Exhibit 4.6
OMNIBUS PLEDGE AGREEMENT
TO: THE TORONTO-DOMINION BANK In its capacity as administration agent for
and on behalf of and for the benefit of the Secured Parties (as defined
below)
Corporate and Investment Banking
00 Xxxxxxxxxx Xxxxxx West, 38th Floor
Toronto-Dominion Bank Tower
Toronto, Ontario
M5K 1A2
(the "PLEDGEE")
DATED for reference 19 July 2002.
Each Pledgor refers to its Trust Deed dated for reference 9 August 2001
with respect to any Norske Company (as defined below); 1 September 2001 with
respect to any Pacifica Company (as defined below) or 10 September 2001 with
respect to NorskeCanada (a partnership of Norske Xxxx Canada Limited and Norske
Xxxx Canada Pulp Operations Limited) (the "PARTNERSHIP") (together with any
additional security relating thereto, each referred to herein as a "TRUST DEED"
and collectively as the "TRUST DEEDS") executed by such Pledgor in favour of The
Canada Trust Company, as Trustee (the "TRUSTEE").
Each Pledgor also refers to the following debentures which each has
issued under, and which are secured by, its Trust Deed:
(a) a 25% Debenture designated as Series A No. 3 of such Pledgor
in the principal amount of ONE BILLION DOLLARS
($1,000,000,000) in lawful currency of Canada dated as of 19
July 2002, payable on demand and in fully registered form in
the name of the Pledgee;
(b) a 25% Debenture designated as Series A No. 4 of such Pledgor
in the principal amount of ONE BILLION DOLLARS
($1,000,000,000) in lawful currency of Canada dated as of 19
July 2002, payable on demand and in fully registered form in
the name of the Pledgee;
(c) a 25% Debenture designated as Series A No. 5 of such Pledgor
in the principal amount of FIVE HUNDRED MILLION DOLLARS
($500,000,000) in lawful currency of Canada dated as of 19
July 2002, payable on demand and in fully registered form in
the name of the Pledgee;
(d) a 25% Debenture designated as Series B No. 2 of such Pledgor
in the principal amount of FIVE HUNDRED MILLION DOLLARS
($500,000,000) in lawful currency of Canada dated as of 19
July 2002, payable on demand and in fully registered form in
the name of the Pledgee; and
(e) a 25% Debenture designated as Series B No. 3 of such Pledgor
in the principal amount of TWO HUNDRED FIFTY MILLION DOLLARS
($250,000,000) in lawful currency
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of Canada dated as of 19 July 2002, payable on demand and in
fully registered form in the name of Pledgee.
Any reference to the "Debentures" herein shall be interpreted as referring to
"the Debentures or any of them".
Each of the Pledgors jointly and severally agrees with the Pledgee as
follows:
1. In this Pledge Agreement, unless something in the subject matter or
context is inconsistent therewith:
(a) "SYNDICATED CREDIT AGREEMENT" means the credit agreement dated
for reference 19 July 2002 between the Pledgors and others as
Restricted Parties (as defined therein, each a "RESTRICTED
PARTY"), the Lenders (as defined therein) from time to time
party thereto and the Pledgee, as amended, supplemented,
restated or replaced from time to time. Any reference to the
"Restricted Parties" herein shall be interpreted as referring
to "the Restricted Parties or any of them";
(b) "EVENT OF DEFAULT" means (i) the occurrence of an "event of
default" or a "termination event" as defined in any of the
Secured Agreements or (ii) the occurrence of any event by
which the Obligations Secured (or any of them) have become due
and payable by reason of (1) any default under any of the
Secured Agreements or (2) any demand for payment validly made
by any creditor pursuant to any Secured Agreement which is not
met in accordance with the terms of the demand or within any
applicable grace period;
(c) "NORSKE COMPANY" means Norske Xxxx Canada Finance Limited,
Norske Xxxx Canada Limited, Norske Xxxx Canada Pulp Operations
Limited, Norske Xxxx Canada Pulp Sales Inc., Norske Xxxx
Canada Sales Inc., Norske Xxxx Canada (USA) Inc., Norske Xxxx
Canada (Japan) Ltd., Norske Xxxx Pulp Sales (Japan) Ltd., Elk
Falls Pulp and Paper Limited or NSCL Holdings Inc.;
(d) "OBLIGATIONS SECURED" means, collectively, the obligations
secured by this Pledge Agreement as described in paragraphs 2,
3 and 4 below;
(e) "PACIFICA COMPANY" means Pacifica Papers Sales Ltd., Pacifica
Papers Sales Inc., Pacifica Papers Kabushiki Kaisha, Pacifica
Poplars Ltd., Pacifica Poplars Inc. or Pacifica Papers U.S.
