Exhibit 4.10
Dated May 2001
THE COMPANIES SET OUT IN SCHEDULE 1
and the Additional Companies party
hereto from time to time,
as the Companies
and
THE ROYAL BANK OF SCOTLAND, PLC
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
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION........................1
1.1 Definitions......................................1
1.2 Interpretation...................................5
1.3 Credit Agreements................................6
1.4 Finance Documents................................6
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...........................9
3.6 Failure of assignment...........................10
3.7 Assignment of insurances........................10
4. PERFECTION OF SECURITY AND FURTHER ASSURANCE.........10
4.1 Notice of Assignment............................10
4.2 Collection of Debts and Related Matters.........11
4.3 Notice of charge................................11
4.4 Application to H.M. Chief Land Registrar........12
4.5 Further Assurances..............................12
4.6 Charged Shares..................................12
4.7 Covenants for title.............................13
4.8 Additions to this Debenture.....................13
4.9 Security Trustee not to give notice.............13
5. GENERAL SECURITY PROVISIONS..........................13
5.1 Additional Security.............................13
5.2 Immediate Recourse..............................14
5.3 Waiver of Defences..............................14
5.4 Non-Competition.................................15
5.5 Trust Operation.................................15
5.6 Rights Attaching to the Securities..............15
6. RELEASE OF SECURITY..................................16
6.1 No discharge of security........................16
6.2 Release of security.............................16
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TABLE OF CONTENTS
(continued)
Clause Page
6.3 Reinstatement......................................... 16
7. CONVERSION OF FLOATING CHARGE.............................. 17
7.1 Crystallisation....................................... 17
7.2 Automatic Crystallisation............................. 17
8. REPRESENTATIONS, WARRANTIES AND COVENANTS BY
THE COMPANIES.............................................. 18
8.1 Due Incorporation..................................... 18
8.2 Capacity.............................................. 18
8.3 Enforceability........................................ 18
8.4 Authorisations........................................ 18
8.5 Compliance with laws.................................. 19
8.6 Insolvency proceedings................................ 19
8.7 Properties............................................ 19
8.8 Environmental licences................................ 19
8.9 Dangerous substances.................................. 20
8.10 Environmental liability............................... 20
8.11 Insurance policies.................................... 20
8.12 Charged shares........................................ 20
9. SPECIFIC COVENANTS......................................... 20
9.1 Specific covenants.................................... 20
9.2 Intellectual Property................................. 25
9.3 Evidence of compliance................................ 27
9.4 Limitation on powers.................................. 28
10. POWER TO REMEDY............................................ 28
10.1 Entry to Property..................................... 28
10.2 Power to Remedy....................................... 28
10.3 Insurance............................................. 28
10.4 Indemnity............................................. 28
10.5 No Obligation to Remedy............................... 29
11. POWERS OF LEASING.......................................... 29
11.1 Prohibition on Exercise of Powers by a Company........ 29
11.2 Powers of Security Trustee............................ 29
12. ENFORCEMENT................................................ 29
12.1 Event of Default...................................... 29
12.2 Exclusion of Provisions of LPA........................ 30
12.3 Consolidation......................................... 30
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TABLE OF CONTENTS
(continued)
Clause Page
12.4 Powers of Mortgagee.................................. 30
12.5 Power of Sale........................................ 30
12.6 Exercise of Powers................................... 30
13. PROTECTION OF THIRD PARTIES................................ 30
13.1 Protection of Third Parties.......................... 30
13.2 Receipts Conclusive.................................. 31
13.3 Meaning of Purchaser................................. 31
14. APPOINTMENT OF RECEIVER.................................... 31
14.1 Appointment.......................................... 31
14.2 Powers............................................... 31
14.3 Receiver of a Company................................ 33
14.4 Joint Appointment.................................... 33
14.5 No Limit on Powers of Receiver....................... 33
14.6 Removal.............................................. 33
14.7 Remuneration......................................... 34
15. APPLICATION OF PROCEEDS.................................... 34
15.1 Application of Proceeds.............................. 34
15.2 Insurance............................................ 34
15.3 Suspense Account..................................... 34
15.4 Exclusions........................................... 34
