EXHIBIT 10.34
DATED JANUARY 7, 2002
PALM GLOBAL OPERATIONS LIMITED
and
FOOTHILL CAPITAL CORPORATION
(as Agent)
-------------------------------
GUARANTEE AND DEBENTURE
-------------------------------
Arthur Cox
----------
Earlsfort Centre
Earlsfort Terrace
Dublin 2
WJ1841/jb
28/11/01
TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
2 COVENANT TO PAY 4
3 CHARGING CLAUSE 6
4 DEPOSIT OF TITLE AND OTHER DOCUMENTS 8
5 RECEIVABLES 8
6 NEGATIVE PLEDGE AND OTHER RESTRICTIONS 8
7 FURTHER ASSURANCE 9
8 CONTINUING SECURITY 9
9 GENERAL COVENANTS 10
10 INSURANCE COVENANTS 10
11 PROPERTY COVENANTS AND CONSOLIDATION OF MORTGAGES 10
12 POWERS OF SALE, LEASING AND ACCEPTING SURRENDERS 11
13 OPENING OF NEW ACCOUNTS 11
14 APPOINTMENT AND POWERS OF A RECEIVER 12
15 POWER OF ATTORNEY 16
16 OTHER POWERS EXERCISABLE BY THE AGENT 17
17 APPLICATION OF MONEY RECEIVED BY THE AGENT OR A RECEIVER 17
18 COSTS AND INTEREST ON OVERDUE AMOUNTS 18
19 SET-OFF 19
20 TRANSFER 19
21 DISCLOSURE 20
22 PERPETUITY PERIODS 20
23 FORBEARANCE AND SEVERABILITY 20
24 VARIATIONS AND CONSENTS 21
25 SERVICE OF DEMANDS AND NOTICES 21
26 COUNTERPARTS 22
27 ADJUSTMENT OF ACCOUNT 22
28 PROVISO FOR REDEMPTION AND RELEASES 23
29 SECURITY TRUSTEESHIP 23
30 GOVERNING LAW AND SUBMISSION TO JURISDICTION 23
THE FIRST SCHEDULE: The Charging Companies 25
THE SECOND SCHEDULE: Terms of Guarantee 26
THIS DEBENTURE made the 7th day of January, 2002
BETWEEN:
(1) PALM GLOBAL OPERATIONS LIMITED, a company incorporated in Ireland whose
registered office is at 25-28 North Wall Quay, Dublin 1, as the Charging
Company (as defined below);
(2) FOOTHILL CAPITAL CORPORATION, a Californian corporation with its principal
place of business at 2450 Colorado Avenue Suite 3000W, Santa Monica,
California 90404 as agent for itself and the Lenders (as defined below)
(the "Agent");
WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions: In this Debenture, words or expressions defined in the
Loan Agreement (as defined below) shall, unless otherwise defined
below, bear the same meaning in this Debenture and, in addition, in
this Debenture (unless the context otherwise requires) the following
expressions have the following meanings:
"Agent" shall have the meaning given to it in the Loan Agreement and
shall include, where the context permits or requires, any successor
or replacement or other agent or security trustee appointed pursuant
to that agreement;
"Assets" means all the undertakings, property, assets, rights and
revenues of the Charging Company whatsoever, present or future,
wherever situated in the world and includes each or any of them;
"Charged Property" means any assets charged, secured or assigned,
whether in law or in equity, to the Lenders and/or Agent pursuant to
this Debenture;
"Charging Company" means Palm Global Operations Limited, details of
which are given in the First Schedule, and includes (with effect
from its execution and delivery of an agreement under which it
accedes to the Debenture, or of a Debenture in terms similar to this
Debenture) any company which subsequently adopts the obligations of
the Charging Company and also (where the context permits) includes
each or any of them;
"Confidential Information" has the meaning given to it in the Loan
Agreement;
"this Debenture" means this Debenture;
"Default" has the meaning given to it in the Loan Agreement;
"Employee Life Assurance Policies" means all assurance policies
relating to accident or permanent health taken out for the purpose
of benefiting any employee
or his dependants to the extent that the Charging Company is legally
obliged to pay out the benefit of such policies to the relevant
employees or their dependants;
"Enforcement Date" means the date upon which the Lenders and/or
Agent shall first enforce any part of the security hereby created in
accordance with the terms of the Loan Agreement and/or this
Debenture;
"Event of Default" means (i) a Triggering Event as defined in the
Palm Europe Loan Agreement or (ii) an Event of Default as defined in
the Loan Agreement;
"Floating Charge Assets" means, insofar only as concerns the
floating charges created by clause 3.1 (Charging Clause), Assets for
the time being comprised within such floating charge;
"Holding Company" means a holding company within the meaning of
Section 155 of the Companies Act 1963;
"Indebtedness" includes any obligation in any currency, whether
incurred as principal debtor or surety, for the payment or repayment
of money, whether present or future, actual or contingent;
"Land" means any freehold and leasehold land in Ireland or the
equivalent under any other jurisdiction and in each case all
buildings and structures and fixtures upon and all things affixed or
annexed to Land (including trade and tenants' fixtures) in which the
Charging Company may in the future acquire an interest;
"Lenders" has the meaning given to it in the Loan Agreement;
"Lien" has the meaning given to it in the Loan Agreement;
"Loan Agreement" means the loan agreement to be made between the
Charging Company (as Subsidiary Borrower), Foothill Capital
Corporation, Heller Financial Inc., and The CIT Group/Business
Credit, Inc. (as amended, supplemented and/or restated from time to
time, including in relation to an increase in the facilities
provided thereunder);
"Loan Documents" means the Loan Agreement and the Palm Europe Loan
Agreement together;
"Palm Europe" means Palm Europe Limited, a company incorporated in
England and Wales with company number 3903962;
"Palm Europe Loan Agreement" means the loan agreement to be made
between Palm Europe Limited, Foothill Capital Corporation, Heller
Financial Inc., and The CIT Group/Business Credit, Inc. (as amended,
supplemented and/or restated from time to time including in relation
to an increase in the facilities provided thereunder);
"Permitted Lien" has the meaning given to it in the Loan Agreement;
2
"Receivables" means all sums of money receivable by the Charging
Company now or in the future consisting of or payable under or
derived from any of its Assets;
"Receiver" means any receiver and manager or receivers and managers
appointed under clause 13.1 (Appointment of Receiver) and (where the
context requires or permits) includes any substituted receiver and
manager or receivers and managers;
"Recoveries" means any money received by the Agent or by the
Receiver under this Debenture and/or under the Loan Agreement on or
after the Enforcement Date;
"Secured Sums" means all money and liabilities covenanted and/or
guaranteed to be paid or discharged or indemnified by the Charging
Company to the Lenders under the Loan Agreement and clause 2.1
(Covenant to Pay) or 2.2 (Indemnity);
"Subsidiary" means a subsidiary within the meaning of Section 155 of
the Companies Act 1963;
"writing" includes telex, facsimile transmission and any other mode
of representing or reproducing words in a legible and non-transitory
form, except in relation to any certificate, notice or other
document which is expressly required by this Debenture to be signed,
and "written" has a corresponding meaning.
