Attached files
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EXHIBIT
10.4
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(1)
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and
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PNC
Bank, National Association
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(2)
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in
relation to a Credit Agreement
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BST99
1649183-1.069646.0035
CONTENTS
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1
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INTERPRETATION
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3
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2
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SECURED
OBLIGATIONS
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8
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3
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CHARGES
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10
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4
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SET-OFF
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14
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5
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UNDERTAKINGS
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14
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6
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FURTHER
ASSURANCE
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19
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7
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ENFORCEMENT
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20
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8
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APPOINTMENT OF
ADMINISTRATOR
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21
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9
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APPOINTMENT AND POWERS OF
RECEIVER
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21
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10
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APPLICATION OF PROCEEDS;
PURCHASERS
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23
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11
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INDEMNITIES; EXCLUSION OF
LIABILITY; COSTS AND EXPENSES
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24
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12
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POWER OF
ATTORNEY
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25
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13
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CONTINUING SECURITY AND OTHER
MATTERS
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25
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14
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CURRENCIES
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27
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15
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DECLARATION OF
TRUST
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27
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16
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MISCELLANEOUS
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36
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17
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NOTICES
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38
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18
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LAW
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39
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SCHEDULE 1PROPERTIES |
40
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SCHEDULE
2 SECURITIES
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41
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SCHEDULE 3 INTELLECTUAL PROPERTY |
42
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SCHEDULE
4 NOTICE OF CHARGE
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43
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SCHEDULE
5 DISPOSAL OF CHARGED ASSETS
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46
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SCHEDULE
6 ACCESSION UNDERTAKING
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48
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SCHEDULE
7 NOTICE OF ASSIGNMENT
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49
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SCHEDULE
8 LANDLORD WAIVER AND CONSENT
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51
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BST99
1649183-1.069646.0035
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5
March 2010
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PARTIES
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PRESSTEK EUROPE LIMITED (Company
Number 01941149 ) whose registered office is at Unit 1, The
Summit Centre, Skyport Drive, Harmondsworth, West Drayton, Middlesex UB7
0LJ, England (the “Company”).
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(2)
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PNC BANK, NATIONAL ASSOCIATION
acting in its capacity as Lender and
Agent.
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THIS
DEED WITNESSES THAT:
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1
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INTERPRETATION
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1.1
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Definitions
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In this
deed, unless the context otherwise requires:
“Accession Undertaking” means a
deed of accession substantially in the form set out in Schedule 6.
"Account" means each from time
to time opened or maintained by the Company at such branch of the relevant bank
or financial institution, in each case, as the Agent may approve (acting
reasonably) and all rights, benefits and proceeds in respect of such account,
including without limitation the following accounts:
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Account
Holder
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Bank
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Account
number
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Purpose
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Presstek
Europe Ltd.
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Operating
(GBP)
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Presstek
Europe Ltd.
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Operating
(EURO)
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Presstek
Europe Ltd.
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Operating
(USD)
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Presstek
Europe Ltd.
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Operating
(YEN)
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"Administrator" means any
person appointed under Schedule B1 Insolvency Act 1986 to manage the Company's
affairs, business and property.
"Agent" means PNC Bank,
National Association or such other person as may be appointed Agent pursuant to
this deed.
"Assigned Agreements" means
all intercompany notes representing indebtedness due from the Company to any
member of the Controlled Group.
"Charged Assets" means all
assets of the Company described in clauses 3.1 (Fixed Charges) and 3.2 (Floating Charges).
"Collateral Instruments" means
notes, bills of exchange, certificates of deposit and other negotiable and
non-negotiable instruments, guarantees and any other documents or instruments
which contain or evidence an obligation (with or without security) to pay,
discharge or be responsible directly or indirectly for, any liabilities of any
person and includes any document or instrument creating or evidencing an
Encumbrance.
