DATED 19 May 1998
-----------------
TU FINANCE (NO. 2) HOLDINGS, INC.
(as Chargor)
- and -
CHASE MANHATTAN INTERNATIONAL LIMITED
(as Security Agent)
- --------------------------------------------------------------------------------
SHARE CHARGE
relating to ordinary shares in TU Finance (No. 2) Limited
- --------------------------------------------------------------------------------
LOVELL WHITE DURRANT
LONDON
A1/PRM/NPF
CONTENTS
Clause Page No
1. INTERPRETATION........................................................1
2. CHARGING CLAUSE.......................................................3
3. POWER OF ATTORNEY.....................................................4
4. VOTING RIGHTS AND DIVIDENDS...........................................4
5. CONTINUING SECURITY...................................................5
6. WARRANTIES............................................................5
7. COVENANTS.............................................................6
8. POWERS OF THE SECURITY AGENT..........................................6
9. APPLICATION OF MONEY RECEIVED BY THE
SECURITY AGENT OR A RECEIVER..........................................7
10. LIMITATION OF SECURITY AGENT'S LIABILITY..............................7
11. FURTHER ASSURANCE.....................................................7
12. CONSOLIDATION OF MORTGAGES............................................7
13. ADDITIONAL OR FUTURE SECURITY.........................................8
14. OPENING OF NEW ACCOUNTS...............................................8
15. FORBEARANCE AND SEVERABILITY..........................................8
16. VARIATIONS AND CONSENTS...............................................8
17. COSTS AND INTEREST ON OVERDUE AMOUNTS.................................9
18. STAMP DUTY............................................................9
19. CURRENCY INDEMNITY....................................................9
20. COUNTERPARTS..........................................................9
21. ASSIGNMENT............................................................9
22. SECURITY AGENT.......................................................10
23. SERVICE OF DEMANDS AND NOTICES.......................................10
24. APPOINTMENT AND POWERS OF A RECEIVER.................................10
25. OTHER POWERS EXERCISABLE BY THE SECURITY AGENT.......................11
26. SECURITY AGENT AS TRUSTEE,
PERPETUITY PERIODS AND NO PARTNERSHIP................................11
27. THIRD PARTY SECURITY PROVISIONS......................................11
28. GOVERNING LAW AND JURISDICTION.......................................12
THIS CHARGE made the 19th day of May 1998
BETWEEN:
(1) TU FINANCE (NO. 2) HOLDINGS, INC. a corporation registered in the State of
Delaware, United States of America, whose address is 1601 Bryan Street,
Dallas, Texas (the "Chargor"); and
(2) CHASE MANHATTAN INTERNATIONAL LIMITED as agent and trustee on behalf of the
Beneficiaries (as defined below), whose address is 125 London Wall, London
EC2Y 5AJ.
WITNESSES as follows:
1. INTERPRETATION
1.1 In this Charge terms defined in the Facility Agreement and not redefined in
this Charge have the meaning set out in that document and, in addition,
unless the context otherwise requires, the following words have the
following meanings:
"Beneficiaries" collectively the Arrangers, the Facility Agent, the
Issuing Bank, the Security Agent and the Banks;
"Business Day" a day on which banks generally are open for business
in the City of London and in New York (excluding
Saturdays and bank or public holidays);
"Company" TU Finance (No. 2) Limited, a company registered in
England with Number 3514100;
"Derivative Assets" include:
(a) allotments, rights, money or property arising
from the Shares by way of conversion, exchange,
redemption, bonus, preference, option or
otherwise;
(b) dividends, distributions, interest and other
income from the Shares; and
(c) stock, shares and securities offered in
addition to or substitution for the Shares;
"Document" includes any transfer, renunciation, proxy, mandate,
legal or other charge, mortgage, assignment, deed or
other document;
"Encumbrance" includes any mortgage, pledge, lien, hypothecation,
charge, assignment or deposit by way of security or
any other agreement or arrangement giving or having
the effect of giving security or preferential
treatment to a creditor;
"Expenses" interest, costs and expenses which the Chargor is
liable to reimburse to the Security Agent under
clause 17 (Costs and Interest on Overdue Amounts)
and any liability of the Chargor under clauses 18
(Stamp Duty) or 19 (Currency Indemnity);
"Facility Agreement" the facility agreement dated 2 March 1998 made
between TU Finance (No. 1) Limited (1), TU Finance
(No. 2) Limited and TU Acquisitions PLC (2), Chase
Manhattan plc, Lehman Brothers International and
