Exhibit 4.9
Dated __ May 2001
THE COMPANIES SET OUT IN SCHEDULE 1
and the Additional Companies party
hereto from time to time,
as the Companies
and
BANK OF AMERICA, N.A.
as Security Trustee
____________________________________________
DEBENTURE
____________________________________________
This Debenture is entered into subject to
and with the benefit of an Intercreditor
Agreement of even date herewith
To: H.M. Chief Land Registrar.
Note: this Debenture contains (in clause
4.4 (Application to H.M. Chief Land Registrar))
an application to enter a restriction on
the Proprietorship Register.
[MAYER, BROWN & PLATT LOGO APPEARS HERE]
MAYER, BROWN & PLATT
Bucklersbury House
3 Queen Victoria Street
London EC4N 8EL
Telephone: 020 7246 6200
Facsimile: 020 7329 4465
Re: LMS/00651039
Table of Contents
Clause Page
1. DEFINITIONS AND INTERPRETATION......................................... 1
1.1 Definitions....................................................... 1
1.2 Interpretation.................................................... 6
1.3 Credit Agreement.................................................. 7
1.4 Loan Documents.................................................... 7
2. COVENANT TO PAY........................................................ 7
2.1 Covenant to Pay................................................... 7
2.2 Interest.......................................................... 7
2.3 Payments.......................................................... 7
3. ASSIGNMENTS, FIXED AND FLOATING CHARGES................................ 7
3.1 Fixed charges..................................................... 7
3.2 Assignments....................................................... 8
3.3 Dealings with Assigned Agreements................................. 8
3.4 Floating charge................................................... 9
3.5 Exceptions to security............................................ 10
3.6 Failure of assignment............................................. 10
3.7 Assignment of insurances.......................................... 11
4. PERFECTION OF SECURITY AND FURTHER ASSURANCE........................... 11
4.1 Notice of Assignment.............................................. 11
4.2 Collection of Debts and Related Matters........................... 11
4.3 Notice of charge.................................................. 12
4.4 Application to H.M. Chief Land Registrar.......................... 12
4.5 Further Assurances................................................ 13
4.6 Charged Shares.................................................... 13
4.7 Covenants for title............................................... 14
4.8 Additions to this Debenture....................................... 14
4.9 Security Trustee not to give notice............................... 14
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Table of Contents
(continued)
Clause Page
5. GENERAL SECURITY PROVISIONS.......................................... 14
5.1 Additional Security............................................. 14
5.2 Immediate Recourse.............................................. 14
5.3 Waiver of Defences.............................................. 15
5.4 Non-Competition................................................. 15
5.5 Trust Operation................................................. 16
5.6 Rights Attaching to the Securities.............................. 16
6. RELEASE OF SECURITY.................................................. 17
6.1 No discharge of security........................................ 17
6.2 Release of security............................................. 17
6.3 Reinstatement................................................... 17
7. CONVERSION OF FLOATING CHARGE........................................ 18
7.1 Crystallisation................................................. 18
7.2 Automatic Crystallisation....................................... 18
8. REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE COMPANIES........... 19
8.1 Due Incorporation............................................... 19
8.2 Capacity........................................................ 19
8.3 Enforceability.................................................. 19
8.4 Authorisations.................................................. 19
8.5 Compliance with laws............................................ 20
8.6 Insolvency proceedings.......................................... 20
8.7 Properties...................................................... 20
8.8 Environmental licences.......................................... 20
8.9 Dangerous substances............................................ 21
8.10 Environmental liability......................................... 21
8.11 Insurance policies.............................................. 21
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Table of Contents
(continued)
Clause Page
8.12 Charged shares................................................. 21
9. SPECIFIC COVENANTS................................................... 21
9.1 Specific covenants............................................. 21
9.2 Intellectual Property.......................................... 26
9.3 Evidence of compliance......................................... 29
9.4 Limitation on powers........................................... 29
10. POWER TO REMEDY...................................................... 29
10.1 Entry to Property.............................................. 29
10.2 Power to Remedy................................................ 29
10.3 Insurance...................................................... 29
10.4 Indemnity...................................................... 30
10.5 No Obligation to Remedy........................................ 30
11. POWERS OF LEASING.................................................... 30
11.1 Prohibition on Exercise of Powers by a Company................. 30
11.2 Powers of Security Trustee..................................... 30
12. ENFORCEMENT.......................................................... 31
12.1 Event of Default............................................... 31
12.2 Exclusion of Provisions of LPA................................. 31
12.3 Consolidation.................................................. 31
12.4 Powers of Mortgagee............................................ 31
12.5 Power of Sale.................................................. 31
12.6 Exercise of Powers............................................. 31
13. PROTECTION OF THIRD PARTIES.......................................... 32
13.1 Protection of Third Parties.................................... 32
13.2 Receipts Conclusive............................................ 32
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Table of Contents
(continued)
Clause Page
13.3 Meaning of Purchaser........................................... 32
14. APPOINTMENT OF RECEIVER.............................................. 32
14.1 Appointment.................................................... 32
14.2 Powers......................................................... 32
14.3 Receiver of a Company.......................................... 34
14.4 Joint Appointment.............................................. 34
14.5 No Limit on Powers of Receiver................................. 35
14.6 Removal........................................................ 35
14.7 Remuneration................................................... 35
15. APPLICATION OF PROCEEDS.............................................. 35
15.1 Application of Proceeds........................................ 35
15.2 Insurance...................................................... 35
15.3 Suspense Account............................................... 35
15.4 Exclusions..................................................... 36
16. SECURITY TRUSTEE'S POWERS............................................ 36
16.1 Further Powers................................................. 36
16.2 Exercise of Powers............................................. 36
16.3 Landlord and Tenants Acts...................................... 36
16.4 Entry into Possession.......................................... 36
17. POWER OF ATTORNEY.................................................... 37
18. REDEMPTION OF PERMITTED SECURITY INTERESTS........................... 37
19. AVOIDANCE OF PAYMENTS................................................ 37
20. DELEGATION........................................................... 38
21. PROTECTION OF THE SECURITY TRUSTEE, BANKS AND RECEIVER............... 38
21.1 No Liability................................................... 38
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Table of Contents
(continued)
Clause Page
21.2 No Mortgagee in Possession..................................... 38
22. CUSTODY.............................................................. 38
23. COSTS................................................................ 38
24. INDEMNITY............................................................ 39
24.1 General Indemnity.............................................. 39
24.2 Indemnity for Breach........................................... 39
25. SET-OFF.............................................................. 39
25.1 Set-off........................................................ 39
25.2 Security Trustee may effect Set-off or Transfer................ 40
25.3 Meaning of Rights under General Law............................ 40
26. NOTICES.............................................................. 40
26.1 Form........................................................... 40
26.2 Made........................................................... 40
26.3 Language....................................................... 40
27. TRANSFERS............................................................ 41
27.1 Security Trustee............................................... 41
27.2 Company........................................................ 41
27.3 Disclosure..................................................... 41
28. CURRENCY INDEMNITY................................................... 41
29. MISCELLANEOUS........................................................ 41
29.1 Property of Security Trustee................................... 41
29.2 Security Trustee's Certificate Conclusive...................... 41
29.3 No Waiver...................................................... 42
29.4 Severability................................................... 42
29.5 Counterparts................................................... 42
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Table of Contents
(continued)
Clause Page
29.6 Governing Law................................................. 42
29.7 Submission of Jurisdiction.................................... 42
29.8 Waiver of Objection........................................... 42
29.9 General Consent............................................... 42
29.10 No Limitation of Right to Court Proceedings................... 43
29.11 Third Party Rights............................................ 43
30. ADDITIONAL COMPANIES................................................. 43
30.1 Joinder of Additional Company................................. 43
30.2 Construing Agreement.......................................... 43
SCHEDULES
SCHEDULE 1 THE COMPANIES
SCHEDULE 2 FORM OF DEED OF ACCESSION
SCHEDULE 3 CHARGED SHARES
SCHEDULE 4 FORM OF NOTICE TO COUNTERPARTIES OF ASSIGNED AGREEMENTS
SCHEDULE 5 GUARANTIES
SCHEDULE 6 PROPERTIES
SCHEDULE 7 ADDITIONAL ASSIGNED AGREEMENTS
SCHEDULE 8 FORM OF NOTICE OF CHARGE
SCHEDULE 9 SPECIAL ACCOUNTS
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THIS DEBENTURE is made the day of 2001, between:
1. THE COMPANIES set out in the Schedule 1 and each Person which executes a
Deed of Accession pursuant to Clause 30, as an Additional Company (each,
individually, a "Company" and collectively referred to as the "Companies");
and
2. BANK OF AMERICA, N.A. as administrative agent pursuant to the Credit
Agreement defined below and Security Trustee for the Banks pursuant to the
Consent (the "Security Trustee").
RECITALS
WHEREAS:
1. Pursuant to the Credit Agreement, the Banks have agreed to make loans to,
and to issue or participate in letters of credit for the account of, the
Borrowers;
2. The Parent, APW-NA, all Domestic Subsidiaries of APW-NA and certain direct
Subsidiaries of the Parent have executed and delivered guarantees of
certain Obligations under the Credit Agreement;
3. Certain English Subsidiaries of Wright Line Europe BV, a subsidiary of the
Parent, have executed and delivered or will, simultaneously with their
execution and delivery of this Debenture, execute and deliver guarantees of
certain Obligations under the Credit Agreement;
4. APW Products and Systems BV, a Dutch company, Wright Line Europe BV, a
Dutch Company, and APW Power Supplies AS, a Danish company, each of which
is also a Subsidiary of Wright Line Europe BV, will, simultaneously with
their accession to this Debenture, execute and deliver guarantees of
certain Obligations under the Credit Agreement;
5. The Banks have no obligation at the present time to make additional Loans
or issue or participate in additional Letters of Credit under the Credit
Agreement;
6. In consideration for additional Loans, Letters of Credit or other financial
accommodation heretofore or hereafter made to the Borrowers under or in
connection with the Credit Agreement, the Companies have agreed to execute
and deliver this Debenture upon the terms and conditions set out below.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Debenture and in the Recitals hereto, unless the context otherwise
requires:
"Additional Company" means any company that becomes a party to this
Debenture pursuant to Clause 30 by executing a Deed of Accession;
"applicable law" means with respect to any Person or matter, any
supranational, national, federal, state, provincial, regional or local
statute, law, rule, treaty, convention, regulation, order, decree,
directive, measure, procedure, rule, consent,
decree, request, determination or other requirement (whether or not having
the force of law) relating to such Person or matter and, where applicable,
any interpretation thereof by any governmental authority having
jurisdiction with respect thereto or charged with the administration or
interpretation thereof;
"APW-NA" means APW North America, Inc., a Delaware corporation;
"Assigned Agreements" means, in relation to a Company, all benefits,
rights, title, interests and claims of such Company in respect of:
(a) any contract of insurance to which such Company is a party or to which
such Company has any present or future right, title or interest, and
(b) any additional assigned agreements set out in Schedule 7 against such
Company, or (in the case of Additional Companies only) identified in
the Deed of Accession executed by such Additional Company
in each case, the situs of which is outside the United States;
"Banks" has the meaning given to it in the Credit Agreement;
"Borrowers" has the meaning given to it in the Credit Agreement;
"Charged Share Issuer" means, in relation to a Company, each Person listed
against such Company and, identified as such in Schedule 3 and, in relation
to any Additional Company, each Person identified as such in the Schedule
to the Deed of Accession;
"Charged Shares" means, in relation to a Company, such shares of each
Charged Share Issuer which are held by or to the order of such Company at
any time and, at the date of this Debenture, as set out in Schedule 3, and
in relation to each Additional Company all the shares of each Charged Share
Issuer which are held by or to the order of such Additional Company at any
time and which are delivered by such Additional Company to the Security
Trustee as Secured Property hereunder;
"Company" is defined in the preamble;
"Consent" means a consent agreement dated May 4, 2001 and made between the
Parent, APW-NA, APW Holdings Denmark APS, various financial institutions,
Bank One N.A., as syndication agent, The Chase Manhattan Bank, as
documentation agent and Bank of America, N.A., as administrative agent;
"Credit Agreement" means an Amended and Restated Multicurrency Credit
Agreement dated as of May 15, 2001 (as amended, amended and restated,
supplemented or modified from time to time) between the Parent, as
borrower, the various financial institutions (together with their
respective successors and assigns), collectively the Banks, Bank One N.A.