"Credit Agreement" means the
credit agreement dated on or about the date of this Deed and made between
Presstek Inc. as borrower, the Lender and the Agent pursuant to which the Lender
agreed to make available a US$25,000,000 revolving credit facility, as that
agreement may from time to time be amended, varied, novated, supplemented or
replaced including, without limitation, by the increase or extension of maturity
of the facility or by any change in the identity of the Agent or any of the
Lenders.
"Debts" means book and other
debts, revenues and claims, whether actual or contingent, whether arising under
contracts or in any other manner whatsoever and all things in action which may
give rise to any debt, revenue or claim, together with the full benefit of any
Encumbrances, Collateral Instruments and any other rights relating thereto
(whether as creditor or beneficiary) including, without limitation, reservations
of proprietary rights, rights of tracing and unpaid vendor's liens and
associated rights, but excluding any assets the subject of clauses 3.1(h) or 3.1(i).
"Default Rate" has the meaning
given to the term in the Credit Agreement.
"Disposal" includes any sale,
lease, sub-lease, assignment or transfer, the grant of an option or similar
right, the grant of any easement, right or privilege, the grant of a licence or
permission to assign or sublet, the creation of a trust or other equitable
interest or any other proprietary right in favour of a third party, a sharing or
parting with possession or occupation whether by way of licence or otherwise and
the granting of access to any other person over any Intellectual Property, and
any agreement or attempt to do any of the foregoing and "dispose" and "disposition" shall be
construed accordingly).
"Encumbrance" means any
mortgage, charge (whether fixed or floating), pledge, lien, hypothecation,
standard security, assignment by way of security, trust arrangement for the
purpose of providing security or other security interest of any kind securing or
preferring any obligation of any person or any other arrangement having the
effect of conferring rights of retention or set-off or other disposal rights
over an asset (including, without limitation, title transfer and/or retention
arrangements having a similar effect) and includes any agreement to create any
of the foregoing.
"Enforcement Date" means the
date on which the Agent or any Secured Party demands payment of the Secured
Obligations following the occurrence of an Event of Default or any step is taken
to put the Company into administration;
"Environment"
means:
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(a)
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land,
including, without limitation, surface land, sub-surface strata, sea bed
and river bed under water (as defined in paragraph (b)) and natural and
man-made structures;
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(b)
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water,
including, without limitation, coastal and inland waters, surface waters,
aquatic sediment, ground waters and water in drains and
sewers;
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(c)
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air,
including, without limitation, air inside buildings and other natural and
man-made structures above or below ground;
and
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(d)
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any
living systems or organisms supported by the media set out in (a), (b) or
(c) above.
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"Environmental Complaint" has
the meaning given to it in the Credit Agreement.
"Environmental Law" has the
meaning given to it in the Credit Agreement.
"Environmental Licence" means
any permits, consents, licences, certificates, notices, filings, lodgements,
agreements, directions, declarations, exemptions, variations, renewals and
amendments and other authorisations and approvals required or provided under
Environmental Law.
"Equipment" means machinery,
equipment, furniture, furnishings, fittings and fixtures (excluding any fixtures
and fittings belonging to a tenant) and other tangible personal property (other
than Inventory), including, without limitation, data processing hardware and
software, motor vehicles, aircraft, dies, tools, jigs and office equipment,
together with all present and future additions thereto, replacements or upgrades
thereof, components and auxiliary parts and supplies used or to be used in
connection therewith and all substitutes for any of the foregoing, and all
manuals, drawings, instructions, warranties and rights with respect thereto
wherever any of the foregoing is located and any other asset which would be
treated as a fixed asset under GAAP.
"Event of Default" has the
meaning given to it in the Credit Agreement.
"Fixed Charge Assets" means
the assets of the Company described in clause 3.1.
"Fixtures" means, in relation
to a Property, all fixtures and fittings (including trade fixtures and fittings,
but excluding any fixtures and fittings belonging to a tenant), fixed plant and
machinery and other items attached to that property, whether or not constituting
a fixture at law.
"GAAP" means accounting
principles which are for the time being generally acceptable in the United
Kingdom.