Merrill Lynch Capital Corporation (as Joint Lead
Arrangers) (3), The Chase Manhattan Bank, Lehman
Commercial Paper Inc and Merrill Lynch Capital
Corporation (as Underwriters) (4), The Chase
Manhattan Bank (as Issuing Bank) (5), Chase
Manhattan International Limited (as Facility Agent)
(6) and Chase Manhattan International Limited (as
Security Agent) (7) as amended and restated by an
agreement dated 3 March 1998 and 21 April 1998 and
which expression shall include any further
amendments, supplements, accessions, variations or
additions to such agreement, however fundamental
(including, without limitation, changes to the
facilities provided or increases in their maximum
amount);
"Principal" each of the companies specified or referred to in
the Schedule to this Charge;
"Original Shares" all of the shares in the issued share capital of the
Company owned by the Chargor;
"Receiver" means any receiver and manager or receivers and
managers appointed under clause 24 (Appointment and
Powers of Receiver) and (where the context requires
or permits) includes any substituted receiver and
manager or receivers and managers;
"Regulations" the Uncertificated Securities Regulations 1995;
"Relevant System" the meaning given to that term by the
Regulations and includes any other system or
facility (in the United Kingdom or elsewhere)
providing for the deposit of, and clearance of
transactions in, the Security Assets;
"Secured Sums" all money and liabilities now or in the future due,
owing or incurred to each Beneficiary by any
Principal under the Facility Agreement but excluding
any money and liabilities due under any stand-alone
revolving credit facility as contemplated by clause
24.5 of the Facility Agreement together with the
Expenses;
"Security Agent" Chase Manhattan International Limited acting as
security agent and trustee for the Beneficiaries and
includes any successor appointed by the
Beneficiaries
pursuant to Clause 17.5 (Successor Facility Agent or
Security Agent) of the Facility Agreement;
"Security Assets" the Shares and Derivative Assets and includes all
rights, benefits and sums now or in the future
accruing to the Chargor as a result of any Security
Asset being held in a Relevant System (including the
Chargor's rights against the operator of, or any
participant in, the Relevant System); and
"Shares" the Original Shares and all other shares in the
Company owned by the Chargor while any Secured Sums
are outstanding.
1.2 Interpretation: In this Charge, unless the context otherwise requires
(a) words denoting the singular number only shall include the plural
number also and vice versa;
(b) words denoting the masculine gender only shall also include the
feminine gender;
(c) words denoting persons only shall include corporations, partnerships
and unincorporated associations;
(d) references to clauses, paragraphs and Schedules are to be construed as
references to clauses, paragraphs and Schedules of this Charge;
(e) references to any party shall, where relevant, be deemed to be
references to or to include, as appropriate, their respective
successors or permitted assigns;
(f) references in this Charge to this Charge or any other document include
references to this Charge or such other document as varied,
supplemented, restated and/or replaced in any manner from time to time
and/or any document which varies, supplements, restates and/or
replaces it;
(g) references to "including" shall not be construed restrictively but
shall be construed as meaning "including, without prejudice to the
generality of the foregoing";
(h) references to moneys, obligations and liabilities due, owing or
incurred under the Finance Documents shall include moneys, obligations
and liabilities due, owing or incurred in respect of any extensions or
increases in the amount of the facilities provided for therein or the
obligations and liabilities imposed thereunder;
(i) expressions defined in the Companies Act 1985 shall have the same
meanings in this Charge, except that the expression "company" shall
include a body corporate established outside Great Britain;
(j) any references to any statute or any section of any statute shall be
deemed to include reference to any statutory modification or
re-enactment of it for the time being in force;
(k) the limitation on liability conferred by Section 6(2) of the Law of
Property (Miscellaneous Provisions) Act 1994 shall not apply to the
covenants for title implied on the part of the Chargor.
1.3 Headings: headings in this Charge are inserted for convenience and shall
not affect its interpretation;
2. CHARGING CLAUSE
2.1 Security Assets: The Chargor as owner, with full title guarantee, hereby
charges the Security Assets to the Security Agent by way of first fixed
charge as continuing security for the payment and discharge of the Secured
Sums.
