EXHIBIT 10.2
DATED 31 October 1996
DEBENTURE
(Fixed and Floating Charge)
(1)
INSTAR HOLDINGS INC
(2)
CAPITAL MEDIA (UK) LIMITED
Ref : 466/E8948.5/CF:98048.2/hs
TABLE OF CONTENTS
PARTIES 1
OPERATIVE PROVISIONS 1
1 Definitions 1
2 Charge 2
3 Covenants 3
4 Book Debts 5
5 Receiver 6
6 Miscellaneous 7
7 Power of Attorney 9
8 Costs and Indemnity 9
9 Severance 10
10 Further Assurance 10
11 Notices 10
12 Benefit and Assignment of Debenture 10
13 Law 10
ATTESTATION 11
DATE 31 October 1996
PARTIES
(1) INSTAR HOLDINGS INC whose registered office is at R.R.E.
Commercial Centre, Majuro, Marshall Islands (the
"Lender"); and
(2) CAPITAL MEDIA (UK) LIMITED (Company no: 3025201) whose
registered office is at 25 James Street London
W1M 5HY (the "Company")
OPERATIVE PROVISIONS
1 DEFINITIONS
1.1 In this Debenture, except so far as the context otherwise requires,
the following words and expressions shall have the meanings set out
below:
Acts the Law of Property Act
1925 and the Insolvency Act
1986 (or any statutory
modification or
re-enactment of those acts
for the time being in
force)
Assets the property, undertaking and assets of the Company expressed
to be charged now or hereafter under Clause 2
Facility Agreement the Facility Letter dated October 1996 between the Lender
and the Company relating to a loan facility of up to
US$2,000,000
Bank Lloyds Bank PLC
Designated Account the account with
the Bank designated by the
Lender in writing from time
to time or such other
account so designated by
the Lender
Indebtedness all monies, liabilities and obligations whether principal
interest or otherwise now or at any time after the date of this
Debenture being or becoming due, owing or incurred by the
Company to the Lender whether actual, contingent present or
future and whether alone 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 Lender from time to time as well
after as before any demand made or judgment ascertained
hereunder
Intellectual Property the assets charged under Clause 2.2(g) of this Debenture
Investments the assets charged under Clause 2.2(h) of this Debenture
Property all leasehold and freehold property referred to in Clauses
2.2(a) and 2.2(b)
Receiver has the meaning given to it in Clause 5.1
1.2 Words and expressions defined in the Facility Agreement shall have
the same meanings in this Debenture.
1.3 The terms of the Facility Agreement are incorporated into this
DEbenture to the extent required for any purported disposition of the
Property contained in this Debenture to be a valid disposition in
accordance with section 2(1) of the Law of Property (Miscellaneous
Provisions) Act 1989)
1.4 Clause headings are for ease of reference only.
1.5 Any reference in this Debenture to any statute or any section of any
statute shall be deemed to include references to any statutory
modification or re-enactment thereof for the time being in force.
2 CHARGE
2.1 The Company covenants to the Lender that it shall on demand
to pay and discharge the Indebtedness (including on an
acceleration).
