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EXHIBIT 10.11
MORTGAGE OF SHARES
Dated 12th June, 1997
BETWEEN
AMAV INDUSTRIES, INC.
as Chargor
- and -
CREDIT SUISSE FIRST BOSTON
as Administrative Agent
ALLEN & OVERY
London
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INDEX
CLAUSE PAGE
1. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Covenant To Pay . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Secured Liabilities . . . . . . . . . . . . . . . . . . . . . . 6
4. Charges On Shares . . . . . . . . . . . . . . . . . . . . . . . 6
5. Continuing Security . . . . . . . . . . . . . . . . . . . . . . 7
6. Representations And Warranties . . . . . . . . . . . . . . . . . 9
7. Undertakings . . . . . . . . . . . . . . . . . . . . . . . . . 10
8. Special Provisions Relating To The Shares . . . . . . . . . . 11
9. When Security Becomes Enforceable . . . . . . . . . . . . . . 13
10. Enforcement Of Security . . . . . . . . . . . . . . . . . . . 13
11. Receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12. Application Of Proceeds . . . . . . . . . . . . . . . . . . . 16
13. No Liability As Mortgagee In Possession . . . . . . . . . . . 16
14. Protection Of Third Parties . . . . . . . . . . . . . . . . . 16
15. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16. Delegation By Administrative Agent . . . . . . . . . . . . . . 17
17. Further Assurances . . . . . . . . . . . . . . . . . . . . . . 17
18. Redemption Of Prior Mortgages . . . . . . . . . . . . . . . . 18
19. Power Of Attorney . . . . . . . . . . . . . . . . . . . . . . 18
20. New Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 19
21. Stamp Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 19
22. Administrative Agent . . . . . . . . . . . . . . . . . . . . . 19
23. Waivers, Remedies Cumulative . . . . . . . . . . . . . . . . . 22
24. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 22
25. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 23
26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
27. Covenant To Release . . . . . . . . . . . . . . . . . . . . . 23
28. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 24
29. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 24
Signatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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THIS MORTGAGE OF SHARES is dated 12th June, 1997 and is made BETWEEN:
(1) AMAV INDUSTRIES, INC., a Delaware Corporation (the "CHARGOR"); and
(2) CREDIT SUISSE FIRST BOSTON (the "ADMINISTRATIVE AGENT") as agent and
trustee for itself and each of the Secured Parties (as defined below).
WHEREAS:
(A) The Lenders have agreed to make available to the Borrower credit
facilities on and subject to the terms of the Credit Agreement.
(B) Pursuant to the Master Guarantee and Collateral Agreement the Chargor
(among others) has, inter alia, guaranteed to the Secured Parties the
payment of the Borrower Obligations.
(C) The Chargor has agreed to enter into this Deed to secure the payment of
the Secured Liabilities to the Secured Parties.
(D) It is intended by the parties hereto that this document shall take
effect as a deed notwithstanding the fact that a party may only execute
this document under hand.
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed:
"BORROWER"
means Hedstrom Corporation.
"BORROWER OBLIGATIONS"
has the meaning given to it in the Master Guarantee and Collateral
Agreement.
"COMPANY"
means AMAV Industries Limited, an English incorporated company
(Registered no. 2465222).
"CREDIT AGREEMENT"
means the credit agreement dated as of 12th June, 1997 between Hedstrom
Holdings, Inc. as Parent, the Borrower, the Lenders, Societe Generale as
documentation agent, UBS Securities as syndication agent and Credit
Suisse First Boston as administrative agent, and any and each other
agreement or instrument supplementing or amending it.
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"CREDIT DOCUMENTS"
has the meaning given to it in the Credit Agreement.
"CREDIT PARTIES"
has the meaning given to it in the Credit Agreement.
"DEFAULT RATE"
at any time means the rate determined in accordance with Section 7.8(c)
of the Credit Agreement.
"DEFAULT"
has the meaning given to it in the Credit Agreement.
"EVENT OF DEFAULT"
has the meaning given to it in the Credit Agreement.
"FINANCE DOCUMENTS"
means:
(a) the Credit Agreement;
(b) the Security Documents;
(c) any Letter of Credit;
(d) the other Credit Documents;
(e) any Hedge Agreement entered into by the Borrower with any Lender
(or any Affiliate of any Lender);
(f) any document designated in writing as such by the Administrative
Agent (on the instructions of the Required Lenders) and the
Borrower; and
(g) any other document made, delivered or given in connection with
any of the foregoing.
"HEDGE AGREEMENT"
has the meaning given to it in the Master Guarantee and Collateral
Agreement.
"LENDERS"
has the meaning given to it in the Credit Agreement.
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"LETTER OF CREDIT"
has the meaning given to it in the Credit Agreement.
"LIEN"
has the meaning given to it in the Credit Agreement.
"MASTER GUARANTEE AND COLLATERAL AGREEMENT"
has the meaning given to it in the Credit Agreement.
"RECEIVER"
means a receiver and manager of (if the Administrative Agent so
specifies in the relevant appointment) a receiver.
"REIMBURSEMENT OBLIGATION"
has the meaning given to it in the Credit Agreement.
"RELATED RIGHTS"
means, in relation to the Shares, all dividends and other distributions
paid or payable after the date hereof on all or any of the Shares and
all stocks, shares, securities (and the dividends or interest thereon),
rights, money or property accruing or offered at any time by way of
redemption, bonus, preference, option rights or otherwise to or in
respect of any of the Shares or in substitution or exchange for any of
the Shares.
"REQUIRED LENDERS"
has the meaning given to it in the Credit Agreement.
"SECURED LIABILITIES"
has the meaning given to it in Clause 3.1 (Scope).
"SECURED PARTIES"
means the Lenders (in any capacity under any Finance Document), (in the
case of a Hedge Agreement) any Affiliate of a Lender, the Documentation
Agent (as defined in the Credit Agreement), the Syndication Agent (as
defined in the Credit Agreement) and the Administrative Agent.
"SECURITY ASSETS"
means all assets, rights and property of the Chargor the subject of any
security created by this Deed or any other Security Document.
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"SECURITY DOCUMENT"
means this Deed and the other Security Documents (as defined in the
Credit Agreement).
"SECURITY PERIOD"
means the period beginning on the date hereof and ending on the date (as
stated by the Administrative Agent) upon which all the Secured
Liabilities which have arisen have been unconditionally and irrevocably
paid and discharged in full and after which no further Secured
Liabilities are reasonably likely to arise or the security hereby
created has been unconditionally and irrevocably released and
discharged.
"SHARES"
means the 650 ordinary shares represented by share certificate numbered
of the Company owned by the Chargor (being 65 per cent. of
the issued ordinary share capital of Company), including all Related
Rights.
1.2 INTERPRETATION
(a) Save as expressly herein defined, capitalised terms defined in the
Credit Agreement shall have the same meaning herein.