2.2 Disapplication of s.6(2) of the Law of Property (Miscellaneous Provisions)
Act 1994: The Chargor shall be liable to the Security Agent under its full
title guarantee covenants for anything which at the time of this Charge (or
any later substitution or deposit) is within the actual knowledge, or is a
necessary consequence of facts then within the actual knowledge of the
Security Agent, and so Section 6 (2) of the Law of Property (Miscellaneous
Provisions) Act 1994 shall not apply to this Charge.
2.3 Obligation to deposit certificates: The Chargor shall promptly deposit with
the Security Agent on the date hereof or on later receipt all certificates
and documents of title relating to Security Assets in certificated form and
undated transfers executed in blank and such other documents as the
Security Agent may require to perfect title to the Security Assets (duly
executed by the registered holder) or for vesting or enabling it to vest
the same in itself, its nominees or any purchaser. The Security Agent may
at any time, without notice to the Chargor, complete such transfers and
present them for registration.
3. POWER OF ATTORNEY
3.1 Power of Attorney: The Chargor by way of security hereby irrevocably
appoints the Security Agent (whether or not a Receiver has been appointed)
and any Receiver separately the attorney of the Chargor (with full power to
appoint substitutes and to delegate), in its name and on its behalf, and as
its act and deed or otherwise, at any time to execute, deliver and perfect
any Document, perform any act, or give any instructions under the rules and
practices of a Relevant System or otherwise which may be required of the
Chargor under this Charge and which the Chargor has failed to do within 7
days of being notified by the Security Agent that it is required, or (on or
after the Enforcement Date) as may be deemed by such attorney necessary or
desirable for any purpose of this Charge or to enhance or perfect the
security intended to be constituted by it or to transfer legal ownership of
any Security Assets.
3.2 Ratification: Without prejudice to the generality of the provisions
contained in clause 3.1 (Power of Attorney), the Chargor hereby covenants
with the Security Agent and separately with any Receiver that if required
so to do the Chargor will ratify and confirm:
(a) all transactions entered into by it or (as the case may be) them at
its or (as the case may be) their instance in the proper exercise of
its or (as the case may be) their powers in accordance with this
Charge; and
(b) all transactions entered into by it or (as the case may be) them in
signing, sealing, delivering and otherwise perfecting any Document as
aforesaid;
and the Chargor irrevocably acknowledges and agrees that such power of
attorney is (inter alia) given to the Security Agent, or as the case
may be, the Receiver or both, to secure the performance of these
obligations owed to him or them by the Chargor.
4. VOTING RIGHTS AND DIVIDENDS
4.1 Chargor to retain voting rights and dividends until Charge enforceable:
Unless and until this Charge becomes enforceable or the Security Agent
otherwise directs at any time while a Default is continuing:
(a) for so long as the Chargor remains the registered owner of all the
Security Assets:
(i) all voting and other rights (including the right to receive
dividends) attaching to any Security Assets shall continue to be
exercised by the Chargor for so long as it remains their
registered owner and subject to clause 7.3(Covenants), Provided
that the Chargor undertakes not to exercise any voting or other
rights in a way which is likely to prejudice the value of the
Security Assets or otherwise jeopardise the security constituted
by this Charge; and
(ii) the Chargor shall be free to deal with all the dividends and
interest paid thereon, subject to the provisions of the
Facilities Agreement:
(b) if Security Assets are registered in the name of the Security Agent or
the Security Agent's nominee:
(i) all voting and other rights attaching to them shall be exercised
by the nominee in accordance with instructions in writing from
time to time received from the relevant Chargor, Provided that
the relevant Chargor undertakes not to give any instructions to
exercise any voting or other rights in a way which is likely to
prejudice the value of the Security Assets or otherwise
jeopardise the security created by this Charge; in the absence of
any such instructions, the nominee shall refrain from exercising
any such rights; and
(ii) all dividends, distributions, interest and other moneys paid on
and received by the Security Agent in respect of the Security
Assets shall be collected by the Seucrity Agent as agent for the
Chargor and paid to the Chargor to such account as it may from
time to time specify.