16. SECURITY TRUSTEE'S POWERS.................................. 34
16.1 Further Powers....................................... 34
16.2 Exercise of Powers................................... 35
16.3 Landlord and Tenants Acts............................ 35
16.4 Entry into Possession................................ 35
17. POWER OF ATTORNEY.......................................... 35
18. REDEMPTION OF PERMITTED SECURITY INTERESTS................. 36
19. AVOIDANCE OF PAYMENTS...................................... 36
20. DELEGATION................................................. 37
21. PROTECTION OF THE SECURITY TRUSTEE, BANKS AND
RECEIVER................................................... 37
21.1 No Liability......................................... 37
21.2 No Mortgagee in Possession........................... 37
22. CUSTODY.................................................... 37
23. COSTS...................................................... 37
24. INDEMNITY.................................................. 38
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TABLE OF CONTENTS
(continued)
Clause Page
24.1 General Indemnity................................... 38
24.2 Indemnity for Breach................................ 38
25. SET-OFF.................................................... 38
25.1 Set-off............................................. 38
25.2 Security Trustee may effect Set-off or Transfer..... 39
25.3 Meaning of Rights under General Law................. 39
26. NOTICES.................................................... 39
26.1 Form................................................ 39
26.2 Made................................................ 39
26.3 Language............................................ 39
27. TRANSFERS.................................................. 40
27.1 Security Trustee.................................... 40
27.2 Company............................................. 40
27.3 Disclosure.......................................... 40
28. CURRENCY INDEMNITY......................................... 40
29. MISCELLANEOUS.............................................. 40
29.1 Property of Security Trustee........................ 40
29.2 Security Trustee's Certificate Conclusive........... 40
29.3 No Waiver........................................... 40
29.4 Severability........................................ 41
29.5 Counterparts........................................ 41
29.6 Governing Law....................................... 41
29.7 Submission of Jurisdiction.......................... 41
29.8 Waiver of Objection................................. 41
29.9 General Consent..................................... 41
29.10 No Limitation of Right to Court Proceedings......... 42
29.11 Third Party Rights.................................. 42
30. ADDITIONAL COMPANIES....................................... 42
30.1 Joinder of Additional Company....................... 42
30.2 Construing Agreement................................ 42
SCHEDULE
SCHEDULE 1 THE COMPANIES
SCHEDULE 2 FORM OF DEED OF ACCESSION
SCHEDULE 3 CHARGED SHARES
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TABLE OF CONTENTS
(continued)
Clause Page
SCHEDULE 4 FORM OF NOTICE TO COUNTERPARTIES OF ASSIGNED AGREEMENTS
SCHEDULE 5 GUARANTEES
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 May 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. THE ROYAL BANK OF SCOTLAND, PLC as Security Trustee for the Banks (as
defined below) pursuant to the Consent (the "Security Trustee").
RECITALS
WHEREAS:
1. Pursuant to the Credit Agreements, RBS and NatWest (the "Banks") have
agreed to make loan and other facilities to the borrowers under the Credit
Agreement (the "Borrowers");
2. The Parent and certain of its subsidiaries and affiliates have executed and
delivered guarantees of certain obligations under the Credit Agreements;
3. The Banks have no obligation at the present time to make additional Loans
under the Credit Agreements;
4. In consideration for additional Loans, or other financial accommodation
heretofore or hereafter made to the Borrowers under or in connection with
the Credit Agreements, 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" means APW Ltd, a company incorporated in Bermuda;
"APW Counter Indemnity" means a counter indemnity granted by APW Ltd in
favour of NatWest and dated 26 April 2001;
"APW-Denmark" means APW Holdings Denmark APS, a Danish corporation;
"APW Group" means APW and its subsidiaries and affiliates as may be the
case from time to time;
"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;
"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 4 May 2001 and made between APW,
APW-NA, APW-Denmark, various financial institutions, Bank One NA, as
syndication agent, The Chase Manhattan Bank as documentation agent and Bank
of American, NA, as administrative agent;
"Credit Agreements" mean the RBS Facility and the NatWest Facility (as
amended and restated, supplemented or modified from time to time);
"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 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;
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"Default Rate" means the applicable rate determined pursuant to Clause 4.9
(Overdue Payments) and Clause 17 (Default Interest) of the Natwest Facility
and the RBS Facility respectively;
"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 Clause 16 of the RBS
Facility and Clause 14 of the NatWest Facility;
"Finance Documents" mean the UK Finance Documents and the US Finance
Documents.