"Guarantee" means the
obligations of the Company pursuant to clause 2.1(b) and includes the obligations of the
Company arising by virtue of clauses 2.2
and 13.
"Hazardous Substance" has the
meaning given to it in the Credit Agreement.
"Incapacity" means, in
relation to a person, the insolvency, liquidation, dissolution, winding-up,
administration, receivership, amalgamation, reconstruction or other incapacity
of that person whatsoever (and, in the case of a partnership, includes the
termination or change in the composition of the partnership).
"Indebtedness" has the meaning
given to it in the Credit Agreement.
"Insurances" means all present
and future contracts or policies of insurance (including life assurance
policies) taken out by the Company or in which the Company from time to time has
an interest.
"Intellectual Property" means
all patents (including applications for and rights to apply for patents), trade
marks and service marks (whether registered or not) and applications for the
same, trade names, registered designs, design rights, semi-conductor topography
rights, database rights, copyrights, computer programs, know-how and trade
secrets and all other intellectual or intangible property or rights and all
licences, agreements and ancillary and connected rights relating to intellectual
and intangible property including any renewals, revivals or extensions thereof
and wherever in the world subsisting.
"Inventory" means inventory,
goods and merchandise, wherever located, raw materials, work-in-progress,
finished goods, returned goods and materials and supplies of any kind, nature or
description used in connection with the Company's business or used in connection
with the manufacture, packing, shipping, advertising, selling or finishing of
such goods, merchandise and such other specified property, and all documents of
title or other documents representing them.
"Lender" means PNC Bank,
National Association and includes any successor in title, assignee and
substitute for it and any other person or entity for the time being a party to
the Credit Agreement in the capacity of a lender and "Lenders" shall be construed
accordingly.
"Permitted Encumbrance" has
the meaning given to it in the Credit Agreement.
"Property" means freehold and
leasehold property wherever situate (other than any heritable property in
Scotland), and includes all liens, charges, options, agreements, rights and
interests in or over such property or the proceeds of sale of such property and
all buildings and Fixtures thereon and all rights, easements and privileges
appurtenant to, or benefiting, the same and "Properties" means all or any
of the same, as the context requires.
"Receiver" means any receiver
and/or manager not being an administrative receiver (within the meaning of
section 29(2) Insolvency Act 1986) appointed by the Agent pursuant to clause 9.1 (Appointment).
"Receivership Assets" has the
meaning given to it in clause 9.1
(Appointment).
"Remediation" means any and
all investigating, sampling, analysing, removing, remedying, cleaning-up,
abating, containing or ameliorating the presence in or effect on the Environment
of any contamination or pollution including, without limitation, the removal,
treatment and disposal of material and the treatment and monitoring of ground
waters and gases and emissions to air and the obtaining of expert technical and
legal advice (including all project management functions) in relation
thereto.
"Secured Obligations" means
all moneys, obligations and liabilities covenanted to be paid or discharged
under or pursuant to clause 2.
"Secured Parties" means each
Lender and the Agent.
"Securities" means stocks,
shares, bonds and securities of any kind whatsoever (including warrants and
options to acquire or subscribe any of the same) whether marketable or otherwise
and all interests (including but not limited to loan capital) including all
allotments, rights, benefits and advantages whatsoever at any time accruing,
offered or arising in respect of or incidental to the same and all money or
property accruing or offered at any time by way of conversion, redemption,
bonus, preference, option, dividend, distribution, interest, or otherwise in
respect thereof.
"Specified Person" means each
or all, as the context requires, of the Company, its Subsidiaries, the occupier
of any property from time to time and at any time owned, leased, occupied or
otherwise used by the Company or any of its Subsidiaries or any of their
respective officers.
"Subsidiary" shall have the
meaning given to it in section 1159 Companies Act 2006.
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1.2
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Successors
and assigns
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The
expressions "Lender",
"Company" and "Agent", include, where the
context admits, their respective successors, and, in the case of a Lender, its
respective transferees and assignees, whether immediate or
derivative.