Inc.;
(f) "PLEDGORS" means any one or more of Norske Xxxx Canada Finance
Limited, Norske Xxxx Canada Limited, Norske Xxxx Canada Pulp
Operations Limited, Norske Xxxx Canada Pulp Sales Inc., Norske
Xxxx Canada Sales Inc., Norske Xxxx Canada (USA) Inc., Norske
Xxxx Canada (Japan) Ltd., Norske Xxxx Pulp Sales (Japan) Ltd.,
Elk Falls Pulp and Paper Limited, NSCL Holdings Inc., Pacifica
Papers Sales Ltd., Pacifica Papers Sales Inc., Pacifica Papers
Kabushiki Kaisha, Pacifica Poplars Ltd., Pacifica Poplars
Inc., Pacifica Papers U.S. Inc. and the Partnership, jointly
and severally, and "Pledgor" means any one of them, and any
reference to the "Pledgors" herein shall be interpreted as
referring to "the Pledgors or any of them";
(g) "SECURED AGREEMENTS" means:
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(i) the Syndicated Credit Agreement; and
(ii) the agreements under which the Restricted Parties, or
any of them, from time to time owe Other Secured
Obligations (as defined in the Syndicated Credit
Agreement) including all amendments, supplements,
restatements and replacements thereto or thereof from
time to time.
Any reference to the "Secured Agreements" herein shall include
any one or more of them; and
(h) "SECURED PARTIES" means:
(i) all persons from time to time being "Lenders" or the
"Agent" as those terms are understood under the
Syndicated Credit Agreement; and
(ii) all holders of Other Secured Obligations.
Any reference to the "Secured Parties" herein shall be
interpreted as referring to "the Secured Parties or any of
them".
Capitalized terms that are used but not defined in this Pledge
Agreement have the meanings defined in the Syndicated Credit Agreement.
2. Each Pledgor hereby assigns, pledges and hypothecates to the Pledgee,
and grants to the Pledgee for and on behalf of and for the benefit of the
Secured Parties a security interest in, its Debentures designated as Series A
No. 3 and Series B No. 2 as general and continuing collateral security for
the payment and performance by such Pledgor of all obligations of the Pledgor
to the Lenders (as defined in the Syndicated Credit Agreement) under or in
connection with the Syndicated Credit Agreement, including but not limited to
all debts, liabilities and obligations in any currency, present or future,
direct or indirect, absolute or contingent, xxxxxx or inchoate, matured or
not, at any time owing by the Pledgor to the Lenders or remaining unpaid by
the Pledgor to the Lenders under or in connection with the Syndicated Credit
Agreement, whether arising from dealings between the Lenders and the Pledgor
or from any other dealings or proceedings by which the Lenders may be or
become in any manner whatever a creditor of the Pledgor under or in
connection with the Syndicated Credit Agreement, and wherever incurred, and
whether incurred by the Pledgor alone or with another or others under or in
connection with the Syndicated Credit Agreement, and whether as principal or
surety (including but not limited to debts, liabilities and obligations under
or in connection with guarantee(s) delivered by the Pledgor under or in
connection with the Syndicated Credit Agreement), and all interest,
commissions, reasonable legal and other costs (including reasonable legal
fees as between a solicitor and its own client), charges and expenses
relating thereto or under or in connection with the Syndicated Credit
Agreement or this Pledge Agreement. In this paragraph, "the Lenders" shall be
interpreted as "the Lenders, or any of them." Notwithstanding the foregoing
description of the obligations secured by the pledge of each Series A No. 3
Debenture and each Series B No. 2 Debenture, (i) the pledge of each Series A
No. 3 Debenture shall only secure those obligations to the extent that
(taking into account other obligations that must be accounted for in
determining whether the "Threshold Amount" as defined in and calculated in
accordance with the Syndicated Credit Agreement has been exceeded) they do
not exceed the Threshold Amount and (ii) the pledge of each Series B No. 2
Debenture shall only secure those obligations to the extent that they do
exceed the Threshold Amount. For greater certainty, the foregoing assignment,
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pledge and hypothecation does not secure the Other Secured Obligations (as
defined in the Syndicated Credit Agreement).
3. Each Pledgor hereby assigns, pledges and hypothecates to the
Pledgee, and grants to the Pledgee for and on behalf of and for the benefit
of the Secured Parties a security interest in, its Debentures designated as
Series A No. 4 as general and continuing collateral security for the payment
and performance by such Pledgor of all "Other Secured Obligations" of the
Pledgor as defined in the Syndicated Credit Agreement that are classified by
Norske Xxxx Canada Limited as being incurred under clauses (v) and (vi) of
the definition of "Permitted Indebtedness" in the 1999 Indenture (as defined
in the Syndicated Credit Agreement) and the definition of "Permitted Debt" in
the 2001 Indenture (as defined in the Syndicated Credit Agreement). For
greater certainty, the pledge of each Series A No. 4 Debenture shall continue
to secure the Other Secured Obligations described above notwithstanding the
termination of the Syndicated Credit Agreement for any reason.
