or obligations under
this Assignment Agreement. |
| |
The
Agent may assign, transfer, novate or dispose of all or any part of its rights and/or
obligations under this Assignment Agreement to a replacement Agent appointed in accordance
with the Facility Agreement. |
| |
If
a provision of this Assignment 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 Assignment Agreement; or |
| |
(b) |
the
validity or enforceability in other jurisdictions of that or any other
provision of this Assignment Agreement. |
| |
This
Assignment 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 Assignment
Agreement. |
| |
All
notices or other communications under or in connection with this Assignment 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. |
| 18.2 |
Addresses
for notices |
| |
(a) |
The
address and facsimile number of the Pledgee and the Company are:
x/x Xxxxxx Xxxxxxxx (Xxxxxx) Xxx
Xxxxx 0000
Xxxxxxx 5
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
Facsimile: + 1 604 681 3011
Attention: Director, Finance |
| |
or
such other as the Pledgee and/or the Company may notify to the Agent by not less
than five Business Days' notice; and |
| |
(b) |
The
address and facsimile number of the Agent are:
Den norske Bank XXX
Xxxxxxxx 00
0000 Xxxx
Xxxxxx
Facsimile: x00 00 00 00 00
Attention: Credit Administration Shipping |
| |
or
such other as the Agent may notify to the Pledgee by not less than five Business Days’ notice. |
| |
Upon
the expiry of the Security Period (but not otherwise), the Agent shall, at the request and
cost of the Pledgee, take whatever action is necessary to release the Security Assets from
the security constituted by this Assignment Agreement. |
| |
For
the benefit of the Agent, each of the Pledgee and the Company agrees that the courts of
Norway have jurisdiction to settle any disputes in connection with this Assignment
Agreement and accordingly submits to the jurisdiction of the Norwegian courts, the venue
to be Oslo City Court. |
| |
Nothing
in this Clause 20 limits the right of the Agent to bring proceedings against the
Pledgee in connection with this Assignment Agreement: |
| |
(a) |
in
any other court of competent jurisdiction; or |
| |
(b) |
concurrently
in more than one jurisdiction. |
| |
This
Assignment Agreement is governed by Norwegian law. This Assignment Agreement has been
entered into on the date stated at the beginning of this Assignment 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