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1.3
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Headings
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Clause
headings and the contents page are inserted for convenience of reference only
and shall be ignored in the interpretation of this deed.
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1.4
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Construction
of certain terms
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In this
deed, unless the context otherwise requires:
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(a)
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references
to clauses and Schedules are to be construed as references to the clauses
of, and the schedules to, this deed and references to this deed include
its schedules;
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(b)
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references
to (or to any specified provision of) this deed or any other document
shall be construed as references to this deed, that provision or that
document as in force for the time being and as amended, supplemented,
replaced or novated in accordance with the terms thereof or, as the case
may be, with the agreement of the relevant parties and (where such consent
is, by the terms of this deed or the relevant document, required to be
obtained as a condition to such amendment being permitted) the prior
written consent of the Agent;
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(c)
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words
importing the plural shall include the singular and vice
versa;
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(d)
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references
to a time of day are to London
time;
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(e)
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references
to "assets"
include all or part of any business, undertaking, real property, personal
property, uncalled capital and any rights (whether actual or contingent,
present or future) to receive, or require delivery of, or otherwise in
respect of, any of the foregoing;
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(f)
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references
to a "guarantee"
include references to an indemnity or other assurance against financial
loss including, without limitation, an obligation to purchase assets or
services as a consequence of a default by any other person to pay any
Indebtedness and “guaranteed” shall be construed
accordingly;
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(g)
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references
to a "person"
shall be construed as including references to an individual, firm,
company, corporation, unincorporated body of persons or any State or any
of its agencies;
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(h)
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references
to a "regulation"
include any present or future regulation, rule, directive, requirement,
request or guideline (whether or not having the force of law but, if not
having the force of law, which is generally complied with by those to whom
it is addressed) of any agency, authority, central bank or government
department or any self-regulatory or other national or supra-national
authority;
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(i)
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references
to any enactment shall be deemed to include references to such enactment
as re-enacted, amended or extended;
and
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(j)
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an
Event of Default shall be deemed to be continuing if it has not been
waived or remedied to the satisfaction of the
Agent.
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1.5
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Effect
as a deed
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This deed
is intended to take effect as a deed notwithstanding that the Agent may have
executed it under hand only.
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1.6
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Credit
Agreement definitions
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Unless
the context otherwise requires or unless otherwise defined in this deed, words
and expressions defined in the Credit Agreement shall have the same meaning when
used in this deed.
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1.7
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Credit
Agreement to prevail
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If there
is a conflict between the terms of this deed and those of the Credit Agreement,
or if the provisions of this deed are more onerous than the provisions of the
Credit Agreement which deal with the same or substantially the same issue, the
terms of the Credit Agreement shall prevail.
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2
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SECURED
OBLIGATIONS
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2.1
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Covenant
to pay: Guarantees
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The
Company hereby:
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(a)
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covenants
that it will pay on demand to the Agent all moneys and discharge all
obligations and liabilities now or hereafter due, owing or incurred by it
to the Secured Parties or any of them whether express or implied, present,
future or contingent, joint or several, incurred as principal or surety
determined in whatever currency or incurred on any banking account under
or pursuant to the Credit Agreement, any Other Document and/or this deed
or otherwise howsoever when the same become due for payment or discharge;
and
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(b)
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irrevocably
and unconditionally:
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(i)
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guarantees
the due performance by each Borrower and by each Guarantor of all its
obligations under or pursuant to the Credit Agreement and the Other
Documents; and
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(ii)
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guarantees
the payment of all moneys now or hereafter due, owing or incurred to the
Secured Parties or any of them under or pursuant to the Credit Agreement,
any Other Document and/or this deed or otherwise howsoever by each
Borrower and each Guarantor); and
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(iii)
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undertakes
that, if for any reason any Borrower or Guarantor fails to discharge any
such obligation or to pay any such moneys, it shall immediately on demand
by the Agent discharge such obligation or, as the case may be, pay such
moneys to the Agent.