4. Each Pledgor hereby assigns, pledges and hypothecates to the
Pledgee, and grants to the Pledgee for and on behalf of and for the benefit
of the Secured Parties a security interest in, its Debentures designated as
Series A No. 5 and Series B No. 3 as general and continuing collateral
security for the payment and performance by such Pledgor of all "Other
Secured Obligations" of the Pledgor as defined in the Syndicated Credit
Agreement that are not secured by the assignment, pledge and hypothecation of
its Series A No. 4 Debenture. Notwithstanding the foregoing description of
the obligations secured by the pledge of each Series A No. 5 Debenture and
each Series B No. 3 Debenture, (i) the pledge of each Series A No. 5
Debenture shall only secure those obligations to the extent that (taking into
account other obligations that must be accounted for in determining whether
the "Threshold Amount" as defined in and calculated in accordance with the
Syndicated Credit Agreement has been exceeded) they do not exceed the
Threshold Amount and (ii) the pledge of each Series B No. 3 Debenture shall
only secure those obligations to the extent that they do exceed the Threshold
Amount. For greater certainty, the pledge of each Series A No. 5 and Series B
No. 3 Debenture shall continue to secure the Other Secured Obligations
described in this paragraph notwithstanding the termination of the Syndicated
Credit Agreement for any reason.
5. Notwithstanding that the Debentures are held by the Pledgee as
pledgee, the Pledgors acknowledge that, subject to the provisions of this
Pledge Agreement, the Pledgee shall have and be entitled to exercise all the
rights, remedies, powers, privileges, security and recourses of a holder of
the Debentures under the Trust Deeds in the same manner and to the same
extent as though it were the absolute owner of the Debentures, and that the
Trustee under the Trust Deeds shall act on the instructions and directions of
the Pledgee as the holder of the Debentures on the basis set forth in the
Trust Deeds.
6. Notwithstanding that the Debentures are expressed to be payable on
demand, the Pledgee shall be entitled to demand payment of the Debentures and
the Debentures and the Obligations Secured shall immediately become payable
and the security constituted by the Trust Deeds shall immediately become
enforceable only if an Event of Default occurs, is continuing and has not
been waived and as a result payment or performance of part or all of the
Obligations Secured is required or demanded.
7. The Pledgors shall pay to the Pledgee upon demand the amount of all
reasonable expenses incurred by the Pledgee or the Trustee in recovering any
Obligations Secured or in enforcing this Pledge Agreement or the Trust Deeds
(including reasonable legal expenses on a solicitor and his own client basis
and other expenses) with interest thereon from the date of the incurring of
such expenses at the rate of 3.0% per annum above the prime rate of The
Toronto-Dominion Bank from time to time in effect. For the purposes of this
Pledge Agreement, "PRIME RATE" means the interest rate per annum publicly
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announced from time to time by The Toronto-Dominion Bank as being its
reference rate then in effect for determining interest rates on commercial
loans in Canadian dollars made by it in Canada.
8. Notwithstanding the terms of the Debentures relating to interest,
interest shall not be calculated or payable at a rate greater than that
provided for in connection with the Obligations Secured in the Secured
Agreements.
9. If the Debentures and the Obligations Secured become payable and the
security constituted by the Trust Deeds becomes enforceable in accordance
with paragraph 5 above, the Pledgee, without notice, advertisement, demand
for payment or any other formality (all of which are hereby waived by the
Pledgors), (and without limiting the Pledgee's right referred to in paragraph
4 above) may retain or, subject to paragraph 10 hereof, sell by public or
private sale or otherwise deal with the Debentures in such manner as the
Pledgee thinks fit and the Pledgee may hold the proceeds in lieu of the
Debentures if realized and appropriate the proceeds on account of all or any
of the Obligations Secured as the Pledgee thinks fit.
10. The security constituted by this Pledge Agreement shall not be
considered as satisfied or discharged by any intermediate payment of the
whole or part of the Obligations Secured but shall constitute and be a
continuing security for a current or running account and shall be in addition
to and not in substitution for any other security now or hereafter held to
secure the Obligations Secured. The remedies of the Pledgee under this Pledge
Agreement may be exercised from time to time separately or in combination and
are in addition to and not in substitution for any other rights of the
Pledgee however created. The Pledgee may grant extensions of time or other
indulgences, take and give up securities, accept compositions from and grant
releases and discharges to the Pledgors and otherwise deal with the Pledgors
and with the other parties, guarantors, sureties or securities held by the
Trustee or the Pledgee as security for the Obligations Secured, all as the
Trustee or the Pledgee may see fit without prejudices to the rights of the
Pledgee hereunder.
