EXHIBIT 10.9
DATED 31 October 1996
SECURITY ASSIGNMENT
CAPITAL MEDIA (UK) LIMITED (1)
UNIVERSAL INDEPENDENT HOLDINGS LIMITED (2)
TABLE OF CONTENTS
PARTIES 1
OPERATIVE PROVISIONS 1
1 Definitions 1
2 Interpretation 1
3 Covenant 2
4 Security 2
5 Expenses 3
6 Further assurance 3
7 Event of Default 4
8 Power of attorney 5
9 Duration of assignment 5
10 No liability as mortgagee in possession 5
11 Exclusions 5
12 Certificate 6
13 Rights cumulative, waiver 6
14 Severance 6
15 Communications 6
16 Successors 7
17 Governing law 7
SCHEDULE 1 8
Notice of Assignment 8
SCHEDULE 2 9
Consent and Acknowledgement 9
DATE
31 October 1996
PARTIES
(1) CAPITAL MEDIA (UK) LIMITED (formerly Excalibur Communications Limited)
a company incorporated in England and Wales with registered number
3025201, whose registered office is at 25 James Street, London W1M 5HY
(the "Assignor"); and
(2) UNIVERSAL INDEPENDENT HOLDINGS LIMITED of PO Box 438, Tropic Isle
Building, wickhams Cay, Road Town, Tortola, British Virgin Islands (the
"Assignee").
OPERATIVE PROVISIONS
1 DEFINITIONS
In this Assignment the following expressions shall bear the following
meanings:
Assigned Assets the right, title, benefit and
interest of the Assignor in or under
an agreement dated 25 September 1995
made between PTT Telecom BV ("the
Lessor") (1) and the Assignor (2)
("the Transponder Lease") whereby
the Lessor agreed to lease to the
Assignor transponder capacity
Events of Default any of the events mentioned in
Clause 7
Secured Obligations all monies, liabilities and
obligations, whether principal
interest or otherwise now or at any
time after the date of this
Assignment being or becoming due,
owing or incurred by the Assignor to
the Assignee whether actual,
contingent present or future and
whether done severally or jointly
with any other person and whether as
principal or surety or in some other
capacity, together with interest
legal and other costs, charges and
expenses whatsoever on a full
indemnity basis so that interest
shall be calculated and compounded
in accordance with the usual
practice of the Assignee from time
to time as well after as before any
demand made or judgment ascertained
hereunder
Security Interest any mortgage, charge, pledge, lien,
assignment, encumbrance, guarantee,
title transfer or retention
arrangement or agreement, or any
security interest whatsoever,
howsoever created or arising
2 INTERPRETATION
2.1 Sections 61 and 63 of the Law of Property Act 1925 shall apply to the
construction of this Assignment.
2.2 Headings used in this Assignment and table of contents are for
convenience only, and are to be ignored in construing this Assignment.
2.3 References in this Assignment to it or another document shall be
construed as a reference to this Assignment, or the other document, as
from time to time novated, amended, varied or supplemented.
2.4 Words importing the singular include the plural and vice versa.
2.5 References to laws and regulations include amendments and
re-enactments.
3 COVENANT
3.1 The Assignor shall satisfy the Secured Obligations as they fall due for
satisfaction in accordance with their terms.
4 SECURITY
4.1 Assignment
As continuing security for payment and discharge of the Secured
Obligations, the Assignor with full title guarantee, assigns absolutely
by way of security to the Assignee the Assigned Assets.
4.2 Re-assignment
Upon the irrevocable payment in full when due and upon the complete
performance and observance of all the Secured Obligations, the Assignee
will (subject to the terms of this Assignment) at the request and
expense of the Assignor re-assign the Assigned Assets to the Assignor.
4.3 Enforcement and application
The security created by this Assignment shall become enforceable by the
Assignee upon the occurrence of an Event of Default. Thereafter the
Assignee may apply all or any part of the Assigned Assets towards the
discharge of the Secured Obligations in such manner as the Assignee
deem fit.