1.2. Interpretation: In this Debenture, unless the context otherwise requires:
1.2.1. words denoting the singular number only shall also include the
plural number and vice versa; words denoting the masculine gender
only shall also include the feminine gender;
1.2.2. words denoting persons only shall include corporations,
partnerships and unincorporated associations;
1.2.3. references to clauses, paragraphs and Schedules are to be construed
as references to clauses, paragraphs and Schedules of this
Debenture;
1.2.4. references to any party shall, where relevant, be deemed to be
references to or to include, as appropriate, their respective
successors or permitted assigns;
1.2.5. references in this Debenture to this Debenture or any other
document include references to this Debenture or such other document
as varied, supplemented, restated and/or replaced in any manner from
time to time and/or any document which varies, supplements, restates
and/or replaces it;
3
1.2.6. references to "including" shall not be construed restrictively but
shall be construed as meaning "including, without prejudice to the
generality of the foregoing";
1.2.7. references to moneys, obligations and liabilities due, owing or
incurred under the Loan Agreement shall include moneys, obligations
and liabilities due, owing or incurred in respect of any extensions
or increases in the amount of the facilities provided for therein or
the obligations and liabilities imposed thereunder;
1.2.8. expressions defined in the Companies Act 1963 shall have the same
meanings in this Debenture, except that the expression "company"
shall include a body corporate established outside Ireland; and
1.2.9. any reference to any statute or any section of any statute shall be
deemed to include reference to any statutory modification or
re-enactment of it for the time being in force;
1.3. Headings: Headings in this Debenture are inserted for convenience
and shall not affect its interpretation.
2. COVENANT TO PAY
2.1. Covenant to Pay: The Charging Company hereby:
2.1.1. covenants that it will on demand in writing made to it by
Agent pay or discharge to the Agent all money and liabilities
now or in the future due, owing or incurred to the Agent and
the Lenders by the Charging Company under or pursuant to the
Loan Agreement or any other contract or arrangement in
existence between the Agent or the Lenders, on the one hand,
and the Charging Company, on the other hand, as and when the
same fall due for payment; and
2.1.2. covenants and guarantees that it will on demand in writing
made to it by the Agent pay or discharge to the Agent all
money and liabilities (including all Obligations) now or in
the future due, owing or incurred but unpaid to the Lenders by
Palm Europe (except as a guarantor for the Charging Company)
under or pursuant to the Palm Europe Loan Agreement;
in either case, whether on or after such demand, whether actually or
contingently, whether solely or jointly with any other person,
whether as principal or surety and whether or not any of the Lenders
was an original party to the relevant transaction, including all
interest, commission, fees, charges, costs and expenses which the
Lenders may claim pursuant, in the case of (a), to the Loan
Agreement, or, in the case of (b), to the Palm Europe Loan Agreement
and so that interest shall be computed and compounded in accordance
with the Loan Agreement (or in the case of (b), the Palm Europe Loan
Agreement) after as well as before any demand or judgement.
4
2.2. Indemnity: The Charging Company further agrees as a separate
and independent primary obligation to indemnify the Agent and
the Lenders on demand in writing made to it by the Agent for
and against any loss, cost, expenses or liability of any kind
incurred as a result of any of the obligations hereby
guaranteed or covenanted to be paid by the Charging Company
being or becoming void, unenforceable or ineffective against
the Charging Company or Palm Europe for any reason whatsoever
whether known to the Agent or any Lender or not and for all
other amounts expressed to be guaranteed but which are not
recovered from the Charging Company or Palm Europe on the
footing of a guarantee for any reason whatsoever.
2.3. Terms of Guarantees: The guarantee contained in 2.1.2
(Covenant to Pay) is given subject to, and with the benefit
of, the provisions set out in the Second Schedule.
2.4. Demands from the Agent: The making of one demand under this
Debenture will not preclude the Agent from making any further
demands. The Agent may only make a demand under this Debenture
for repayment of the Secured Sums following the occurrence and
during the continuance of an Event of Default or if otherwise
entitled to do so under the Loan Agreement or under Clause
2.1.2 or Clause 2.2.
2.5. Third Parties: No demand may be made under this Debenture in
respect of sums due, owing or incurred under a Loan Document
except to the extent that the Agent has become entitled to
make such demand under the relevant Loan Document, but any
third party dealing with the Agent or any Receiver appointed
under this Debenture shall not be concerned to see or enquire
as to the validity of any demand under this Debenture.
2.6. All sums payable by the Charging Company under this Debenture
shall be paid without any set off, counterclaim, withholding
or deduction whatsoever unless required by law (or where such
set off, counterclaim, withholding or deduction is permitted
by the terms of the Loan Agreement) in which event the
Charging Company making the payment will (except in
circumstances where it would not be required so to do under
the terms of the Loan Agreement) simultaneously with making
the relevant payment under this Debenture pay to the Lender
such additional amount as will result in the receipt by the
Lender of the full amount which would otherwise have been
receivable and will supply the Lender promptly with evidence
satisfactory to the Lender that the Charging Company has
accounted to the relevant authority for the sum withheld or
deducted.
2.7. The Agent on behalf of each Lender (but without liability on
the part of the Agent), covenants with the Charging Company
that it shall perform its obligations under the Loan Agreement
(including any obligation to make available further advances).
5
3. CHARGING CLAUSE
3.1. Charging Clause: The Charging Company as legal and beneficial owner
hereby charges to the Agent (for the benefit of itself and the other
Lenders) as security for the payment or discharge of all Secured
Sums:
3.1.1. by way of first fixed charge, all contracts and policies of
insurance and assurance (or any interest therein) now or in
the future held by the Charging Company to the extent relating
to the Charged Property and all rights and interests of the
Charging Company in every such contract and policy (including
the benefit of all claims arising and all money payable under
such contracts and policies) (but excluding Employee Life
Assurance Policies);
3.1.2. by way of first fixed charge, all debts (other than book
debts) now or in the future owing to the Charging Company and
all rights and claims of the Charging Company against third
parties, present and future, capable of being satisfied by the
payment of money (except rights and claims effectively charged
under the preceding provisions of this clause 3.1);
3.1.3. by way of first fixed charge, all equipment, machinery,
machine tools, motors, furniture, furnishings, fixtures,
vehicles (including motor vehicles), tools, parts, goods
(other than consumer goods or farm products), now or in the
future belonging to the Charging Company, wherever located,
including all attachments, accessories, replacements,
substitutions, additions and improvements thereto; and
3.1.4. by way of floating charge, all stock, inventory, Receivables
and book debts of the Charging Company and all Assets
expressed to be subject to any fixed charge contained in the
preceding provisions of Clause 3.1 to the extent that the
relevant fixed charge may be ineffective or invalid or deemed
not to constitute a fixed charge, and any Assets comprised
within a charge which is reconverted under clause 3.5
(Decrystallisation of Floating Charge);
but in each case so that the Charging Company shall not (save if and
to the extent permitted by the Loan Agreement) create any Lien over
any Floating Charge Asset (whether having priority over, or ranking
pari passu with or subject to, this floating charge) or take any
other step referred to in clause 6.1 (Negative Pledge and other
Restrictions) with respect to any Floating Charge Asset and the
Charging Company shall not, without the prior written consent of the
Agent, sell, transfer, part with or dispose of any Floating Charge
Asset except by way of sale in the ordinary course of its business
or as permitted under the Loan Agreement.
3.2. Crystallisation of Floating Charge: The floating charges created by
the Charging Company in clauses 3.1.4 (Charging Clause) may be
crystallised into fixed charges by notice in writing given at any
time by the Agent to the Charging Company given:
6
3.2.1. at any time whilst an Event of Default is continuing; or
3.2.2. in respect of any Charged Property whilst the Agent
reasonably considers the security over it is in jeopardy or
which is in danger of seizure.
Such crystallisation shall take effect over such Floating Charge
Assets or class or classes of Floating Charge Assets as shall be
specified in the notice. If no Floating Charge Assets are so
specified, it shall take effect over all Floating Charge Assets of
the Charging Company.