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2.2
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Company
as principal debtor: indemnity
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As a
separate and independent stipulation, the Company irrevocably and
unconditionally agrees that if any purported obligation or liability of the
Company which would have been the subject of its Guarantee had it been valid and
enforceable is not or ceases to be valid or enforceable against it on any ground
whatsoever whether or not known to the Secured Parties or any of them
(including, without limitation, any irregular exercise or absence of any
corporate power or lack of authority of, or breach of duty by, any person
purporting to act on behalf of the Company or any legal or other limitation,
whether under the Limitation Acts or otherwise, any disability or Incapacity or
any change in the constitution of the Company) it shall nevertheless be liable
in respect of that purported obligation or liability as if the same were fully
valid and enforceable and it were a principal debtor in respect
thereof. The Company hereby irrevocably and unconditionally agrees to
indemnify and keep indemnified the Secured Parties against any loss or liability
arising from any failure of the Company to perform or discharge any such
purported obligation or liability or from any invalidity or unenforceability of
any of the same against it.
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2.3
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Statements
of account conclusive
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Any
statement of account of the Company, signed as correct by an officer of the
Agent, showing the amount of the Secured Obligations of the Company, shall, in
the absence of manifest error, be binding and conclusive on and against the
Company.
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2.4
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Interest
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The
Company agrees to pay interest on each amount demanded of it under its Guarantee
from the date of such demand until payment (after as well as before judgment) at
the Default Rate in accordance with the terms of the Credit
Agreement.
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3
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CHARGES
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3.1
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Fixed
Charges
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The
Company, with full title guarantee, hereby charges to the Agent as a continuing
security for the payment and discharge of its Secured Obligations:
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(a)
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by
way of first legal mortgage, the Properties (if any) specified in Schedule
1 (Properties);
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(b)
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subject
to clause 3.4(a), by way of first
legal mortgage, all Properties (other than any property specified in
Schedule 1 (Properties)) now owned by the Company or in which the Company
has an interest;
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(c)
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(d)
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by
way of first fixed charge, all Equipment now or from time to time
hereafter owned by the Company or in which the Company has an interest and
the benefit of all contracts and warranties relating to the
same;
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(e)
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by
way of first fixed charge, all Securities specified in Schedule 2
(Securities);
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(f)
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by
way of first fixed charge, all Securities (other than any property
specified in Schedule 2 (Securities)) now or from time to time hereafter
owned by the Company or in which the Company has an
interest;
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(g)
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by
way of first fixed charge, all Debts now or from time to time hereafter
owned by the Company or in which the Company has an interest (whether
originally owing to the Company or purchased or otherwise acquired by
it);
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(h)
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by
way of first fixed charge, the proceeds of collection of all
Debts;
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(i)
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by
way of first fixed charge, any and all amounts from time to time standing
to the credit of all present and future accounts of the Company with any
bank, financial institution or other person including, without limitation,
the Accounts;
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(j)
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by
way of first fixed charge, all moneys from time to time payable to the
Company under or pursuant to the Insurances including without limitation
the right to the refund of any
premiums;
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(k)
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(l)
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by
way of first fixed charge, the goodwill and uncalled capital of the
Company;
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(m)
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by
way of first fixed charge, the Intellectual Property (if any) specified in
Schedule 3 (Intellectual Property);
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(n)
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by
way of first fixed charge, all Intellectual Property (other than any
Intellectual Property specified in Schedule 3 (Intellectual Property)),
now or from time to time hereafter owned by the Company or in which the
Company may have an interest;
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(o)
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subject
to clause 3.4(a), if not
effectively assigned by clause 3.4 (Security Assignment), by way of first
fixed charge all its rights and interests in (and claims under) the
Assigned Agreements and all other contracts, agreements, deeds,
undertakings, guarantees, warranties, indemnities, other documents,
concessions and franchises now or hereafter entered into by or granted to,
or vested in, or novated or assigned to, the Company (including any
contract for sale of or other dealing with any of the Charged
Assets).