4.2 Security Agent to have voting rights and dividends after Charge
enforceable: At any time after this Charge has become enforceable:
(a) the Security Agent may (in the name of the Chargor or otherwise and
without any further consent or authority on the part of the Chargor)
exercise all voting and other rights attaching to the Security Assets
and any rights attaching to the Security Assets to nominate or remove
a director as if the Security Agent was the sole beneficial owner of
the Security Assets;
(b) all Derivative Assets shall, if received by the Chargor or its
nominee, be held on trust for and forthwith paid or transferred to the
Security Agent; and
(c) the Chargor shall (and shall procure that its nominees shall) accept
short notice for and attend any meeting of the holders of any Security
Assets, appoint proxies and exercise voting and other rights and
powers exercisable by the holders of the Security Assets as the
Security Agent may direct from time to time.
5. CONTINUING SECURITY
This Charge shall be a continuing security to the Security Agent and the
Beneficiaries, notwithstanding any intermediate payment or settlement of
account or any other matter whatever, and shall be in addition to and shall
not prejudice or be prejudiced by any right of lien, set-off, combination
or other rights exercisable by the Security Agent and the Beneficiaries as
bankers against the Chargor or any security, guarantee, indemnity and/or
negotiable instrument now or in the future held by the Security Agent or
any Beneficiary.
6. WARRANTIES
The Chargor represents and warrants to the Security Agent that:
6.1 the Original Shares are and any Shares deposited or substituted
hereafter will be fully called up and fully paid-up;
6.2 (subject to this Charge) the Original Shares are legally and
beneficially owned by the Chargor and any shares deposited or
substituted hereafter shall be beneficially owned by it upon deposit
or substitution and in each case free from any option, equity, trust
or Encumbrance; and
6.3 this Charge has been properly executed by it and it has taken all
necessary action to authorise the execution and delivery of this
Charge which is valid and binding upon it and enforceable in
accordance with its terms.
7. COVENANTS
The Chargor covenants with the Security Agent that it shall:
7.1 not sell, transfer, alienate or deal with the Security Assets or any
interest in any of the Security Assets or attempt or agree to do so;
7.2 not (except for this Charge) create or agree to create or permit to
arise or subsist any Encumbrance on any of the Security Assets;
7.3 not cause or permit any of the Security Assets to be consolidated,
sub-divided or converted and shall take such action as the Security
Agent may direct in respect of any proposed compromise, arrangement,
capital organisation, conversion, exchange, repayment or takeover
offer affecting any of the Security Assets or any proposal to vary or
abrogate any rights attaching to any Security Assets;
7.4 promptly pay direct to the Company any calls on any Security Assets
which (despite clause 7.1) are not fully paid and if it defaults the
Security Agent may (but need not) do so on behalf of the Chargor (and
any amount so expended shall be an Expense);
7.5 forward to the Security Agent any notices, reports, accounts,
circulars and other documents relating to the Security Assets promptly
after they are received;
7.6 (a) (at its expense) execute and deliver to the Security Agent or as
it directs such documents, transfers and powers of attorney,
give such instructions and perform such other acts as the
Security Agent may reasonably require at any time to convert any
Security Assets in certificated form into uncertificated form;
(b) give the Security Agent at least 14 days' prior written notice of
its intention to convert certificated Security Assets to
uncertificated; and
(c) not give an instruction for uncertificated Security Assets to be
recertificated without the Security Agent's prior written consent
(and shall ensure that on recertification the new certificate is
delivered to the Security Agent promptly after its issue).
8. POWERS OF THE SECURITY AGENT
8.1 When Charge enforceable: This Charge shall be immediately enforceable if
the Enforcement Date shall occur, or if the Chargor fails to comply with
any of its obligations under this Charge and in respect of any such failure
which, in the reasonable opinion of the Security Agent, is capable of
remedy, such action as shall remedy the same to the reasonable satisfaction
of the Security Agent shall not have been taken within 21 days of the
Chargor becoming aware of such default.
8.2 Statutory Power of Sale: Section 103 of the Law of Property Act 1925 shall
not apply to this Charge, but the statutory power of sale shall (as between
the Security Agent and a purchaser from the Security Agent) arise on, and
be exercisable at any time after, the execution of this Charge. However,
the Security Agent shall not exercise such power of sale until a demand has
been made by the Facility Agent or the relevant Beneficiaries under clause
12.2 of the Facility Agreement or a Receiver has been appointed, but this
provision shall not affect a purchaser or require him to ask whether a
demand or appointment has been made.