4.4 Primary security
This Assignment shall be deemed to constitute primary and not
collateral security and the security shall not be discharged or
impaired by:-
(a) the dealing with, existence or validity of any other security
taken by the Assignee in relation to the Secured Obligations
or any enforcement of or failure to take, perfect or enforce
any such security;
(b) any amendment to or variation of any document or any security
relating to Secured Obligations;
(c) any release of, or granting of time or any other indulgence to
the Assignor or any third party; or
(d) any other act, event or omission which would or might but for
this clause operate to impair or discharge the security
constituted by, or the Assignor's liability under, this
Assignment including any act, omission or thing which would or
might afford an equitable defence to a security.
4.5 Negative covenant
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Except with the prior written consent of the Assignee, the Assignor
shall not create, agree to create or permit to subsist any Security
Interest in, over or affecting the whole or any part of the Assigned
Assets (except for Security Interests in favour of the Assignee as
security for the Secured Obligations) or over its right to call for a
discharge of the security hereby constituted nor deal with such right
in any manner.
4.6 Notices
The Assignor shall forthwith on receipt of consent pursuant to clause
6.1 deliver a duly completed notice of assignment in the form set out
in Schedule 1 and procure that upon receipt of such notice an
acknowledgement and consent in the form set out in Schedule 2 is
executed and delivered to each of the Assignee.
4.7 Documents
The Assignor shall deposit with a person nominated in writing by the
Assignee all documents relating to the Assigned Assets. Such documents
shall be returned to the Assignor upon re-assignment of the Assigned
Assets in accordance with clause 4.2.
5 EXPENSES
5.1 The Assignor shall immediately on demand pay the Assignee all
expenses (including legal and other out-of-pocket expenses) incurred in
connection with:
(i) the negotiation, preparation and execution of this Assignment,
the Facility Agreement and any related documents;
(ii) any variation, waiver, consent or approval relating to this
Assignment, the Facility Agreement or any related documents.
(iii) the preservation or enforcement, or the attempted preservation
or enforcement, of any Assignees' rights under this
Assignment, the Facility Agreement or any related documents.
5.2 The Assignor shall immediately on demand:
(i) pay any stamp, documentary and other similar duty or tax to
which this Assignment or any related document may be subject
or give rise; and
(ii) indemnify the Assignee against all losses or liabilities which
the Assignee may incur as a result of any delay or omission by
the Assignor to pay any such duty or tax.
6 FURTHER ASSURANCE
6.1 Notwithstanding any of the terms and provisions set out herein the
Assignor and the Assignee agree that this Assignment shall not create a
valid assignment of the Assigned Assets (of any kind whatsoever whether
equitable or legal) until the Assignee has obtained consent from the
Lessor to such assignment of the Assigned Assets.
6.2 The Assignor shall, at the request of the Assignee and at its own cost,
promptly execute any document and do or omit to do any other act or
thing which:
(a) the Assignee may specify in order to perfect or improve any
security created or intended to be created by this Assignment
and to enable the Assignee to
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deal with the Assigned Assets in accordance with the
provisions of this Assignment or in order to perfect the
Assignee' title to any part of the Assigned Assets; or
(b) the Assignee may specify with a view to the exercise or
proposed exercise of any of their powers, rights and
discretions under this Assignment.