(b) The provisions of Section 1.2 of the Credit Agreement shall also apply
hereto as if expressly set out herein (mutatis mutandis) with each
reference to the Credit Agreement being deemed to be a reference to this
Deed.
(c) The terms of the other Finance Documents and of any side letters
between the parties hereto in relation to the Finance Documents are
incorporated herein to the extent required for any purported disposition
of the Security Assets contained herein to be a valid disposition in
accordance with Section 2(1) of the Law of Property (Miscellaneous
Provisions) Act 1989.
(d) If the Administrative Agent (as appropriate, on the basis of legal
advice received by it for this purpose) considers that an amount paid by
any Credit Party to either the Administrative Agent or any of the
Secured Parties under any Finance Document is capable of being avoided
or otherwise set aside on the liquidation or administration (or
equivalent) of the Chargor or otherwise, then such amount shall not be
considered to have been irrevocably paid for the purposes hereof.
(e) For the avoidance of doubt, an obligation in this Deed (or any
part thereof) which constitutes financial assistance within the meaning
of Section 151 of the Companies Act 1985, shall not be excluded by the
proviso to the definition of "Secured Liabilities" in Clause 3.1 (Scope)
if in relation to such obligation the provisions of Sections 155-158 of
the Companies Act 1985 have been complied with.
1.3 CONSTRUCTION
(a) In this Deed, unless the contrary intention appears, a reference to:
(i) "ASSETS" means properties, revenues and rights of every
description;
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an "AUTHORISATION" means an authorisation, consent, approval,
resolution, license, exemption, filing, registration and
notarisation.
a "MONTH" or two or more "MONTHS" is a reference to a period
starting on one day in a calendar month and ending on the
numerically corresponding day in the next or relevant subsequent
calendar month, except that, if there is no numerically
corresponding day in the month in which that period ends, that
period shall end on the last Business Day in that calendar
month;
a "REGULATION" means any regulation, rule, official directive,
request or guideline (whether or not having the force of law,
but, if not having the force of law with which persons of the
relevant category would customarily comply) of any governmental
body, agency, department or regulatory, self-regulatory or other
authority or organisation;
(ii) a provision of a law is a reference to that provision as amended
or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Deed;
(iv) a person includes its successors and assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or that other document as amended, novated or
supplemented; and
(vi) a time of day is a reference to London time.
(b) The index to and the headings in this Deed are for convenience only and
are to be ignored.
1.4 CERTIFICATES
A certificate of the Administrative Agent setting forth the amount of
any Secured Liability due from the Chargor shall be prima facie evidence
of such amount against the Chargor in the absence of manifest error.
2. COVENANT TO PAY
2.1 COVENANT
The Chargor hereby, as primary obligor and not merely as surety,
covenants with the Administrative Agent (as agent and trustee as
aforesaid) that it will pay or discharge the Secured Liabilities on the
due date therefor in the manner provided in the relevant Finance
Document. Any amount not paid hereunder when due as set forth in the
Credit Agreement shall bear interest (as well after as before judgement
and payable on demand) at the Default Rate from time to time (or, if
higher, the default rate applicable to the Secured Liability concerned)
from the due date until the date such amount is unconditionally and
irrevocably paid and discharged in full.
2.2 RIGHT OF APPROPRIATION
Upon and after the occurrence of an Event of Default and for so long as
the same is continuing, the Administrative Agent shall be entitled to
appropriate moneys and/or assets to Secured
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Liabilities in such manner or order as it sees fit (subject to Clause
12 (Application of Proceeds)) and any such appropriation shall override
any appropriation by the Chargor. This Clause 2.2 shall not, however,
override the principle that the Secured Parties are to share in
recoveries on a pro rata basis.
3. SECURED LIABILITIES
3.1 SCOPE
The security constituted by the Security Documents secures the "SECURED
LIABILITIES", being the collective reference to:
(i) the Chargor's guarantee of the Borrower Obligations pursuant to
Section 2 of the Master Guarantee and Collateral Agreement; and
(ii) all obligations and liabilities of the Chargor which may arise
under or in connection with the Master Guarantee and Collateral
Agreement or any other Credit Document to which the Chargor is a
party, in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all reasonable fees
and disbursements of counsel to the Administrative Agent or to
the Lenders that are required to be paid by the Chargor
pursuant to the terms of the Master Guarantee and Collateral
Agreement or any other Credit Document),
provided always that any obligation which, if it were so included within
the definition of "Secured Liabilities", would result in this Deed
contravening Section 151 of the Companies Act 1985 shall not be included
within the definition of "Secured Liabilities".
3.2 COVENANT TO MAKE FACILITIES AVAILABLE
Each Secured Party, by the Administrative Agent's execution of this
Deed, hereby severally covenants with the Chargor that it will, upon and
subject to the terms of the relevant Finance Document, make advances and
further advances or other financial accommodation to the extent (if at
all) it is provided for in the relevant Finance Document.
4. CHARGES ON SHARES
(a) The Chargor hereby as continuing security for the payment, discharge
and performance of all the Secured Liabilities mortgages and charges and
agrees to mortgage and charge to the Administrative Agent (as agent and
trustee for the benefit of itself and each of the Secured Parties) all
Shares held now or in the future by it and/or any nominee on its behalf,
the same to be a security by way of a first mortgage,
PROVIDED THAT:
(i) whilst no Event of Default exists all dividends and other
distributions paid or payable with respect to the Shares may be
paid directly to the Chargor (in which case the Administrative
Agent or its nominee shall execute any necessary dividend
mandate) and, if paid directly to the Administrative Agent,
shall be paid promptly by it to the Chargor; and
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(ii) unless an Event of Default is continuing, the Chargor may exercise
all voting rights attaching to the relevant Shares or, where the
shares have been registered in the name of the Administrative Agent
or its nominee, as the relevant Chargor may direct in writing (and
the Administrative Agent and any nominee of the Administrative Agent
in whose name such Shares are registered shall execute any form of
proxy or other document reasonably required in order for the Chargor
to do so) provided that no vote shall be cast or exercised which in
the reasonable opinion of the Administrative Agent would be likely to
be materially prejudicial to the rights or interest of the Secured
Parties under any of the Finance Documents.
(b) The mortgages and charges on shares created by this Clause 4 are made with
full title guarantee.
5. CONTINUING SECURITY
5.1 CONTINUING SECURITY
The security constituted by this Deed shall be continuing and will extend
to the ultimate balance of the Secured Liabilities, regardless of any
intermediate payment or discharge in whole or in part.
5.2 REINSTATEMENT
Where any discharge (whether in respect of any amounts hereby secured or
otherwise) is made in whole or in part or any arrangement is made on the
faith of any payment, security or other disposition which is avoided or
must be repaid on bankruptcy, liquidation or otherwise without limitation,
the liability of the Chargor under this Deed shall continue as if there had
been no such discharge or arrangement. The Secured Parties shall be
entitled to concede or compromise any claim that any such payment, security
or other disposition is liable to avoidance or repayment.