as Syndication Agent, The Chase Manhattan Bank as Documentation Agent and
Bank of America, N.A. as Administrative Agent;
"Debts" means, in relation to a Company, all present and future book and
other debts and other monies due, owing, payable or incurred to such
Company including any amounts from time to time standing to the credit of
any accounts with the Security
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Trustee or other accounts of such Company and with the benefit of any
guarantees, indemnities or other assurances against financial loss
affecting any of the same and the benefit of any present or future
insurance policies and all proceeds thereof and all things in action which
may give rise to any debt, revenue or claim and any other rights relating
thereto;
"Deed of Accession" means a deed supplemental to this Debenture, executed
by an Additional Company substantially in the form of the deed exhibited at
Schedule 2 hereto, by virtue of which such Additional Company becomes bound
by this Debenture in the capacity of a Company;
"Default Rate" means the applicable rate determined pursuant to Section
2.12(d) of the Credit Agreement;
"Delegate" means any Receiver, agent for a mortgagee in possession,
attorney or similar Person appointed by the Security Trustee hereunder;
"Dissolution" of a Person includes the bankruptcy, insolvency, liquidation,
amalgamation, reconstruction, reorganisation, administrative or other
receivership, or dissolution of that Person, or its official management and
any equivalent or analogous proceeding by whatever name known and in
whatever jurisdiction;
"Distributions" means all share dividends, liquidating dividends, shares
resulting from (or in connection with the exercise of) share splits,
reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar
to the foregoing) on or with respect to any Charged Shares or other
Securities, but shall not include Dividends;
"Dividends" means cash dividends and cash distributions with respect to any
Charged Shares or other Securities (including interest) and other amounts
paid or payable but not any liquidating dividend;
"Environmental Laws" means all applicable laws, compliance with which is
mandatory for each Company, relating to waste, contamination or pollution
of air, water or soil;
"Environmental Licences" means any permit, approval, consent, licence or
other authorisation required under any applicable Environmental Law;
"Event of Default" has the meaning given to it in Section 8.1 of the Credit
Agreement;
"Guaranty" means the Guaranty which each Company has either executed and
delivered in favour of Bank of America, N.A. as administrative agent for
the financial institutions from time to time party to the Credit Agreement
(as set out in Schedule 5, marked "Existing Guaranties"), or will execute
and deliver simultaneously with its execution of this Debenture, in favour
of the Administrative Agent and the Security Trustee (as set out in
Schedule 5, marked "New Guaranties"), or the Guaranty which will be
executed and delivered by each Additional Company simultaneous with such
Additional Company's execution and delivery of a Deed of Accession,
pursuant to
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which, in each case, certain obligations of the Parent under the Credit
Agreement are irrevocably, unconditionally and absolutely guaranteed in
full by such Company;
"Intellectual Property" means, in relation to a Company, all rights in any
patents, trade marks, service marks, designs, design rights, moral rights,
business names, copyright, inventions, confidential information, know how
and other intellectual property (in each case whether registered or
unregistered and including applications for registration thereof and rights
to apply for the same) which it now or in the future owns or (to the extent
of its interest) in which it now or in the future has an interest
(including the benefit of any licences and sub-licences of any of the
foregoing granted by it or to it and all applications and rights to apply
for the same) the benefit of all applications and rights to use such assets
and all proceeds from the exploitation of and rights associated with any of
the foregoing;
"Intercreditor Agreement" means the intercreditor agreement of even date
herewith among, inter alia, Bank of America, N.A., as administrative agent
under the Credit Agreement and as the Security Trustee pursuant to this
Debenture, Royal Bank of Scotland PLC, as agent for itself and National
Westminster Bank PLC, Royal Bank of Scotland PLC, as security trustee under
a debenture, dated May 15, 2001, among the companies set forth on Schedule
I thereto and Royal Bank of Scotland PLC as security trustee; and Royal
Bank of Scotland PLC and National Westminster Bank PLC;
"LPA" means the Law of Property Act 1925;
"Notice of Charge" means a notice of charge in the form set out in Schedule
8;
"Parent" means APW Ltd, a Bermuda corporation;
"Planning Acts" means the Town and Country Planning Act 1990, the Planning
(Listed Buildings and Conservation Areas) Act 1990, the Planning (Hazardous
Substances) Act 1990, the Planning (Consequential Provisions) Act 1990, the
Planning and Compensation Act 1991, the Local Government, Planning and Land
Act 1980;
"Proceedings" means any suit, action or proceeding arising out of or in
connection with this Debenture;
"Proceeds" means any proceeds from the sale or realisation of any Secured
Property;
"Properties" means:
(a) in the case of each Company the freehold, leasehold or immovable
property referred to in Schedule 6 and any other freehold, leasehold
or immovable property now or at any time vested in or held by or on
behalf of such Company together with in all cases all buildings,
structures, fixtures and fittings (including trade fixtures and
fittings but excluding, in the case of leasehold property, landlord's
fixtures) and fixed plant and machinery from time to time in or on
such freehold, leasehold or immovable property and owned by the
relevant Company, subject to and with the benefit of any lease,
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tenancy agreement, licence, right, covenant, condition or security
interest affecting the same at the date of this Debenture as disclosed
in Schedule 6; and
(b) in the case of each Additional Company the freehold, leasehold or
immovable property referred to in the Deed of Accession executed by
such Additional Company and any other freehold, leasehold or immovable
property at the date of such Deed of Accession or thereafter vested in
or held by or on behalf of such Additional Company together with in
all cases all buildings, structures, fixtures and fittings (including
trade fixtures and fittings but excluding, in the case of leasehold
property, landlord's fixtures) and fixed plant and machinery from time
to time in or on such freehold, leasehold or immovable property and
owned by the relevant Company, subject to and with the benefit of any
lease, tenancy agreement, licence, right, covenant, condition or
security interest affecting the same at the date of the Deed of
Accession;
"Receiver" means any receiver or manager or administrative receiver
appointed by the Security Trustee over all or any of the Secured Property
pursuant to this Debenture whether alone or jointly with any other Person
and includes any substitute for any of them appointed from time to time;
"Secured Obligations" means, in relation to a Company, the obligations of
such Company under its Guaranty provided that the Secured Obligations shall
exclude any obligation that would constitute unlawful financial assistance
prohibited by Section 151 of the UK Companies Act 1985 or any analogous
provision of any applicable law in any jurisdiction;
"Secured Property" means, in relation to a Company, all the undertaking and
the assets, rights and property of such Company which are the subject of
any security created or purported to be created by this Debenture and
includes any part of or any interest in them;
"Securities" means, in relation to a Company, the Charged Shares held by or
to the order of such Company and all stocks, shares, bonds and securities
of any kind whatsoever whether marketable or otherwise and all other
interests (including loan capital) both present and future held by such
Company in any Person (including any Subsidiary of such Company) and
includes all Dividends, Distributions, allotments, rights, benefits and
advantages whatsoever at any time accruing, offered or arising in respect
of or incidental to the same and all money or property offered at any time
by way of dividend, conversion, redemption, bonus, preference, option or
otherwise in respect thereof;
"Security Interest" means any mortgage, charge, pledge, lien, assignment,
hypothecation, security interest, title retention, preferential right,
trust arrangement or any other type of security or preferential arrangement
howsoever arising;
"Special Accounts" means such separate and denominated account or accounts
with the Security Trustee or such other bank or banks as set out in
Schedule 9 (or, in the case of an Additional Company, as specified in the
Deed of Accession executed by such Additional Company) or as the Security
Trustee may specify consequent upon an Event of Default from time to time
in writing as the account or accounts into which the Debts are to be paid;
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"Tangible Moveable Property" means all plant, machinery, computers and
vehicles now or at any time not effectively charged pursuant to Clauses
3.1(a) or 3.1(b)(i) (Fixed Charges) and all related spare parts, fuels,
equipment and tools (excluding any for the time being forming part of the
relevant Company's stock in trade or work in progress) title to which is
vested in or held by or on behalf of each Company;
1.2 Interpretation
Any reference in this Debenture to:
(i) a "Business Day" is a reference to a day (other than a Saturday or
Sunday) on which banks are generally open for business in London,
Holland, Denmark and the United States of America;
(ii) a "disposal" includes any sale, lease, transfer, conveyance,
assignment, licence, sub-licence or other disposal and "dispose" and
"disposed" shall be construed accordingly;
(iii) "indebtedness" includes any obligation (whether incurred as principal
or as surety) for the payment or repayment of money, whether present
or future, actual or contingent;
(iv) "tax" means any tax, levy, impost, duty or other charge or
withholding of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in paying
any of the same);
(v) a "Loan Document" or any other agreement or instrument is a reference
to that Loan Document or other agreement or instrument as amended or
novated from time to time;
(vi) a provision of law is a reference to that provision as the same may
have been, or may from time to time be, amended or re-enacted; and
(vii) any Person shall be construed so as to include it and any subsequent
successors and assigns in accordance with their respective interests.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) "(Pounds)", "sterling" and "pounds sterling" denote the lawful currency of
the United Kingdom and "$" and "dollars" denote the lawful currency of the
United States of America.
(d) Unless otherwise specified, a reference to any Recital, Section, Clause or
Schedule is a reference to such Recital, Section, Clause or Schedule of
this Debenture.
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1.3 Credit Agreement
Unless otherwise defined herein or the context otherwise requires, terms
used in this Debenture, including its preamble and Recitals, have the
meanings provided in the Credit Agreement.
1.4 Loan Documents
For the avoidance of doubt, the parties hereby agree that this Debenture
and each Guaranty shall constitute Loan Documents executed and delivered
pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with
the terms and provisions thereof.
2. COVENANT TO PAY
2.1 Covenant to Pay
Each Company hereby covenants, as primary obligor and not merely as surety,
with the Security Trustee that it will pay and discharge its Secured
Obligations in accordance with the terms of its Guaranty.
2.2 Interest
Each Company shall pay interest on any amounts due and payable by it under
this Debenture (other than pursuant to Clause 2.1 (Covenant to Pay)) to the
date of payment or discharge (notwithstanding any demand or any judgment
obtained by the Security Trustee or the liquidation or administration of or
any arrangement or composition with creditors by such Company) at the
Default Rate.
2.3 Payments
All sums payable by a Company under this Debenture (other than pursuant to
Clause 2.1 (Covenant to Pay)) shall be paid without any set-off,
counterclaim, withholding or deduction whatsoever unless required by law in
which event such Company will simultaneously with making the relevant
payment under this Debenture pay to the Security Trustee such additional
amount as will result in the receipt by the Security Trustee of the full
amount which would otherwise have been receivable and will supply the
Security Trustee within 30 days with evidence reasonably satisfactory to
the Security Trustee that such Company has accounted to the relevant
authority for the sum withheld or deducted.
3. ASSIGNMENTS, FIXED AND FLOATING CHARGES
3.1 Fixed charges
Each Company with full title guarantee and as a continuing security for the
payment and discharge of all of its Secured Obligations charges in favour
of the Security Trustee (subject, for a period of 60 days from the date
hereof or in the case of an Additional Company for a period of 60 days from
the date of the Deed of Accession executed and delivered by such Additional
Company, to obtaining any necessary
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consent to the relevant charge by way of legal mortgage or fixed charge
from any third party):
(a) by way of legal mortgage, the title, estates and other interests of
such Company in each of the Properties referred to in Schedule 6
(Properties); and
(b) by way of fixed charge all of its present and future:
(i) title, estates and other interests in each of the Properties not
effectively charged pursuant to Clause 3.1(a);
(ii) Tangible Movable Property;
(iii) Intellectual Property;
(iv) goodwill and uncalled capital;
(v) Securities;
(vi) Debts; and
(vii) monies now or at any time standing to the credit of any bank
account (including any Special Accounts) opened or maintained by
such Company with any Person.
3.2 Assignments
Each Company with full title guarantee and as a continuing security for the
payment and discharge of its Secured Obligations assigns by way of security
to the Security Trustee each of the Assigned Agreements relating to it.
3.3 Dealings with Assigned Agreements
(a) The assignment of the Assigned Agreements pursuant to Clause 3.2 shall
not constitute an assignment during the period of 60 days commencing
with the date hereof (or in the case of an Additional Company for a
period of 60 days commencing on the date of the Deed of Accession
executed and delivered by such Additional Company) to the extent that
it would constitute a violation of a valid and enforceable restriction
in favour of a non-affiliated third party, or where such violation
would occur without consent, unless and until any required consents
shall have been obtained.
(b) The assignment referred to in Clause 3.2 constitutes and effects
(subject to Clause 3.3(a)) an immediate and full assignment, by way of
security, of the Assigned Agreements and shall be effective, and the
security intended to be created by this Debenture shall be
constituted, immediately upon its execution or, as the case may be,
the expiry of the relevant period referred to in Clause 3.3(a).