3.3. Automatic Crystallisation:
3.3.1. Without prejudice to any rule of law which may have a similar
effect if the Charging Company, without the Agent's prior
written consent, resolves to take or takes any step to charge
(whether by way of fixed or floating charge) or otherwise
create any Lien (other than any Permitted Lien) over (or to
create a trust over) any of its Floating Charge Assets or to
dispose of any such Floating Charge Assets except by way of
sale or other disposition in the ordinary course of its
business (or as permitted by the Loan Agreement);
3.3.2. if any person resolves to take or takes any step to levy any
distress, execution, sequestration or other process against
any Floating Charge Asset relating to a liability of the
Charging Company; or
3.3.3. if an Event of Default takes place or if any of the Secured
Sums become due and outstanding prior to their stated
maturity;
then the floating charges created by clauses 3.1.4 (Charging Clause)
shall be automatically crystallised (without the necessity of
notice) into a fixed charge over such Floating Charge Asset
instantly on the occurrence of such event.
3.4. Floating Charge Assets acquired after Crystallisation: Except as
otherwise stated in any notice given under clause 3.2
(Crystallisation of Floating Charge) or unless such notice relates
to all Floating Charge Assets, Floating Charge Assets acquired by
the Charging Company after crystallisation has occurred under clause
3.2 (Crystallisation of Floating Charge) or 3.3 (Automatic
Crystallisation) shall continue subject to the floating charges
created by clauses 3.1 (Charging Clause), so that the
crystallisation shall be effective only as to its Floating Charge
Assets in existence at the date of crystallisation.
3.5. Decrystallisation of Floating Charge: Any charge by the Charging
Company which has crystallised under clause 3.2 (Crystallisation of
Floating Charge) or 3.3 (Automatic Crystallisation) may, by notice
in writing given at any time by the Agent to the Charging Company,
be reconverted into a floating charge in relation to the Assets or
class or classes of Assets specified in such notice.
7
3.6. Priority of Fixed Security: Any mortgage, fixed charge or other
fixed security whenever and however created by the Charging Company
and subsisting in favour of the Agent shall (save as the Agent may
otherwise declare at or after the time of its creation) have
priority over the floating charges created by clause 3.1.4 (Charging
Clause).
3.7. Debenture to have Priority: Any debentures, mortgages or charges
(fixed or floating) created in the future by the Charging Company
(except those in favour of the Agent) shall be expressed to be
subject to this Debenture and shall rank in order of priority behind
the charges created by this Debenture.
4. DEPOSIT OF TITLE AND OTHER DOCUMENTS
Except as otherwise expressly agreed in writing by the Agent, the Charging
Company shall deposit with the Agent, and the Agent shall be entitled to
retain, all deeds and documents of title relating to all its Assets
charged by way of fixed charge under clause 3(Charging Clause) (including
policies of insurance and assurance).
5. RECEIVABLES
5.1. Delivery of Particulars of Receivables: The Charging Company shall
deliver to the Agent such particulars as to the amount and nature of
its Receivables as the Agent may from time to time reasonably
require taking into account the requirements of the Loan Agreement.
6. NEGATIVE PLEDGE AND OTHER RESTRICTIONS
6.1. The Charging Company shall not, without the prior written consent of
the Agent or save as otherwise permitted under the Loan Agreement
(and, for the avoidance of doubt, with the exception of any
Permitted Liens):
6.1.1. create, or agree or attempt to create, or permit to subsist,
any Lien of any kind (including any security conferring power
to convert a floating charge into a fixed charge in relation
to any Asset) or any trust over any of its Assets or permit
any Lien to arise or subsist over any such Assets;
6.1.2. sell, assign, lease, license or sub-license, or grant any
interest in, or otherwise part with possession of, dispose of,
or cease to control, any of its Charged Property, or the right
to receive or be paid the proceeds arising on disposal of the
same or purport to do any such act (save that, unless
otherwise prohibited by the Loan Agreement or if the Charged
Property is expressed to be subject to a fixed charge, it may
deal with its Floating Charge Assets in the ordinary course of
its business) or allow any subsidiary to do any such thing; or
6.1.3. dispose of the equity of redemption in respect of any Charged
Property.
8
7. FURTHER ASSURANCE
To the extent required to comply with the Loan Agreement or any of the
other Loan Agreements, the Charging Company shall, and shall procure that
its Subsidiaries shall, on demand by the Agent in writing, execute and
deliver to the Agent at the cost of the Charging Company and in such form
as the Agent may reasonably require:
7.1. a fixed charge over any interest, in any Land in the future
belonging to the Charging Company;
7.2. a fixed charge over its Receivables or claims or the accounts into
which Receivables have or are to be paid and, following the
occurrence of an Event of Default which is continuing, unless the
Agent otherwise agrees, shall give a legal assignment of its
Receivables and/or give notice to the relevant debtor or account
holding bank in such form as the Agent has previously approved;
7.3. where any of its Assets (other than land) are situated outside
Ireland, such fixed security under the law of the place where the
Asset is situated as the Agent may reasonably require;
7.4. a notice to any third party of any of the charges or assignments
contained in this Debenture provided that the Agent will not require
the Charging Company to give such notice to customers of Charging
Company unless an Event of Default has occurred; and
7.5. such other documents as the Agent may reasonably require further to
secure the payment of the Secured Sums, or to perfect or protect
this Debenture or facilitate its realisation on the exercise of the
Agent's rights thereunder, or to vest title to any Asset in itself
or its nominee or any purchaser and to register such security or
title in any applicable register, in each case consistent with the
jurisdiction in which such asset is situate with such legal opinions
(if any) as the Agent may reasonably require from lawyers acceptable
to it in relation to such new or additional charge or other
security.
8. CONTINUING SECURITY
This Debenture shall be a continuing security and guarantee to the Agent,
notwithstanding any intermediate payment or settlement of account or any
other matter whatever, and shall be in addition to and shall not prejudice
or be prejudiced by any right of lien, set-off, combination or other
rights exercisable by the Agent and/or the Lenders as bankers against the
Charging Company or any Lien, guarantee, indemnity and/or negotiable
instrument now or in the future held by the Lenders and/or the Agent on
their behalf.
9
9. GENERAL COVENANTS
9.1. Notification of Acquisition of Assets: The Charging Company shall at
all times immediately notify the Agent in writing of its acquisition
of any interest or right in or to any Land material to the operation
of any Group Company's business.
9.2. Negative covenants regarding Receivables: Save as permitted by the
Loan Agreement, the Charging Company shall not, without the prior
written consent of the Agent (and other than to offer trade credit
in the ordinary course of its business), charge, factor, assign,
postpone, subordinate, set-off, release, compound, settle, cease to
collect or waive its rights of action in connection with any of its
Receivables, do or omit to do anything which is likely to materially
delay or prejudice the full recovery of its Receivables or otherwise
deal with its Receivables save than by collecting in and realising
the same.
9.3. Notification of Acquisition of Land: The Charging Company shall
forthwith notify the Agent of any agreement proposed or made by it
(whether now subsisting or made hereafter) for the acquisition by it
or any person on its behalf of any Land, or any estate or interest
in any Land.
10. INSURANCE COVENANTS
10.1. Covenant to Insure: The Charging Company shall ensure that its
insurance is such that the insurance covenants contained in clause
6.8 of the Loan Agreement are complied with.
10.2. Application of Insurance Proceeds: All moneys received by the
Charging Company or the Agent on any policies of insurance relating
to any Charged Property shall be applied in the manner specified in
clause 6.8 of the Loan Agreement and, if any moneys payable under
any policies of insurance are paid to the Charging Company, such
moneys will be held on trust pending their application for such
purposes.
