Exhibit 10
CONFORMED COPY
Dated 7 August 2003
MILLICOM TELECOMMUNICATIONS S.A.
and
DEUTSCHE TRUSTEE COMPANY LIMITED
(acting on behalf of each of the Noteholders, as defined herein)
and
NORDEA BANK SVERIGE AB (publ)
(acting as the Swedish Custodian Bank)
SHARE PLEDGE AGREEMENT
in relation to the Trust Deed
Linklaters
Linklaters Advokatbyra
Xxxxxxxxxxx 0X
Xxx 0000
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Telephone (00-0) 000 00 00
Facsimile (00-0) 000 00 00
Ref JSA/CHP
This Share Pledge Agreement (the "Share Pledge Agreement") is made on 7 August
2003 between:
(1) Millicom Telecommunications S.A., a societe anonyme incorporated in
the Grand Duchy of Luxembourg under registration number B 64 899 and
whose registered office is at 00, xxxxx xx Xxxxxx, X-0000 Xxxxxxxxx,
Xxxxxxxxxx (the "Pledgor").
(2) Deutsche Trustee Company Limited, a limited company incorporated in
England and Wales under registration number 338230 and whose
registered office is at Winchester House, 1 Great Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx (the "Trustee", which expression
includes its successors and assigns), acting as trustee on behalf of
each of the Noteholders (as defined below);
(3) Nordea Bank Sverige AB (publ), a public limited bank company
incorporated in Sweden under registration number 502010-5523 and whose
registered office is at Xxxxxxxxx 00, XX-000 00 Xxxxxxxxx, Xxxxxx (the
"Custodian Bank").
The parties referred to above are hereinafter individually referred to as a
"party" or collectively as the "parties".
Whereas:
(A) The Pledgor has issued SEK 2,555,994,000 5.00 per cent. Fixed and
Additional Rate Guaranteed Secured Mandatory Exchangeable Notes due
2006 (the "Notes") exchangeable into the Exchange Property (as defined
in the terms and conditions of the Notes (the "Conditions")) which
initially comprises 8,968,400 fully-paid Series B shares of nominal
value SEK 5 each of Tele 2 AB (publ) pursuant to a trust deed dated 7
August 2003 (the "Trust Deed") among the Pledgor, the Guarantor and
the Trustee;
(B) Certain of the Pledgor's payment obligations under the Notes are
unconditionally and irrevocably guaranteed by Millicom International
Cellular S.A. (the "Guarantor")
(C) The Trustee, acting on behalf of itself and the Noteholders, desires
to take a security interest from the Pledgor over certain Series B
shares in Tele2 AB (publ) (and the various rights pertaining thereto)
in respect of the Secured Obligations (as defined below) from time to
time incurred by the Pledgor against the Noteholders under the
Conditions;
(D) The Custodian Bank will provide a deposit account in the name of the
Pledgor in which the relevant securities constituting the collateral
security will be held when delivered pursuant to the Securities
Lending Agreement (as defined below); and
(E) The parties hereto agree that upon the execution of this Share Pledge
Agreement, the Custodian Bank will accept instructions in respect of
such deposit account and other related accounts only from the Trustee
until such time as the Trustee notifies the Custodian Bank otherwise.