5.3 WAIVER OF DEFENCES
The liability of the Chargor hereunder shall not be prejudiced, affected or
diminished by any act, omission, circumstance, matter or thing which but
for this provision might operate to release or otherwise exonerate the
Chargor from its obligations hereunder in whole or in part, including
without limitation and whether or not known to the Chargor or to any
Secured Party;
(a) any time or waiver granted to or composition with any Credit Party or
any other person;
(b) the taking, variation, compromise, renewal or release of or refusal or
neglect to perfect or enforce any rights, remedies or securities
against any Credit Party or any other person;
(c) any legal limitation, disability, incapacity or other circumstances
relating to the Chargor or the death, bankruptcy, liquidation or
change in the name or constitution of any Credit Party or any other
person;
(d) any variation of, or extension of the due date for performance of any
term of, any Finance Document or any other document or security so
that references to such
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documents in this Deed shall include each such variation or
extension or any increase, exchange, acceleration, renewal,
surrender, release or loss of or failure to perfect any security
or any non-presentment or non-observance of any formality in
respect of any instruments; and
(e) any irregularity, unenforceability, invalidity or frustration
of any obligations of any Credit Party or any other person under
the Finance Documents or any other document or security, to
the intent that the Chargor's obligations hereunder shall remain
in full force and this Deed be construed accordingly as if there
were no such irregularity, unenforceability, invalidity or
frustration.
5.4 IMMEDIATE RECOURSE
The Chargor waives any right it may have of first requiring any Secured
Party to proceed against or enforce any other rights or security of or
claim payment from any Credit Party or any other person before claiming
from the Chargor hereunder.
5.5 PRESERVATION OF RIGHTS
Until all the Secured Liabilities have been irrevocably paid and
discharged in full, each Secured Party (or any trustee or the
Administrative Agent on its behalf) may:
(a) refrain from applying or enforcing any other security, moneys
or rights held or received by that Secured Party in respect of
such amounts or apply and enforce the same in such manner and
order as it sees fit (whether against such amounts or otherwise)
and the Chargor shall not be entitled to the benefit of the
same; and
(b) hold in suspense account any moneys received from the Chargor or
on account of the Chargor's liability hereunder, on which the
Secured Party shall pay interest at the rate reasonably
determined by it to be usual for accounts of that type.
5.6 NON-COMPETITION
Until the Secured Liabilities have been irrevocably paid in full, the
Chargor shall not by virtue of any payment made, security realised or
moneys received for or on account of the Chargor's liability hereunder:
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Secured Party or be entitled to any right
of contribution;
(b) be entitled and shall not claim to rank as creditor against the
estate or in the bankruptcy or liquidation of any Credit Party
in competition with any Secured Party;
(c) receive, claim or have the benefit of any payment, distribution
or security from or on account of any Credit Party or exercise
any right of set-off as against any Credit Party or any other
person liable hereunder or claim the benefit of any security or
moneys held by or for the account of the Secured Parties, and
the Secured Parties shall be entitled to apply such security and
moneys as they see fit.
The Chargor shall forthwith pay to the Administrative Agent (for the
Secured Parties) an amount equal to any such set-off in fact exercised
by it and shall hold in trust for and forthwith
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pay or transfer, as the case may be, to the Administrative Agent any
such payment or distribution or benefit of security in fact received by
it. If the Chargor exercises any right of set-off contrary to the
above, it will forthwith pay an amount equal to the amount set off to
the Administrative Agent.
5.7 ADDITIONAL SECURITY
The security constituted by this Deed shall be in addition to and shall
not in any way be prejudiced by any other security now or hereafter held
by the Administrative Agent as security for the Secured Liabilities.
The Secured Parties' rights hereunder are in addition to and not
exclusive of those provided by law.
5.8 CERTIFICATE
A certificate of the Administrative Agent as to the amount of the
Secured Liabilities shall be prima facie evidence of that amount as
against the Chargor, save in the case of manifest error.
5.9 SECURITY
The Chargor will not without the prior written consent of the
Administrative Agent hold any security from any Credit Party in respect
of the Secured Liabilities. The Chargor will hold any security held by
it in breach of this provision in trust for the Secured Parties.
6. REPRESENTATIONS AND WARRANTIES
6.1 TO WHOM MADE
The Chargor makes the representations and warranties set out in Clause
6.2 (Matters represented) to each Secured Party.
6.2 MATTERS REPRESENTED
(a) SHARES
(i) The Chargor is and will remain the sole beneficial owner of the
Shares and save where the Shares have been registered in the
name of the Administrative Agent or its nominee pursuant hereto,
it is and will remain the absolute legal owner thereof
(together with its nominee(s)), except to the extent permitted
by the Credit Agreement;
(ii) the Chargor has not transferred, assigned, pledged or in any way
encumbered the Shares other than pursuant to the Security
Documents or as permitted pursuant to the Credit Agreement;
(iii) the Chargor will not take any action whereby the rights
attaching to the Shares are altered in any way prejudicial to
the Secured Parties or diluted;
(iv) the Shares are fully paid and are not subject to any options to
purchase or similar rights of any person; and
(v) the Shares represent 65 per cent. of the issued share capital of
the Company;
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(b) The Chargor is the beneficial and (subject to the security created by
this Deed) legal owner of all the issued shares of the Company.
6.3 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 6:
(a) will survive the execution of each Finance Document and the
making of each Loan or other extension of credit under the
Finance Documents; and
(b) are made on the date hereof and are deemed to be repeated on
each date during the Security Period on which any of the
representations and warranties set out in Section VIII
(Representations and warranties) of the Credit Agreement are
repeated with reference to the facts and circumstances then
existing.
7. UNDERTAKINGS
7.1 DURATION AND WITH WHOM MADE
The undertakings in this Clause 7:
(a) shall remain in force throughout the Security Period; and
(b) are given by the Chargor to each Secured Party.
7.2 GENERAL UNDERTAKINGS
The Chargor shall at all times comply with the terms of this Deed.
7.3 RESTRICTIONS ON DEALING
The Chargor will not:
(a) create or permit to subsist any Lien over all or any of the
Security Assets other than pursuant to or contemplated by the
Security Documents or the Credit Agreement; or
(b) part with, lease, sell, transfer or otherwise dispose of or
agree to part with, lease, sell, transfer or otherwise dispose
of all or any part of the Security Assets or any interest
therein, other than as permitted by the Credit Agreement.
7.4 UNDERTAKINGS RELATING SPECIFICALLY TO THE SECURITY ASSETS
The Chargor shall:
(a) deposit with the Administrative Agent or as the Administrative
Agent may direct all certificates and other documents of title
or evidence of ownership in relation to such Shares as are owned
by it and their Related Rights and to the assets specified in
Clause 4 (Charges on shares); and
(b) execute and deliver to the Administrative Agent all such share
transfers and other documents as may reasonably be requested by
the Administrative Agent in order to
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enable the Administrative Agent or its nominees to be registered
as the owner or otherwise to obtain a legal title to the same
and, without limiting the generality of the foregoing, shall
deliver to the Administrative Agent on the date hereof or as
soon as practicable thereafter executed (and, if required to be
stamped, pre-stamped) share transfers for all Shares in favour
of the Administrative Agent's nominees as transferee and shall
procure that all such share transfers are forthwith registered
by the relevant company and that share certificates in the name
of those nominees in respect of all Shares are forthwith
delivered to the Administrative Agent.