(c) Notwithstanding but without prejudice to Clause 3.3(b), the Security
Trustee agrees that each Company may exercise all of the rights,
powers, discretions and remedies which would (but for this Debenture)
be vested in such
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Company under and in respect of the Assigned Agreements, unless and
except to the extent that any such exercise is prohibited by or would
contravene, or result in a contravention of, any provision of the
Credit Agreement.
(d) Each Company shall remain at all times liable to perform all of the
obligations assumed by it under or in respect of the Assigned
Agreements to the same extent as if the security created pursuant to
this Debenture had not been created.
(e) The exercise by the Security Trustee or any Delegate, or any of its or
their agents or nominees, of any of the rights, benefits, interests or
claims assigned by this Debenture shall not release any Company from
any of its Secured Obligations.
(f) Without prejudice to the obligations of the Security Trustee to the
Banks under the Loan Documents, neither the Security Trustee nor any
Bank shall, by reason of or arising out of this Debenture or anything
done under or in connection with it, have any obligation or liability
whatsoever to any Person (including each Company and any other Bank)
to:
(i) perform (as a result of the non-performance or mis-performance
of) any of the obligations assumed by any Company under or in
respect of the Loan Documents or the Assigned Agreements;
(ii) enforce payment or performance of any obligations of any Person
party to any of the Loan Documents; or
(iii) make any enquiry as to the nature or sufficiency of any payment
received by it under or in respect of this Debenture or any of
the Assigned Agreements or to make any claim or take any action
to collect any monies or to exercise any of the rights, title,
interest and benefits assigned to the Security Trustee to which
the Security Trustee may be at any time entitled pursuant to
this Debenture, or to make any payment in respect of the
Assigned Agreements.
(g) The Security Trustee agrees that until an Event of Default has
occurred and is continuing and the Security Trustee has notified a
Company of the revocation of such power and authority, such Company
may amend or vary any Assigned Agreement relating to it, except where
such amendment or variation could reasonably be expected to have a
Material Adverse Effect.
(h) The provisions of this Clause 3.3 shall apply notwithstanding any
other provision of this Debenture or any contrary or inconsistent
provision of any Loan Document.
3.4 Floating charge
Each Company with full title guarantee and as a continuing security for the
payment and discharge of its Secured Obligations charges in favour of the
Security Trustee by way of floating charge (subject for a period of 60 days
commencing on the date hereof (or in the case of an Additional Company
commencing on the date of the Deed of
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Accession executed and delivered by such Additional Company) to obtaining
any necessary consent to such floating charge from any third party) all the
undertaking and all the assets, rights and income of such Company both
present and future not otherwise effectively charged or assigned under
Clauses 3.1 (Charge) or 3.2 (Assignment).
3.5 Exceptions to security
(a) Assets situated outside England and Wales
The security created pursuant to Clauses 3.1 (Fixed charges), 3.2
(Assignments) and 3.4 (Floating Charge) shall not extend to any asset
situated outside England and Wales to the extent that and for so long
as any such security would be unlawful under the laws of the
jurisdiction in which such asset is situated;
(b) Non-English Companies
Notwithstanding the contents of this Clause 3, APW Products and
Systems BV, APW Power Supplies AS and Wright Line Europe BV (the "Non-
English Companies") shall only charge, in favour of the Security
Trustee with full title guarantee, and as continuing security for
payment and discharge of their Secured Obligations, by way of fixed
charge, all of their respective present and future Charged Shares (by
executing Deeds of Accession) together with (by way of charge by way
of legal mortgage, fixed charge, assignment by way of security or
floating charge (as applicable)) all other assets located in the
England and Wales which such Companies may own at any time in the
future;
(c) Consents
Each Company shall as soon as reasonably possible and in any event
within 60 days of the date of this Debenture use reasonable endeavours
to obtain any necessary consents to the creation of the security
intended to be created hereby but not created due to a requirement for
consent. If any relevant third party (other than a group company)
shall make a claim (which is valid in the reasonable opinion of the
relevant Company) to a Company in writing that the creation or
continuation of any security constituted by or pursuant to this
Debenture is or was in contravention of the terms of any agreement
entered into by any of the Companies and such third party, or a
relevant third party refuses to give such consent, the Security
Trustee shall, if requested to do so by the relevant Company (such
request to be accompanied by a copy of the letter or other
communication from the third party) and at such Company's cost
promptly do all, such things as is necessary to release such assets
subject to such claim from such security.
3.6 Failure of assignment
If for any reason the assignment of any of the Assigned Agreements referred
to in Clause 3.2 (Assignment) is found to be ineffective and/or if any sums
payable in respect of such Assigned Agreements are received by a Company,
such Company following the occurrence and during the continuance of an
Event of Default and
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notification of the same by the Security Trustee shall hold the benefit of
such Assigned Agreements and any such sums received by it in trust for the
Security Trustee, and shall account to the Security Trustee for or
otherwise apply all such sums as the Security Trustee may direct and shall
otherwise at its own cost take such action and execute such documents as
the Security Trustee may in its reasonable discretion require to effect
such assignment.
3.7 Assignment of insurances
For the avoidance of doubt, this Debenture does not constitute an
assignment of any policy or contract of insurance but only of the benefits,
rights, title, interests and claims of any Company under such assets.
4. PERFECTION OF SECURITY AND FURTHER ASSURANCE
4.1 Notice of Assignment
Each Company shall:
(a) upon written request by the Security Trustee following an Event of
Default which is subsisting, give (to the extent assignable as
contemplated in Clause 3.3(a)) each other party to an Assigned
Agreement relating to it that has been assigned pursuant to Clause 3.2
a notice of assignment (substantially in the form set out in Schedule
4 or in such other form as the Security Trustee may reasonably
require), duly completed; and
(b) use reasonable endeavours to procure that the addressee of that notice
acknowledges that notice in the form attached to that notice (or in
such other form as the Security Trustee may approve) within 15 days
(or such longer period as such Company and the Security Trustee may
agree in any particular case) after the date the notice of assignment
is given.
4.2 Collection of Debts and Related Matters
(a) Each Company shall at all times during the subsistence of the security
created by this Debenture:
(i) get in and realise its Debts (other than credit balances on any
bank accounts) in the ordinary and usual course of its business
and hold the proceeds of such getting in and realisation thereof
(until payment into the Special Accounts as hereinafter
provided) upon trust for the Security Trustee; and
(ii) unless the Security Trustee otherwise agrees in writing, pay the
proceeds of such getting in and realisation of its Debts into
the Special Accounts.
(b) Each Company shall not at any time during the subsistence of the
security created by this Debenture, unless otherwise permitted to do
so pursuant to the Credit Agreement, without the prior written consent
of the Security Trustee charge assign or secure the Debts in favour of
a third party or deal with the
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Debts (other than credit balances on bank accounts) otherwise than by
getting in and realising the same and making payment thereof into the
Special Accounts or as the Security Trustee may require. Without
prejudice to the generality of the foregoing, each Company shall not
at any such time factor or discount any of the debts or enter into any
agreement for such factoring or discounting.
(c) Prior to an Event of Default, any moneys in respect of the Debts
(other than credit balances on bank accounts) received by a Company
and paid into any of the Special Accounts of the relevant Company in
accordance with the requirements of this Clause 4.2 (Collection of
Debit and Related Matters) shall upon being paid into such Special
Accounts be automatically released from the fixed charge created by
Clause 3.1(b) (Fixed Charges) and shall become subject to the floating
charge created by Clause 3.4. Such release from the fixed charge shall
not affect and shall be entirely without prejudice to the continuance
of the said fixed charge on all other Debts of a Company outstanding
from time to time and on all moneys which a Company receives in
respect thereof;
(d) Prior to the occurrence of an Event of Default which is notified to
the relevant Company:
(i) the Security Trustee will not serve any Notice of Charge in
connection with the Debts owed to such Company ; and
(ii) all credit balances on any bank accounts of such Company may be
freely utilised by that Company.
4.3 Notice of charge
Each Company shall:
(a) on the date of this Debenture and from time to time upon request by
the Security Trustee deliver to the Security Trustee, or procure the
delivery to the Security Trustee of, Notices of Charge, duly completed
in respect of the Special Accounts, to each of the banks specified by
the Security Trustee (but not maintained with the Security Trustee)
with which any of the Special Accounts are opened or maintained; and
(b) use reasonable endeavours to procure that each addressee of a Notice
of Charge acknowledges such Notice of Charge in the form attached to
such Notice of Charge (or in such other form as the Security Trustee
may approve) within 15 days (or such longer period as such Company and
the Security Trustee may agree in any particular case) of delivery of
such Notice of Charge.
4.4 Application to H.M. Chief Land Registrar
Each Company applies to H.M. Chief Land Registrar to enter the following
restriction in the Proprietorship Register of the freehold, leasehold or
other immovable property
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forming part of the Properties charged by such Company title to which is,
or is required to be, registered under the Land Registration Acts 1925 to
1997:
"Except under an Order of the Registrar no transfer, disposition,
dealing, charge or mortgage by the proprietor of the land or any
transfer made in the exercise of the power of sale possessed by the
holder of any subsequent charge is to be registered or noted without
the consent of the proprietor for the time being of Charge
No. [ ]."
4.5 Further Assurances
Each Company shall at the request of the Security Trustee and at its own
expense promptly execute (in such form as the Security Trustee may
reasonably require) such instruments and otherwise do such acts and things
as the Security Trustee may reasonably require to improve, preserve,
perfect or protect the security created (or intended to be created) by this
Debenture or the priority of the same or to facilitate the realisation of
or otherwise to enforce the same or to exercise any of the Security
Trustee's or any Receiver's rights in relation to the same. In particular,
but without limitation, each Company will:
(a) promptly (at the request of the Security Trustee) execute a valid
legal mortgage of any freehold or leasehold property now or in the
future belonging to such Company which is not effectively charged by
way of legal mortgage pursuant to this Debenture including, but not
limited to, the registered property at Beeley Wood Works, Claywheels
Lane, Sheffield, S6 1ND; and
(b) promptly (at the request of the Security Trustee) execute an
assignment by way of security of any material agreement which the
Security Trustee indicates should be assigned by way of security to
the Security Trustee as continuing security for the payment and
discharge of such Company's Secured Obligations in addition to any
Assigned Agreements assigned pursuant to Clause 3.4 of this Debenture
or any Deed of Accession.
4.6 Charged Shares
(a) Subject to the terms of the Intercreditor Agreement each Company
shall, on the date of this Debenture or as soon as reasonably
practicable thereafter but in any event by May 15, 2001 and from time
to time, deliver to the Security Trustee (or a nominee specified by
the Security Trustee acting on its behalf), or procure the delivery to
the Security Trustee (or such a nominee) of, and the Security Trustee
(or such nominee) shall be entitled to hold and retain, all of the
Charged Shares or the certificates or documents of title to or
representing the same held or acquired by such Company or its
nominee(s) together with:
(i) if any of the Charged Shares is not in the sole name of such
Company, a declaration of trust in respect of such Charged Shares
in favour of such Company duly executed by each Person other than
each Company in whose name such Charged Shares are registered or
held; and
(ii) any instrument of transfer or assignment of such Charged Shares
specified by the Security Trustee duly executed by each Person in
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whose name any of such Charged Shares are registered or held (with
the name of the transferee or assignee, the consideration and the
date left blank).
(b) The Security Trustee may following the occurrence of an Event of
Default (which is subsisting) have any of the Charged Shares
registered in its name or in the name of a nominee specified by the
Security Trustee acting on its behalf.
4.7 Covenants for title
The obligations of each Company under this Clause 4 (Perfection of Security
and Further Assurances) shall be in addition to and not in substitution for
the covenants for title deemed to be included in this Debenture by virtue
of Part 1 of the Law of Property (Miscellaneous Provisions) Act 1994.
4.8 Additions to this Debenture
If, in order for any Security Interest purported to be created by this
Debenture to be valid, legally binding and enforceable in respect of any of
the Secured Property, it is necessary for any further provision(s) to be
included in this Debenture, each Company shall negotiate in good faith with
the Security Trustee with a view to agreeing mutually acceptable
provision(s) to be so included.
4.9 Security Trustee not to give notice
The Security Trustee agrees that it shall not be entitled prior to the
occurrence of an Event of Default which is subsisting, to serve or give
notice to any counterparty to an Assigned Agreement or any issuer of
Securities (other than a Charged Share Issuer) of the Security Interest
granted under this Debenture.
5. GENERAL SECURITY PROVISIONS
5.1 Additional Security
This Debenture, the security created by it and the rights, powers and
remedies given to the Security Trustee under this Debenture shall be in
addition to and shall not prejudice, or be prejudiced by, any other
security or any guarantee, indemnity or other document (whether given by a
Company or any other Person) or any other right, power or remedy vested in
the Security Trustee or which any Bank may at any time hold in respect of
or in connection with any or all of the Secured Obligations. All the
rights, powers and remedies so vested may be exercised from time to time as
often as the Security Trustee may deem expedient.