8.3 Third Parties not to be concerned with Validity of Demand: No person
dealing with the Security Agent or any Receiver, its agents or brokers,
shall be concerned to enquire whether this Charge has become enforceable,
or whether any power exercised or purported to be exercised has become
exercisable, or whether any Secured Sums remain due, or as to the necessity
or expediency of any stipulations and conditions subject to which the sale
of any Security Assets shall be made, or otherwise as to the propriety or
regularity of the sale of any Security Asset, or to see to the application
of any money paid to the Security Agent or such Receiver, or its agents or
brokers, and each such dealing shall be deemed to be within the powers
hereby conferred and to be valid and effectual accordingly.
9. APPLICATION OF MONEY RECEIVED BY THE SECURITY AGENT OR A RECEIVER
9.1 Application of Recoveries: Any money received under the powers conferred by
this Charge shall, subject to the discharge of any prior-ranking claims, be
paid or applied in the order of priority set out in clause 8.9 of the
Facility Agreement.
9.2 Suspense Accounts: The Security Agent may, in its absolute discretion on or
at any time or times after demand and pending the payment to the Security
Agent of the whole of the Secured Sums, place and keep to the credit of a
separate or suspense account any money received, recovered or realised by
the Security Agent by virtue of this Security for so long and in such
manner as the Security Agent may determine without any intermediate
obligation to apply it in or towards the discharge of any Secured Sums.
10. LIMITATION OF SECURITY AGENT'S LIABILITY
The Security Agent shall not be liable (save in the event of its gross
negligence or wilful misconduct) for:
(a) any loss arising out of such sale or other disposal of any of the
Security Assets or the exercise of or failure to exercise any of the
Security Agent's powers under this Charge, however caused and whether
or not a better price could or might have been obtained by deferring
or advancing the date of such sale or other disposal and the Security
Agent shall not be liable to account as mortgagee in possession for
any of the Security Assets; or
(b) any neglect or default to pay any call or instalment or to accept any
offer or to notify the Chargor of any matter or for any other loss of
any nature whatsoever in connection with any of the Security Assets.
11. FURTHER ASSURANCE
The Chargor shall at any time and from time to time if required by the
Security Agent promptly sign, seal, deliver and complete all Documents,
give such instructions or directions as the Security Agent may require
relating to any Security Assets in uncertificated form to protect or
preserve its security and do all acts and things which the Security Agent
may require for perfecting or improving its title to and security over any
Security Assets or vesting or enabling it to vest any Security Assets in
itself or its nominee or in any purchaser or to facilitate the sale or
other disposal of any of the Security Assets or the exercise of any of the
rights or powers attaching to any Security Assets or hereby conferred on
the Security Agent, such Documents to be prepared by or on behalf of the
Security Agent at the cost of the Chargor and to be in such form as the
Security Agent may require.
12. CONSOLIDATION OF MORTGAGES
Section 93 of the Law of Property Act 1925 (restriction on consolidation of
mortgages) shall not apply to this Charge.
13. ADDITIONAL OR FUTURE SECURITY
This Charge is in addition to and shall not affect (or be affected by) any
guarantees, indemnities or Encumbrances whatsoever which the Security Agent
may hold now or hereafter for any part of the Secured Sums and may be
enforced without first having recourse to any such guarantee, indemnity or
Encumbrance.
14. OPENING OF NEW ACCOUNTS
14.1 Ruling off Accounts: On receiving notice that the Chargor has encumbered or
disposed of any Security Assets, the Security Agent and/or any Beneficiary
may rule off the Chargor's account or accounts and open a new account or
accounts with the Chargor.
14.2 Credits not to reduce Indebtedness: If the Security Agent or any
Beneficiary does not open a new account or accounts immediately on receipt
of such notice, it shall nevertheless be treated as if it had done so at
the time when it received such notice and as from that time all payments
made by the Chargor to the Security Agent or such Beneficiary shall be
treated as having been credited to such new account or accounts and shall
not operate to reduce the amount owing from the Chargor to the Security
Agent or such Beneficiary at the time when it received such notice.
15. FORBEARANCE AND SEVERABILITY
15.1 No Waivers: All rights, powers and privileges under this Charge shall
continue in full force and effect, regardless of the Security Agent or any
Beneficiary exercising, delaying in exercising or omitting to exercise any
of them.
15.2 Invalidity and Severability:
(a) Neither the charge created nor any of the covenants given under this
Charge shall be avoided or invalidated by reason only of one or more
of such charge or covenants being invalid or unenforceable.