2.2 As security for the payment and discharge of the Indebtedness, the
Company, with full title guarantee , hereby charges to the Lender:
(a) by way of legal mortgage, all freehold, leasehold or other
immovable property now vested in the Company, together
with all buildings, fixtures (including trade fixtures)
and fixed plant and machinery from time to time on that
property;
(b) by way of fixed charge, all estates or interests in any
freehold and leasehold or other immovable property of the
Company (not being property charged by Clause 2.2(a)) now
or hereafter belonging to or vested in the Company,
together with all buildings, fixtures (including trade
fixtures) and fixed plant and machinery from time to time
on that property;
(c) by way of fixed charge, all plant and machinery now or in
the future belonging to the Company other than fixed plant
and machinery that is charged pursuant to Clause 2.2(a);
(d) by way of fixed charge, all the goodwill and
uncalled capital for the time being of the Company;
(e) by way of fixed charge, all book debts and other debts
whatsoever now or in the future due or owing to the
Company;
(f) by way of fixed charge all present and future bank
accounts of the Company (however designated and including
the Designated Account) maintained with any bank or other
financial institution in any jurisdiction and any and all
moneys (including interest) from time to time standing to
the credit of each of them which in each such case is not
otherwise charged pursuant to Clause 2.2(e);
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(g) by way of fixed charge, all copyrights, patents, designs,
registered designs (including applications and rights to
apply therefor), inventions, rights in trade marks and
service marks whether registered or not (including
applications and rights to apply therefor) confidential
information and know-how, utility models, moral rights and
other intellectual property rights and any interest in any
of those rights, choses in action and claims and fees,
royalties and other rights of every kind deriving
therefrom now or at any time hereafter belonging to the
Company; and
(h) by way of fixed charge, all stocks shares (save for the
shares held in Blink TV Limited) and other securities now
or in the future belonging to the Company together with
all dividends and other rights deriving therefrom and the
Company shall at the date hereof deliver to the Lender all
relevant share certificates and duly executed (but not
dated) instruments of transfer (as may be required or
required by the Lender) to transfer the shares from the
Company;
(i) by way of fixed charge all the Company's right, title and
interest in and to all its present and future rights and
claims in any contracts, (save for an agreement dated 25
September 1995 and made between PTT Telecom BV and the
Company whereby PTT Telecom BV agreed to lease to the
Company transponder capacity) agreements or instruments,
including, without limitation, all contracts of insurance
of whatever nature which are from time to time taken out
by or on behalf of the Company in which the Company may
now or in the future have an interest;
(j) by way of floating charge, all the Company's present and
future undertaking and assets, whatever and wherever,
other than any property or assets for the time being
effectively charged to the Lender or otherwise by way of
legal mortgage or fixed charge under this Debenture.
2.3 By notice in writing to the Company, the Lender may at any time after
the occurrence of any of the events set out in Clause 15 of the
Facility Letter convert the floating charge created by Clause 2.2(j)
into a specific charge over any Assets specified in such notice which
are for the time being the subject of such floating charge. The
floating charge created by this Debenture shall unless otherwise
agreed in writing by the Lender automatically and without notice be
converted into a fixed charge in the event that the Company shall
create or permit to subsist any security interest as described in
Clause 3.1(a) of this Debenture.
3 COVENANTS
3.1 The Company shall not and shall undertake and procure that Onyx GmbH
does not during the subsistence in force of this Debenture without
the prior written consent of the Lender:
(a) except for charges in favour of the Lender created under
or pursuant to the Facility Agreement or in favour of
Universal Independent Holdings Limited pursuant to
arrangements in respect of a transponder agreement with
PTT Telecom BV dated 25 September 1996 create or permit to
subsist any mortgage, charge, pledge, hypothecation, lien
or other security interest on any of its undertaking or
assets;
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(b) sell, transfer, lease, lend or otherwise dispose of its
undertaking and other assets or any part of them, except
by getting in and realising them in the ordinary and
proper course of its business;
(c) deal with its book or other debts or securities for money
except by getting in and realising them in the ordinary
and proper course of its business, but so that this
exception shall not permit the realisation of debts by
means of block discounting or factoring; or
(d) grant or accept a surrender of any lease, licence or right
of occupation of or part with or share possession or
occupation of or grant or agree to grant any option in
relation to the Property or any part of it.