7 EVENT OF DEFAULT
The following events shall constitute an Event of Default:
(a) if the Assignor fails to pay any sums payable by it from time
to time to the Company on the due date therefor or fails to
comply with any term condition covenant or other provision of
this Assignment or of any facility from the Company or any
related security document or to perform any of its obligations
or liabilities to the Company or if any representation or
warranty from time to time made to the Company by the Assignor
is or becomes incorrect or misleading in a material respect;
(b) if any indebtedness of the Assignor becomes due or capable of
being declared due before it's specified maturity date by
reason of breach or default on the part of the Assignor under
the terms of any agreement or instrument creating or
evidencing the same or is otherwise not paid when due (or
within any applicable period of grace) or any guarantee or
indemnity given by the Assignor is not honoured when due and
called upon;
(c) if an encumbrancer takes possession of or a trustee receiver
or similar officer is appointed in respect of all or any part
of the business or assets of the Assignor or a distress
execution attachment or other legal process is levied or
enforced upon or sued out against all or any substantial part
of such assets and is not discharged within 5 days;
(d) if the Assignor is deemed unable to pay its debts within the
meaning of Section 123 of the Insolvency Act 1986 or commences
negotiations with any one or more of its creditors with a view
to the general readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of
or a composition with its creditors;
(e) if the Assignor (being a company) takes any corporate action
or other steps are taken or legal proceedings are started for
its winding-up dissolution or reorganisation (otherwise than
for the purposes of an amalgamation or reconstruction whilst
solvent on terms previously approved in writing by the
Company) or for the appointment of a receiver administrator
administrative receiver trustee or similar officer of it or of
all or a material part of its revenues and assets or (being an
individual) dies or becomes of unsound mind or has a
Companyruptcy petition presented or order made against him;
(f) if the Assignor suspends or threatens to suspend a substantial
part of its business operations (otherwise than for the
purposes of a reconstruction or amalgamation on terms
previously approved in writing by the Company) or any
governmental authority permits or procures or threatens to
permit or procure any reorganisation transfer or expropriation
(whether with or without compensation) of a substantial part
of the business or assets of the Assignor;
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(g) if any guarantee indemnity or other security for any of the
Secured Liabilities fails or ceases in any respect to have
full force and effect or to be continuing or is terminated or
disputed or in the opinion of the Company is in jeopardy
invalid or unenforceable or if this Charge or the security
created by it is disputed or in the opinion of the Company is
in jeopardy;
(h) if at any time it is or becomes unlawful for the Assignor to
perform or comply with any or all of its obligations under
this Charge any other agreement between the Assignor and the
Company or any of such obligations of the Assignor are not or
cease to be legal valid binding and enforceable;
(i) if control (as defined in Section 435 of the Insolvency Act
1986) or the power to take control of the Assignor is acquired
by any person or company or group of associates (as defined in
such section) not having control of the Company at the date of
this Charge (unless with the prior consent in writing of the
Company); or
(j) if in the opinion of the Company a material adverse change
occurs in the financial condition results of operations or
business of the Assignor.
8 POWER OF ATTORNEY
For the purposes of securing the performance of the Assignor's
obligations under this Assignment, the Assignor irrevocably appoints
each of the Assignee or any person acting as the delegate of the
Assignee as the Assignor's attorney on behalf of and in the name of the
Assignor or otherwise to do all acts and things and sign and execute
all deeds and documents which any such Assignee may consider necessary
or expedient for the purpose of giving full effect to this Assignment.
9 DURATION OF ASSIGNMENT
9.1 The provisions of this Assignment shall remain in force until the
Secured Obligations have been unconditionally and irrevocably paid or
discharged in full.
9.2 The security created by this Assignment is continuing and is not to be
considered as satisfied or discharged by any intermediate payment or
settlement of the whole or any part of the Secured Obligations or any
other matter or thing whatsoever, including, without limitation, the
insolvency, liquidation or administration of the Assignor.
10 NO LIABILITY AS MORTGAGEE IN POSSESSION
Nothing herein provided shall be deemed to constitute any Assignee
mortgagee in possession of the property charged under this Assignment.
11 EXCLUSIONS
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to
this Assignment.
12 CERTIFICATE
A statement as to any amount of the Secured Obligations or as to any
amount due to any of the Assignee under this Assignment which is
certified as being correct by a
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duly appointed representative or Officer of such Assignee shall, in
the absence of manifest error, be conclusive evidence that such amount
is in fact due and payable.
13 RIGHTS CUMULATIVE, WAIVER
13.1 The rights of the Assignee under this Assignment:
(a) are cumulative and are in addition to their rights under the
general law;
(b) may be exercised as often as they consider appropriate; and
(c) may be waived only in writing.
13.2 Any failure or delay in the exercise of any such rights shall not be
treated as a waiver.
14 SEVERANCE
Each of the provisions of this Assignment is severable and distinct
from the others. If one or more provision is or becomes invalid,
illegal or unenforceable, then this shall not affect the validity,
legality and enforceability of the remaining provisions.