11. PROPERTY COVENANTS AND CONSOLIDATION OF MORTGAGES
11.1. Section 17: Section 17 of the Conveyancing Act 1881, dealing with
the restriction on consolidation of mortgages, shall not apply to
this Debenture.
11.2. Leasing, etc.: The Charging Company shall not, without the prior
written consent of the Agent, exercise any power of leasing, or
accept surrender of leases of, any Land, nor (save where obliged to
do so by law) extend, renew or vary any lease or tenancy agreement
or give any licence to assign or underlet.
11.3. Parting with Possession: The Charging Company shall not part with
possession (except on the termination of any lease, tenancy or
licence granted to the Charging Company) of any Land or share the
occupation of it with any other person, or agree to do so, without
the prior written consent of the Agent.
10
12. POWERS OF SALE, LEASING AND ACCEPTING SURRENDERS
12.1. Statutory Power of Sale to arise on Enforcement: The restrictions in
Section 20 of the Conveyancing Act 1881 shall not apply to this
Debenture, but the statutory power of sale (as varied or extended by
this Debenture) shall (as between the Agent and a purchaser from the
Agent) arise on, and be exercisable at any time after, the execution
of this Debenture. However, the Agent shall not exercise such power
of sale until the Agent takes action in accordance with Clause 9 of
the Loan Agreement and/or a demand has been made in accordance with
Clause 2 of this Debenture, or a Receiver has been appointed, but
this provision shall not affect a purchaser or require him to ask
whether a demand or appointment has been made.
12.2. Power of the Agent to grant Leases: The statutory powers of sale,
leasing and accepting surrenders under the Conveyancing Act 1881
exercisable by the Agent by virtue of this Debenture are extended so
as to authorise the Agent (whether in its own name or that of the
Charging Company) to accept any surrenders of any lease or vary the
terms of any lease as the Agent may see fit or to grant a lease or
leases of any Land vested in the Charging Company or in which it has
an interest, with such rights relating to other such Land, and
containing such covenants on the part of the Charging Company, and
generally on such terms and conditions, as the Agent shall think
fit.
12.3. The Agent may sever fixtures: The statutory power of sale
exercisable by the Agent is extended so as to authorise the Agent to
sever any fixtures from Land and sell them separately.
12.4. Third Parties not to be concerned with validity of demand: No person
dealing in good faith and for value with the Agent or any Receiver,
its agents or brokers, shall be concerned to enquire whether this
Debenture has become enforceable, or whether any power exercised or
purported to be exercised has become exercisable, or whether any
Secured Sums remain due upon this Debenture, or as to the necessity
or expediency of any stipulations and conditions subject to which
the sale of any Assets shall be made, or otherwise as to the
propriety or regularity of the sale of any Asset, or to see to the
application of any money paid to the Agent or such Receiver, or its
agents or brokers, and each such dealing shall be deemed to be
within the powers hereby conferred and to be valid and effectual
accordingly.
13. OPENING OF NEW ACCOUNTS
13.1. Ruling off of Accounts: On receiving notice that the Charging
Company has encumbered or disposed of any of its Assets (other than
as permitted under the Loan Agreement), the Agent may rule off the
Charging Company's account or accounts and open a new account or
accounts with the Charging Company.
13.2. Credits not to reduce Indebtedness of Charging Company: If the Agent
does not open a new account or accounts immediately on receipt of
such notice, it shall nevertheless be treated as if it had done so
at the time when it received such notice and as from that time all
payments made by the Charging Company to the
11
Agent shall be treated as having been credited to such new account
or accounts and shall not operate to reduce the amount owing from
the Charging Company to the Agent at the time when it received such
notice.
14. APPOINTMENT AND POWERS OF A RECEIVER
14.1. Appointment of Receiver: At any time:
14.1.1. after failure by the Charging Company to pay any Secured Sum
due from it under clause 2.2 on the due date for payment; or
14.1.2. following the occurrence and/or during the continuance of an
Event of Default; or
14.1.3. if at any time the Agent shall be of the reasonable opinion
that any material part of the Charged Property of the Charging
Company is in imminent danger of seizure, distress or other
legal process;
the Agent may appoint by writing any person or persons to be a
receiver and manager or receivers and managers of all or any part of
the Assets of the Charging Company and, in the case of clause
14.1.3, such appointment shall only be in relation to the part of
the Charged Property which the Agent believes to be in such danger.
14.2. Powers of Receivers (Joint and Several or Several): Where more than
one Receiver is appointed, they shall have power to act separately
unless the Agent shall in the appointment specify to the contrary.
14.3. Remuneration of Receivers: The Agent may from time to time determine
the remuneration of the Receiver and the provisions of section 24(6)
of the Conveyancing Act 1881 shall not apply.
14.4. Power of the Agent to Remove Receiver: The Agent may remove the
Receiver from all or any of the Assets of which he is the Receiver.
14.5. Further Appointment: Such an appointment shall not preclude:
14.5.1. the Agent from making any subsequent appointment of a
Receiver over all or any of the Assets over which a Receiver
has not previously been appointed by the Agent or has been
removed or otherwise ceased to act; or
14.5.2. a Receiver, while continuing to act, consenting to the
appointment of an additional Receiver to act with him.
14.6. Status of Receiver: The Receiver of the Charging Company shall be
the agent of the Charging Company (which shall be solely liable for
his acts, defaults and remuneration) unless and until the Charging
Company goes into liquidation (or its equivalent under any
applicable law), after which he shall act as principal and
12
shall not become the agent of the Agent or the Lenders, in each
case, with respect to the Charged Property.