"Guarantee" means any Guarantee which each Company has either executed and
delivered in favour of RBS or NatWest (as set out in Schedule 5, marked
"Existing Guarantees"), or will execute and deliver simultaneously with its
execution of this Debenture, in favour of the Security Trustee or NatWest
(as set out in Schedule 5, marked "New Guarantees"), or the Guarantee 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 which, in each case, certain obligations of the Parent and its
subsidiaries and affiliates are irrevocably, unconditionally and absolutely
guaranteed in full by such Company;
"Guaranties" means the guaranties which each APW Group company incorporated
in the USA, has or will execute and deliver in favour of the Security
Trustee in accordance with Clause 17 (Guarantees and Release of Guarantees)
of the RBS Facility and Clause 17 (Guarantees and Release of Guarantees) of
the NatWest Facility in respect of the obligations of their UK affiliates
under or in respect of their obligations under or in respect of the UK
Finance Documents;
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"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, NA, as administrative agent
under the Multicurrency Credit Agreement, RBS, as agent for itself and
NatWest, RBS in its capacity as Security Trustee under this Debenture, the
companies listed in Schedule 1, and RBS and NatWest;
"LPA" means the Law of Property Act 1925;
"Multicurrency Agreement" means an amended and restated Multicurrency
Credit Agreement dated as of 15 May 2001 (as amended, amended and restated,
supplemented or modified from time to time) between APW as borrower, the
various financial institutions (together) with their respective successors
and assigns), collectively the banks (as defined therein), Bank One N.A. as
syndication agent, The Chase Manhattan Bank as documentation agent and Bank
of America N.A. as administrative agent;
"NatWest" means the National Westminster Bank Plc;
"NatWest Facility" means the multi-line facility agreement entered into
between the Parent and certain of its subsidiaries and affiliates dated 20
April 2000 (as subsequently amended and restated, supplemented or modified
from time to time);
"Notice of Charge" means a notice of charge in the form set out in
Schedule 8;
"Parent" means APW Enclosure Products and Systems Limited, a company
incorporated in England and Wales with registered number 3618668;
"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:
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(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,
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;
"RBS" means The Royal Bank of Scotland Plc
"RBS Facility" means the facility agreement entered into between the
Parent, certain of its subsidiaries and the Security Trustee dated 24
October 1993, as subsequently restated and amended, supplemented or
modified from time to time;
"RBS Group Facilities" means together the Credit Agreements and the APW
Counter Indemnity;
"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 or an Acceding
Company, the obligations of such Company or Acceding Company owing or
incurred by it under the Finance Documents, in each case, whether alone or
jointly or severally, whether actually or contingently and whether as
principal, surety or otherwise 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;
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"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;
"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;
"UK Finance Documents" means each of the Credit Agreements, the
Intercreditor Agreement, this Debenture, the Guarantees, the APW Counter
Indemnity, and any other document to be executed in connection with the
Credit Agreements or the RBS Group Facilities which is not a US Finance
Document;
"US Finance Documents" means each of the Guaranties, the US Pledge
Agreement, the Intercreditor Agreement, the US Security Agreement, US
Assignment of Security Interest in United States Trademarks and Patents and
any other document to be executed in connection therewith;
"US Pledge Agreement" means a pledge agreement dated as of 15 May 2001
among APW, certain subsidiaries of APW and the Security Trustee, as amended
or modified from time to time.
"US Security Agreement" means a security agreement dated as of 15 May 2001
among APW, certain subsidiaries of APW and the Security Trustee, as amended
or modified from time to time;
"US Assignment of Security Interest in United States Trademarks and
Patents" means an assignment of security interest in United States
trademarks and patents dated as of 15 May 2001 among APW, certain
subsidiaries of APW and the Security Trustee, as amended or modified from
time to time.
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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 "Finance Document" or any other agreement or instrument is a
reference to that Finance 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.