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3.2
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Floating
Charges
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The
Company hereby charges to the Agent by way of first floating charge as a
continuing security for the payment and discharge of its Secured Obligations its
undertaking and all its property, assets and rights whatsoever and wheresoever
both present and future, including, without limitation, its Inventory other than
any property or assets from time to time effectively charged by way of legal
mortgage or fixed charge or assignment pursuant to clause 3.1 (Fixed Charges), clause 3.4 (Security
Assignment) or otherwise pursuant to this deed.
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3.3
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Qualifying
Floating Charge
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The
provisions of paragraph 14 of Schedule B1 Insolvency Act 1986 apply to the
floating charges in clause 3.2 (Floating
Charges), which shall be enforceable at any time on or after the Enforcement
Date.
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3.4
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Security
Assignment and Removal of Impediments to Charges and
Assignments
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(a)
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Subject
to clause 3.4(b) below, as further security for the payment and discharge
of the Secured Obligations, the Company assigns absolutely with full title
guarantee to the Agent all its rights, title and interest in the Assigned
Agreements, provided that on payment or discharge in full of the Secured
Obligations the Agent will at the request and cost of the Company promptly
re-assign the Assigned Agreements to the Company (or as it shall
direct).
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(b)
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To
the extent that:
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(ii)
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any
right, title or interest described in clause 3.4 is not capable of
assignment,
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the
charge purported to be created by clause 3.1 or 3.2 or the assignment purported to be
effected by clause 3.4 (as the case may be) shall, without prejudice to the
provisions of clause 3.1(h) in relation
to Debts, operate as a charge or an assignment (as the case may be) by way of
continuing security of any and all proceeds, damages, compensation,
remuneration, profit, rent or income which the Company may derive therefrom or
be awarded or entitled to in respect thereof, in each case as continuing
security for the payment, discharge and performance of the Secured
Obligations.
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3.5
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Restrictions
on dealing with Charged Assets
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The
Company hereby covenants that it will not:
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(a)
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dispose
of all or any of its Properties which are necessary or useful in the
proper conduct of its business;
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(b)
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dispose
of all or any of the other Fixed Charge Assets which are necessary or
useful in the proper conduct of its business except for disposals for
which the Agent's consent has been requested in the form set out in
Schedule 5 Part 1 and expressly granted by the Agent in the form set out
in Schedule 5 Part 2 (such consent not to be unreasonably withheld or
delayed);
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(c)
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dispose
of its Inventory or any other Charged Asset which is necessary or useful
in the proper conduct of its business otherwise than in the ordinary
course of business;
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(d)
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without
limiting the generality of the foregoing provisions of this clause 3.4 dispose of, or create or attempt
to create or permit to subsist or arise any Encumbrance (save for any
right of set-off which arises by operation of law) on or over, the Debts
or any part thereof or release, set off or compound or deal with the same
otherwise than in accordance with clause 5.1(c);
or
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(e)
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create
or attempt to create or permit to subsist in favour of any person other
than the Agent any Encumbrance on or affecting the Charged Assets or any
part thereof except a Permitted Encumbrance, a lien arising by operation
of law in the ordinary course of trading over property other than
land.
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3.6
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Automatic
conversion of floating charge
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So far as
permitted by law and notwithstanding anything expressed or implied in this
deed:
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(a)
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if
the Company creates or attempts to create any Encumbrance (other than a
Permitted Encumbrance) over all or any of the Charged Assets without the
prior written consent of the Agent or if any person levies or attempts to
levy any distress, execution, sequestration or other legal process against
any of the Charged Assets, the floating charge created by clause 3.2 (Floating Charges) over the
Properties or asset concerned shall thereupon automatically without notice
be converted into a fixed charge;
and
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(b)
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the
floating charge created by clause 3.2 (Floating Charges) shall
automatically be converted into a fixed charge on the Enforcement
Date.