5.2 Immediate Recourse
The Security Trustee need not before exercising any of the rights, title,
benefit and interest conferred upon it by this Debenture or by applicable
law (i) take action or obtain judgement against any Company or any other
Person in any court, (ii) make or file any claim or proof on the
Dissolution of any Company or any other Person or (iii)
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enforce or seek to enforce the recovery of the monies and liabilities
hereby secured or any other Security Interest.
5.3 Waiver of Defences
Without prejudice to the other provisions of this Clause 5, neither this
Debenture nor the liability of each Company for its Secured Obligations
shall be prejudiced or affected by:
(a) any variation or amendment of, or waiver or release granted under or
in connection with, any other security or any guarantee or indemnity
or other document; or
(b) any time or waiver granted, or any other indulgence or concession
granted, to the Parent or any Company by the Security Trustee or any
other Person; or
(c) the taking, holding, failure to take or hold, varying, realisation,
non-enforcement, non-perfection or release by the Security Trustee or
any other Person of any other security or any guarantee or indemnity
or other document; or
(d) the Dissolution of such Company or any other Person; or
(e) any change in the constitution of such Company or the Parent; or
(f) any amalgamation, merger or reconstruction that may be effected by the
Security Trustee with any other Person or any sale or transfer of the
whole or any part of the undertaking, property and assets of the
Security Trustee to any other Person; or
(g) the existence of any claim, set-off or other right which such Company
or the Parent may have at any time against the Security Trustee or any
other Person; or
(h) the making or absence of any demand for payment or discharge of any
Secured Obligations on such Company or the Parent or any other Person,
whether by the Security Trustee or any other Person; or
(i) any arrangement or compromise entered into by the Security Trustee
with such Company, the Parent or any other Person; or
(j) any other thing done or omitted or neglected to be done by the
Security Trustee or any other Person or any other dealing, fact,
matter or thing which, but for this provision, might operate to
prejudice or affect the liability of such Company for its Secured
Obligations.
5.4 Non-Competition
Until all the Secured Obligations of a Company have been unconditionally
and irrevocably paid and discharged in full, such Company shall not by
virtue of any
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payment made, security realised or monies received for or on account of the
liability of any third party:
(a) be subrogated to any rights, security or monies held, received or
receivable by the Security Trustee or any Bank or be entitled to any
right of contribution or indemnity;
(b) claim, rank, prove or vote as a creditor of any such third party or
its estate in competition with the Security Trustee or any Bank; or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any such third party, or exercise any
right of set-off as against such third party.
5.5 Trust Operation
Each Company will hold on trust for, and forthwith pay or transfer to, the
Security Trustee any payment or benefit of security received by it contrary
to the above. If a Company exercises any right of set-off contrary to the
above, it will forthwith pay an amount equal to the amount set-off to the
Security Trustee.
5.6 Rights Attaching to the Securities
(a) Rights prior to an Event of Default
(i) Each Company shall be entitled to exercise any and all voting
and other rights and powers (including share purchase or
subscription rights) relating or pertaining to any of its
Securities for any lawful purpose; provided, however, that it
will not exercise any such right or power in any manner which
would have a material adverse effect on the value of such
Securities;
(ii) Each Company shall be entitled to receive and retain any and all
Dividends and Distributions and disposal proceeds payable in
respect of its Securities;
(iii) The Security Trustee shall execute and deliver, or cause to be
executed and delivered, to each Company, all such proxies,
powers of attorney, dividend orders and other instruments as
such Company may request for the purpose of enabling such
Company to exercise the rights and powers which it is entitled
to exercise pursuant to Clause 5.6(a)(i) above and to receive
the Dividends and Distributions which it is authorized to
receive and retain pursuant to Clause 5.6(a)(ii) above;
(iv) Each Company shall be entitled (a) to collect all payments made
or proceeds received with respect to its Securities and (b)
enforce and prosecute all rights and remedies available under
any of such Securities; and
(v) Each Company shall have the right to dispose of all Securities,
other than Charged Shares.
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(b) Rights after an Event of Default
After the occurrence of an Event of Default which is subsisting, the
Security Trustee and its nominee(s) may at the Security Trustee's
discretion (and in the name of the respective Company or otherwise)
exercise all voting and other rights and powers attached to the
Securities and rights to receive Dividends and Distributions paid on
or to be received or made in respect of the Securities.
6. RELEASE OF SECURITY
6.1 No discharge of security
This Debenture shall be continuing security for the Secured Obligations and
shall not be considered as satisfied or discharged by any intermediate
payment or settlement of all or any of the Secured Obligations or any other
matter or thing whatsoever and shall be binding on each Company until the
date (the "Discharge Date") on which all of its Secured Obligations have
been unconditionally and irrevocably paid or discharged in full to the
satisfaction of all of the Banks.
6.2 Release of security
Following the Discharge Date, or (in the case of disposals of any Secured
Property permitted by the Credit Agreement) prior to the Discharge Date but
in accordance with the Credit Agreement, and at the request and cost of
such Company, the Security Trustee shall, as soon as reasonably practicable
after receipt of such request, release and discharge without recourse,
representation or warranty whatsoever the security created by such Company
pursuant to this Debenture and re-assign without recourse, representation
or warranty whatsoever property and assets assigned to the Security Trustee
by or pursuant to this Debenture to such Company (or as it shall direct),
subject to Clause 6.3 (Reinstatement) and to the rights and claims of any
Person having prior rights over the same. Any release or discharge of the
Debenture or of any of the Secured Obligations shall not release or
discharge such Company from any liability to the Security Trustee for the
Secured Obligations or any other monies which exists independently of this
Debenture.
6.3 Reinstatement
(a) Any reassignment, release, settlement or discharge (whether in respect
of the obligations of a Company or any security for those obligations
or otherwise) other than any such reassignment, release or discharge
in connection with a disposal of Secured Property permitted by the
Credit Agreement shall be conditional upon no payment to, or security
provided to, the Security Trustee or any Bank being avoided or reduced
or required to be restored or paid away by virtue of (i) any
requirement (whether or not having the force of applicable law) or
enactment, whether relating to Dissolution or any similar process of
such Company or otherwise without limitation or (ii) any obligation
(whether or not having the force of applicable law) to give effect to
any preference or priority.
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(b) Where any such reassignment, release, settlement or discharge, or any
other arrangement, is made in whole or in part on the faith of any
payment, security or other arrangement which is or is required to be
avoided or reduced or to be restored or paid away, any such
reassignment, release, settlement or discharge of or other arrangement
in connection with the Secured Property shall ipso facto be treated as
null and void and shall for all purposes be deemed not to have
occurred, and the Security Trustee shall be entitled to recover the
value or amount of any such payment or security and the liability of
such Company under this Debenture shall continue as if the
reassignment, release, settlement, discharge or other arrangement had
not occurred.
7. CONVERSION OF FLOATING CHARGE
7.1 Crystallisation
The Security Trustee may at any time after the occurrence of a Default
which is subsisting by notice in writing to a Company convert the floating
charge referred to in Clause 3.4 (Floating Charge) into a fixed charge as
regards any of the Secured Property of such Company specified in the notice
which the Security Trustee shall reasonably consider to be in danger of
being seized or sold under any form of distress, attachment, execution,
diligence or other process levied or threatened or to be otherwise in
jeopardy.
7.2 Automatic Crystallisation
Notwithstanding Clause 7.1 (Crystallisation by notice) and without
prejudice to any rule of law having a similar effect, the floating charge
shall automatically be converted into a fixed charge with immediate effect
as regards all assets of a Company subject to the floating charge created
by Clause 3.4 (Floating Charge) on:
(a) any of the Secured Property of such Company becoming subject to a
Security Interest (other than a Security Interest created under or
pursuant to this Debenture or which is permitted under the terms of
the Credit Agreement) or being disposed of contrary to the provisions
of this Debenture or the Credit Agreement; or
(b) any Person levying or attempting to levy any distress, execution,
sequestration or other process against any Secured Property of such
Company; or
(c) such Company ceasing to carry on business or to be a going concern; or
(d) the convening of a meeting for the passing of a resolution for the
winding up of such Company or the presentation of a petition to
appoint an administrator in relation to such Company or to wind up
such Company which in the opinion of the Security Trustee is, in each
case, reasonably likely to result in the winding up of such Company or
the appointment of such an administrator.
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8. REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE COMPANIES
Each Company makes the representations, warranties and covenants set out in
this Clause to the Security Trustee.
8.1 Due Incorporation
It is a corporation duly incorporated, validly existing and registered
under the laws of the jurisdiction in which it is incorporated.
8.2 Capacity
It has the necessary power and existence to enter into and perform its
obligations under this Debenture.
8.3 Enforceability
Subject to any necessary registrations being made, this Debenture
constitutes its legal, valid, binding and enforceable obligations except as
such enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability and creates a valid
Security Interest over its Secured Property.
8.4 Authorisations
Subject to any necessary registrations being made, all actions, conditions
and things required to be taken, fulfilled and done (including the
obtaining of any necessary consents or the like) under the laws of England
and Wales in order:
(a) to enable such Company lawfully to enter into and perform and comply
with its obligations under or pursuant to this Debenture and to ensure
that those obligations are valid, legally binding and enforceable
except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to
enforceability;
(b) to enable such Company to create the security and to ensure that the
security is valid, legally binding and enforceable except as such
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability;
(c) to make this Debenture admissible in evidence in the courts of England
and (if different) its jurisdiction of incorporation;
(d) to enable such Company to own its assets and property and to carry on
its business as it is currently being conducted; and
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(e) to ensure that no other party to any agreement or arrangement entered
into by such Company becomes entitled to terminate such agreement as a
consequence of each Company entering into this Debenture,
have been taken, fulfilled and done (or, in the case of consents and the
like, each Company will use all reasonable endeavours to obtain such
consents as soon as is reasonably practicable after the date of this
Debenture and where such consents are obtained will use all reasonable
endeavours to ensure that they remain in full force and effect during the
subsistence of the security constituted by this Debenture).
8.5 Compliance with laws
Its entry into and its performance of and compliance with its obligations
under or pursuant to this Debenture and the creation of the security does
not and will not violate or exceed any borrowing or other powers or
restrictions granted or imposed under or pursuant to:
(a) any applicable law to which it is subject;
(b) any agreement or other instrument binding on it or any of its assets
where such violation or excession is material; or
(c) its Memorandum and Articles of Association, charter or other governing
document.
8.6 Insolvency proceedings
It has not taken any corporate action nor have any other steps been taken
or legal proceedings been started or, to the best of its knowledge and
belief, threatened against it for its Dissolution.
8.7 Properties
To the best of its knowledge and belief, nothing has been done on or in
relation to any of its Properties which constitutes a development within
the meaning of the Planning Acts without any requisite permission having
been obtained and no situation exists in relation to any of its Properties
in respect of which an enforcement notice has been or may be made.
8.8 Environmental licences
It has acquired and maintained all Environmental Licences required by its
use or occupation of the Properties for the conduct of its business as is
currently being carried on and is in substantial compliance with all terms
and conditions of such Environmental Licences and with all other applicable
Environmental Laws and has not done or permitted any act or omission which
might cause any such Environmental Licence to be varied or revoked in each
case to the extent that any such failure to acquire and maintain, non-
compliance, variation or revocation would have a Material Adverse Effect.
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8.9 Dangerous substances
Save as disclosed in writing to the Security Trustee prior to the date of
this Debenture, there has been no discharge, spillage, release or emission
of any prescribed, dangerous, noxious or offensive substance or any
controlled waste on, into or from any of its Properties and no such
substance or waste has been stored or disposed of on or in any of its
Properties (in each case since the later of the date on which the relevant
Property was acquired by it or became a group asset) except in accordance
with the requirements of the applicable Environmental Laws.
8.10 Environmental liability
It is not in breach of and has not incurred or become subject to any civil
or criminal liability under any Environmental Law or the terms of any
Environmental Licence which would in each case have a Material Adverse
Effect.
8.11 Insurance policies
It has obtained and maintained all such insurance policies as are customary
in the case of prudent companies carrying on business of the type carried
on by such Company.
8.12 Charged shares
All its Charged Shares are duly authorised and validly issued, fully paid
and non-assessable and it beneficially owns that percentage of the issued
and outstanding shares of the relevant Charged Share Issuer(s) set forth in
Schedule 3 (Charged Shares).