It is agreed as follows:
1 Interpretation
1.1 Definitions
In this Share Pledge Agreement, unless a contrary indication appears,
terms used in the Trust Deed shall have the same meaning and
construction and:
"Accounts" means the Cash Account and the Deposit Account;
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"Cash Account" means an account maintained by the Custodian Bank in
the name of Pledgor for the receipt and retention of cash dividends or
any other cash payments in respect of the Shares, which at the date of
this Share Pledge Agreement bears the account number 3144 17 06275;
"Custody Agreement" means the custody agreement dated 7 August 2003
between the Custodian Bank and the Pledgor, attached hereto as
Schedule 1, governing the terms and conditions for the Deposit Account
and the Cash Account;
"Deposit Account" means the custody account, governed by the terms and
conditions set out in the Custody Agreement, provided by the Custodian
Bank in the name of the Pledgor in respect of the Shares, which at the
date of this Share Pledge Agreement bears the account number 92-81517;
"Dividends" means, in relation to any Share, all present and future:
(a) dividends and distributions of any kind and any other sum
received or receivable in respect of that Share,
(b) rights, shares, money or other assets accruing or offered by
way of redemption, bonus, option or otherwise in respect of
that Share,
(c) allotments, offers and rights accruing or offered in respect
of that Share, and
(d) other rights and assets attaching to, deriving from or
exercisable by virtue of the ownership of, that Share;
"Enforcement Event" means the Notes having become immediately due and
redeemable following the occurrence of an Event of Default in
accordance with Condition 14 of the Conditions;
"Noteholders" means the bearer of a Note, as defined in the Trust Deed;
"Pledged Assets" means the assets from time to time subject, or
expressed to be subject, to the Pledges or any part of those assets;
"Pledges" means all or any of the security interest (Sw: pantratt)
created or expressed to be created by or pursuant to this Share Pledge
Agreement;
"Power of Attorney" means a power of attorney, granted by the Pledgor
in favour of the Trustee substantially in the attached form in
Schedule 2;
"Secured Obligations" shall mean the Pledgor's obligations in respect
of the Exchange Rights pursuant to Condition 6 of the Conditions,
redemption of the Notes and delivery of Exchange Property pursuant to
Conditions 5(a) and 5(c) of the Conditions (other than, in any such
case, payment of any Accrued Interest or Discounted Interest Amount)
and the Additional Interest Amounts;
"Securities Lending Agreement" means the securities lending agreement
in respect of the Shares dated 18 July 2003 between Deutsche Bank AG
London Branch and the Pledgor, as supplemented and amended from time
to time; and
"Shares" means 8,968,400 fully paid Series B shares (Bloomberg ticker
TEL2B SS and ISIN number SE0000314312) of Tele2 AB (publ), a company
incorporated in Sweden under registration number 556410-8917, and such
other securities, as each may be held in the Deposit Account from time
to time.
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2 Security
2.1 Pledge of the Shares and the Accounts
As security for the prompt and complete payment and performance in
full of all the Secured Obligations, the Pledgor hereby pledges to the
Trustee for the benefit of itself and the Noteholders (i) the Deposit
Account including all the Shares and Dividends which are from time to
time held or recorded in the Deposit Account and (ii) all funds
deposited from time to time in the connected Cash Account.
2.2 Perfection of the Pledges
2.2.1 The Custodian Bank acknowledges that it has been notified of
the security interest created by this Share Pledge Agreement
in respect of the Accounts and undertakes to ensure that the
Shares held in the Deposit Account from time to time are
registered as pledged in favour of the Trustee, on behalf of
the Noteholders.
2.2.2 The Custodian Bank also confirms:
(i) that it has not received any previous notice of any
pledge or other encumbrance over the Accounts or any
of the Shares;
(ii) that it has not been notified of any execution or
other distraint order regarding the Accounts or any
of the Shares; and
(iii) that it has not been notified of any sale or
transfer of the Pledged Assets or any part thereof.
3 Restrictions and Further Assurance
3.1 Security
Save as contemplated by the terms of the Trust Deed, the Pledgor shall
not, without the Trustee's written consent in each particular case,
create or permit to subsist any security interest over the Pledged
Assets.
3.2 Disposal
Save as contemplated by the terms of the Trust Deed, the Pledgor shall
not (nor shall the Pledgor agree to), without the Trustee's written
consent in each particular case, enter into a single transaction or a
series of transactions (whether related or not and whether voluntary
or involuntary) to sell, lease, transfer or otherwise dispose of the
Pledged Assets.
3.3 Further Assurance
The Pledgor shall promptly do whatever the Trustee requires:
3.3.1 to perfect or protect the Pledges or the priority of the
Pledges, or
3.3.2 to facilitate the realisation of the Pledged Assets or the
exercise of any rights vested in the Trustee,
including executing any transfer, assignment or assurance of the
Pledged Assets (whether to the Trustee or its nominees or otherwise),
making any registration and giving any notice, order or direction.
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3.4 Power of Attorney
On the occurrence of an Enforcement Event, for the purpose of Clause
4.3 (Voting after Enforcement), the Pledgor shall deliver to the
Trustee a signed Power of Attorney. The Pledgor shall at the
expiration of a Power of Attorney, at the request of the Trustee,
renew the same in favour of the Trustee for one additional year for as
long as this Share Pledge Agreement remains in force and upon each
such renewal forthwith deliver the renewed Power of Attorney to the
Trustee.