3.2 The Company shall and shall undertake and procure that Onyx GmbH
shall:
(a) if so requested by the Lender promptly deposit with
the Lender all deeds and documents of title and all
insurance policies relating to the Assets;
(b) keep such of the Assets as are insurable comprehensively
insured to the Lender's satisfaction in writing (and, if
so required by the Lender, in the joint names of itself
and the Lender) against loss or damage by fire and such
other risks as the Lender may require, to their full
replacement value and, where such insurance is not in
joint names, procure that the Lender's interest is noted
on all policies required under this Clause 3.2(b);
(c) duly and promptly pay all premiums and other moneys
necessary for maintaining the insurances required under
Clause 3.2(b) and on demand produce the insurance policies
and premium receipts to the Lender;
(d) keep all buildings and all plant, machinery, fixtures,
fittings and other effects in good repair and working
order;
(e) apply any insurance proceeds in making good the loss or
damage or at the Lender's option in or towards the
discharge of the monies obligations and liabilities
secured by this Debenture;
(f) punctually pay all rents taxes duties assessments and
other outgoings and observe and perform all restrictive
and other covenants under which any property subject to
this Debenture is held;
(g) make such registrations and pay such fees,
registration taxes and similar amounts as are
necessary to keep its Intellectual Property in force;
(h) take such steps as are necessary (including, without
limitation, the institution of legal proceedings) to
prevent third parties infringing its Intellectual Property
and (without prejudice to sub-paragraph (g) above) take
such other steps as are reasonably practicable to maintain
and preserve its interests therein; and
(i) not permit the registration of any Intellectual
Property to be abandoned, cancelled or to lapse or
become liable to any claim of abandonment for non-use.
(j) during the subsistence of this Debenture, duly and
promptly pay all calls, instalments and other payments due
on any of the Investments, failing
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which the Lender may in its discretion make such payments
on behalf of the Company, and any sum so paid by the
Lender shall be repayable by the Company on demand;
(k) during the subsistence of this Debenture, remain liable to
observe and perform all of the conditions and obligations
assumed by the registered holder, bearer or owner of the
Investments and the Lender shall not be under any
obligation or liability in relation thereto by reason or
arising out of the Investments being charged to the Lender
under this Debenture;
(l) the Company shall, from time to time on demand of the
Lender at the Company's cost:
(i) in the case of registered Investments, deliver
to the Lender executed transfers or assignments
in favour of the Lender or its nominee or agent
together with share certificates or other
documents of title for registration of the
Investments in the name of the Lender or its
nominee or agent;
(ii) in the case of bearer Investments, deliver to
the Lender or its nominee or agent the
documents of title to them; and
(iii) complete all transfers, renunciations, mandates,
assignments, deeds or other documents or do such
other things as the Lender may require to
perfect the title (whether legal or otherwise)
of the Lender or that of its nominee or agent to
the Investments.
3.3 If the Company fails to perform any of its obligations under Clauses
3.2 or 4, the Lender may (subject to the provisions of the Prior
Charges) take such steps as it considers appropriate to procure the
performance of such obligations (without being deemed to be a
mortgagee in possession) (including taking out or renewing any
insurance or effecting such repairs and taking such other action as
it may deem appropriate to remedy such failure) and recover the
premiums and other expenses so incurred from the Company on demand
and until so recovered such unpaid amounts shall carry interest as
mentioned in Clause 2.1 from the date of payment to the date of
recovery.