7.5 MAINTENANCE
The Chargor will:
(a) TAXES AND OUTGOINGS pay as and when the same shall become due
all taxes, rates, duties, charges, assessments and outgoings
whatsoever (whether parliamentary, parochial, local or of any
other description) which shall be assessed, charged or imposed
upon or payable by it in respect of the Security Assets or any
part thereof (save to the extent that payment of the same is
being contested in good faith);
(b) NOTICES within 14 days after the receipt by the Chargor of any
application, requirement, order or notice served or given by any
public or local or any other authority with respect to the
Security Assets (or any part thereof) which is likely to have a
material adverse effect on the value of the Security Assets,
give written notice thereof to the Administrative Agent and also
(within seven days after demand) produce the same or a copy
thereof to the Administrative Agent and inform it of the steps
taken or proposed to be taken to comply with any requirement
thereby made or implicit therein; and
(c) STATUTES duly and punctually perform and observe all its
obligations in connection with the Security Assets under any
present or future statute or any regulation, order or notice
made or given thereunder.
8. SPECIAL PROVISIONS RELATING TO THE SHARES
8.1 REGISTRATION ON TRANSFER
The Chargor hereby authorises the Administrative Agent (at any time) to
arrange for the Shares to be delivered to any person or registered as
the Administrative Agent may feel appropriate to perfect the security
thereover and to transfer or cause the Shares to be transferred to and
registered in the name of any nominees of the Administrative Agent (as
agent and trustee, as aforesaid) and the Chargor undertakes from time to
time to execute and sign all transfers, contract notes, powers of
attorney and other documents which the Administrative Agent may require
for perfecting its title to any of the Shares or for vesting the same in
itself or its nominee or in any purchasers or transferees (under the
powers of realisation herein conferred).
8.2 POWERS
The Administrative Agent and its nominee may at any time after an Event
of Default has occurred and whilst it is continuing exercise or refrain
from exercising (in the name of the Chargor, the registered holder or
otherwise and without any further consent or authority from the Chargor
and irrespective of any direction given by the Chargor) in respect of
the Shares any
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voting rights and any powers or rights under the terms thereof or
otherwise which may be exercised by the person or persons in whose name
or names the Shares are registered or who is the holder thereof,
including, without limitation, all the powers given to trustees by
Section 10(3) and (4) of the Trustee Act 1925 as amended by Section 9 of
the Trustee Investments Act 1961 in respect of securities or property
subject to a trust PROVIDED THAT in the absence of notice from the
Administrative Agent that such circumstances are applicable the Chargor
may and shall continue to exercise any and all voting rights with
respect to the Shares subject always to the terms hereof. The Chargor
shall not without the previous consent in writing of the Administrative
Agent (such consent not to be unreasonably withheld or delayed) exercise
the voting rights attached to any of the Shares in favour of resolutions
having the effect of or prejudicing the security hereunder or impairing
the value of the Shares. Subject to Clause 4 (Charges on shares) and
this Clause 8.2, the Chargor hereby irrevocably appoints the
Administrative Agent or its nominees its proxy so to exercise all voting
rights so long as the Shares remain registered in the names of the
Chargor.
8.3 CALLS
The Chargor during the continuance of this security will make all
payments which may become due in respect of any of the Shares and in the
case of the occurrence of an Event of Default as a result of the
Chargor's failure in making any such payments the Administrative Agent
may if it thinks fit make such payments on behalf of the Chargor. Any
sums so paid by the Administrative Agent shall be repayable by the
Chargor to the Administrative Agent on demand together with interest at
the Default Rate from the date of such payment by the Administrative
Agent, and pending such repayment shall constitute part of the Secured
Liabilities.
8.4 LIABILITY TO PERFORM
It is expressly agreed that, notwithstanding anything to the contrary
herein contained, the Chargor shall remain liable to observe and perform
all of the conditions and obligations assumed by it in respect of the
Shares and none of the Administrative Agent and the Secured Parties
shall be under any obligation or liability by reason of or arising out
of this Deed. None of the Secured Parties shall be required in any
manner to perform or fulfil any obligation of the Chargor in respect of
the Shares, or to make any payment, or to receive any enquiry as to the
nature or sufficiency of any payment received by them, or to present or
file any claim or take any other action to collect or enforce the
payment of any amount to which they may have been or to which they may
be entitled hereunder at any time or times.
8.5 ENFORCEMENT
Upon the occurrence of an Event of Default and at any time whilst any
Event of Default exists, the Administrative Agent shall be entitled to
put into force and exercise immediately as and when it may see fit any
and every power possessed by the Administrative Agent by virtue of this
Deed or available to a secured creditor (so that Sections 93 and 103 of
the Law of Property Act 1925 shall not apply to this security) and in
particular (without limitation):
(a) to sell all or any of the Shares in any manner permitted by law
upon such terms as the Administrative Agent shall in its
absolute discretion determine;
(b) to collect, recover or compromise and give a good discharge for
any moneys payable to the Chargor in respect of the Shares or in
connection therewith; and
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(c) to act generally in relation to the Shares in such manner as the
Administrative Agent shall determine.
9. WHEN SECURITY BECOMES ENFORCEABLE
The security constituted hereby shall become immediately enforceable
upon the occurrence of an Event of Default and the power of sale and
other powers conferred by Section 101 of the Law of Property Act, 1925
as varied or amended by this Deed shall be immediately exercisable upon
this security becoming enforceable and at any time thereafter whilst any
Event of Default exists. After the security constituted hereby has
become enforceable, the Administrative Agent may in its absolute
discretion enforce all or any part of such security in such manner as it
sees fit or as the Required Lenders may direct.
10. ENFORCEMENT OF SECURITY
10.1 GENERAL
For the purposes of all powers implied by statute the Secured
Liabilities shall be deemed to have become due and payable on the date
hereof and Section 103 of the Law of Property Act 1925 (restricting the
power of sale) and Section 93 of the same Act (restricting the right of
consolidation) shall not apply to this security. The statutory powers
of leasing conferred on the Administrative Agent shall be extended so as
to authorise the Administrative Agent to lease, make agreements for
leases, accept surrenders of leases and grant options as the
Administrative Agent shall think fit and without the need to comply with
any of the provisions of sections 99 and 100 of the Law of Property Act
1925.
10.2 CONTINGENCIES
(a) If the Administrative Agent enforces the security constituted by this
Deed (whether by the appointment of a Receiver or otherwise) at a time
when no amounts are due under the Finance Documents (but at a time when
amounts may become so due), the Administrative Agent (or such Receiver)
may pay the proceeds of any recoveries effected by it into such number
of realisations accounts (bearing interest at market rates prevailing
for like amounts) as it considers appropriate.