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3.7
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Conversion
of floating charge by notice
|
Notwithstanding
anything expressed or implied in this deed but without prejudice to clause 3.5(e) (Automatic conversion of floating
charge), the Agent shall be entitled at any time by giving notice in writing to
that effect to the Company to convert the floating charge created by the Company
over all or any part of the Charged Assets into a fixed charge as regards the
assets specified in such notice, if the Agent is of the view that those assets
are in danger of being seized or sold under any form of distress, attachment or
execution or are otherwise in jeopardy from any formal legal
process.
|
3.8
|
Land
Registry
|
|
(a)
|
The
Company hereby consents to the Agent's application to the Chief Land
Registrar in form RX1 for the registration of the following restriction
against each of the registered titles specified in Schedule 1 (and against
any title to any unregistered Property specified in Schedule 1 which is or
ought to be the subject of a first registration of title at the Land
Registry at the date of this deed):
|
"RESTRICTION:
No
disposition of the registered estate by the proprietor of the registered estate
is to be registered without a written consent signed by the proprietor for the
time being of the charge dated [date] in favour of [chargee] referred to in the
charges register.
|
(b)
|
In
respect of any Property charged pursuant to clauses 3.1(a) to 3.1(c) title to which is registered
at the Land Registry, the Company on its own behalf hereby represents and
warrants that the security created by this deed does not contravene any of
the provisions of the memorandum and articles of association or any other
constitutional documents of the
Company.
|
|
3.9
|
The
Credit Agreement
|
The
obligation on the part of the Agent and each Secured Party to make further
advances to the Borrower under the Credit Agreement shall be deemed to be
incorporated in this deed as an obligation of the Agent for the purposes of
section 94(1)(c) Law of Property Act 1925 and the Agent may apply in form CH2 to
the Chief Land Registrar to enter a note of such obligation on the register of
each of the titles referred to in clause 3.8 (Land Registry).
|
3.10
|
The
Securities
|
The
Company will, if so requested by the Agent following the Enforcement Date,
transfer all or any Securities from time to time owned by it to such nominees or
agents as the Agent may select.
|
4
|
SET-OFF
|
|
4.1
|
Set-off
|
The
Company hereby agrees that each of the Secured Parties may at any time without
notice following the occurrence of an Event of Default which is continuing,
notwithstanding any settlement of account or other matter whatsoever, combine or
consolidate all or any of its then existing Accounts wheresoever situate
(including accounts in the name of such Secured Party or of the Company jointly
with others), whether such Accounts are current, deposit, loan or of any other
nature whatsoever, whether they are subject to notice or not and whether they
are denominated in sterling or in any other currency, and set-off or transfer
any sum standing to the credit of any one or more such Accounts in or towards
satisfaction of the Secured Obligations owed to such Secured Party which, to the
extent not then payable, shall automatically become payable to the extent
necessary to effect such set-off.
|
4.2
|
Purchase
of currencies
|
For the
purpose of clause 4.1 (Set-off) only,
the Company authorises each Secured Party to purchase with the moneys
standing to the credit of such Accounts such other currencies as may be
necessary to effect such applications.
|
5
|
UNDERTAKINGS
|
|
5.1
|
The
Company hereby undertakes with the Agent that during the continuance of
this security it will:
|
|
(a)
|
Credit
Agreement undertakings
|
comply
with all of its obligations (if any) under the Credit Agreement (as if the same
were set out in this deed mutatis mutandis);
|
(b)
|
Consents
and licences
|
obtain or
cause to be obtained, maintain in full force and effect and comply in all
material respects with the conditions and restrictions (if any) imposed in, or
in connection with, every consent, authorisation, licence or approval of
governmental or public bodies or authorities or courts and do, or cause to be
done, all other acts and things which may from time to time be necessary or
desirable under applicable law for the continued due performance of all its
obligations under this deed;
|
(c)
|
Debts
|
collect
its Debts in the ordinary course of its business in a proper and efficient
manner. Following the Enforcement Date the Company may not, without the prior
written consent of the Agent, withdraw any proceeds of the Debts from the
Accounts or compromise, compound, vary, discharge, postpone or release any of
the Debts or waive its right of action in connection therewith or do or omit to
do anything which may delay or prejudice the full recovery thereof, other than
granting extensions to normal trade credit in accordance with the Company's
reasonable and prudent management of its debtors on a normal commercial
basis;
|
(d)
|
Assigned
Agreements
|
Promptly
following written request by the Agent, give notice to the other parties to the
Assigned Agreements that it has assigned its rights under the Assigned
Agreements to the Agent. Such notice will be given in substantially
the form set out in Schedule 7.