4 BOOK DEBTS
At all times during the subsistence of this Debenture the Company
shall:
(a) get in and realise the book debts and other debts
charged by Clause 2.2(e) of this Debenture in the
ordinary and usual course of its business on behalf of
the Lender;
(b) pay the proceeds of such getting in and realisation of the
book debts and other debts into the Designated Account and
pay or otherwise deal with such monies standing in such
Designated Account in accordance only with the directions
from time to time given in writing by the Lender and the
Company shall furnish to the Lender evidence satisfactory
to the Lender that the bank has been notified of, and has
agreed to operate such account in accordance with, any
procedures stipulated by the Lender);
(c) prior to any demand being made for payment of the
Indebtedness or to the crystallisation of the floating
charges created hereby (howsoever such
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crystallisation may arise) and in the absence of any
direction being given by the Lender pursuant to Clause
4(b) of this Debenture the monies received by the Company
and paid into the Designated Account in respect of such
book debts and other debts charged by Clause 2.2(e) of
this Debenture shall, upon such payment in, stand released
from the fixed charge on such debts created pursuant to
clause 2.2(e) of this Debenture and shall stand subject to
the floating charge created by clause 2.2(j) of this
Debenture over the property and assets of the Company as
therein provided;
(d) any release occurring pursuant to paragraph (c) of Clause
4 of this Debenture shall not derogate from or otherwise
prejudice the subsistence of the fixed charge over book
and other debts of the Company created by Clause 2.2(e) of
this Debenture in respect of all book debts and other
debts due owing and unpaid at the time of and subsequent
to such release;
(e) if required by the Lender at any time, execute and deliver
to the Lender a legal assignment of such book debts and
other debts for the time being charged by Clause 2.2(e) of
this Debenture to the Lender in such form as the Lender
may require and give notice of such assignment to the
person from whom such book debts and other debts are due
in such form as the Lender may require; and
(f) authorise provision by the Bank to the Lender at any time
requested by the Lender for statements and particulars of
the Designated Account and such other financial and other
information in respect thereof as the Lender shall
require.
5 RECEIVER
5.1 At any time after the occurrence of any of the events set out in
clause 15 of the Facility Agreement (or if so requested by the
Company), the Lender may demand repayment of the Indebtedness and
then appoint by writing any person or persons to be an administrative
receiver or a receiver and manager or receivers and managers ("the
Receiver", which expression shall include any substituted receiver(s)
and manager(s)) of all or any part of the Assets.
5.2 The Lender may from time to time determine the remuneration of the
Receiver and may remove the Receiver and appoint another in his
place.
5.3 The Receiver shall be the Company's agent and shall have all powers
conferred or which may be conferred by the Acts. The Company alone
shall be responsible for his acts and omissions and for his
remuneration. In particular, but without limiting any general powers
or the Lender's power of sale, the Receiver shall have power:
(a) to take possession of collect and get in all or any part
of the Assets and for that purpose to take any proceedings
in the Company's name or otherwise as he shall think fit;
(b) to carry on or concur in carrying on the Company's
business and raise money from any person either secured or
unsecured on the Assets or any part of them either in
priority to this security or otherwise and generally on
such terms as the Receiver shall think fit;
(c) to sell, let and/or terminate or to accept surrenders
of leases or tenancies of any part of the Property, in
such manner and on such terms as he thinks fit;
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(d) to purchase or acquire any land and purchase, acquire
and grant any interest in or right over land;
(e) to sell, assign, let or otherwise dispose of or
concur in selling, assigning, letting or otherwise
disposing of all or any of the Assets in respect of which
he is appointed;
(f) to take, continue or defend any proceedings and make
any arrangement or compromise which the Lender or he shall
think fit;
(g) to make and effect all repairs, improvements and
insurances;
(h) to appoint managers, officers, employees,
professional advisers and agents for any of the above
purposes, at such remuneration as the Receiver may
determine;
(i) to call up any of the Company's uncalled capital;
(j) to promote the formation of a subsidiary company or
companies of the Company, so that such subsidiary may
purchase, lease, license or otherwise acquire interests in
all or any part of the Assets; and
(k) to do all other acts and things which he may consider to
be incidental or conducive to any of the above powers.
5.4 Any moneys received under this Debenture shall be applied:
(a) first, in satisfaction of all costs, charges and
expenses properly incurred and payments properly made by
the Lender or the Receiver and of the remuneration of the
Receiver;
(b) secondly, the surplus (if any) shall be paid to the
person or persons entitled to it.
6 MISCELLANEOUS
6.1 No statutory or other power of granting or agreeing to grant or of
accepting or agreeing to accept surrenders of leases or tenancies of
any part of the Property may be exercised by the Company without the
Lender's prior written consent. Section 93 of the Law of Property Act
1925 shall not apply.