(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.
1.3 Credit Agreements
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 Agreements.
1.4 Finance Documents
For the avoidance of doubt, the parties hereby agree that this Debenture
and each Guarantee shall constitute Finance Documents executed and
delivered pursuant to the Credit Agreements and shall (unless otherwise
expressly indicated herein) be
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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 Guarantee.
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 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;
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(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 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 Agreements.
(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
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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 Finance 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 Finance Documents or the Assigned Agreements;
(ii) enforce payment or performance of any obligations of any Person
party to any of the Finance 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 Finance 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 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
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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 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.
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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
Each Company shall at all times during the subsistence of the security
created by this Debenture.
(a) 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
(b) unless the Security Trustee otherwise agrees in writing, pay the
proceeds of such getting in and realisation of its Debts into the
Special Accounts.
(c) 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 Agreements, 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 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.
(d) 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
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the Special Accounts of the relevant Company in accordance with the
requirements of their 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.
(e) 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 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. [ ]."
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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;
(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 15 May 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 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.
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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) 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:
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(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,
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, 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 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
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(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; and
(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.
(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.
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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 Agreements) prior to the Discharge Date
but in accordance with the Credit Agreements, 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 Agreements 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.
(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.
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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 Agreements) or being disposed of contrary to the provisions
of this Debenture or the Credit Agreements; 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.
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.
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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 under the laws of
England and Wales (including the obtaining of any necessary consents or the
like) 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
(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;
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(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.
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.
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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 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 interest 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 disposing of obsolete machinery if permitted
by the Credit Agreements;
(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
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faith and of 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 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 Finance 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
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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;
(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
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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
(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
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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)
(ii) upon the request of the Security Trustee place and
maintain on each item of Tangible Movable Property the net
book value of which exceeds (pound)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
(iii) 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
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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 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 Agreements 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);
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(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 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
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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 Agreements 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 Agreements 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
(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.
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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 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.
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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,
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
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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.
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.
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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:
(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);
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(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;
(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;
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(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 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.
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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.
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
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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.
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
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(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 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)
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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;
(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.
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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 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.
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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 telex, 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 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
Agreements; provided, however, that a Company may not assign any of its
obligations hereunder without the prior written consent of all Banks.
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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.
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.
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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, 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
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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 Guarantee 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.
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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 Guarantee 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: [.]
Fascimile [.]
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]
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SCHEDULE 8
FORM OF NOTICE OF CHARGE
(Part I)
(Notice of Charge)
[LETTERHEAD OF [ ]]
To: [ ]
From: [ ] (the "Company")
[Date]
Dear Sirs
ACCOUNT NO: [ ]
NOTICE OF CHARGE
We refer to Account No: [ ] (the "Special Accounts").
We notify you by this letter that we have charged by way of fixed charge,
pursuant to a Debenture entered into by us in favour of [Name of Security
Trustee] (the "Security Trustee") dated [ ] 200[ ] (the
"Debenture"), all monies now or at any time standing to the credit of the
Special Accounts. All terms defined in the Debenture which are used in this
letter shall bear the same meaning as in the Debenture.
A copy of the Debenture [is enclosed for your attention] [has previously been
provided to you] and we request that you take note of its provisions.
We irrevocably and unconditionally instruct and authorise you (but subject to
the provisions of the Intercreditor Agreement at all times after the Security
Trustee has given you notice of an Event of Default which is continuing (an
"Enforcement Notice"):
1. to disclose to the Security Trustee, without any reference to or further
authority from us and without any enquiry by you as to the justification
for such disclosure, such information relating to the Special Accounts,
the amount from time to time standing to the credit of the same (the
"Special Account Funds") and the debts represented by the same as the
Security Trustee may, at any time and from time to time, request;
2. at any time and from time to time upon receipt by you of any written
instruction from the Security Trustee, to release any amount of the
Special Account Funds and to act in accordance with such instruction,
without any reference to or further authority from us and without any
enquiry by you as to the justification for such instruction or the
validity of the same; and
3. to comply with the terms of any written notice, statement or instrument in
any way relating or purporting to relate to the Special Accounts, the
Special Account Funds or the debts represented by the same which you may
receive at any time and from time to time from the Security Trustee,
without any reference to or further authority from
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us and without any enquiry by you as to the justification for such notice,
statement or instruction or the validity of the same,
provided that until you receive any such Enforcement Notice we shall be entitled
to deal with the Special Account Funds and the Special Accounts as we see fit.