4 Pledged Shares
4.1 Dividends
The Pledgor shall promptly notify the Trustee of the declaration,
payment, allotment, offer or issue of any Dividend. All Dividends in
respect of the Shares shall be paid directly to the Cash Account or,
as the case may be, the Deposit Account or, as and when received by
the Pledgor in accordance with the Trust Deed, to the Trustee or as it
may direct.
4.2 Voting before Enforcement
Subject to Clause 4.3 (Voting after Enforcement) and the Trust Deed,
the Pledgor shall be entitled to exercise the voting rights attached
to any Share as it sees fit where:
4.2.1 it does so for a purpose not inconsistent with the Trust
Deed; and
4.2.2 either (a) the exercise of those rights would not have an
adverse effect or the failure to exercise would have an
adverse effect on the value of the relevant Shares or the
Pledged Assets and would not otherwise prejudice the
interests of the Noteholders under the Trust Deed, or (b) the
Pledgor is so permitted pursuant to Condition 9(a) of the
Conditions.
4.3 Voting after Enforcement 4.3.1 The Pledgor shall forthwith notify the
Custodian Bank in writing of the occurrence of an Enforcement Event as
soon as becoming aware of such event.
4.3.2 At any time after the occurrence of an Enforcement Event, the
Trustee shall be entitled to exercise or direct the exercise
of the voting and other rights attached to any Share as it
sees fit.
4.4 Deliverance of Power of Attorney
The Pledgor shall immediately upon written notice from the Trustee of
the occurrence of an Enforcement Event, deliver to the Trustee a
signed Power of Attorney to enable the Trustee to exercise its rights
under Clause 4.3.
5 General Undertaking
The Pledgor shall not do, or permit to be done, anything, which could
prejudice the Pledges.
6 Representations and Warranties
The Pledgor makes the representations and warranties set out in this
Clause 6 to the Trustee on the date of this Share Pledge Agreement.
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6.1 Shares Validly Issued etc.
The Shares are duly authorised, validly issued and freely
transferable.
6.2 Share Capital
Save as contemplated by the Securities Lending Agreement or the Trust
Deed, no person has or is entitled to any conditional or unconditional
option, warrant or other right to subscribe for, purchase or otherwise
acquire any Share, or any interest in the Shares.
6.3 Governing Law and Enforcement
6.3.1 Subject to mandatory provisions of applicable law, the choice
of Swedish law as the governing law of this Share Pledge
Agreement will be recognised and enforced in the Pledgor's
jurisdiction of incorporation.
6.3.2 Subject to applicable proceedings provided in Council
Regulation (EC) 44/2001, any judgement obtained in Sweden in
relation to this Share Pledge Agreement will be recognised
and enforced in the Pledgor's jurisdiction of incorporation.
7 Enforcement
7.1 Realisation
After the occurrence of an Enforcement Event, the Trustee shall have
the right to sell or to direct the Custodian Bank to sell the Pledged
Assets by private or public sale or auction or in any other way and on
such terms as the Trustee in its sole discretion deems fit.
7.2 Chapter 10 of the Code of Commerce
The provisions in Chapter 10 of the Swedish Code of Commerce (Sw:
Handelsbalken) shall not apply to this Share Pledge Agreement.
8 Liability of the Trustee
8.1 Trustee's Liability
The Trustee shall not be liable to the Pledgor, the Noteholders or any
other person for any costs, losses, liabilities or expenses relating
to the realisation of any Pledged Assets or from any act, default,
omission or misconduct of the Trustee, or its officers, employees or
agents in relation to the Pledged Assets except to the extent caused
by its own gross negligence or wilful misconduct. The Trustee shall
not be held responsible for any indirect damage.
8.2 Force Majeure
The Trustee shall not be held responsible for any damage arising out
of any Swedish or foreign legal enactment, or any measure undertaken
by a Swedish or foreign public authority, or war, strike, lockout,
boycott, blockade or any other similar circumstance. The reservation
in respect of strikes, lockouts, boycotts and blockades applies even
if the Trustee itself takes such measures, or is subject to such
measures. Should there be an obstacle as described above for the
Trustee to take any action in compliance with this Share Pledge
Agreement, such action may be postponed until the obstacle has been
removed, without any remedies being available to the Pledgor.