6.2 The Company at its expense shall at any time at the Lender' request
promptly execute and deliver to the Lender any other or further
mortgage, charge or other instrument conferring a fixed charge on any
of its Assets (including any of the Assets charged by Clause 2.2(j))
or such other charge as the Lender may in its discretion think fit
for securing the Indebtedness.
6.3 This Debenture shall be:
(a) a continuing security, notwithstanding any
settlement of account or other matter or thing whatever;
(b) without prejudice and in addition to any other security
for the Indebtedness (whether by way of mortgage,
equitable charge or otherwise) which the Lender may hold
now or hereafter on all or any part of the Assets;
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(c) in addition to any rights, powers and remedies at law;
(d) apply to the ultimate balance of the Indebtedness
(together with all expenses whatever incurred by the
Lender in the enforcement or attempted enforcement of this
Debenture) and shall not be discharged or otherwise
affected by any intermediate payment or satisfaction of
any part of the Company's obligations;
6.4 Any release or discharge of this Debenture shall be conditional on no
payment or assurance received by the Lender in respect of the
Company's obligations under the Facility Agreement being avoided or
reduced under any law (English or foreign) relating to bankruptcy,
liquidation or analogous circumstances in force within the relevant
period after that payment or discharge during which any payment may
for any reason be reclaimed or otherwise not retained by the Lender.
After that avoidance or reduction, the Lender may exercise its rights
under the Facility Agreement and this Debenture and/or any other
rights which it would have been entitled to exercise notwithstanding
any release and discharge which shall be considered null and void. In
this Clause 6.4, the "relevant period" means the relevant statutory
period, extended by one month, within which any payment or security
made to or held by the Lender may be avoided or invalidated under any
enactment relating to insolvency or otherwise.
6.5 Section 103 of the Law of Property Act 1925 shall not apply. The
statutory power of sale shall be exercisable at any time after the
execution of this Debenture. The Lender shall not exercise its power
of sale until payment has been demanded, but this provision shall not
affect a purchaser or put him on inquiry whether such demand has been
made.
6.6 No failure or delay on the Lender's part in the exercise of any of
its rights, powers and remedies (in this Clause 6 "right(s)") under
this Debenture or at law shall operate or be construed as a waiver.
No waiver of any of the Lender's rights shall preclude any further or
other exercise of that right or of any other right.
6.7 The Lender may give time or other indulgence or make any other
arrangement, variation or release with any person in respect of the
Indebtedness or any other security or guarantee for the Indebtedness
without derogating from the Company's liabilities or the Lender's
rights under this Debenture.
6.8 The Company certifies that this Debenture is in its best commercial
interests and does not contravene its Memorandum and Articles of
Association or any agreement binding on it or on any of the Assets
and has been executed in accordance therewith and hereby applies to
the Chief Land Registrar for a restriction to be entered on the
register of its title to registered properties charged by this
Debenture that:
"Except under an Order of the Registrar no disposition or
dealing by the proprietor of the land is to be registered
or noted without the consent of the proprietor for the
time being of Charge No ."
6.9 A certificate signed on behalf of the Lender of the amount for the
time being of any Indebtedness and/or the amounts due to the Lender
shall be conclusive evidence for all purposes against the Company,
unless manifestly incorrect.
6.10 No person dealing with a Receiver or the Lender shall be concerned to
enquire 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
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money paid raised or borrowed or as to the propriety or regularity of
any sale by or other dealing with such Receiver or the Lender. All
the protection to purchasers contained in Sections 104 and 107 of the
Law of Property Act 1925 shall apply to any person purchasing from or
dealing with a Receiver or the Lender.
7 POWER OF ATTORNEY
7.1 By way of security, the Company hereby irrevocably appoints the
Lender any Receiver and any person nominated by the Lender jointly
and also severally to be the attorney of the Company with the power
of substitution and in its name and otherwise on its behalf and as
its act and deed to sign or execute all deeds instruments and
documents which the Lender or any Receiver may require or deem proper
for any of the purposes of or which the Company ought to do under
this Debenture. The Company agrees to ratify and confirm anything
such attorney shall lawfully and properly do.