9. SPECIFIC COVENANTS
9.1 Specific covenants
Save with the prior written consent of the Security Trustee, each Company
shall at all times during the subsistence of this Debenture:
(a) Properties
(i) keep its Properties and all other Tangible Moveable Property
which is material to the conduct of its business in good working
order and condition (ordinary wear and tear excepted);
(ii) observe, perform and comply in all material respects with the
restrictive and other covenants and stipulations affecting its
Properties or otherwise affecting any of the Secured Property
which is material to the conduct of its business or its use or
enjoyment insofar as they are subsisting and capable of being
enforced;
(iii) not do or permit any act or omission which may cause any Secured
Property which is material to the conduct of its business to be
surrendered or forfeited or such Company's interest or estate in
or title to or the value of the same to be materially adversely
affected or which
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may cause the rent under any lease, credit, sale, rental, time
purchase, licence or similar arrangement to be materially
increased except as a result of a rent review or on a renewal
of any lease;
(iv) not do or suffer to be done on its Properties anything which
shall be or be deemed to be development, demolition,
rebuilding, alteration, addition (other than any alteration or
addition which affects only the interior of the building or
does not materially affect the external appearance of the
building) or a change of use within the meaning of the Planning
Acts nor sever or unfix or remove any of the fixtures from any
of the Properties nor remove any of the plant or machinery
(other than stock-in-trade or work in progress) on or in the
Properties (except for the purpose and in the course of
effecting necessary repairs to such plant and machinery, or of
replacing the same with new or improved models or substitutes,
or where such plant and machinery is removed and moved to
another Property or deposing of obsolete machinery if permitted
by the Credit Agreement);
(v) duly and punctually pay or cause to be paid all existing and
future taxes payable in respect of such Company's business,
property and assets other than taxes the validity of which it
is contesting in good faith and by appropriate proceedings
where adequate reserves have been set aside on its books with
respect thereto;
(vi) not enter into onerous or restrictive obligations affecting any
of its Properties or any part of them or create or permit to
arise any overriding interest or any easement or right
whatsoever in or over them save, in each case, as necessary or
desirable for the operation of its business;
(vii) notify the Security Trustee promptly of any proposal, contract,
conveyance, transfer or other disposition for the acquisition
by such Company or any nominee on its behalf of any freehold,
leasehold or other immovable property; and
(viii) in the case of any freehold, leasehold or other immovable
property acquired by such Company or any nominee on its behalf
after the execution of this Debenture forming part of the
Secured Property title to which (either before or after the
acquisition of the same) is registered under the Land
Registration Acts 1925 to 1997, promptly notify the Security
Trustee of the title number(s) and contemporaneously with the
making of an application to H.M. Land Registry for the
registration of each Company or its nominee (as the case may
be) as the Registered Proprietor of the same apply to H.M.
Chief Land Registrar to enter a Notice of this Debenture on the
Charges Register of such property;
(b) Insurances
(i) maintain, and cause each of its Subsidiaries to maintain, with
responsible and reputable insurers, insurance in such amounts
and
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covering such risks as is usually maintained by companies
engaged in similar businesses and owning similar properties,
similarly situated with the Security Trustee's interest noted
on the polices relating to such insurance;
(ii) comply with all material terms and conditions of the above
insurance policies including without limitation any
stipulations or restrictions as to use or operation of any
asset and not to do or (in so far as within its power to
prevent the same) permit anything to be done which may make
void or voidable any insurance effected or maintained by it
pursuant to any Loan Documents;
(iii) duly and promptly pay all premiums and other monies necessary
for effecting and maintaining such insurances and, upon request
produce to the Security Trustee a copy or sufficient extract of
every such policy together with the receipts for the current
premiums or other evidence of payment within 14 days after
their becoming due; and
(iv) if required by the Security Trustee, subject to the provisions
of any lease of all or any of its Secured Property, deliver to
the Security Trustee all policies of insurance relating to the
same or produce the same to the Security Trustee and/or its
representatives or agents for inspection; and
(v) use all reasonable endeavours to ensure that each policy of
insurance relating to its Secured Property contains:
(A) an agreement by the insurer that the insurance effected
shall not be invalidated or prejudiced so far as the
Security Trustee is concerned by any breach of the
insuring conditions or any other act or omission unknown
to or beyond the control of the Security Trustee on the
part of such Company or any tenant, lessee or licensee of
any Secured Property;
(B) an undertaking by the insurer to notify the Security
Trustee promptly in writing if the premium or other monies
payable under such policy are not paid when due and to
refrain from cancelling such policy by reason only of the
non-payment of such monies for a period of at least 30
days from the due date; and
(C) a provision under which whilst an Event of Default is
continuing which is notified to the insurer by either the
Security Trustee or the relevant Company the proceeds of
the insurance are payable to the Security Trustee until
such time as the Security Trustee notifies the insurer to
the contrary;
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(c) Access
(i) permit the Security Trustee and/or its representatives or
agents at all reasonable times and on reasonable notice to
inspect and take copies from the books, accounts and records of
such Company and pay all expenses reasonably incurred by the
Security Trustee in connection with the above; and
(ii) grant the Security Trustee and/or its legal or other advisers
on request all reasonable facilities to enable it or them to
carry out at such Company's expense such investigation of title
to any of its Properties and enquiries into matters in
connection with the same as would be carried out by a prudent
mortgagee;
(d) Leases
(i) in relation to any lease or tenancy agreement to which its
Secured Property may be subject for the time being, observe and
perform in all material respects the covenants on the part of
the lessor and enforce the performance and observance in all
material respects of the lessee's covenants and conditions each
contained in such lease or tenancy agreement, efficiently
manage the premises demised by such lease or tenancy agreement
and not grant any licence, waiver, consent or approval under,
or agree any material variation to the terms of, or any
downward rent review under, such lease or tenancy agreement
without the prior written consent of the Security Trustee (such
consent not to be unreasonably withheld or delayed) (it being
acknowledged that such Company may agree an upward rent review
in relation to any lease or tenancy agreement to which its
Secured Property may be subject for the time being without the
consent of the Security Trustee) and from time to time on
demand supply to the Security Trustee such information in
relation to the above as the Security Trustee reasonably
requests; and
(ii) in relation to any lease or tenancy agreement under which its
Secured Property may be held, observe and perform in all
material respects the covenants on the part of the lessee and
enforce the performance and observance in all material respects
of the lessor's covenants and conditions each contained in such
lease or tenancy agreement, duly and efficiently (for the
lessee's benefit) negotiate and deal with any upward rent
review (it being acknowledged that such Company may agree a
downward rent review without the consent of the Security
Trustee) (such consent not to be unreasonably withheld or
delayed), notify the Security Trustee promptly of any matter or
event under or by reason of which such lease has or may become
subject to determination or to the exercise by the lessor of
any right of re-entry or forfeiture, if reasonably required by
the Security Trustee, pursue diligently applications for relief
from forfeiture of any lease and from time to time on demand
supply to the Security Trustee such information in relation to
the above as the Security Trustee reasonably requests; and
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(e) Compliance with laws
comply in all material respects with the provisions of all applicable
laws and every notice, order, direction, licence or permission given
or made under such applicable laws (including all applicable
Environmental Laws and Environmental Licences) so far as any of the
same shall relate to its assets or their user or anything done on its
Properties;
(f) Planning
not make any application for planning permission or implement any
planning permission obtained and not enter into or agree to enter into
any agreement under Section 106 of the Town and Country Planning Act
1990, Section 33 of the Local Government (Miscellaneous Provisions)
Act 1982 or Section 38 of the Highways Act 1980 or any other similar
act, not do or suffer to be done any act, matter or thing prohibited
by, or omit or suffer to be omitted any act, matter or thing required
to be done by, the Planning Acts or any other applicable law so far as
they affect each of its Properties or the user thereof;
(g) Notices
within 43 business days of the receipt of any notice, order,
direction, designation, resolution or proposal having application to
its Secured Property or to the area in which it is situate from any
planning authority or other public body or authority under or by
virtue of the Planning Acts, any Environmental Law or any other
applicable law which is likely to materially affect the value of the
relevant Secured Property, give full particulars (and, if requested, a
copy of any written particulars received by each Company) to the
Security Trustee and, if required by the Security Trustee, without
delay take all reasonable and necessary steps to comply with the same
and at the request of the Security Trustee and at the expense of each
Company make such objections or representations against or in respect
of the same as the Security Trustee shall deem expedient;
(h) Tangible Movable Property
(i) provide a full, complete and accurate list of all Tangible
Moveable Property owned by such company to the Security Trustee
within 60 days of the date of this Debenture (or, in the case
of an Additional Company, within 60 days of such Additional
Company's execution and delivery of a Deed of Accession) and
upon the request of the Security Trustee place and maintain on
each item of Tangible Movable Property the net book value of
which exceeds (Pounds)50,000 and which is notified to each
Company by the Security Trustee on or after the date of this
Debenture (within 60 days of receipt of such notification) in a
conspicuous place, an identification marking in such form as
the Security Trustee shall reasonably require and not conceal,
alter or remove the marking or permit it to be concealed,
altered or removed; and
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(ii) keep each such item of Tangible Movable Property on or in a
Property or at such location as may from time to time be
approved in writing by the Security Trustee and not remove any
such item from such locations (except for the purpose of
effecting necessary repairs to the same and then only to
another location in England and Wales previously notified in
writing to the Security Trustee);
(i) Securities
promptly pay when due all calls, instalments or other monies which may
from time to time become due in respect of any of its Securities and,
in the case of any default by such Company in this regard, the
Security Trustee may, at its discretion, make such payment on behalf
of such Company, it being acknowledged by such Company that the
Security Trustee shall not in any circumstances incur any liability
whatsoever in respect of any such calls, instalments or other monies;
(j) Deposit of deeds
subject to the Intercreditor Agreement, if the Security Trustee so
requires, deposit with the Security Trustee, or procure the deposit
with the Security Trustee of, all deeds and documents of title and all
local land charges and land registry search certificates, planning
consents and the like relating to its Properties;
(k) Records
keep its books of account and prepare all financial statements in
accordance with accounting principles generally accepted in its
jurisdiction of incorporation consistently applied and procure that
there is furnished to the Security Trustee such information, financial
or otherwise, as the Security Trustee may from time to time reasonably
request regarding the affairs of such Company;
(l) General
conduct and carry on its business and to procure that its Subsidiaries
conduct and carry on their businesses in a proper and efficient manner
and not take any step or omit to take any step the taking or omission
of which might have a material adverse effect on the value of such
Company's goodwill.
9.2 Intellectual Property
(a) Acquisition
Each Company shall promptly notify the Security Trustee of its
acquisition of, or agreement to acquire, (by licence or otherwise) any
material Intellectual Property, and any application by it or on its
behalf to register any such material Intellectual Property. If any
Company successfully registers any such Intellectual Property in the
United Kingdom or elsewhere other than that material Intellectual
Property existing at the date of this Debenture or the date
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of any Deed of Accession (as appropriate), then that Company shall
promptly inform the Security Trustee of such successful registration.
(b) Grant
Save as permitted under the Credit Agreement no Company shall without
the prior written consent of the Security Trustee grant any exclusive
licence in relation to any of its present or future Intellectual
Property provided that nothing in this Clause 9.2(b) shall prevent any
Company from granting any non-exclusive licence in relation to any
Intellectual Property whether or not such licence is royalty bearing.
(c) Covenants relating to the Intellectual Property
Each Company hereby undertakes and covenants with the Security Trustee
that during the subsistence of the security created herein that
Company will:
(i) provide a full, complete and accurate list of all registered
Intellectual Property owned by such Company to the Security
Trustee within 60 days of the date of this Debenture (or, in
the case of an Additional Company, within 60 days of the date
of such Additional Company's execution and delivery of a Deed
of Accession);
(ii) promptly and duly pay all taxes, fees (including, without
limitation, professional fees), assessments, impositions and
outgoings whatsoever (whether imposed by statute or otherwise)
which are payable in respect of the Intellectual Property which
is material to its business or which are necessary to renew or
otherwise maintain the registered status and validity of any
such Intellectual Property which is registered or the subject
of an application for registration;
(iii) promptly notify the Security Trustee if it receives
notification or otherwise becomes aware of any actual,
threatened or suspected infringement of any of the Intellectual
Property which is material to its business, or if it receives
notification of any alleged or suspected infringement of any
third party's trade marks or other intellectual or other rights
arising from the use of any of such Intellectual Property, or
if it receives notification of or otherwise becomes aware of
any actual or threatened cancellation, revocation or
invalidation proceedings in respect of, any of such
Intellectual Property; and
(iv) take all such steps, including the commencement of legal
proceedings, as may be necessary to safeguard and maintain the
validity, registration or subsistence of the Intellectual
Property which is material to its business and, without
prejudice to the generality of the foregoing, consult with and
comply with the reasonable requests of the Security Trustee
relating to any legal proceedings necessary to discharge its
obligations pursuant to this sub-Clause or for the defence of
any legal proceedings brought by any third party relating to or
affecting the Intellectual Property which is material to its
business and it shall not settle or compromise any such
proceedings without first obtaining the
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consent of the Security Trustee (such consent not to be
unreasonably withheld or delayed).