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9 Discharge of Security
If there are no outstanding obligations owed by the Pledgor to the
Noteholders pursuant to the Secured Obligations, the Trustee shall at
the cost of the Pledgor promptly release the Pledged Assets from the
Pledges and shall notify as soon as reasonably practicable the Pledgor
and the Custodian Bank of such release.
10 Enforcement Expenses
The Pledgor shall, within five Business Days of demand, pay to the
Trustee the amount of all properly incurred costs, losses, liabilities
and expenses (including legal fees) incurred in relation to this Share
Pledge Agreement (including the administration, protection,
realisation, enforcement or preservation of any rights under or in
connection with this Share Pledge Agreement, or any consideration by
the Trustee as to whether to realise or enforce the same, and/or any
amendment, waiver, consent or release of the Share Pledge Agreement
and/or any other document referred to in this Share Pledge Agreement).
11 Assignment
None of the parties hereto may change, assign or transfer all or any
of its rights or obligations hereunder without the prior consent of
the other party.
12 Waivers
No failure to exercise, nor any delay in exercising, on the part of
the Trustee, shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise or the exercise of any other right or remedy. The rights and
remedies provided in the Trust Deed are cumulative and not exclusive
of any rights or remedies provided by law.
13 Pledgor's Instructions and Agreements
13.1 The Pledgor hereby irrevocably instructs the Custodian Bank to accept
and to follow all and any instructions that the Trustee may, from time
to time, give in respect of the Shares (which are, from time to time,
deposited in the Deposit Account) or the Accounts including, without
limitation, any instructions to transfer Shares (which are, from time
to time, deposited in the Deposit Account) out of the Deposit Account
or cash out of the Cash Account, whether to the Noteholders or to any
other person, account or entity designated by the Trustee.
13.2 The Pledgor hereby agrees that, unless otherwise agreed by the
Trustee, it shall not attempt to revoke, override, rescind or
otherwise alter in any way such instructions as may be given to the
Custodian Bank by the Trustee in accordance with Clause 13.1.
13.3 The Pledgor agrees with the Custodian Bank that it shall:
13.3.1 have no, and shall make no, claims against the Custodian
Bank; and
13.3.2 indemnify and keep the Custodian Bank harmless,
in respect of and from any loss or damage caused by any instructions
given by the Trustee in respect of the Shares or the Accounts and
which the Custodian Bank has accepted or followed.
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13.4 The Pledgor further agrees with the Custodian Bank that the Pledgor
shall not, during the term of this Share Pledge Agreement, give any
instruction to the Custodian Bank in respect of the Shares (which are,
from time to time, deposited in the Deposit Account) or the Accounts
and the Custodian Bank shall disregard any instructions that the
Pledgor may give in respect of the Shares (which are, from time to
time, deposited in the Deposit Account) or the Accounts and the
Pledgor shall in such case have no, and shall make no, claims against
the Custodian Bank in respect thereof.
13.5 The Pledgor agrees with the Trustee that it shall:
13.5.1 have no, and shall make no, claims against the Trustee; and
13.5.2 indemnify and keep the Trustee harmless,
in respect of and from any loss or damage caused by any instructions
given by the Trustee in respect of the Shares or the Accounts and
which the Custodian Bank has accepted or followed.
13.6 Immediately upon the release by the Trustee of the Pledged Assets from
the Pledges pursuant to Clause 9 above, the Pledgor's instructions and
agreements as set forth in Clauses 13.1, 13.2 and 13.4 shall lapse.
14 The Custodian Bank's Undertakings and Agreements
14.1 The Custodian Bank undertakes and agrees, for the benefit of the
Trustee:
14.1.1 not to accept or to follow any instructions (howsoever
described), nor any revocation, instructions to override or
rescission of its instructions given pursuant to Clause 13.1,
from or on behalf of the Pledgor in respect of the Shares
(which are, from time to time, deposited in the Deposit
Account) or the Accounts;
14.1.2 to accept and to follow all and any instructions (howsoever
described, including, without limitation, any instructions to
transfer the Shares (which are, from time to time, deposited
in the Deposit Account) out of the Deposit Account, whether
to the Trustee or to any other person, account or entity
designated by the Trustee) that the Trustee may give in
respect of the Shares or the Accounts;
14.1.3 not to query or be concerned in any way as to whether the
security interest created by this Share Pledge Agreement is
effective or enforceable;
14.1.4 not to change, nor to suffer or procure a change in, the
number or other specifications of the Accounts without first
having notified the Pledgor and the Trustee of any such
change (it being understood that the numbers are internal
numbers that serves as instruments for the Custodian Bank to
identify the Shares and any relevant cash);
14.1.5 not to act on any instructions or other attempts by the
Pledgor to prevent from reaching the Accounts any cash or
securities destined for the Accounts as a result of the
Pledgor's interest in the Shares; and
14.1.6 to notify Trustee immediately of any such instructions or
attempts.