(b) Any provision of this Charge which for any reason is or becomes
illegal, invalid or unenforceable shall be ineffective only to the
extent of such illegality, invalidity and unenforceability, without
invalidating the remaining provisions of this Charge.
16. VARIATIONS AND CONSENTS
16.1 Variations to be in writing signed by all parties: No variation of this
Charge shall be considered valid and as constituting part of this Charge,
unless such variation shall have been made in writing and signed by the
Security Agent (on behalf of the Beneficiaries) and the Chargor.
16.2 Variation: The expression 'variation' shall include any variation,
supplement, extension, deletion or replacement however effected.
16.3 Conditional Consents: Save as otherwise expressly specified in this Charge,
any consent of the Security Agent may be given absolutely or on any terms
and subject to any conditions as Security Agent may determine in its entire
discretion.
17. COSTS AND INTEREST ON OVERDUE AMOUNTS
17.1 Costs and Charges: All costs, charges and liabilities (including all
professional fees and disbursements and Value Added Tax and/or any similar
tax) and all other sums paid or incurred by the Security Agent, the
Beneficiaries and/or any Receiver under this Charge, shall be recoverable
(on a full indemnity basis) as a debt payable on demand from the Chargor
may be debited without notice to any account of the Chargor, shall bear
interest accordingly and shall be charged on the Security Assets of the
Chargor. Without prejudice to the generality of the foregoing, the costs
recoverable by the Security Agent, the Beneficiaries and/or any Receiver
under this Charge shall include (i) all costs incurred by the Security
Agent and the Beneficiaries in preparing and administering this Charge or
perfecting the security created by it, (ii) all costs (whether or not
allowable on a taxation by the Court) of all proceedings for the
enforcement of this Charge or for the recovery or attempted recovery of the
Secured Sums, (iii) all money expended and all costs arising out of the
exercise of any power, right or discretion conferred by this Charge, and
(iv) all costs and losses arising from any default by the Chargor in the
performance of its obligations under this Charge.
17.2 Overdue Amounts: Any overdue amounts secured by this Charge shall carry
interest at the rate and in accordance with the terms contained in clause
5.4 of the Facility Agreement in relation to overdue sums or at such other
rate agreed between the Chargor and the Security Agent or the relevant
Beneficiary from time to time.
18. STAMP DUTY
The Chargor shall pay all present and future stamp, registration and
similar taxes or charges which may be payable or determined to be payable
in any jurisdiction in connection with the
execution, delivery, performance or enforcement of this Charge or any
judgment given in connection with this Charge and shall indemnify the
Security Agent against any and all liabilities including penalties with
respect to or resulting from its delay or omission to pay any such stamp,
registration and similar taxes or charges.
19. CURRENCY INDEMNITY
Moneys received or held by the Security Agent or any Beneficiary pursuant
to this Charge may from time to time after demand has been made be
converted into such currency as the Security Agent or any Beneficiary
considers necessary or desirable to discharge the Secured Sums in that
currency at the Security Agent or that Beneficiary's then prevailing spot
rate of exchange (as conclusively determined by the Security Agent or that
Beneficiary acting in good faith) for purchasing the currency to be
acquired with the existing currency.
20. COUNTERPARTS
This Charge may be executed in any number of counterparts, each of which,
when executed and delivered, shall be an original, but all of which when
taken together shall constitute a single instrument.
21. ASSIGNMENT
Each Beneficiary may assign or transfer all or any of their respective
rights hereunder or hold their rights hereunder on trust for their
successors or assigns or transferees subject always to the provisions of
clause 16 of the Facility Agreement.
22. SECURITY AGENT
The provisions of clauses 17 - 21 of the Facility Agreement shall apply to
the Security Agent's rights, obligations and duties under this Charge as if
set out in this Charge in full.
23. SERVICE OF DEMANDS AND NOTICES
23.1 Addresses:
(a) A demand for payment or any other demand or notice under this Charge
may be made or given by any manager or officer of the Security Agent
in writing addressed to the Chargor and served on it at the address of
the Chargor stated above or its existing or last known place of
business (or, if more than one, any one of such places), or by
facsimile transmission to the facsimile number last known to the
Security Agent or by any other form of electronic communication which
may be available.
(b) Any communication to be given to any Beneficiary under this Charge
must be given to the Security Agent in writing served on it at the
address for service of the Security Agent stated above or the address
last notified to the Chargor by the Security Agent in writing.