(d) Registration of this Debenture
Each Company acknowledges the right of the Security Trustee or any
Delegate to apply to the Comptroller-General of Patents, Designs and
Trade Marks for the purpose of registration of the charges created by
this Debenture over the Intellectual Property pursuant to the
provisions of the Trade Marks Act 1994, the Patents Act 1997 and the
Registered Designs Act 1949 and to register this Debenture in such
other register or registers with such other authorities as may be
available for the purpose, whether in the United Kingdom or elsewhere,
necessary to perfect the creation of such charge and in such name or
names as may be required by the law of the place of registration, in
each case, recording the terms of the charges created by this
Debenture over the Intellectual Property and restrictions set out in
Clause 9.2(e) (Restrictions relating to the Intellectual Property).
(e) Restrictions relating to the Intellectual Property
Without prejudice and in addition to Clause 4.5 (Further Assurances),
each Company undertakes to the Security Trustee that it will not
without the prior written consent of the Security Trustee (such
consent not to be unreasonably withheld or delayed):
(i) permit any of the Intellectual Property which is material to
its business to lapse for non-payment of any renewal or other
fee necessary to maintain (if registered) the registration and
validity of such Intellectual Property or abandon, cancel or
allow any such Intellectual Property to become void, lapse or
to become vulnerable to revocation for non-use or otherwise;
(ii) permit any trade marks or service marks which are part of the
Intellectual Property which is material to its business to be
used in such a way that they are put at risk by becoming
generic;
(iii) save as permitted by the Credit Agreement dispose of any of the
Intellectual Property which is material to its business without
the prior written consent of the Security Trustee;
(iv) except for the security created by this Debenture (and save as
permitted by the Credit Agreement or the Intercreditor
Agreement), create or permit to subsist any Security Interest
in or over any of the Intellectual Property which is material
to its business;
(v) apply to change the specification of any of the Intellectual
Property which is material to its business or permit any
disclaimer, condition, restriction or memorandum to be entered
on the Register of Trade Marks or the Register of Patents (as
the case may be) the effect of which will or may be to
materially and detrimentally affect the value of any of such
Intellectual Property; and
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(vi) do or cause or permit to be done anything which may in any way
depreciate, jeopardise or otherwise materially prejudice the
value to the Security Trustee of any of the Intellectual
Property which is material to its business.
9.3 Evidence of compliance
Each Company shall at any time during the subsistence of the security
created by this Debenture and if the Security Trustee so requires, give to
the Security Trustee evidence sufficient to satisfy it (acting reasonably)
that the provisions of this Clause 9 (Specific Covenants) have been
complied with.
9.4 Limitation on powers
None of the covenants in Clause 9 (Specific Covenants) shall be construed
as limiting any powers exercisable by any Receiver under this Debenture.
10. POWER TO REMEDY
10.1 Entry to Property
Each Company shall permit the Security Trustee and its agents and
contractors at reasonable times and upon reasonable notice to enter into or
upon any Property of such Company or at any time if an Event of Default is
continuing and has not been waived by the Security Trustee:
(a) to view the state and condition thereof or of any of the tangible
Secured Property of such Company which is on or in such Property;
(b) to comply with any direction or notice served on such Company; and
(c) to carry out at the expense of such Company any repairs or take any
action which the Security Trustee shall reasonably consider necessary
or desirable in connection with any Properties of such Company to
procure compliance with any covenant or obligation in this Debenture,
and in any such case without becoming liable as mortgagee in possession.
10.2 Power to Remedy
If a Company fails to comply with any of the covenants contained in Clause
9 (Specific Covenants), such Company shall allow (and hereby irrevocably
authorises) the Security Trustee and/or such Persons as it shall nominate
to take such action on behalf of such Company as shall be necessary to
ensure that such covenants are complied with.
10.3 Insurance
Without limitation to Clause 10.2 (Power to Remedy), if a Company shall be
in default of effecting or maintaining insurances or in producing certified
copies of any such policy or receipt to the Security Trustee, the Security
Trustee may (but shall not
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be obliged to) take out or renew such insurances in any sum which the
Security Trustee may reasonably think expedient.
10.4 Indemnity
Each Company shall on demand indemnify the Security Trustee on a full
indemnity basis in respect of any costs, damages and expenses reasonably
incurred by the Security Trustee pursuant to this Clause in relation to
such Company together with interest at the Default Rate from the date of
payment by the Security Trustee until repayment whether before or after
judgment and any such costs, damages and expenses and the interest thereon
shall be charged on the Secured Property of such Company.
10.5 No Obligation to Remedy
Notwithstanding the provisions of this Clause 10 (Power to Remedy) the
Security Trustee shall not, at any time, be under any obligation to
undertake or commission any remedial environmental or clean-up work in
relation to any of the Properties.
11. POWERS OF LEASING
11.1 Prohibition on Exercise of Powers by a Company
Following an Event of Default which is subsisting, each Company shall
neither exercise the powers of leasing or accepting surrenders of leases
conferred upon a mortgagor in possession by Sections 99 and 100 of the LPA
nor any other powers of leasing, surrendering or accepting surrenders of
leases vested in such Company nor shall such Company confer on any Person
any contractual licence to occupy or any other right or interest in any of
its property or grant any licence or consent to assign, underlet or part
with possession or occupation of the whole or any part of them without the
prior written consent of the Security Trustee and in granting its consent
the Security Trustee shall be entitled to require that an order be obtained
under Section 38(4) of the Landlord and Tenant Act 1954 excluding the
security of tenure provisions of that Act as a pre-condition to the
granting of any lease.
11.2 Powers of Security Trustee
In addition to the powers of leasing or accepting surrender of leases
conferred on mortgagees by Sections 99 and 100 of the LPA, the Security
Trustee may at any time after the occurrence of an Event of Default and
provided that such Event of Default is continuing on such terms as it shall
in its absolute discretion think fit:
(a) grant or make any agreement for any lease of the Secured Property or
of any part thereof for any term or terms of years either in
possession or reversion and either with or without taking a premium
and at yearly or other rents;
(b) surrender or accept a surrender of any lease of the Secured Property
or of any part thereof; and
(c) grant any option in respect of the Secured Property or any part
thereof,
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in each case without the restrictions contained in Sections 99 and 100 of
the LPA.
12. ENFORCEMENT
12.1 Event of Default
If an Event of Default has occurred and is continuing then the security
hereby constituted shall become immediately enforceable and the power of
sale and other powers conferred by Section 101 of the LPA as varied or
extended by this Debenture shall become immediately exercisable without the
restrictions contained in the LPA as to the giving of notice or otherwise.
12.2 Exclusion of Provisions of LPA
The Secured Obligations shall be deemed for the purposes of all powers
implied by statute to have become due and payable within the meaning of
Section 101 of the LPA immediately on the execution of this Debenture and
Section 103 of the LPA (restricting the power of sale) Section 109 of the
LPA (restricting the power to appoint a receiver) and Section 93 of the LPA
(restricting the right of consolidation) shall not apply to this Debenture
or any security given pursuant to this Debenture.
12.3 Consolidation
The restriction on the consolidation of mortgages imposed by Section 93 of
the LPA shall not apply to this Debenture or to any security given to the
Security Trustee pursuant to this Debenture.
12.4 Powers of Mortgagee
The powers conferred on mortgagees or receivers or administrative receivers
by the LPA and the Insolvency Act 1986 (as the case may be) shall apply to
the security constituted by this Debenture except insofar as they are
expressly or impliedly excluded and where there is ambiguity or conflict
between the powers contained in such Acts and those contained in this
Debenture, then this Debenture shall prevail.
12.5 Power of Sale
The statutory power of sale exercisable by the Security Trustee under this
Debenture is hereby extended so as to authorise the Security Trustee to
sever any fixtures from the property to which they are attached and sell
them separately from such property.
12.6 Exercise of Powers
All or any of the powers conferred upon mortgagees by the LPA as hereby
varied or extended and all or any of the rights and powers conferred by
this Debenture on a Receiver (whether expressly or impliedly) may be
exercised by the Security Trustee without further notice to any Company at
any time after this security shall have become enforceable and the Security
Trustee may exercise such rights and powers irrespective of whether the
Security Trustee has taken possession or has appointed a Receiver of the
Secured Property.
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13. PROTECTION OF THIRD PARTIES
13.1 Protection of Third Parties
No purchaser, mortgagee or other Person dealing with a Receiver or the
Security Trustee shall be concerned to enquire whether the Secured
Obligations have become payable or whether any power which he or it is
purporting to exercise has become exercisable or whether any money is due
under this Debenture or as to the application of any money paid, raised or
borrowed or as to the propriety or regularity of any sale by or other
dealing with such Receiver or the Security Trustee. All the protection to
purchasers contained in Sections 104 and 107 of the LPA shall apply to any
Person purchasing from or dealing with a Receiver or the Security Trustee
as if the Secured Obligations had become due and the statutory powers of
sale and of appointing a Receiver in relation to the Secured Property had
arisen on the date of this Debenture.
13.2 Receipts Conclusive
The receipt of the Security Trustee or any Receiver shall be an absolute
and a conclusive discharge to a purchaser and shall relieve him of any
obligation to see to the application of any moneys paid to or by the
direction of the Security Trustee or any Receiver.
13.3 Meaning of Purchaser
In Clauses 13.1 (Protection of Third Parties) and 13.2 (Receipts
Conclusive) "purchaser" includes any Person acquiring, for money or money's
worth, any lease of, or Security Interest over, or any other interest or
right whatsoever in relation to, the Secured Property.
14. APPOINTMENT OF RECEIVER
14.1 Appointment
At any time after the security constituted by this Debenture has become
enforceable or if any Company so requests in writing at any time the
Security Trustee may without further notice to such Company appoint by
writing under hand of a duly authorised officer or under seal any one or
more Persons qualified to act as a receiver, receiver and manager or
administrative receiver (as the case may require) under the Insolvency Act
1986 either singly, jointly, severally or jointly and severally to be a
Receiver of all or any part of the Secured Property of such Company and
either at the time of appointment or any time thereafter may fix his or
their remuneration and except as otherwise required by statute may remove
any such Receiver and appoint another or others in his or their place.
14.2 Powers
Any Receiver of a Company whether appointed solely or jointly shall have
the powers granted by the LPA to any receiver appointed under it and all
the powers of an administrative receiver under the Insolvency Act 1986 and
in addition shall have power to do the following:
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(a) enter upon, take possession of, collect and get in the Secured
Property in respect of which he may be appointed or any part of them
and to collect and get in all rents and other income whether accrued
before or after the date of his appointment and for those purposes to
make such demands and take such actions or proceedings as may seem
expedient and to take possession of such Secured Property;
(b) comply with and perform all or any of the acts, matters, omissions or
things covenanted to be done or omitted by such Company under this
Debenture;
(c) carry on, manage, develop, reconstruct, amalgamate or diversify the
business of such Company or any part thereof in such manner as he
shall in his discretion think fit (including, without prejudice to the
generality of the foregoing to purchase supplies and materials);
(d) sell by public auction or private contract or let all or any part of
the Secured Property of such Company and to let, on hire, lease,
surrender and accept surrenders of leases and tenancies, grant rights,
licences, options or easements of, exchange all or any part of, and
otherwise deal with or dispose of, and exercise all rights, powers and
discretions incidental to, the ownership of, any of such Secured
Property in the name of and on behalf of such Company or otherwise or
concur in doing any of the foregoing in such manner and generally on
such terms and conditions and for such consideration (whether in cash,
debentures or other obligations, shares, stocks, securities or other
valuable consideration and whether payable by a lump sum or by
instalments) as he may think fit and carry out any such sale by
conveying by deed or transferring in the name and on behalf of such
Company or otherwise, and so that plant machinery and other fixtures
and fittings may be severed and sold separately from the premises
containing them, and the Receiver may apportion any rent and the
performance of any obligations;
(e) repair, decorate, furnish, maintain, alter, improve, renew or add to
the Secured Property of such Company or any part of them as he shall
think fit and effect, maintain, renew or increase indemnity insurance
and other insurances and obtain bonds;
(f) appoint or dismiss managers, agents, officers, employees, servants,
builders or workmen and employ professional advisers and others at
such salaries or for such remuneration as he may think fit;
(g) perform, repudiate, rescind, vary or enter into any arrangement or
compromise any contracts or agreements which he may consider
expedient;
(h) settle, arrange, compromise and submit to arbitration any accounts,
claims, questions or disputes whatsoever which may arise in connection
with the business of such Company or any of the Secured Property of
such Company or in any way relating to the security constituted by
this Debenture and bring, prosecute, defend, enforce, compromise
submit to and discontinue any Proceedings or arbitrations whatsoever
whether civil or criminal;
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(i) enter into, complete, disclaim, abandon or disregard, determine or
rectify all or any of the outstanding contracts or arrangements of
such Company and allow time for payment of any debts either with or
without security;
(j) make calls upon the shareholder of such Company in respect of any
capital of such Company which may be uncalled;
(k) use the name of such Company in the exercise of all or any of the
powers conferred by this Debenture;
(l) exercise or permit such Company or any nominee of such Company to
exercise any powers or rights incidental to the ownership of the
Secured Property of such Company or any part of them in such manner as
he may think fit;
(m) form a Subsidiary or Subsidiaries of such Company and transfer lease
or licence to any such Subsidiary or any other Person all or any part
of the Secured Property of such Company on such terms and conditions
as he may think fit;
(n) in the exercise of any of the powers, authorities and discretions
conferred on him in this Debenture or for any other purpose to raise
and borrow money either unsecured or secured and either in priority
to, pari passu with or subsequent to the security constituted by this
Debenture and generally on such terms and conditions as he may think
fit;
(o) give valid receipts for all monies and execute all discharges,
assurances and things which may be proper or desirable for realising
the Secured Property of such Company or any part of them; and
(p) execute and do all such other acts, things and deeds as he may
consider necessary or desirable for realising or preserving the
Secured Property of such Company or any part of them or incidental or
conducive to any of the matters, powers or authorities conferred on a
Receiver under or by virtue of this Debenture or otherwise and
exercise in relation to such Secured Property or any part of them all
such powers, authorities and things as he would be capable of
exercising if he were the absolute beneficial owner of them.