15 COMMUNICATIONS
15.1 Any demand, consent, record, election, certificate or notice
required or permitted to be given under this Assignment shall be in
writing and sent by registered or recorded delivery post or facsimile,
or delivered by hand, addressed to the relevant party at the address or
the facsimile number set out in this Assignment or in either case to
such other person or address or facsimile number as any party shall by
not less than five (5) business days' written notice have advised the
others in writing. Any such demand, consent, record, election,
certificate or notice shall be deemed (if given as aforesaid) to have
been received by the party to whom it is addressed:
(a) two (2) business days after posting in the case of despatch by
post as aforesaid; or
(b) if sent by facsimile, on the business day on which it was
transmitted if transmission takes place during normal business
hours otherwise it is deemed to be received when normal
business hours next commence; or
(c) on delivery if delivered by hand.
15.2 In this Clause:
(a) "normal business hours" are 9.30 am to 5.30 pm on a business
day; and
(b) "business days" are days (not being Saturdays or Sundays or
public holidays) on which banks are open for business in
London.
16 SUCCESSORS
16.1 This Assignment shall be binding upon and inure to the benefit of
the Assignor and the Assignee and their successors and assigns.
Reference to the Assignee in this Assignment includes any assignee or
transferee of any Assignee in relation to its rights and obligations
under this Assignment.
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16.2 The Assignor may not assign or transfer all or any part of its
rights or obligations under this Assignment. The Assignee may assign
all or any of their rights hereunder to any person.
17 GOVERNING LAW
This Assignment shall be governed by and construed in accordance with
English law, and the parties irrevocably submit to the exclusive
jurisdiction of the English courts.
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SCHEDULE 1
NOTICE OF ASSIGNMENT
To: PTT Telecom BV
The Hague
The Netherlands
From: Capital Media (UK) Limited
25 James Street
London W1M 5HY
Date:
Dear Sirs
We hereby give you notice that by an assignment (a copy of which is attached)
("the Assignment") dated ____________________ 1996 and made between this Company
and the Assignee described in the Assignment we have assigned absolutely to the
Assignee all our right, title, benefit and interest in and under the Assigned
Assets (as such term is defined in the Assignment).
You shall disclose such information relating to the Assigned Assets as the
Assignee may request you to disclose to them, and act in accordance with their
instructions concerning the Assigned Assets.
This notice and the instructions herein contained are irrevocable. Please
acknowledge receipt of this notice by completing and returning the enclosed
consent to assignment.
Yours faithfully
/s/ BARRY LLEWELLYN
- ----------------------------
for and on behalf of
Capital Media (UK) Limited
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SCHEDULE 2
CONSENT AND ACKNOWLEDGEMENT
To: Universal Independent Holdings Limited
From: PTT Telecom BV
The Hague
The Netherlands
Date:
Dear Sirs
We acknowledge receipt of a notice of an assignment and copy of a deed of
assignment dated 1996 (the "Assignment") and made between Capital Media (UK)
Limited (the "Assignor") and the Assignee relating to the Assigned Assets (as
such term is defined in the Assignment).
We hereby consent to such assignment, and agree to disclose information relating
to the Assigned Assets if requested to do so by the Assignee, and agree that we
will comply with the Assignee' instructions concerning the Assigned Assets.
Yours faithfully
- -----------------------------------
For and on behalf of
PTT Telecom BV
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ATTESTATIONS
THE ASSIGNOR
EXECUTED and DELIVERED as a DEED )
by CAPITAL MEDIA (UK) LIMITED acting by )
two directors/a director and the secretary: )
Director /s/ BARRY LLEWELLYN
Secretary /s/ CHARLES KOPPEL
THE ASSIGNEES
EXECUTED as a Deed on behalf of )
UNIVERSAL INDEPENDENT )
HOLDINGS LIMITED incorporated )
in the British Virgin Islands )
by ) /s/
and ) /s/
being a person/persons who in )
accordance with the laws of that )
territory is/are empowered to sign the )
document on behalf of the Company )
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