We agree that:
(a) in the event of any conflict between communications received from us and
from the Security Trustee, the communication from the Security Trustee
shall prevail;
(b) none of the instructions, authorisations and confirmations in this notice
can be revoked or varied in any way except with the Security Trustee's
prior written consent; and
(c) you are authorised to disclose any information in relation to the Special
Accounts to the Security Trustee at the Security Trustee's request.Please
acknowledge receipt of this notice, and confirm your agreement to it, by
executing and returning to the Security Trustee at [ ] marked
for the attention of [ ] an original acknowledgement in the
form attached to this letter.
The instructions, authorisations and confirmations which are contained in this
letter shall remain in full force and effect until we and the Security Trustee
give you notice in writing revoking them.
This letter shall be governed by, and construed in accordance with, English law.
Yours faithfully
.........................
for and on behalf of
[Name of Company]
cc: [Company]
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Part II
(Form of Acknowledgement)
[LETTERHEAD OF [ ]]
To: [ ] (the "Security Trustee")
Attn: [ ]
[Date]
ACCOUNT NO: [ ]
ACKNOWLEDGEMENT OF NOTICE OF CHARGE
Dear Sirs
We acknowledge receipt of:
(a) the notice dated [ ] 200[ ] (a copy of which is attached to this letter)
addressed to us by [Name of Company] (the "Company") regarding Account
No: [ ] (the "Special Accounts"); and
(b) the copy of the Debenture (as defined in that notice) [enclosed with
that notice] [previously provided to us].
All terms defined in the Debenture which are used in this letter shall bear the
same meaning as in the Debenture.
We confirm that subject to the provisions of the Intercreditor Agreement:
1. we consent to the charge of the Special Accounts and have noted, and
will act in accordance with, the terms of that notice;
2. there does not exist in our favour (other than arising at law), and we
undertake not to create, assert, claim or exercise, any mortgage, fixed
or floating charge, encumbrance, assignment or other security interest
of any kind or any agreement or arrangement having substantially the
same economic or financial effect as any of the above (including any
rights of counter-claim, rights of set-off or combination of accounts or
any "hold back" or "flawed asset" arrangement) over or with respect to
any monies standing to the credit of, or received by us to be credited
to, the Special Accounts (or any part of the same) save for the netting
arrangements;
3. we have not previously received notice of any other assignment or charge
of the Special Accounts and we are not aware of any interest of any
third party in any of the monies now or at any time standing to the
credit of the Special Accounts other than in favour of Bank of America
as Security Trustee for certain book debts; and
4. we undertake that, in the event of us becoming aware at any time that
any Person other than the Security Trustee has or will have any right or
interest whatsoever in or
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has made or will be making any claim or demand or taking any action
whatsoever in respect of the Special Accounts, we will immediately give
written notice of the same to the Security Trustee.
We have made the acknowledgements and confirmations and have given the
undertakings set out in this letter in the knowledge that they are required by
the Security Trustee in connection with the security created pursuant to the
Debenture.
This letter shall be governed by, and construed in accordance with, English law.
Yours faithfully
............................
for and on behalf of
[Name of Bank]
by [Name of Signatory]
cc: [Company]
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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
-1-
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
-2-
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
-3-
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
-4-
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
-5-
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
-6-
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
-7-
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
-8-
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
-9-
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
-10-
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
-11-
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
-12-
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
-13-
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
-14-
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
-15-
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
-16-
Signed as a Deed by AIR CARGO )
EQUIPMENT (UK) 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
-17-
SIGNED by for and on behalf of Security )
Trustee: ) ______________________________
Signature
______________________________
Name Printed
______________________________
Title:
Address: The Royal Bank of Scotland Plc
5-10 Great Tower Street
London EC3P 3HX
Attn: Mr Toni Smith
Tel: 020 7615 4150
Fax: 020 7626 5407/8
-18-