14.3 Receiver of a Company
Any Receiver of a Company appointed under this Debenture whether acting
solely or jointly shall be deemed to be the agent of such Company and to be
in the same position as a receiver appointed under the LPA and such Company
shall be solely responsible for his acts, omissions, defaults, losses and
misconduct and for his remuneration and the Security Trustee shall not be
in any way liable or responsible either to such Company or to any other
Person whatsoever for any of them.
14.4 Joint Appointment
If more than one Receiver is appointed each of them shall be entitled to
exercise individually all of the powers given to a Receiver under this
Debenture in relation to
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any of the Secured Property in respect of which he has been appointed
unless the Security Trustee shall state otherwise in the document
appointing him.
14.5 No Limit on Powers of Receiver
None of the covenants in this Clause 14 (Appointment of Receiver) shall be
construed as limiting any powers exercisable by any Receiver under this
Debenture.
14.6 Removal
The Security Trustee may by written notice remove from time to time any
Receiver appointed by it (subject to the provisions of Section 45 of the
Insolvency Act 1986 in the case of an administrative receivership) and,
whenever it may deem appropriate, appoint a new Receiver in the place of
any Receiver whose appointment has terminated, for whatever reason.
14.7 Remuneration
The Security Trustee may from time to time fix the remuneration of any
Receiver appointed by it.
15. APPLICATION OF PROCEEDS
15.1 Application of Proceeds
All cash proceeds received by the Security Trustee in respect of
enforcement, any sale of, collection from, or other realization upon, all
or any part of the Secured Property of a Company shall be applied in
accordance with the provisions of the Intercreditor Agreement.
15.2 Insurance
All monies received by a Company by virtue of any insurance on the Secured
Property, whether or not effected pursuant to this Debenture and whether
the event by virtue of which such monies became payable occurred before on
or after the date of this Debenture, shall be deemed part of the Secured
Property of such Company and (subject to any rights of third parties
arising under any statute for the time being relating to the application of
insurance monies and under any leases under which any property of such
Company is demised or let to or by such Company or under the terms of any
insurances if such terms are incorporated therein in order to comply with
the provisions of any such leases) shall, if an Event of Default has
occurred and is continuing (and has been notified to the relevant Company)
be applied in accordance with the provisions of the Intercreditor
Agreement.
15.3 Suspense Account
The Security Trustee or any Receiver may credit any monies to a suspense
account for so long and in such manner as the Security Trustee or any
Receiver may from time to time determine and the Receiver may retain the
same for such period as the Receiver and the Security Trustee consider
expedient.
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15.4 Exclusions
Sections 109(6) and (8) of the LPA shall not apply to a Receiver appointed
under this Debenture.
16. SECURITY TRUSTEE'S POWERS
16.1 Further Powers
Each Company further covenants and agrees with the Security Trustee that,
without prejudice to any other provision of this Debenture, the Security
Trustee may exercise in the name of such Company or otherwise at any time
after an Event of Default (provided that such Event of Default is
continuing) and without any further consent or authority on the part of
such Company in respect of the Securities held by such Company any voting
rights and all powers given to trustees by Sections 10(3) and (4) of the
Trustee Act 1925 (as amended by Section 9 of the Trustee Investments Act
1961) in respect of securities or property subject to a trust and any
powers or rights which may be exercisable by the Person in whose name any
of the Securities is registered or by the bearer thereof.
16.2 Exercise of Powers
Without prejudice to any other provision of this Debenture, at any time
after an Event of Default (provided that such Event of Default is
continuing) or if requested by a Company the Security Trustee may without
further notice and without first appointing a Receiver exercise all of any
of the powers conferred on mortgagees by the LPA as varied or extended by
this Debenture and all the powers, authorities and discretions conferred
expressly or by implication on any Receiver in this Debenture or conferred
by statute or common law.
16.3 Landlord and Tenants Acts
It shall be lawful for the Security Trustee or any Receiver at any time
after an Event of Default (provided that such Event of Default is
continuing) to exercise for and on behalf of a Company any or all of the
powers conferred on a landlord or tenant by the Landlord and Tenant Acts
1927 and 1954 in respect of the Secured Property of such Company but
without any obligation to exercise any of such powers and without any
liability for powers so exercised and each Company hereby covenants with
the Security Trustee that it will promptly deliver to the Security Trustee
all notices served on such Company in respect of such Secured Property
under the said Acts.
16.4 Entry into Possession
If the Security Trustee or any Receiver shall enter into possession of the
Secured Property or any part thereof, then it or he may from time to time
and at any time go out of such possession. Neither the Security Trustee
nor any Receiver shall in any circumstances be liable to account to a
Company for anything except its or his actual receipts or be liable to such
Company for any loss or damage arising from any realisation of the Secured
Property or any part of it or from any act default or omission in relation
to the Secured Property or any part of it unless such loss or damage shall
be caused by its or his own wilful misconduct or gross negligence.
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17. POWER OF ATTORNEY
Each Company hereby:
(a) irrevocably and by way of security appoints the Security Trustee and
each Receiver appointed hereunder and each of their delegates
severally as its attorney (with full power of substitution and
delegation) in its name and on its behalf and as its act and deed to
execute, seal and deliver (using the corporate seal if appropriate)
and otherwise perfect and complete and do any deed, assurance,
agreement, instrument, or other act or thing which such Company ought
to execute and do under the terms of this Debenture the exercise of
any rights or powers hereunder or otherwise for the purposes of this
Debenture, in each case after the occurrence and during the
continuance of an Event of Default, and such Company hereby covenants
with the Security Trustee to ratify and confirm all acts and things
done by such attorney; and
(b) acknowledges that the power of attorney hereby granted is as regards
each of the Security Trustee and each Receiver granted irrevocably and
for value as part of the security constituted by this Debenture to
secure a proprietary interest in and the performance of obligations
owed to the respective donees within the meaning of the Power of
Attorney Act 1971.
18. REDEMPTION OF PERMITTED SECURITY INTERESTS
In the event of there being a prior Security Interest to the security
created by this Debenture over the Secured Property of a Company or any
part thereof then if any Proceedings or steps are being taken to exercise
or enforce any powers or remedies conferred by such prior Security Interest
against such Secured Property or any part thereof the Security Trustee or
any Receiver appointed under this Debenture in respect of such Secured
Property may (but without prejudice to any rights the Receiver may have
under Section 43 of the Insolvency Act 1986 to apply to the Court for
authorisation to dispose of property secured by a prior charge) redeem such
prior Security Interest or procure its transfer to itself or himself, as
the case may be, and may settle and pass the accounts of any prior
mortgagee, chargee or Security Interest. Any account so settled and passed
shall be conclusive and binding on such Company and all the principal,
money, interest, costs, charges and expenses of and incidental to such
redemption or transfer shall be paid to the Security Trustee on demand with
interest at the Default Rate and until payment such Secured Property shall
stand charged with the amount to be so paid and all the powers, authorities
and discretions conferred by a prior Security Interest upon the mortgagee,
chargee or Security Interest or any receiver thereunder shall be
exercisable by the Security Trustee or a Receiver in like manner as if the
same were expressly included in this Debenture and the Security Trustee
shall be entitled to exercise all the powers authorities and discretions of
a receiver and manager or administrative receiver appointed thereunder.
19. AVOIDANCE OF PAYMENTS
No assurance, security or payment which may be avoided or adjusted under
any enactment relating to bankruptcy or insolvency or under Part VI of the
Insolvency Act 1986 or similar legislation binding on a Company in a
jurisdiction other than England and Wales and no release, settlement or
discharge given or made by the Security
-37-
Trustee on the faith of any such assurance, security or payment shall
prejudice or affect the right of the Security Trustee to recover from such
Company (including the right to recover any monies which it may have been
compelled by due process of law to refund under the provisions of the
Insolvency Act 1986 and any costs payable by it pursuant to or otherwise
incurred in connection with such process) or to enforce the security
created by or pursuant to this Debenture to the full extent of the Secured
Obligations of such Company.
20. DELEGATION
The Security Trustee may at any time and from time to time delegate by
power of attorney or in any other manner to any Persons or Persons all or
any of the powers, authorities and discretions which are for the time being
exercisable by the Security Trustee under this Debenture in relation to the
Secured Property or any part thereof. Any such delegation may be made upon
such terms (including power to sub-delegate) and subject to such
regulations as the Security Trustee may think fit. The Security Trustee
shall not be in any way liable or responsible to any Company for any loss
or damage arising from any act, default, omission or misconduct on the part
of any such delegate or sub-delegate.
21. PROTECTION OF THE SECURITY TRUSTEE, BANKS AND RECEIVER
21.1 No Liability
Neither the Security Trustee, any Bank nor any Receiver shall be liable in
respect of all or any part of the Secured Property or for any loss or
damage which arises out of the exercise or the attempted or purported
exercise of, or the failure to exercise any of, their respective powers,
unless such loss or damage is caused by its or his negligence or wilful
default.
21.2 No Mortgagee in Possession
Without prejudice to the generality of Clause 13.1 (Protection of Third
Parties), entry into possession of the Secured Property shall not render
the Security Trustee, the Banks or any Receiver liable to account as
mortgagee in possession.
22. CUSTODY
The Security Trustee shall be entitled to provide for the safe custody by
third parties of all certificates and documents of title relating to the
Secured Property and shall not be responsible for any loss or damage
occurring to or in respect thereof.
23. COSTS
Each Company shall on demand and on a full indemnity basis pay to the
Security Trustee the amount of all costs and expenses (including legal and
out-of-pocket expenses and any value added tax on such costs and expenses)
which the Security Trustee reasonably incurs in connection with:
(a) the preparation, negotiation, execution and delivery of this
Debenture;
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(b) any stamping or registration of this Debenture;
(c) any actual or proposed amendment of or waiver of consent under or in
connection with this Debenture;
(d) any discharge or release of this Debenture;
(e) the preservation or exercise (or attempted preservation or exercise)
of any rights under or in connection with and the enforcement (or
attempted enforcement) of this Debenture;
(f) dealing with or obtaining advice about any other matter or question
arising out of or in connection with this Debenture, together with
interest at the Default Rate thereon from the date of demand until the
date of payment by such Company whether before or after judgment.
24. INDEMNITY
24.1 General Indemnity
The Security Trustee and every Receiver, attorney, manager, agent or other
Person appointed by the Security Trustee under this Debenture and their
respective employees shall be entitled to be indemnified on a full
indemnity basis out of the Secured Property in respect of all Secured
Obligations and expenses reasonably incurred or suffered by any of them in
or directly or indirectly as a result of the exercise any of the powers,
authorities or discretions vested in them under this Debenture and against
all Proceedings, losses, costs, claims and demands suffered or incurred by
the Security Trustee in respect of any matter or thing done or omitted in
any way relating to the Secured Property, unless such expenses,
Proceedings, losses, costs, claims and demands arise out of its or their
negligence or wilful default. The Security Trustee and any such Receiver
may retain and pay all sums in respect of the same out of any monies
received under the powers conferred by this Debenture.