14.7. Powers of Receiver: The Receiver of the Charging Company shall have
and be entitled to exercise in relation to the Charging Company all
the powers set out below:
14.7.1. to take possession of, collect and get in all or any part of
the Charged Property and to take and defend any proceedings
(including proceedings for its winding up or proceedings by
way of arbitration) in its name or otherwise as he shall think
fit;
14.7.2. to comply with and perform all or any of the acts, matters,
omissions or things covenanted to be done or omitted by the
Charging Company under this Debenture;
14.7.3. to sell by public auction or private contract or let all or
any part of the Charged Property and to let on hire lease,
surrender and accept surrenders of leases and tenancies, grant
rights, licences, options or easements or exchange all or any
part of, and otherwise deal with or dispose of and exercise
all rights, powers and discretions incidental to the ownership
of, any of the Charged Property in the name of and on behalf
of the Charging Company or otherwise concur in doing any of
the foregoing in such manner and generally on such terms and
conditions and for such consideration (whether in cash,
debentures or other obligations, shares, stocks, securities or
other valuable consideration and whether payable by a lump sum
or by instalments) as he may think fit and carry out any such
sale by conveying by deed or transferring in the name and on
behalf of the Charging Company or otherwise, and so that plant
machinery and other fixtures and fittings may be severed and
sold separately from the premises containing them, and the
Receiver may apportion any rent and the performance of any
obligations;
14.7.4. to repair, decorate, furnish, maintain, alter, improve,
renew or add to the Charged Property or any part of it as he
shall think fit and effect, maintain, renew or increase
indemnity insurance and other insurances and obtain bonds;
14.7.5. to appoint or dismiss managers, agents, officers, employees,
servants, builders or workmen and employ professional advisers
and others at such salaries or for such remuneration as he may
think fit;
14.7.6. to perform, repudiate, rescind, vary or enter into any
arrangement or compromise any contracts or agreements with
respect to the Charged Property which he may consider
expedient;
14.7.7. to settle, arrange, compromise and submit to arbitration any
accounts, claims, questions or disputes whatsoever which may
arise in connection with the Charged Property or in any way
relating to the security
13
constituted by this Debenture and bring, prosecute, defend,
enforce, compromise, submit to and discontinue any actions,
suits, arbitrations or proceedings whatsoever whether civil or
criminal;
14.7.8. to use the name of the Charging Company in the exercise of
all or any of the powers conferred by this Debenture;
14.7.9. to exercise or permit the Charging Company or any nominee of
the Charging Company to exercise any powers or rights
incidental to the ownership of the Charged Property or any
part of it in such manner as he may think fit;
14.7.10. to give valid receipts for all moneys and execute all
discharges, assurances and things which may be proper or
desirable for realising the Security Assets or any part of
them;
14.7.11. to sell or concur in selling (where necessary with the
leave of the Court), lease or concur in leasing, licence or
concur in licensing, grant options over and, without the need
to observe any of the provisions of Section 18 of the
Conveyancing Act 1881, let or concur in letting and to
terminate or to accept surrenders of leases, licences or
tenancies of all or any of the Assets of the Charging Company
in such manner and generally on such terms and conditions as
he shall think fit in his absolute and unfettered discretion
and any such sale or disposition may be for cash, debentures,
securities or other valuable consideration (in each case
payable in a lump sum or by instalments) and to carry any such
transactions into effect in the name of and on behalf of the
Charging Company;
14.7.12. to promote the formation of a Subsidiary or Subsidiaries of
the Charging Company with a view to such Subsidiary or
Subsidiaries purchasing, leasing, licensing or otherwise
acquiring interests in all or any of the Assets of the
Charging Company;
14.7.13. to arrange for such Subsidiary or Subsidiaries to trade or
cease to trade in connection with the Charged Property as the
Receiver may think fit from time to time;
14.7.14. to sever any fixtures from the Land of which they form
part;
14.7.15. to arrange for the purchase, lease, licence or acquisition
of all or any Charged Property by any such Subsidiary on a
basis whereby the consideration may be for cash, shares,
debentures, loan stock, convertible loan stock or other
securities, shares of profits or sums calculated by reference
to profits or turnover or royalties or licence fees or
otherwise, whether or not secured on the assets of such
Subsidiary and whether or not such consideration is payable or
receivable in a lump sum or by instalments over such period as
the Receiver may think fit;
14
14.7.16. to make any arrangement or compromise with the Agent and/or
the Lenders in connection with the Charged Property as he
shall think fit;
14.7.17. to make and effect all repairs, renewals and improvements
to the Charged Property and to effect, renew or increase
insurances related thereto on such terms and against such
risks as he shall think fit;
14.7.18. to appoint managers, officers and agents for the above
purposes at such salaries as the Receiver may determine;
14.7.19. to pay the proper administrative charges of the Agent
and/or Lenders in respect of time spent by their agents and
employees in dealing with matters raised by the Receiver or
relating to the receivership of the Charging Company in
connection with the Charged Property;
14.7.20. to commence and/or complete any building operations upon
any freehold or leasehold Land of the Charging Company and to
apply for and obtain any planning permissions, building
regulation consents or licences in each case as he may in his
absolute discretion think fit;
14.7.21. to vary the terms of the leases of any such freehold and
leasehold Land;
14.7.22. to take all steps necessary to effect all registrations,
renewals, applications and notifications as the Receiver will
in his discretion think prudent to maintain in force or
protect any of the Charging Company's intellectual property
rights with respect to the Charged Property; and
14.7.23. to do all such other acts and things as may be considered
by the Receiver to be incidental or conducive to any of the
above matters or powers or otherwise incidental or conducive
to the preservation, improvement or realisation of the
relevant Assets.
14.8. Third Parties: Neither the Agent nor the Receiver shall be liable to
account as mortgagee in possession or otherwise for any money not
actually received by it or him respectively.
14.9. The Charging Company irrevocably appoints the Receiver as agent of
the Charging Company (which shall be solely liable for his acts,
defaults and remuneration) for the purpose of exercising the
authorities set out in clause 14.7. Without the express consent of
the Receiver or Agent the Charging Company hereby convenants not to
take any action falling within the powers of the Receiver listed in
clause 14.7 at a time when a Receiver has been appointed. The
Receiver will exercise the power and authority given to him in
clause 14.7 solely for the purpose and to the extent that he
reasonably considers necessary for desirable for enforcement against
and/or maximising the value of the Charged Property for the purposes
of realisation of and/or enforcement against the Charged Property.
The Agent and/or the Receiver will give their consent to the
exercise by the Charging Company of the authorities listed in clause
14.7 except to the extent that either of
15
them reasonably believe that such exercise by the Charging Company
may materially prejudice the enforcement against, or the value of,
the Charged Property.
15. POWER OF ATTORNEY
15.1. Power of Attorney: The Charging Company by way of security hereby
irrevocably appoints the Agent (whether or not a Receiver has been
appointed) and any Receiver separately the attorney of the Charging
Company (with full power to appoint substitutes and to delegate) for
the Charging Company, in its name and on its behalf, and as its act
and deed or otherwise, at any time during the continuance of an
Event of Default to:
15.1.1. execute and deliver and otherwise perfect any agreement,
assurance, deed, instrument or document; or
15.1.2. perform any act;
which may be required of the Charging Company under this Debenture,
or may be deemed by such attorney necessary or desirable (in
circumstances where a Receiver has not been appointed, where the
Charging Company has failed promptly so to execute, deliver, perfect
or perform upon request, but where a Receiver has been appointed,
without any requirement first to make such a request) to enhance or
perfect the security intended to be constituted by it or to convey
or transfer legal ownership of any Assets or in exercise of all or
any powers, authorities and discretions conferred by or pursuant to
this Debenture or by the Conveyancing Act 1881 on the Lender or any
Receiver.
15.2. Ratification: Without prejudice to the generality of the provisions
contained in clause 15.1 (Power of Attorney), the Charging Company
hereby covenants with the Agent and separately with any Receiver
that if required so to do the Charging Company will ratify and
confirm:
15.2.1. all transactions entered into by it or (as the case may be)
them at its or (as the case may be) their instance in the
proper exercise of its or (as the case may be) their powers in
accordance with this Debenture; and
15.2.2. all transactions entered into by it or (as the case may be)
them in signing, scaling, delivering and otherwise perfecting
any assignment, mortgage, charge, security, deed, assurance,
document or act as aforesaid;
and the Charging Company irrevocably acknowledges and agrees that
such power of attorney is (inter alia) given to the Agent, or, as
the case may be, the Receiver, or both, to secure the performance
of the obligations owed to him or them by the Charging Company.
16
16. OTHER POWERS EXERCISABLE BY THE AGENT
16.1. The Agent may exercise Receiver's Powers: All powers of the Receiver
conferred by this Debenture may be exercised by the Agent at any
time after the occurrence of any event listed in Clause 14.1 whether
as attorney of the Charging Company or otherwise and whether or not
the Receiver shall have been appointed and so that clause 14.7
(Powers of Receiver) shall be read and construed as if the words "be
charged on the Assets of the Charging Company" were substituted for
the words "be deemed an expense properly incurred by the Receiver".
16.2. The Agent empowered to receive Book Debts: The Agent or any manager
or officer of the Agent is hereby irrevocably empowered:
16.2.1. to receive all book debts and other debts and claims which
may be charged under clause 3.1 or assigned to the Agent
pursuant to clause 7 (Further Assurance) and, at any time
after the occurrence of any event listed in Clause 14.1, in
any manner the Agent and/or Receiver deem appropriate; and
16.2.2. on payment to give an effectual discharge for them and on
non-payment (whilst an Event of Default is continuing, at its
discretion or otherwise in accordance with the instructions of
the Charging Company) to take and institute (if the Agent in
its sole discretion so decides) all steps and proceedings
either in the name of the relevant assignor or in the name of
the Agent for their recovery and also to agree accounts and to
make allowances and to give time to any surety. The relevant
assignor hereby undertakes to ratify and confirm whatever the
Agent or any manager or officer of the Agent shall do or
purport to do under this clause 16.