23.2 Deemed Service: A notice or demand shall be deemed to be duly served on the
Chargor:
(a) if delivered by hand, when left at its address;
(b) if sent by post, at noon on the next day following the day of posting
and shall be effective even if it is misdelivered or returned
undelivered;
(c) if given or made by facsimile or other electronic communication, at
the time of transmission;
Provided that, where delivery or transmission occurs after 6.00 p.m. on a
Business Day or on a day which is not a Business Day, service shall be
deemed to occur at 9.00 a.m. on the next Business Day.
24. APPOINTMENT AND POWERS OF A RECEIVER
24.1 Appointment of Receiver: At any time:
(a) on or after the Enforcement Date; or
(b) if so requested by the Chargor;
the Security Agent may appoint by writing any person or persons to be a
receiver and manager or receivers and managers of all or any part of the
Security Assets of the Chargor.
24.2 Power of Receivers Joint and Several: Where more than one Receiver is
appointed, they shall have power to act separately unless the Security
Agent shall in the appointment specify to the contrary.
24.3 Security Agent to Determine Remuneration of Receiver: The Security Agent
may from time to time determine the remuneration of the Receiver.
24.4 Removal of Receiver: The Security Agent may (subject to Section 45 of the
Insolvency Act 1986) remove the Receiver from all or any of the assets of
which he is the Receiver.
24.5 Further Appointment: Such an appointment shall not preclude (i) the
Security Agent from making any subsequent appointment of a Receiver over
all or any of the Security Assets over which a Receiver has not previously
been appointed or has ceased to act, or (ii) a Receiver, while continuing
to act, consenting to the appointment of an additional Receiver to act with
him.
24.6 Receiver to Act as Agent: The Receiver shall be the agent of the Chargor
(which shall be solely liable for his acts, defaults and remuneration)
unless and until the Chargor goes into liquidation, after which he shall
act as principal and shall not become the agent of the Security Agent or
the Beneficiaries.
24.7 Powers of Receiver: The Receiver shall have the power to sell or concur in
selling (when necessary with the leave of the court) all or any of the
Security Assets and in addition shall be entitled to exercise in relation
to the Chargor concerned all the powers set out in Schedules 1 and 2 to the
Insolvency Act 1986.
24.8 Third Parties: A person dealing with the Receiver in good faith and for
full value shall not be concerned to enquire whether the Receiver is
validly appointed or acting within his powers. Neither the Security Agent
nor any Beneficiary nor the Receiver shall be liable to account as
mortgagee in possession or otherwise for any money not actually received by
it or him respectively, whether by way of payment, set-off, counterclaim or
otherwise.
25. OTHER POWERS EXERCISABLE BY THE SECURITY AGENT
25.1 Security Agent may Exercise Receivers Powers: All powers of the Receiver
conferred by this Charge may be exercised by the Security Agent following
demand by the Security Agent
whether as attorney of the Chargor or otherwise and whether or not the
Receiver shall have been appointed.
26. SECURITY AGENT AS TRUSTEE, PERPETUITY PERIODS AND NO PARTNERSHIP
26.1 Security Agent: The Security Agent hereby declares itself to be a trustee
of this Charge (and any other security in its favour created pursuant to
this Charge) for the Beneficiaries. The retirement of the Security Agent
from being trustee and the appointment of any new trustee shall be effected
in the manner provided in the Facility Agreement.
26.2 Perpetuity Period: The perpetuity period applicable to the trust hereby
constituted shall be 80 years.
26.3 No Partnership: Nothing in this Charge shall constitute or be deemed to
constitute a partnership between the Beneficiaries.
27. THIRD PARTY SECURITY PROVISIONS
27.1 Restriction on the Chargor: The Chargor shall have no right to:
(i) make any claim (whether by way of proof in liquidation or otherwise)
against any Principal or any co-surety or any property of any
Principal or any co-surety; or
(ii) participate in any security held or money received by the Security
Agent or any Beneficiary on account of the Secured Sums; or
(iii)stand in the place of the Security Agent or any Beneficiary in
respect of any such security or money;
until in each case all Secured Sums have been repaid to the Security Agent
and/or the Beneficiaries in full.