7.2 The power of attorney granted under Clause 7.1 as regards the Lender,
and its delegates and substitutes (as the Company acknowledges) are
granted irrevocably as part of the security created by this Debenture
to secure proprietary interests of and the performance of the
obligations owed to the respective donees within the meaning and for
the purposes of the Powers of Attorney Act 1971 (as amended or
re-enacted from time to time).
7.3 The Company hereby appoints the Lender as its authorised agent to
make any filings, registrations or renewals with the appropriate
registrars or authorities as shall be necessary to give effect to
Clause 2.2(g).
8 COSTS AND INDEMNITY
8.1 All costs charges and expenses incurred by the Lender in relation to
this Debenture or the monies and liabilities hereby secured shall be
reimbursed by the Company to the Lender on demand on a full indemnity
basis and until so reimbursed shall carry interest as mentioned in
Clause 1 from the date of payment to the date of reimbursement and be
secured on the property charged by this Debenture.
8.2 The Lender and every Receiver attorney or other person appointed by
the Lender under this Debenture and their respective employees shall
be entitled to be indemnified on a full indemnity basis out of the
property charged by this Debenture in respect of all liabilities and
expenses incurred by any of them in or directly or indirectly as a
result of the exercise or purported exercise of any of the powers
authorities or discretions vested in them under this Debenture and
against all actions proceedings losses costs claims and demands in
respect of any matter or thing done or omitted in any way relating to
the property charged by this Debenture and the Lender and any such
Receiver may retain and pay all sums in respect of the same out of
the monies received under the powers conferred by this Debenture.
9 SEVERANCE
The provisions of this Debenture shall be severable and if at any
time any provision in this Debenture is or becomes invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions of this Debenture shall not be impaired.
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10 FURTHER ASSURANCE
Without prejudice to the provision of section 76(1)(C) of the Law of
Property Act 1925, the Company shall whenever requested by the Lender
immediately execute and sign all such deeds and documents and do all
such things as the Lender may require at the Company's cost over any
property or assets specified by the Lender for the purpose of
perfecting or more effectively providing security to the Lender (or
its nominees) for the payment and discharge of the monies obligations
and liabilities secured by this Debenture or to enable the Lender (or
its nominees) to exercise any right and powers attaching to the
Assets or to give effect to any sale or disposal under Clause 5 or
otherwise to put into effect the intent of this Debenture.
11 NOTICES
The porovisions of clause 20 of the Facility Letter shall apply to
this Debenture making necessary changes.
12 BENEFIT AND ASSIGNMENT OF DEBENTURE
12.1 This Debenture shall be binding upon the Company and its successors
and shall enure to the benefit of the Lender and its successors and
assigns.
12.2 The Lender may assign or transfer all or part of its rights and
obligations under this Debenture, but the Company may not assign or
otherwise transfer any of its rights or obligations under this
Debenture.
13 LAW
This Debenture shall be governed by and construed in accordance with
English law and the Company irrevocably submits to the non-exclusive
jurisdiction of the English Courts.
IN WITNESS WHEREOF this Debenture has been executed and
unconditionally delivered as a Deed the day and year first before
written.
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ATTESTATION
EXECUTED as a Deed on behalf of )
INSTAR HOLDINGS INC a company )
incorporated in the Marshall islands )
by Anthony Michael Bousfield, Director ) /s/ ANTHONY MICHAEL BOUSFIELD
and Philip Oscar Gallienne, Secretary ) /s/ PHILIP OSCAR GALLIENNE
being a person/persons who in )
accordance with the laws of that )
territory is/are empowered to sign )
this document on behalf of the Company )
Executed and delivered as a Deed )
by CAPITAL MEDIA (UK) LIMITED )
pursuant to resolution of the Board acting by: )
/s/ BARRY LLEWELLYN, Director
/s/ CHARLES KOPPEL, Secretary
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