(b) The Administrative Agent (or such Receiver) may (subject to the payment
of any claims having priority to this security) withdraw amounts
standing to the credit of such realisations accounts to:
(i) meet all costs, charges and expenses incurred and payments made
by the Administrative Agent (or such Receiver) in the course of
such enforcement;
(ii) pay remuneration to the Receiver as and when the same becomes
due and payable; and
(iii) meet amounts due and payable under the Finance Documents as and
when the same become due and payable.
in each case, together with interest thereon (as well after as before
judgment and payable on demand) at the Default Rate from the date the
same become due and payable until the date the same are unconditionally
and irrevocably paid and discharged in full.
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(c) The Chargor will not be entitled to withdraw all or any moneys
(including interest) standing to the credit of any realisations account
until the expiry of the Security Period.
11. RECEIVER
11.1 APPOINTMENT OF RECEIVER
(a) At any time after this security becomes enforceable or if the Chargor so
requests the Administrative Agent in writing at any time, the
Administrative Agent may without further notice appoint under seal or in
writing under its hand any one or more qualified persons to be a
Receiver of all or any part of the Security Assets in like manner in
every respect as if the Administrative Agent had become entitled under
the Law of Property Act 1925 to exercise the power of sale thereby
conferred.
(b) In this Clause, "QUALIFIED PERSON" means a person who, under the
Insolvency Act 1986, is qualified to act as a receiver of the property
of the Chargor with respect to which he is appointed or (as the case may
require) an administrative receiver of the Chargor.
11.2 POWERS OF RECEIVER
(a) Every Receiver appointed in accordance with Clause 11.1 (Appointment of
Receiver) shall have and be entitled to exercise all of the powers set
out in paragraph (b) below in addition to those conferred by the Law of
Property Act 1925 on any receiver appointed thereunder. A Receiver who
is an administrative receiver of the Chargor shall have all the powers
of an administrative receiver under the Insolvency Act 1986. If at any
time there is more than one Receiver of all or any part of the Security
Assets, each such Receiver may (unless otherwise stated in any document
appointing him) exercise all of the powers conferred on a Receiver under
this Deed individually and to the exclusion of each other Receiver.
(b) The powers referred to in the first sentence of paragraph (a) above are:
(i) TAKE POSSESSION to take immediate possession of, get in and
collect the Security Assets or any part thereof;
(ii) PROTECTION OF ASSETS to do all acts which the Chargor might do
in the ordinary conduct of its business as well for the
protection as for the improvement of the Security Assets;
(iii) EMPLOYEES to appoint and discharge managers, officers, agents,
accountants, servants, workmen and others for the purposes
hereof upon such terms as to remuneration or otherwise as he may
think proper and to discharge any such persons appointed by the
Chargor;
(iv) BORROW MONEY for the purpose of exercising any of the powers,
authorities and discretions conferred on him by or pursuant to
this Deed and/or of defraying any costs, charges, losses or
expenses (including his remuneration) which shall be incurred by
him in the exercise thereof or for any other purpose, to raise
and borrow money either unsecured or on the security of the
Security Assets or any part thereof either in priority to the
security constituted by this Deed or otherwise and generally on
such terms and conditions as he may think fit and no person
lending such money shall be concerned to
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enquire as to the propriety or purpose of the exercise of such
power or to see to the application of any money so raised or
borrowed;
(v) SELL ASSETS to sell, exchange, convert into money and realise
all or any part of the Security Assets by public auction or
private contract and generally in such manner and on such terms
as he shall think proper. Without prejudice to the generality
of the foregoing he may do any of these things for a
consideration consisting of cash, debentures or other
obligations, shares, stock or other valuable consideration and
any such consideration may be payable in a lump sum or by
instalments spread over such period as he may think fit;
(vi) COMPROMISE to settle, adjust, refer to arbitration, compromise
and arrange any claims, accounts, disputes, questions and
demands with or by any person who is or claims to be a creditor
of the Chargor or relating in any way to the Security Assets or
any part thereof;
(vii) LEGAL ACTIONS to bring, prosecute, enforce, defend and abandon
all such actions, suits and proceedings in relation to the
Security Assets or any part thereof as may seem to him to be
expedient;
(viii) RECEIPTS to give valid receipts for all moneys and execute all
assurances and things which may be proper or desirable for
realising the Security Assets; and
(ix) GENERAL POWERS to do all such other acts and things as he may
consider desirable or necessary for realising the Security
Assets or any part thereof or incidental or conducive to any of
the matters, powers or authorities conferred on a Receiver under
or by virtue of this Deed, to exercise in relation to the
Security Assets or any part thereof all such powers, authorities
and things as he would be capable of exercising if he were the
absolute beneficial owner of the same and to use the name of the
Chargor for all or any of such purposes.
11.3 REMOVAL AND REMUNERATION
The Administrative Agent may from time to time for writing under its
hand (subject to any requirement for an order of the court in the case
of an administrative receiver) remove any Receiver appointed by it and
may, whenever it may deem it expedient, appoint a new Receiver in the
place of any Receiver whose appointment may for any reason have
terminated and may from time to time fix the remuneration of any
Receiver appointed by it.
11.4 ADMINISTRATIVE AGENT MAY EXERCISE
To the fullest extent permitted by law, all or any of the powers,
authorities and discretions which are conferred by this Deed (either
expressly or impliedly) upon a Receiver of the Security Assets may be
exercised after the security hereby created becomes enforceable by the
Administrative Agent in relation to the whole of such Security Assets or
any part thereof without first appointing a Receiver of such property or
any part thereof or notwithstanding the appointment of a Receiver of
such property or any part thereof.
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12. APPLICATION OF PROCEEDS
Any moneys received by the Administration Agent or by any Receiver
appointed by it pursuant to this Deed and/or under the powers hereby
conferred shall, after the security hereby constituted shall have become
enforceable but subject to the payment of any claims having priority to
this security and to the Administrative Agent's and such Receiver's
rights under Clauses 10.2 (Contingencies) and 11.2 (Powers of Receiver)
be applied by the Administrative Agent for the following purposes and,
unless otherwise determined by the Administrative Agent or such
Receiver, in the following order or priority (but without prejudice to
the right of the Administration Agent or any Secured Party to recover
any shortfall from the Chargor):
(a) in satisfaction of or provision for all costs, charges and
expenses incurred and payments made by the Administrative Agent
or any Receiver appointed hereunder and of all remuneration due
hereunder together with interest on the foregoing (as well after
as before judgment and payable on demand) at the Default Rate
from time to time from the date the same become due and payable
as set forth in the Credit Agreement until the date the same are
unconditionally and irrevocably paid and discharged in full;
(b) in or towards payment of the Secured Liabilities or such part
of them as is then due and payable, or as the case may be,
outstanding pari passu between themselves; and
(c) in payment of the surplus (if any) to the Chargor or other
person entitled thereto.