14.2 The Custodian Bank does not, in relation to the Trustee, in any way
warrant or guarantee or represent that the security interest created
by this Share Pledge Agreement is effective or enforceable in
accordance with its terms.
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14.3 The Custodian Bank acknowledges that it will not use any of the
Pledged Assets at any time available on the Accounts for set-off of
any outstanding loans or other financing liabilities or obligations
owed by the Pledgor to the Custodian Bank.
14.4 Immediately upon the release by the Trustee of the Pledged Assets from
the Pledges pursuant to Clause 9 above, the Custodian Bank's
undertakings and agreements as set forth in Clause 14.1 shall lapse.
14.5 For the avoidance of doubt, the parties hereto agree that in the event
of a conflict between the Custody Agreement and this Share Pledge
Agreement, the Share Pledge Agreement shall in all circumstances take
precedence.
15 Applicable Law
This Share Pledge Agreement shall be construed in accordance with and
governed by the laws of Sweden.
16 Jurisdiction
Any dispute, controversy or claim arising out of or in connection with
this Share Pledge Agreement, or the breach termination or invalidity
thereof shall be resolved by the Swedish courts. The Stockholm
District Court shall be the court of first instance.
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This Share Pledge Agreement has been executed in three originals, of which the
parties hereto have received one each.
MILLICOM TELECOMMUNICATIONS S.A. DEUTSCHE TRUSTEE COMPANY LIMITED
XXXX XXXXXXXXX XXXXX X. XXXXXX
DIRECTOR ASSOCIATE DIRECTOR
MARC BEULS XXXXX X. X. XXXXXX
DIRECTOR ASSISTANT SECRETARY
Name: Name:
Title: Title:
Place and date: Place and date: London, 7 August 2003
NORDEA BANK SVERIGE AB (publ)
XXXXXXX XXXXXX
XXX XXXXXXXXX
Name: Name:
Title: Title:
Place and date: Xxxxxxxxx, 0 Xxxxxx 0000 Xxxxx and date:
8
Schedule 1
Custody Agreement
9
Schedule 2
Power of Attorney
This power of attorney is issued pursuant to a share pledge agreement dated 7
August 2003 (the "Share Pledge Agreement") between Millicom Telecommunications
S.A. (the "Pledgor"), Nordea Bank Sverige AB (publ), acting as custodian bank,
and Deutsche Trustee Company Limited, acting as Trustee (the "Trustee") on
behalf of the Noteholders (as defined in the trust deed between Millicom
Telecommunications S.A, Millicom International Cellular S.A and the Trustee
dated 7 August 2003).
The Pledgor hereby empowers the Trustee or any person duly appointed by the
Trustee to attend all General Meetings of the shareholders in Tele2 AB (publ)
as the Pledgor's representative and to vote at such General Meeting in respect
of all shares in Tele2 AB (publ) owned by the Pledgor (the "Shares"). The
Trustee may also on our behalf fulfil and execute any notice or application
requirement necessary to have our Shares represented at the General Meeting,
including to take necessary measures to register the Shares for voting.
This power of attorney is to the extent possible under Swedish law irrevocable
and excludes the Pledgor from exercising the voting rights at General Meetings
of shareholders in Tele2 AB (publ) with respect to the Shares subject to the
Share Pledge Agreement.
This power of attorney becomes effective on the date that it is signed by the
Pledgor and it shall remain in force for one year from such date.
This power of attorney shall be governed by and construed in accordance with
Swedish law.
Date:
Place:
MILLICOM TELECOMMUNICATIONS S.A.
_________________________________
Name:
Title:
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