16.3. Exclusion of the Agent's Liability: None of the Agent, nor any of
its agents, managers or officers, shall have any liability or
responsibility to the Charging Company arising out of the exercise
or non-exercise of the rights conferred on it by this clause 16,
except for the Agent's gross negligence and wilful default.
16.4. The Agent not Obliged to take action relating to Book Debts: The
Agent shall not be obliged to make any enquiry as to the sufficiency
of any sums received by it in respect of any book debts or other
debt or claim so assigned to it or to make any claim or take any
other action to collect in or enforce them.
17. APPLICATION OF MONEY RECEIVED BY THE AGENT OR A RECEIVER
17.1. Application of Recoveries: Any money received under the powers
conferred by this Debenture shall, subject to the discharge of any
prior-ranking claims, but without prejudice to the rights of the
Lender to recover any shortfall from a Charging Company, be paid or
applied in the following order of priority:
17.1.1. in satisfaction of all costs, charges and expenses incurred,
and payments made, by the Agent and/or the Receiver, and of
the remuneration of the Receiver;
17
17.1.2. in or towards satisfaction of the Secured Sums in the manner
applicable under the Loan Agreement; and
17.1.3. as to the surplus (if any), to the person or persons
entitled to it.
17.2. Suspense Account: The Agent may, in its absolute discretion on or at
any time or times after demand and pending the payment to the Agent
of the whole of the Secured Sums, place and keep to the credit of a
separate or suspense account bearing interest at a commercial rate
any money received, recovered or realised by the Agent by virtue of
this Debenture for so long and in such manner as the Agent may
reasonably consider necessary to enable it to claim the full amount
in respect of which that money is paid in any relevant insolvency
without any intermediate obligation to apply it in or towards the
discharge of any Secured Sum.
18. COSTS AND INTEREST ON OVERDUE AMOUNTS
18.1. Indemnity: All costs, charges and liabilities (including all
professional fees and disbursements and value added tax and/or any
similar tax) and all other sums paid or incurred by the Agent and/or
any Receiver under or in connection with this Debenture or the
Charging Company's affairs shall be recoverable (on a full indemnity
basis) as a debt payable on demand from the Charging Company, may be
debited without notice to any account of the Charging Company, shall
bear interest accordingly and shall be charged on the Assets of the
Charging Company. The Charging Company shall indemnify the Agent
against all and any costs, charges and expenses arising:
18.1.1. out of any of the property charged or purported to be
charged pursuant to clause 3 (Charging Clause) or clause 7
(Further Assurance) referable to it infringing or allegedly
infringing any third party rights; and
18.1.2. in relation to any proceedings referable to the Charging
Company brought against the Agent or to which the Agent may be
joined whether as plaintiff or defendant which relate to any
of such Charged Property.
18.2. Types of Costs Recoverable: Without prejudice to the generality of
clause 18.1 (Indemnity), the costs recoverable by the Agent and/or
any Receiver under this Debenture shall to the extent the same are
recoverable under the Loan Agreement include:
18.2.1. all costs properly incurred by the Agent in preparing and
administering this Debenture or perfecting the security
created by it;
18.2.2. all costs (whether or not allowable on a taxation by the
court) of all proceedings for the enforcement of this
Debenture or for the recovery or attempted recovery of the
Secured Sums;
18.2.3. all money properly expended and all costs arising out of the
exercise of any power, right or discretion conferred by this
Debenture; and
18
18.2.4. all costs and losses arising from any default by the
Charging Company in the payment when due of any Secured Sums
or the performance of its obligations under this Debenture.
18.3. Overdue Amounts: Any overdue amounts secured by this Debenture shall
carry interest at the rate and in accordance with the terms
contained in the Loan Agreement in relation to overdue sums or such
other rate as may be agreed between the Charging Company and the
Agent. In each case, such interest shall accrue on a day to day
basis to the date of repayment in full and, if unpaid, shall be
compounded on the terms so agreed (or in the absence of such agreed
terms) with monthly rests on the Agent's usual monthly interest
days. Interest shall continue to be charged and compounded on this
basis after, as well as before, any demand or judgment.
18.4. Currency Indemnity: Moneys received or held by the Agent pursuant to
this Debenture may from time to time after demand has been made be
converted into such currency as the Agent considers necessary or
desirable to discharge the Secured Sums in that currency at such
rate of exchange as may be applicable under the Loan Agreement or,
if none, the then prevailing spot rate of exchange of Wells Fargo
Bank, N.A or any successor thereto (as conclusively determined by
the Agent) for purchasing the currency to be acquired with the
existing currency.
19. SET-OFF
19.1. The Agent may apply any money standing to the credit of the Charging
Company with the Agent in any currency upon any account or otherwise
(in any country and whether or not in the Charging Company's name)
as cover for any Secured Sums at any time after an Event of Default
has occurred and is continuing without notice to the Charging
Company and may set-off, combine or consolidate all or any of such
money with all or such part of the Secured Sums as the Agent may
select (whether presently payable or not) and the Agent may purchase
with any such money any other currency required to effect such
combination.
19.2. The Charging Company irrevocably authorises the Agent in its name
and at its expense to perform such acts and sign such documents as
may be required to give effect to any set-off or transfer pursuant
to clause 19.1, including the purchase with the money standing to
the credit of any such account of such other currencies as may be
necessary to effect such set-off or transfer.
19.3. The foregoing provisions of this clause shall be in addition to and
without prejudice to such rights of set-off, combination,
consolidation, lien and other rights whatsoever conferred on the
Agent by law.
20. TRANSFER
The Agent and the Lenders may at any time transfer all or any part of its
rights in relation to this Debenture and the Secured Sums to any person or
otherwise grant an interest in
19
them to any person to which it is entitled to make such a transfer under
the Loan Agreement.
21. DISCLOSURE
Except as otherwise provided in this Debenture, Agent and Lenders shall
not disclose any Confidential Information without the consent of the
Charging Company concerning the Charging Company, this Debenture and the
Secured Sums other than:
21.1. to any Affiliate of the Agent or the Lenders and their officers,
directors, employees, agents and advisors; and
21.2. to any actual or prospective transferee or grantee referred to in
clause 20 (Transfer) on a confidential basis.
The above authority is without prejudice to any obligation of the Agent
and the Lenders to make disclosure imposed by law, rule or regulation or
required by any authority or regulator.
If Agent or a Lender is required by any law, rule, or regulation or
judicial process to disclose any Confidential Information, to the extent
permitted by applicable law, it shall promptly give notice to Charging
Company so that Charging Company may seek a protective order or other
appropriate remedy. If Charging Company does not obtain such a protective
order or other remedy, to the extent permitted by applicable law, Agent or
the Lender, as applicable, will endeavour to furnish only that portion of
the Confidential Information that it reasonably believes to be legally
required.
22. PERPETUITY PERIODS
Nothing herein shall authorise or permit the postponement of any estate or
interest arising under any trust created by this Deed from vesting outside
the perpetuity period. In this context the perpetuity period means the
period commencing on the date of this Deed and ending on the expiration of
21 years from the date of the date of the last survivor of the issue now
living of his late Britannic Majesty King George V.