24.2 Indemnity for Breach
Each Company shall on demand indemnify and keep the Security Trustee
indemnified on a full indemnity basis in respect of all Proceedings,
demands, costs and expenses occasioned by any breach of any of its
covenants or other obligations under this Debenture together with interest
at the Default Rate from the date of payment by the Security Trustee until
repayment whether before or after judgment and any costs, damages, expenses
and other Secured Obligations incurred or sustained by the Security Trustee
by reason of any such breach shall be charged on the Secured Property of
such Company.
25. SET-OFF
25.1 Set-off
Following an Event of Default (provided that such Event of Default is
continuing), the Security Trustee may without notice to a Company combine
or consolidate all or any
-39-
sums standing to the credit of such Company's accounts with the Security
Trustee with the Secured Obligations of such Company and/or set off or
transfer any such sums in or towards the satisfaction of any of such
Secured Obligations, and may do so notwithstanding that the balances on
such accounts and such Secured Obligations may not be expressed in the same
currency, and for the purpose of exercising any rights under this Clause or
rights under general law the Security Trustee is authorised to effect any
necessary conversions at the Security Trustee's own rate of exchange then
prevailing.
25.2 Security Trustee may effect Set-off or Transfer
Each Company irrevocably authorises the Security Trustee in its name and at
its expense to perform such acts and sign such documents as may be required
to give effect to any set-off or transfer pursuant to Clause 25.1 (Set-
off), including the purchase with the money standing to the credit of any
such account of such other currencies as may be necessary to effect such
set-off or transfer.
25.3 Meaning of Rights under General Law
In this Clause "rights under the general law" means any right of set off,
combination or consolidation of accounts, Security Interest or similar
right which the Security Trustee has under any applicable law.
26. NOTICES
26.1 Form
Each communication to be made under this Debenture shall be made in writing
but, unless otherwise stated, may be made by facsimile or letter.
26.2 Made
Any communication or document to be made or delivered by one Person to
another pursuant to this Debenture shall be made or delivered to that other
Person at the address or facsimile identified with its signature below (or,
in the case of any Additional Company, below its signature on the Deed of
Accession executed by it) and shall be deemed to have been made or
delivered when transmitted and electronically confirmed (in the case of any
communications made by facsimile) or (in the case of any communication by
letter) when received, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service;
provided that any communication or document to be made or delivered to the
Security Trustee shall be effective only if the same is expressly marked
for the attention of the department or officer identified with the Security
Trustee's signature below (or such other department or officer as the
Security Trustee shall from time to time specify for this purpose).
26.3 Language
Each communication and document made or delivered by one party to another
pursuant to this Debenture shall be in the English language or accompanied
by a
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translation thereof into English certified (by an officer of the Person
making or delivering the same) as being a true and accurate translation
thereof.
27. TRANSFERS
27.1 Security Trustee
This Debenture is freely assignable or transferable by the Security
Trustee.
27.2 Company
This Debenture shall be binding upon each Company and its successors,
transferees and assigns and shall inure to the benefit of and be
enforceable by each Bank and its respective permitted successors,
transferees and assigns subject to the requirements of the Credit
Agreement; provided, however, that a Company may not assign any of its
obligations hereunder without the prior written consent of all Banks.
27.3 Disclosure
The Security Trustee may disclose to any Person related to the Security
Trustee and/or any Person to whom it is proposing to transfer or assign or
has transferred or assigned this Debenture any information about any
Company.
28. CURRENCY INDEMNITY
If any sum due from any Company under this Debenture or any order or
judgment given or made in relation thereto has to be converted from the
currency (the "first currency") in which the sum is payable thereunder or
under such order or judgment into another currency (the "second currency")
for the purpose of (i) making or filing a claim or proof against such
Company, (ii) obtaining an order or judgment in any court or other tribunal
or (iii) enforcing any order or judgment given or made in relation thereto,
such Company shall indemnify and hold harmless the Banks from and against
any loss suffered as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (b) the rate or rates of
exchange at which the Banks may in the ordinary course of business purchase
the first currency with the second currency upon receipt of a sum paid to
it in satisfaction, in whole or in part, of any such order, judgment, claim
or proof.
29. MISCELLANEOUS
29.1 Property of Security Trustee
This Debenture is and will remain the property of the Security Trustee.
29.2 Security Trustee's Certificate Conclusive
A certificate of the Security Trustee, as to the amount at any time due
from any Company hereunder shall, in the absence of manifest error, be
conclusive for the purposes of this Debenture.
-41-
29.3 No Waiver
No failure on the part of the Security Trustee or any Bank to exercise, and
no delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy hereunder prevent any other or further exercise thereof or the
exercise of any other right or remedy. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies
provided by law. Time shall be of the essence in the performance of
obligations hereunder.
29.4 Severability
Wherever possible each provision of this Debenture shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Debenture shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Debenture.
29.5 Counterparts
This Debenture may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement.
29.6 Governing Law
This Debenture shall be governed by and construed in accordance with
English law.
29.7 Submission of Jurisdiction
Each Company irrevocably agrees for the benefit of each of the Banks that
the courts of England shall have jurisdiction to hear and determine any
Proceedings and to settle any disputes which may arise out of or in
connection with this Debenture and, for such purposes, irrevocably submits
to the jurisdiction of such courts.
29.8 Waiver of Objection
Each Company irrevocably waives any objection which it may have now or
hereafter to the laying of the venue of any Proceedings in any such court
as is referred to in Clause 29.7 (Submission of Jurisdiction) and any claim
that any Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any Proceedings brought in an English
court or in any other court of competent jurisdiction shall be conclusive
and binding upon it and may be enforced in the courts of any other
jurisdiction.
29.9 General Consent
Each Company consents generally in respect of any Proceedings arising out
of or in connection with this Debenture to the giving of any relief or the
issue of any process in connection with such Proceedings, including,
without limitation, the making,
-42-
enforcement or execution against any property or assets whatsoever of any
order or judgment which may be made or given in such Proceedings.
29.10 No Limitation of Right to Court Proceedings
The submission to the jurisdiction of the courts referred to in Clause
29.7 (Submission of Jurisdiction) shall not (and shall not be construed so
as to) limit the right of the Banks or any of them to take Proceedings
against any Company in any other court of competent jurisdiction nor shall
the taking of Proceedings in any one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or
not).
29.11 Third Party Rights
A Person who is not a party to this Debenture has no rights under the
Contract (Rights of Third Parties) Act 1999 to enforce or to enjoy the
benefit of any term of this Debenture save that any right pursuant to this
Debenture expressed to be for the benefit of the Banks individually and in
addition to the Security Trustee may be exercised by such Banks
notwithstanding that they are not signatories to this Debenture.
30. ADDITIONAL COMPANIES
30.1 Joinder of Additional Company
Any Person may become party hereto as an Additional Company by
unconditionally delivering or causing to be delivered unconditionally to
the Security Trustee a Deed of Accession duly executed by the parties
thereto and a Guaranty duly executed by such Additional Company in form
and substance satisfactory to the Security Trustee.
30.2 Construing Agreement
Upon delivery to the Security Trustee of any Deed of Accession referred to
in Clause 30.1 (Joinder of Additional Company) and subject to the Security
Trustee being satisfied that the security provided by each of the other
Companies is not adversely affected in any way by the proposed accession
of the Additional Company (and, if any such security may be adversely
affected, that all such action as the Security Trustee may require will
have been taken on or prior to the relevant Deed of Accession taking
effect in order to ensure that any such adverse effect is avoided), this
Debenture shall henceforth be read and construed as if each Person which
is a party to such Deed of Accession as an Additional Company were a party
hereto having all the rights and obligations of a Company hereunder and
all references in this Debenture to "Company" or "Companies" shall be
construed accordingly.
-43-
SCHEDULE 2
Form of Deed of Accession
THIS DEED OF ACCESSION (this "Deed") is made on the [] day of [], [], between:
[(1) [Additional Company] (the "Additional Company");] and
(2) [Security Trustee] on behalf of itself as Security Trustee and on behalf of
the Banks (the "Security Trustee").
WHEREAS
(A) On [] a debenture was executed by certain companies as set out in Schedule
1 thereto in favour of the Security Trustee (the "Debenture"). Pursuant to
Clause 30.1 (Joinder of Additional Company) of the Debenture, any Person
may, become party to the Debenture by executing and delivering a Deed of
Accession, in the form of Schedule 2 to the Debenture and a Guaranty in
form and substance satisfactory to the Security Trustee; and
(B) The Additional Company wishes to become a party to the Debenture as a
Company.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
Save as otherwise defined herein, terms defined in the Debenture shall bear
the same meaning herein.
2. Additional Company
The Debenture shall henceforth be read and construed as if the Additional
Company were party to the Debenture having all the rights and obligations
of a Company thereunder (and all references to "Company" or "Companies")
shall be construed accordingly.
3. Representations
The Additional Company hereby represents and warrants in respect of itself
as if the representations set out in Clause 8 of the Debenture were set out
in full in this Deed.
4. Counterparts
This Deed may be signed in counterparts, all of which taken together shall
constitute a single deed.
5. Law
This Deed shall be governed by, and construed in accordance with, English
law.
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6. Appointment of Process Agent
The Additional Company agrees that the process by which any Proceeding is
begun may be served on it by being delivered in connection with any suit,
action or proceeding in England, to:
[ ] at
[ ]
Telephone: [ ]
Facsimile [ ]
or its principal other place of business for the time being. If the
appointment of the Person mentioned in this Clause 6 ceases to be effective
in respect of the Additional Company, the Additional Company shall
immediately appoint a further Person in England to accept service of
process on its behalf in England and failing such appointment within 15
days, the Security Trustee shall be entitled to appoint such a Person by
notice to Additional Company. Nothing contained herein shall affect the
right to serve process in any other manner permitted by law.
EXECUTED as a Deed on the day and year first before written.
[NB: address for Additional Company]
-46-
Signed as a Deed by APW ENCLOSURE )
PRODUCTS AND SYSTEMS LIMITED )
acting by ________________ and )
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-60-
Signed as a Deed by APW ENCLOSURE
SYSTEMS HOLDINGS LIMITED acting )
by ________________ and )
_____________________________ )
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-61-
Signed as a Deed by APPLIED POWER )
LIMITED acting by ________________ )
and _____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-62-
Signed as a Deed by APW )
ELECTRONICS GROUP PLC acting by )
________________ and )
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-63-
Signed as a Deed by APW
ELECTRONICS LIMITED acting by )
________________ and )
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-64-
Signed as a Deed by WRIGHT LINE )
LIMITED acting by ________________ )
and _____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-65-
Signed as a Deed by APW NEW
FOREST LIMITED acting by )
________________ and )
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-66-
Signed as a Deed by APW POWER )
SUPPLIES LTD acting by )
________________ and
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-67-
Signed as a Deed by APW ENCLOSURE )
SYSTEMS PLC acting by )
________________ and
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-68-
Signed as a Deed by APW ENCLOSURE )
SYSTEMS (UK) LIMITED acting by )
________________ and
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Electron Way
Chandlers Ford
Eastleigh
Hampshire S053 4ZR
Attn: The Company Secretary
Tel: 02380 266300
Fax: 02380 265126
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-69-
Signed as a Deed by TOWERFLAME )
LIMITED acting by ________________ )
and _____________________________
____________________________
Director
____________________________
Director/Secretary
Address: Unit 4 Alpha Park
Bevan Park
Smethwick
West Midlands, B66 1BZ
Attn: David Pumphrey
Tel: 0121 558 2666
Fax: 0121 558 3399
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-70-
Signed as a Deed by AIR CARGO )
EQUIPMENT (UK) LIMITED acting by )
________________ and
_____________________________
____________________________
Director
____________________________
Director/Secretary
Address: 4 Bevan Way
Smethwick
West Midlands, B66 1BZ
Attn: David Pumphrey
Tel: 0121 558 2666
Fax: 0121 558 3399
cc: Rick Carroll
APW
N22 W23685 Ridge View Parkway West
Waukesha
Wisconsin, WI 53188
USA
Tel: 001 262 523 7600
Fax: 001 262 523 7590
-71-
SIGNED by for and on behalf of Security )
Trustee: )
____________________________
Signature
____________________________
Name Printed
____________________________
Title:
Address: 555 South Flower Street
11th Floor Mail Code
(CA9-706-11-21)
Los Angeles
CA 90071
USA
Attn: M. Duncan McDuffie
Tel: 001 213 228 2609
Fax: 001 213 228 6003
-72-