13. NO LIABILITY AS MORTGAGEE IN POSSESSION
The Administrative Agent shall not nor shall any Receiver appointed as
aforesaid by reason of it or the Receiver entering into possession of
the Security Assets or any part thereof be liable to account as
mortgagee in possession or be liable for any loss on realisation or for
any default or omission for which a mortgagee in possession might be
liable. Every Receiver duly appointed by the Administrative Agent under
the powers in that behalf herein contained shall be deemed to be the
agent of the Chargor for all purposes and shall as such agent for all
purposes be deemed to be in the same position as a Receiver duly
appointed by a mortgagee under the Law of Property Act 1925. The
Chargor alone shall be responsible for his contracts, engagements, acts,
omissions, defaults and losses and for liabilities incurred by him and
neither the Administrative Agent nor any Secured Party shall incur any
liability therefor (either to the Chargor or to any other person
whatsoever) by reason of the Administrative Agent's making his
appointment as such Receiver or for any other reason whatsoever. Every
such Receiver and the Administrative Agent shall be entitled to all the
rights, powers, privileges and immunities by the Law of Property Act
1925 and conferred on mortgagees and receivers when such receivers have
been duly appointed under the said Act but so that Section 103 of the
Law of Property Act 1925 shall not apply.
14. PROTECTION OF THIRD PARTIES
No purchaser, mortgagee or other person or company dealing with the
Administrative Agent or the Receiver or its or his agents shall be
concerned to enquire whether the Secured Liabilities have become payable
or whether any power which the Receiver is purporting to exercise has
become exercisable or whether any money remains due under the Deed or
the Financial Documents or to see to the application or any money paid
to the Administration Agent or to such Receiver.
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15. EXPENSES
15.1 UNDERTAKING TO PAY
All reasonable costs, charges and expenses incurred and all payments
made by the Administrative Agent or any Receiver appointed hereunder in
the lawful exercise of the powers hereby conferred whether or not
occasioned by any act, neglect or default of the Chargor shall carry
interest (as well after as before judgment) at the Default Rate from
time to time as set forth in the Credit Agreement. The amount of all
such costs, charges, expenses and payments and all such interest thereon
and all remuneration payable hereunder shall be payable by the Chargor
on demand. All such costs, charges, expenses and payments shall be paid
and charged as between the Administrative Agent and the Chargor on the
basis of a full indemnity and not on the basis of party and party or any
other kind of taxation. No costs, charges, expenses or payments shall
be payable by the Chargor pursuant to this Clause 15.1 to the extent
that the same are incurred or made due to the negligence or wilful
default of the Administrative Agent or any Receiver.
15.2 INDEMNITY
The Security Parties and every Receiver, attorney, manager, agent or
other person appointed by the Administrative Agent hereunder (each an
"INDEMNIFIED PARTY") shall be entitled to be indemnified out of the
Security Assets in respect of all liabilities and expenses reasonably
and properly incurred by them in the execution or purported execution
of any of the powers, authorities or discretions vested in them
pursuant hereto and against all actions, proceedings, costs, claims and
demands in respect of any matter or thing done or omitted in any way
relating to the Security Assets and the Secured Parties and any such
Receiver may retain and pay all sums in respect of the same out of any
moneys received under the powers hereby conferred. Notwithstanding the
foregoing, no indemnified party shall be entitled to be indemnified in
respect of any part of the foregoing which results from such party's
negligence or wilful misconduct.
16. DELEGATION BY ADMINISTRATIVE AGENT
The Administrative Agent or any Receiver appointed hereunder may at any
time and from time to time delegate by power of attorney or in any other
manner to any person or persons all or any of the powers, authorities
and discretions which are for the time being exercisable by the
Administrative Agent or such Receiver under this Deed in relation to the
Security Assets or any part thereof. Any such delegation may be made
upon such terms (including power to sub-delegate) and subject to such
regulations as the Administrative Agent or such Receiver may think fit.
The Administrative Agent or such Receiver shall not be in any way liable
or responsible to the Chargor for any loss or damage arising from any
act, default, omission or misconduct on the part of any such delegate or
sub-delegate unless the delegation to such person was carried out
negligently or without due investigation.
17. FURTHER ASSURANCES
17.1 GENERAL
The Chargor shall at its own expense execute and do all such assurances,
acts and things as the Administrative Agent may reasonably require for
perfecting or protecting the security intended to be created hereby over
the Security Assets or any part thereof or for facilitating (if and when
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this security becomes enforceable) the realisation of the Security
Assets or any part thereof and in the exercise of all powers,
authorities and discretions vested in the Administrative Agent or any
Receiver of the Security Assets or any part thereof or in any such
delegate or sub-delegate as aforesaid. To that intent, the Chargor shall
in particular execute all transfers, conveyances, assignments and
assurances of such property whether to the Administrative Agent or to
its nominees, amend (when it is able by control of the relevant company)
the Memorandum and Articles of Association of the Company and to remove,
for example and without limitation, restrictions on the transfer of
those shares, the registration of the transferee and existing
pre-emption rights, as the Administrative Agent may reasonably request
and give all notices, orders and directions and make all registrations
which the administrative Agent may reasonably think expedient for
perfecting or protecting the security created hereby over the Security
Assets.
17.2 LEGAL CHARGE
Without prejudice to the generality of Clause 17.1 (General), the
Chargor will forthwith at the request of the Administrative Agent
execute a legal mortgage, charge or assignment over all or any of the
Security Assets subject to or intended to be subject to any fixed
security hereby created in favour of the Administrative Agent (as agent
and trustee as aforesaid) in such form as the Administrative Agent may
require but containing terms no more onerous than those in this Deed.
18. REDEMPTION OF PRIOR MORTGAGES
The Administrative Agent may, at any time after the security hereby
constituted has become enforceable, redeem any prior Lien against the
Security Assets or any part thereof or procure the transfer thereof to
itself and may settle and pass the accounts of the prior mortgagee,
chargee or encumbrancer. Any accounts so settled and passed shall be
conclusive and binding on the Chargor. All principal moneys, interest,
costs, charges and expenses of and incidental to such redemption and
transfer shall be paid by the Chargor to the Administrative Agent on
demand.
19. POWER OF ATTORNEY
19.1 APPOINTMENT
The Chargor hereby by way of security and in order more fully to secure
the performance of its obligations hereunder irrevocably appoints the
Administrative Agent and every Receiver of the Security Assets or any
part thereof appointed hereunder and every such delegate or subdelegate
as aforesaid to be its attorney acting severally, and on its behalf and
in its name or otherwise, after the occurrence of an Event of Default
and whilst it continues to execute and do all such assurances, acts and
things which the Chargor ought to do and fails to do under the covenants
and provisions contained in this Deed (including, without limitation, to
make any demand upon or to give any notice or receipt to any person
owing moneys to the Chargor and to execute and deliver any charges,
legal mortgages, assignments or other security and any transfers of
securities) any generally in its name and on its behalf to exercise all
or any of the powers, authorities and discretions conferred by or
pursuant to this Deed or by statute on the Administrative Agent or any
such Receiver, delegate or sub-delegate and (without prejudice to the
generality of the foregoing) to seal and deliver and otherwise perfect
any deed, assurance, agreement, instrument or act which it or he may
reasonably deem proper in or for the purpose of exercising any of such
powers, authorities and discretions.