23. FORBEARANCE AND SEVERABILITY
23.1. No Waivers: All rights, powers and privileges under this Debenture
shall continue in full force and effect, regardless of the Agent
exercising, delaying in exercising or omitting to exercise any of
them.
23.2. Invalidity and Severability:
23.2.1. None of the covenants and guarantees given and none of the
charges created by the Charging Company under this Debenture
shall be avoided or invalidated by reason only of one other or
more of such covenants, guarantees or charges being invalid or
unenforceable.
20
23.2.2. Any provision of this Debenture which for any reason is or
becomes illegal, invalid or unenforceable shall be ineffective
only to the extent of such illegality, invalidity and
unenforceability, without invalidating the remaining
provisions of this Debenture.
24. VARIATIONS AND CONSENTS
24.1. Variations in Writing: No variation of this Debenture shall be
considered valid and as constituting part of this Debenture, unless
such variation shall have been made in writing and signed by the
Agent and the Charging Company.
24.2. Variation: The expression "variation" shall include any variation,
supplement, extension, deletion or replacement however effected.
24.3. Conditional Consents: Save as otherwise expressly specified in this
Debenture or the Loan Agreement, any consent of the Agent may be
given absolutely or on any terms and subject to any conditions as
the Agent may determine in its entire discretion.
25. SERVICE OF DEMANDS AND NOTICES
25.1. Notices to Companies: A demand for payment or any other
communication to be given to the Charging Company under this
Debenture may be made or given by any manager or officer of the
Agent and must be in writing addressed to the Charging Company and
served on it at the address for service of the Charging Company
stated in the First Schedule or to the address last notified to the
Agent by the Charging Company or its existing or last known place of
business (or, if more than one, any one of such places), or by
facsimile transmission to the facsimile number stated in the First
Schedule or to the facsimile number last notified to the Agent by
the Charging Company or by any other form of electronic
communication which may be available.
25.2. Notices to Agent: Any communication to be given to the Agent under
this Debenture must be given to the Agent in writing served on it at
2450 Colorado Avenue, Suite 3000, Santa Monica, California, 90404
(marked for the attention of the Business Finance Division Manager),
or by facsimile to facsimile number 310 453 7443, with copies to
Brobeck Phleger Harrison LLP, 550 South Hope Street, Suite 2100, Los
Angeles, California, 90071, marked for the attention of John Francis
Hilson, facsimile number 213 745 3700 or the address last notified
to the Charging Company by the Agent in writing.
25.3. Deemed Service: A notice or demand shall be deemed to be duly served
on the Charging Company:
25.3.1. if delivered by hand, at the time of actual delivery;
25.3.2. if transmitted by facsimile, at the time the facsimile
transmission report (or other appropriate evidence) confirming
that the facsimile has been transmitted to the addressee is
received by the sender; and/or
21
25.3.3. if sent by first class prepaid post, at noon on the third
Business Day following the day of posting and shall be
effective even if it is misdelivered or returned undelivered;
provided that, where delivery or transmission occurs after 6.00 p.m.
in the place of delivery on a Business Day or on a day which is not
a Business Day, service shall be deemed to occur at 9.00 am in the
place of delivery on the next Business Day.
In proving such service it shall be sufficient to prove that
personal delivery was made or that the envelope containing the
communication was correctly addressed and posted or that a facsimile
transmission report (or other appropriate evidence) was obtained
that the facsimile had been transmitted to the addressee.
25.4. Service on Agent: Any communication to the Agent shall be deemed to
have been given only on actual receipt by it.
26. COUNTERPARTS
This Debenture may be executed by the parties in any number of copies, all
of which taken together shall constitute a single Debenture.
27. ADJUSTMENT OF ACCOUNT
If the state of account between the Lenders and the Charging Company by
reference to which any Secured Sums are calculated for the purposes of
this Debenture requires adjustment at any time because of any claim made
against the Lenders by an officeholder (within the meaning of Section 236
of the Companies Act 1963) then, notwithstanding any other provision of
this Debenture:
27.1. the Charging Company's liability to the Lenders will be
correspondingly adjusted; and
27.2. the Agent may treat any release or settlement made by it with the
Charging Company before any such adjustment is required as being of
no effect; and
27.3. the Agent may recover from the Charging Company such sum as will
place the Lenders in the same position as if such release or
settlement had not been made.
If any claim is made against the Agent or any Lender under any insolvency
law with reference to this Debenture, the Agent or the Lender may agree
the claim or settle it on any terms it chooses without asking for the
Charging Company's agreement. If the Agent or the Lender does agree or
settle such claim, the Charging Company will be liable under this
Debenture as if a court order had been made containing the terms which the
Agent or the Lender agreed or settled. The Charging Company will be
responsible for all costs and expenses which the Agent or the Lenders
properly incur in defending such a claim.
22
28. PROVISO FOR REDEMPTION AND RELEASES
(Subject to the provisions of the Second Schedule), following payment and
discharge in full of the Secured Sums to be paid or discharged by the
Charging Company under the Loan Agreement, the Palm Europe Loan Agreement
and this Debenture or if the Charging Company wishes to dispose of an
Asset charged by way of fixed charge under this Debenture where such
disposal is permitted under this Debenture the Agent will, at the request
and cost of the Charging Company, execute a release and reassignment of
all or the relevant part of the security given by the Charging Company
comprised in this Debenture in such form as the Charging Company may
reasonably require.
29. SECURITY TRUSTEESHIP
The Agent shall hold the guarantees and security created by this Debenture
and any other document creating guarantees or security given by the
Charging Company in trust for the benefit of itself and the Lenders on the
terms and subject to the conditions set out in this Debenture or such
other security document (each a "Relevant Document") and the Loan
Agreement. The Agent shall not have (or be deemed to have) any obligations
to, or trust or fiduciary relationship with, any person other than those
for which specific provision is made in any Relevant Document or the Loan
Agreement. The Agent, in carrying out its functions as agent and security
trustee under any Relevant Documents shall not be agent or trustee for any
party other than the Lenders; and shall, for the avoidance of doubt, have
all the rights, privileges, immunities and indemnities accorded to the
Agent under the Loan Agreement and which are accorded to a gratuitous
trustee under the laws of Ireland.
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION
30.1. Governing Law: This Debenture shall be governed by and construed in
all respects in accordance with the laws of Ireland.
30.2. Submission to Jurisdiction:
30.2.1. The Charging Company irrevocably submits for the benefit of
the Agent to the non-exclusive jurisdiction of the courts of
Ireland for the purpose of hearing and determining any dispute
arising out of this Debenture.
30.2.2. For the purpose of enforcement of any judgement against its
assets, without prejudice to any other permitted mode of
service, the Charging Company agrees that service of any writ,
notice or other document for the purpose of any proceedings in
such courts shall be duly served upon it if delivered or sent
by registered post to the Charging Company at the address for
notices specified in clause 25.1 (Service of Demands and
Notices) or such other address in Ireland as the Charging
Company may notify from time to time to the Agent.
30.2.3. The Charging Company irrevocably agrees not to claim that
any such court is not a convenient or appropriate forum and
agrees that a judgment
23
in proceedings brought in such courts shall be conclusive and
binding upon them and may be enforced in any other
jurisdiction.
30.3. Freedom of Choice: The submission to the jurisdiction of the courts
referred to in Clause 30.2 (Submission to Jurisdiction) shall not
(and shall not be construed so as to) limit the right of the Agent
to take proceedings against the Charging Company in the courts of
any country in which the Charging Company has assets or in any other
court of competent jurisdiction nor shall the taking of proceedings
in any one or more jurisdictions preclude the taking of proceedings
in any other jurisdiction (whether concurrently or not) if and to
the extent permitted by applicable law.