11. The Pledgee acknowledges that the Debentures have been executed and
delivered subject to this Pledge Agreement and as collateral security for the
Obligations Secured and, accordingly, agrees that, in any realization
proceeding in respect of the Debentures or the Trust Deeds, the Pledgee shall
not claim and the Pledgors shall not be liable to pay the Pledgee or any
subsequent holder of the Debentures any greater amount than the Obligations
Secured and the Pledgee shall only be entitled to sell, assign, transfer or
otherwise deal with the Debentures subject to and together with this Pledge
Agreement and upon any assignee or transferee acknowledging and agreeing in
writing that it shall be bound by the provisions of this Pledge Agreement as
Pledgee.
12. This Pledge Agreement shall be construed in accordance with the laws
of the Province of British Columbia and the laws of Canada applicable in such
Province and shall be treated in all respects as a British Columbia contract.
The parties hereto irrevocably submit to the non-exclusive jurisdiction of
the courts of the Province of British Columbia and all courts competent to
hear appeals therefrom.
13. This Pledge Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and, with respect to
the Pledgee, its assigns. The Pledgee may only assign its interest in this
Pledge Agreement in accordance with its right to assign its interest in the
Syndicated Credit Agreement and upon the assignee agreeing in writing that it
shall be bound by the provisions of this Pledge Agreement as Pledgee. None of
the Pledgors may assign any benefit or obligation under this Pledge Agreement.
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14. This Pledge Agreement may be executed in any number of counterparts,
each of which when executed and delivered shall be deemed to be an original,
and such counterparts together shall constitute one and the same agreement.
For the purposes of this paragraph, the delivery of a facsimile copy of an
executed counterpart of this Pledge Agreement shall be deemed to be valid
execution and delivery of this Pledge Agreement, but each Pledgor delivering
a facsimile copy shall deliver the original executed counterpart of this
Pledge Agreement as soon as possible after delivering the facsimile copy.
15. This Pledge Agreement may be referred to as being dated 19 July 2002
or as of 19 July 2002, notwithstanding the actual date of execution.
IN WITNESS WHEREOF the corporate seal of each of the Pledgors (other
than Norske Xxxx Canada (Japan) Ltd., Norske Xxxx Pulp Sales (Japan) Ltd. and
Pacifica Papers Kabushiki Kaisha) and of Norske Xxxx Canada Limited as the
Managing Partner of the Partnership has been affixed in the presence of, and
this Pledge Agreement has been executed by, its duly authorized officer(s) or
director(s), executing in such capacity and not in their personal capacity, as
of the date first set forth above.
NORSKE XXXX CANADA FINANCE LIMITED
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX
Treasurer
NORSKE XXXX CANADA LIMITED
c/s
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
XXXXX XXXXXXXX,
Vice-President, Finance and
Chief Financial Officer
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
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NORSKE XXXX CANADA PULP OPERATIONS LIMITED
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
NORSKE XXXX CANADA PULP SALES INC.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
NORSKE XXXX CANADA SALES INC.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
NORSKE XXXX CANADA (USA) INC.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
NORSKE XXXX CANADA (JAPAN) LTD.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
XXXXX X. XXXXXXXX,
Director
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NORSKE XXXX PULP SALES (JAPAN) LTD.
By: /s/ Xxxx Xxxxxx
-----------------------------------------
XXXX X. XXXXXX,
Director
ELK FALLS PULP AND PAPER LIMITED
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
President
NSCL HOLDINGS INC.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
PACIFICA PAPERS SALES LTD.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
President
PACIFICA PAPERS SALES INC.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
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PACIFICA PAPERS KABUSHIKI KAISHA
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Director
PACIFICA POPLARS LTD.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
President
PACIFICA POPLARS INC.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
PACIFICA PAPERS U.S. INC.
c/s
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
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NORSKECANADA
By its Managing Partner:
NORSKE XXXX CANADA LIMITED
c/s
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
XXXXX XXXXXXXX,
Vice-President, Finance and
Chief Financial Officer
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX,
Treasurer
Acknowledged and agreed to as of the date first set forth above.
THE TORONTO-DOMINION BANK,
as Agent
By: /s/ authorized signatory
---------------------------------
Name:
Title:
By: /s/ authorized signatory
---------------------------------
Name:
Title:
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