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19.2 RATIFICATION
The Chargor hereby ratifies and confirms and agrees to ratify and
confirm whatever any such attorney as is mentioned in Clause 19.1
(Appointment) shall do or purport to do in the exercise or purported
exercise of all or any of the powers, authorities and discretions
referred to in such Clause.
20. NEW ACCOUNTS
If the Administrative Agent or any Secured Party receives or is deemed
to be affected by notice whether actual or constructive of any
subsequent charge or other interest affecting any part of the Security
Assets and/or the proceeds of sale thereof, the Administrative Agent or
such Secured Party (as the case may be) may open a new account or
accounts with the Chargor. If the Administrative Agent or such Secured
Party (as the case may be) does not open a new account it shall
nevertheless be treated as if it had done so at the time when it
received or was deemed to have received notice and as from that time all
payments made to the Administrative Agent or such Secured Party (as the
case may be) shall be credited or be treated as having been credited to
the new account and shall not operate to reduce the amount for which
this Deed is security.
21. STAMP TAXES
The Chargor shall pay and, forthwith on demand, indemnify the
Administrative Agent and each Secured Party against any liability it
incurs in respect of any stamp, registration and similar tax which is or
becomes payable in connection with the entry into, performance or
enforcement of this Deed.
22. ADMINISTRATIVE AGENT
22.1 POWERS AND DISCRETIONS
Save as expressly provided in this deed.
(a) until the security hereby constituted shall have become
enforceable the Administrative Agent shall in granting any
consent or waiver or exercising any power, trust, authority or
discretion vested in it under the Security Documents, act as it
in its reasonable discretion shall think fit, in which case it
shall be in no way responsible for any loss, costs, damages or
expenses which may result from the exercise of non-exercise
thereof save in the case of its own negligence or wilful
misconduct; and
(b) as regards all the powers, trusts, authorities and discretions
vested in it under the Security Documents, after the security
hereby constituted shall have become enforceable, the
Administrative Agent shall have absolute discretion as to the
exercise thereof and shall be in no way responsible for any
loss, costs, damages or expenses which may result from the
exercise of non-exercise thereof save in the case of its own
negligence or wilful misconduct.
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22.2 DIRECTIONS BY REQUIRED LENDERS
As regards all or any of the powers, trusts, authorities and discretions
vested in it under the Security Documents, the Administrative Agent
shall act, or refrain from acting, in accordance with the directions of
the Require Lenders.
22.3 PROTECTIONS
By way of supplement to the Trustee Act 1925, it is expressly declared
as follows:
(a) the Administrative Agent may in relation to any of the
provisions of the Security Documents act on the opinion or
advice of or any information obtained from any lawyer, valuers,
surveyor, broker, auctioneer, accountant or other expert whether
obtained by the Chargor or by the Administrative Agent or
otherwise and shall not be responsible for any loss occasioned
by so acting;
(b) any opinion, advice or information obtained pursuant to the
foregoing paragraph (a) may be sent or obtained by letter,
facsimile transmission, telephone or other means and the
Administrative Agent shall not be liable for acting on any
opinion, advice or information purporting to be so conveyed
although the same shall contain some error or shall not be
authentic;
(c) the Administrative Agent may call for an accept as sufficient
evidence a certificate signed by any Responsible Officer of the
Chargor to the effect that any particular dealing, transaction,
step or thing is in the opinion of the persons so certifying
suitable or expedient or as to any other fact or matter upon
which the Administrative Agent may require to be satisfied. The
Administrative Agent shall be in no way bound to call for
further evidence or be responsible for any loss that may be
occasioned by acting on any such certificate;
(d) The Administrative Agent may refrain from doing anything which
would or might in its opinion be contrary to any law of any
jurisdiction or any directive of any agency of any state or
which would or might in its opinion otherwise render it liable
to any person and may do anything which is in its opinion
necessary to comply with any such law or directive;
(e) the Administrative Agent shall not be liable for any failure,
omission or defect in perfecting the security hereby
constituted including without prejudice to the generality of
the foregoing (i) failure to obtain any licence, consent or
other authority for the execution of any Security Document,
(ii) failure to register the same in accordance with the
provisions of any of the documents of title of the Chargor to
any of the property hereby charged, (iii) failure to effect or
procure registration of or otherwise protect any floating
charge created by any Security Document by registering under
the Land Registration Act 1925 or any other registration laws
in any territory any notice, caution or other entry prescribed
by or pursuant to the provisions of the Acts or laws and (iv)
failure to take or to require the Chargor to take any steps to
render any floating charge created by any Security Document
effective as regards assets (if any) outside England or Wales
or to secure the creation of any ancillary charge under the
laws of any territory concerned:
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(f) the Administrative Agent shall accept without enquiry,
requisition, objection or investigation such title as the
Chargor may have to that part of the Security Assets belonging
to it or any part thereof;
(g) the Administrative Agent shall be entitled to assume that no
Event of Default has occurred unless it has received from a
Secured Party a written notice specifying the nature of the
Event of Default;
(h) the Secured Parties shall indemnify the Administrative Agent and
every attorney, agent or other person appointed by it hereunder
against all liabilities and expenses properly incurred by it or
him in the execution of the powers and trusts contained in the
Security Documents or any designating instrument or of any
powers and trusts contained the Security Documents or of any
powers, authorities or discretions vested in it or him pursuant
to the Security Documents and against all actions, proceedings,
costs, claims and demands in respect of any matter or thing done
or omitted to be done in any way relating to the Security
Documents, provided always that the liability of each of the
Secured Parties under this paragraph shall not exceed such
proportion of the liabilities and expenses as equals the
proportion which the Secured Liabilities then due and owing to
it shall bear to the aggregate of such Secured Liabilities then
due and owing to the Secured Parties; and provided further that
the Administrative Agent may, in priority to any payment to any
Secured Party retain and pay out of any moneys in its hands upon
the trusts herein contained the amount of any liabilities and
expenses hereinbefore mentioned;
(i) the Administrative Agent may place all title deeds and other
documents certifying, representing or constituting the title to
any of the property hereby charged for the time being in its
hand in any safe deposit, safe or receptacle selected by the
Administrative Agent or with any bank or company whose business
includes undertaking the safe custody of documents or solicitor
or firm of solicitors and may at its discretion make any such
arrangements as it thinks fit for allowing the Chargor or its
solicitors and auditors access to or possession of such title
deeds and other documents when necessary or convenient and the
Administrative Agent shall not be responsible for any loss
incurred in connection with any such deposit, access or
possession and the Chargor shall pay all sums required to be
paid on account of or in respect of any such deposit;
(j) save as otherwise provided in the Security Documents, all moneys
which under the trusts herein contained are received by the
Administrative Agent may be invested in the name of or under the
control of the Administrative Agent in any investment for the
time being authorised under English law for the investment by
trustees of trust moneys or in any other investments, whether
similar or not, which may be selected by the Administrative
Agent or by placing the same on deposit in the name of or under
the control of the Administrative Agent at such bank or
institution (including the Administrative Agent) as the
Administrative Agent may think fit, or in such currency as the
Administrative Agent thinks fit and the Administrative Agent may
at any time vary or transfer any such investments for or into
other such investments or convert any moneys so deposited into
any other currency and shall not be responsible for any loss
occasioned thereby whether by depreciation in value, fluctuation
in exchange rates or otherwise;
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(k) save as otherwise expressly provided in the Security Documents
but only as between the Administrative Agent and the Chargor and
if the Administrative Agent is not a Secured Party the
Administrative Agent shall have full power to determine all
questions and doubts arising in relation to any of the
provisions of the Security Documents and every such
determination whether made upon a question actually raised or
implied in the acts or proceedings of the Administrative Agent
shall be conclusive and shall bind the Chargor; and
(l) the Administrative Agent may in the conduct of the trusts hereof
instead of acting personally employ and pay an agent whether
being a solicitor or other person to transact or concur in
transacting any business and to do or concur in doing any acts
required to be done by the Administrative Agent including the
receipt and payment of money and any agent being a solicitor,
broker or other person engaged in any profession or business
shall be entitled to be paid all usual professional and other
charges for business transacted and acts done by him or any
partner of his in connection with the trusts hereof.