THIS GUARANTEE AND DEBENTURE has been executed by the Charging Company as a Deed
and signed by the Agent on behalf of itself and the other Lenders but shall only
be treated as having been executed and delivered to take effect on the day and
year first above written.
24
THE FIRST SCHEDULE
The Charging Company
===============================================================================================================
Address for Service and Fax or Telex
Name of Charging Company Registered Number Number
- ---------------------------------------------------------------------------------------------------------------
Palm Global Operations Limited 317106 220 Wharfdale Road,
Wokingham,
Berkshire, RG41 5TB
Fax number: (44) 118 927 8791
For the attention of the Legal Department
With a copy to: Palm Inc.
5470 Great America Parkway
MS12106
Santa Clara CA95052
Fax number: 001 408 878 2790
For the attention of the General Counsel
===============================================================================================================
25
THE SECOND SCHEDULE
Terms of Guarantee
1. This Guarantee will continue in full force irrespective of whatever
dealings may occur between the Agent, the Lenders, the Charging Company
and Palm Europe for Palm Global including, without limitation, by way of
the granting of additional time for the performance of any obligation or
the variation of any obligation.
2. If this Guarantee ceases for any reason to be binding on the Charging
Company as a continuing security in relation to Palm Europe, then the
Agent may break such accounts of the Charging Company and Palm Europe with
the Agent as the Agent deems appropriate and open new accounts for the
account holders affected.
If that is done, no money credited to such new account at that time or
later will have the effect of reducing the amount due to the Agent on the
original account. If that is not done, the Agent will still be treated as
if it had broken all such accounts at the time when such notice expired or
this Guarantee ceased to be a continuing security and as if all payments
made to the Agent then or later had been credited to a new account with
the same result.
3. This Guarantee is to be in addition to and is not to prejudice or be
prejudiced by any other guarantee or security (including any other
guarantee signed by the Charging Company) which the Agent may hold from or
on account of Palm Europe either now or in the future. This Guarantee may
be enforced without the Agent first taking any steps or proceedings
against Palm Europe or having recourse to any such other guarantee or
security.
4. The Charging Company shall not have the right to:
(a) make any claim (whether by way of proof in liquidation or otherwise)
against Palm Europe or any property of Palm Europe or claim or prove
in competition with the Agent in the liquidation of Palm Europe; or
(b) participate in any security held or money received by the Agent on
account of the Secured Sums; or
(c) stand in the place of the Agent in respect of any such security or
money,
until in each case all Secured Sums have been repaid to the Agent in full.
Nothwithstanding the foregoing the Charging Company shall have the right,
until the occurrence of an Enforcement Event, to make a claim with respect
to, participate in, or stand in place of the Agent in respect of any
Receivables owing to the Charging Company by any other Group Company which
are subject to the floating charge referred to in Clause 3.1.4 of this
Debenture.
26
However, if so directed by the Agent but not otherwise, the Charging
Company shall prove in Palm Europe's liquidation for the whole or any part
of the money due or owing to the Charging Company from Palm Europe in any
manner whatever and the benefit of such proof and of all money received by
the Charging Company in respect of it shall be held on trust for the Agent
and applied in reduction of the Secured Sums.
Notwithstanding paragraphs 4(a), (b) and (c) above, if the Charging
Company holds or receives any security, monies or property, it shall hold
such security, monies or property on trust for the Lenders and it shall
forthwith pay or transfer the benefit of the security, monies or property
to the Agent.
5. The Agent may at any time (without affecting its rights against the
Charging Company under this Guarantee) grant, extend, increase, renew,
vary, waive the terms of, determine or refuse any credit or facility to
Palm Europe, or take, hold, exchange, vary, release, abstain from
perfecting or enforcing any guarantee or security for the Secured Sums, or
compromise with or extend time or grant waivers, releases or any
indulgence to Palm Europe or any co-surety, or make any arrangement,
concession or settlement with any of them or do or omit or neglect to do
anything whatever which, but for this provision, might exonerate or
discharge the Charging Company's obligations under this Guarantee (except
for a specific written release given by the Agent of such obligations).
6. After this Guarantee becomes enforceable, no payment received by the Agent
from any source in respect of the Secured Sums will be treated (regardless
of the manner in which the Agent may deal with it in its books or
otherwise) as reducing the Charging Company's liability to the Agent under
this Guarantee, so that until the Agent has received payment in full of
all Secured Sums, it will be deemed, as between the Agent and the Charging
Company and except for any payment by Palm Europe, to remain wholly
unsatisfied, so that the Agent may prove in Palm Europe's and the Charging
Company's liquidation for the full amount outstanding.
7. The Agent may keep the guarantee held by it for the Charging Company's
liability under this Guarantee in order to protect the Agent against any
possible claim under insolvency law for any relevant period after all
Secured Sums has been satisfied which the Agent reasonably considers to be
necessary to avoid any risk under applicable insolvency law. If a claim is
made against the Agent within that period, the Agent may keep the security
until that claim has finally been dealt with.
8. The winding-up or dissolution of Palm Europe will not affect the Charging
Company's liability under this Guarantee and any sum payable to the Agent
at the date of the commencement of such winding-up or immediately prior to
such dissolution (as the case may be) will be treated as continuing to be
payable until actually paid in full.
9. If any question arises as to the capacity of Palm Europe in relation to
any dealing between Palm Europe and the Agent or as to the capacity,
authority or power of any officer, employee or agent of Palm Europe to
bind it to any transaction with the Agent, that question shall, as between
the Agent and the Charging Company, be disregarded and the Charging
Company will for the purposes of this Guarantee be and
27
continue to be liable to the Agent in respect of any such dealing,
transaction and/or Secured Sums as if the Charging Company were a
principal debtor.
10. Any money received by the Agent under or by virtue of this Guarantee may
be converted by the Agent at any time as it thinks fit (and
notwithstanding any previous conversion) into any currency in which any
part of the Secured Sums is due or owing to the Agent, in which event the
net amount available to the Agent in such other currency (after allowing
for all costs of conversion) shall be deemed to be the amount received by
the Agent under or by virtue of this Guarantee.
11. Any admission or acknowledgement in writing by Palm Europe or on its
behalf of the amount of any Secured Sums or otherwise in relation to this
Guarantee, or any judgment or award obtained by the Agent against Palm
Europe, or any proof by the Agent in winding up which is admitted, or any
statement of account furnished by the Agent the correctness of which is
certified by any one of its presidents, vice presidents, officers or
managers, will be binding and conclusive on the Charging Company (except
in the case of manifest error).
12. Notwithstanding any other provision of this Guarantee, this Guarantee
shall not operate to guarantee any money or liability if and insofar as
such money was borrowed or such liability was incurred directly or
indirectly for the purpose of the acquisition by any person of shares in
the Charging Company or its holding company or the reduction or discharge
of any existing liability incurred for the purpose of such acquisition and
if and for so long as it would not be lawful under section 60 of the
Companies Act, 1963 for such money or liability to be guaranteed by this
Guarantee.
13. Other than with the prior written consent of the Agent, the Charging
Company shall not terminate its guarantee contained in this Debenture
whilst any part of the Secured Sums guaranteed by the Charging Company
remains outstanding.
28
Chargor
PRESENT when the common seal of )
PALM GLOBAL OPERATIONS LIMITED )
(pursuant to a resolution of its Board )
of Directors) was affixed hereto: )
/s/ Judy Bruner Director
/s/ Stephen Yu Director/Secretary
Agent
SIGNED by )
for and on behalf of )
FOOTHILL CAPITAL CORPORATION )
/s/ John Nocita Vice President
29