27.2 Right to act without affecting the Charge: The Security Agent or any
Beneficiary may at any time (without affecting its rights against the
Chargor under this Charge) grant, extend, increase, renew, vary, determine
or refuse any credit or facility to any Principal, or take, hold, exchange,
vary, release, abstain from perfecting or enforcing any guarantee or
security for the Secured Sums, or compromise with or extend time or grant
waivers, releases or any indulgence to any Principal or any co-surety, or
make any arrangement, concession or settlement with any of them or do or
omit or neglect to do anything whatever which, but for this provision,
might exonerate or discharge the Principals' obligations under the Finance
Documents (except for a specific written release given by the Security
Agent of such obligations).
27.3 Retention: The Security Agent may keep the security held by it under this
Charge in order to protect the Security Agent and the Beneficiaries against
any possible claim under insolvency law for such period after all Secured
Sums have been satisfied as the Security Agent reasonably considers to be
necessary to avoid any risk under applicable insolvency law. If a claim is
made against the Security Agent or any Beneficiary within that period, the
Security Agent may keep the security until that claim has finally been
dealt with.
27.4 Continuing Liability of Chargor: The winding-up or dissolution of any
Borrower will not affect the security held by the Security Agent under this
Charge and any sum payable to the Security Agent or any Beneficiary by the
Chargor at the date of the commencement of such winding-up or immediately
prior to such dissolution (as the case may be) will be treated as
continuing payable until actually paid in full.
27.5 Disability or Incapacity of any Borrower: As a separate and independent
stipulation the Chargor agrees that if any Secured Sums shall not be
recoverable from any Borrower by reason of any legal limitation on or
disability or incapacity of any Borrower or any other fact or circumstance,
and whether known to any Beneficiary or not, shall nevertheless be
recoverable from the Security Assets as if the Chargor had been the sole or
principal debtor or debtors in respect thereof and shall be paid on demand
in writing made by the Security Trustee.
28. GOVERNING LAW AND JURISDICTION
28.1 Governing Law: This Charge shall be governed by and construed in accordance
with English law.
28.2 Jurisdiction: For the benefit of the Security Agent, the Chargor
irrevocably agrees that, subject to clause 28.5, the courts of England are
to have non-exclusive jurisdiction to settle any disputes which may arise
out of or in connection with this Charge and that accordingly any
proceedings (referred to in this clause as "Proceedings") arising out of or
in connection with this Charge may be brought in such courts.
28.3 Process Agent: The Chargor hereby designates, appoints and empowers Messrs
Norton Rose of Kempson House, Camomile Street, London EC3A 7AN (Attention:
Andrew Bamber/Marcus Dougherty) (or such other address in England or Wales
as the Chargor may notify to the Security Agent) to accept service of
process in such jurisdiction in any Proceedings and agrees that failure by
such agent to give notice of such service of process to the Chargor shall
not impair or affect the validity of such service or any judgment based on
it.
28.4 Waiver of objection: The Chargor irrevocably waives any objection which it
may have now or hereafter to the laying of the venue of any Proceedings in
the courts of England and any claim that any such Proceedings have been
brought in an inconvenient forum and further irrevocably agrees that a
judgment in any such Proceedings brought in such courts shall be conclusive
and binding upon it and may be enforced in any other jurisdiction.
28.5 Security Agent may take Proceedings in other jurisdictions: Nothing in this
clause 28 shall limit the right of the Security Agent to take action
against the Chargor in any court of competent jurisdiction nor shall the
taking of Proceedings by the Security Agent against the Chargor in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction whether concurrently or not.
28.6 Consent to service outside jurisdiction: The Chargor further consents to
the service of process out of the courts of England in any such Proceedings
by the mailing to it of copies by registered or certified airmail, postage
prepaid.
Executed by the Chargor as a Deed and by the Security Agent under hand the day
and year first above written.
SCHEDULE
Principals
TU Finance (No.1) Limited (company number 3505836)
TU Finance (No.2) Limited (company number 3514100)
TU Acquisitions PLC (company number 3455523)
Target or any Subsidiary of the Target which, and to the extent that it, borrows
under the Facility Agreement
EXECUTED and DELIVERED as a )
Deed by TU FINANCE (NO. 2) )
HOLDINGS (DELAWARE) INC. )
(pursuant to a resolution of its Board )
of Directors) acting by its duly )
authorised officer:- )
Name Robert S. Shapard [R Shapard]
Title Treasurer and Assistant Secretary
SIGNED by ) [J Ritchie]
for and on behalf of )
CHASE MANHATTAN INTERNATIONAL LIMITED )