22.4 PERFORMANCE BY CHARGOR
The Administrative Agent is hereby authorised and it shall be entitled
to assume without enquiry (in the absence of knowledge by or an express
notice to it to the contrary) that the Chargor is duly performing and
observing all the covenants, conditions, provisions and obligations
contained in the Security Documents and/or in respect of the Secured
Liabilities and on its part to be performed and observed.
23. WAIVERS, REMEDIES CUMULATIVE
(a) The rights of the Administrative Agent and each Secured Party under
this Deed;
(i) may be exercised as often as necessary;
(ii) are cumulative and not exclusive of its rights under general
law; and
(iii) may be waived only in writing and specifically.
(b) The Administrative Agent may waive any breach by the Chargor of any of
the Chargor's obligations hereunder if so instructed by the Required
Lenders and may agree minor or technical amendments to the document and
the transactions contemplated thereby without requiring the instructions
of the Lenders.
24. SEVERABILITY
24.1 GENERAL
If a provision of this Deed is or becomes illegal, invalid or
unenforceable in any jurisdiction in respect of the Chargor, that
shall not affect:
(a) in respect of the Chargor the validity or enforceability in that
jurisdiction of any other provision of this Deed; or
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(b) in respect of the Chargor the validity or enforceability in that
jurisdiction of any provision of this Deed; or
(c) in respect of the Chargor the validity or enforcability in other
jurisdictions of that or any other provision of this Deed.
24.2 DEEMED SEPARATE CHARGES
This Deed shall, in relation to the Chargor, be read and construed as if
it were a separate Deed relating to the Chargor to the intent that if
any Lien created by the Chargor in this Deed shall be invalid or liable
to be set aside for any reason, this shall not affect any Security
Interest created hereunder by the Charger.
25. COUNTERPARTS
This Deed may be executed in any number of counterparts and this will
have the same effect as if the signatures on the counterparts were on a
single copy of this Deed.
26. NOTICES
26.1 GIVING OF NOTICES
All notices under, or in connection with, this Deed shall be given in
accordance with the provisions of subsection 14.2 of the Credit
Agreement and section 8.2 of the Master Guarantee and Collateral
Agreement.
26.2 ADDRESSES FOR NOTICES
The address, telex number and facsimile number of the Chargor and the
Administrative Agent for all notices under, or in connection with, this
Deed are the same as provided for in the Credit Agreement or, as the
case may be, the Master Guarantee and Collateral Agreement.
27. COVENANT TO RELEASE
(a) The Administrative Agent shall and is hereby authorised by each Secured
Party to execute on behalf of itself and each Secured Party, without the
need for any further referral to, or authority from, any Secured Party,
all necessary releases of the Chargor from its obligations under any
Security Document (including, without limitation, a release of the
security given by the Chargor hereunder) which is sold pursuant to an
asset disposal permitted or consented to under the Credit Agreement.
(b) Upon the expiry of the Security Period, the Administrative Agent and
each Secured Party shall, at the request and cost of the Chargor,
execute and do all such deeds, acts and things as may be necessary to
release the Security Assets from the security constituted hereby.
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28. JURISDICTION
28.1 SUBMISSION
For the benefit of the English Agent and each English Lender, the
Chargor agrees that the courts of England have jurisdiction to settle
any disputes in connection with this Deed and accordingly submits to the
jurisdiction of the English courts.
28.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, the Chargor:
(a) irrevocably appoints the Company at Surrey House, 114 Tilt Road,
Cobham, Surrey KT11 3JH as its agent for service of process
relating to any proceedings before the English courts in
connection with this Deed;
(b) agrees to maintain such an agent for service of process in
England for so long as any Secured Liability is outstanding
under this Deed;
(c) agrees that failure by a process agent to notify the Chargor of
the process will not invalidate the proceedings concerned; and
(d) consents to the services of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 26.2 (Addresses
for notices).
28.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
The Chargor:
(a) waives objection to the English courts on grounds of
inconvenience forum or otherwise as regards proceedings in
connection with this Deed; and
(b) agrees that a judgment or order of an English court in
connection with this Deed is conclusive and binding on it and
may be enforced against it in the courts of any other
jurisdiction.
28.4 NON-EXCLUSIVITY
Nothing in this Clause 28 limits the right of the Secured Parties to
bring proceedings against the Chargor in connection with this Deed:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
29. GOVERNING LAW
This Deed shall be governed by and constructed in accordance with
English law.
27
25
IN WITNESS whereof this Deed has been duly executed as a deed on the date first
above written.
28
26
SIGNATORIES
THE CHARGOR
Executed as a deed by )
AMAV INDUSTRIES, INC. )
acting by )
) /s/ ANDREW S. ROSEN Andrew S. Rosen
) ------------------------ Vice President
) Authorized Signatory
)
and ) /s/ ALAN PLOTKIN Andrew Plotkin
) ------------------------ Secretary
) Authorized Signatory
THE ADMINISTRATIVE AGENT
SIGNED by
acting on behalf of
CREDIT SUISSEE FIRST BOSTON
in the presence of
/s/ EDWARD E. BARR
EDWARD E. BARR
ASSOCIATE
/s/ IRA LUBINSKY
IRA LUBINSKY
VICE PRESIDENT