|
(e)
|
Deposit
of deeds
|
deposit
with the Agent (to be held at the risk of the Company):
|
(i)
|
(if
any), all deeds and documents of title relating to its Properties and the
Insurances relating thereto;
|
|
(ii)
|
all
certificates and documents of title relating to the Securities owned by it
and such deeds of transfer in blank and other documents as the Agent may
from time to time require for perfecting the title of the Agent to such
Securities (duly executed by or signed on behalf of the registered holder)
or for vesting or enabling it to vest the same in itself or its nominees
or in any purchaser; and
|
|
(iii)
|
all
such other documents relating to its Charged Assets as the Agent may from
time to time require (acting
reasonably);
|
|
(f)
|
Conduct
of business
|
|
(i)
|
ensure
its centre of main interest for the purposes of Council Regulation (EC) No
1346/2000 of 29 May 2000 on Insolvency Proceedings including, but not
limited to, its headquarter functions is located at all times within
England and Wales and not move its centre of main interest to any other
jurisdiction without the prior written consent of the
Agent which the Agent may withhold at the Agent's sole
discretion or otherwise diminish in or divert from England and Wales the
substantive management and control of its business or any of its
Properties;
|
|
(g)
|
Compliance
with covenants etc
|
observe
and perform all covenants, requirements and obligations from time to time
imposed on, applicable to or otherwise affecting its Charged Assets and/or the
use, ownership, occupation, possession, operation, repair, maintenance or other
enjoyment or exploitation of its Charged Assets whether imposed by statute, law
or regulation, contract, lease, licence, grant or otherwise, carry out all
registrations or renewals and generally do all other acts and things (including
the taking of legal proceedings) necessary or desirable to maintain, defend or
preserve its right, title and interest to and in its Charged Assets without
infringement by any third party and not without the prior written consent of the
Agent enter into any onerous or restrictive obligations affecting any of the
same or agree any rent review relating to any interest in any of its
Properties;
|
(h)
|
Alteration
or development of Properties
|
save with
the prior written consent of the Agent, such consent not to be unreasonably
withheld or delayed, not make any material structural alteration to any of the
Properties or any material alteration to the user of any of the Properties or do
or permit to be done anything which is a "development" within the meaning of the
Town and Country Planning Acts for the time being in force or any orders or
regulations under such Acts or do or permit or omit to be done any act, matter
or thing as a consequence of which any provision of any statute, bye-law, order
or regulation or any condition of any consent, licence, permission or approval
(whether of a public or private nature) from time to time in force imposed on,
applicable to or otherwise affecting any of the Properties is or may be
infringed;
|
(i)
|
Maintenance
of Buildings and Equipment
|
|
(i)
|
keep
all its buildings and Equipment which are necessary or useful in the
proper conduct of its business in good and substantial repair (subject to
fair wear and tear) and in good working order and condition and, on not
less than 48 hours written notice, permit the Agent and its agents or
representatives to enter and view their state and condition during
business hours; and
|
|
(ii)
|
if
requested by the Agent, affix to the Equipment a prominent and fireproof
notice stating that the Equipment in question is charged to the Agent by
way of fixed charge;
|
|
(j)
|
Insurance
|
|
(i)
|
insure
and keep insured its Properties, Equipment and all other tangible assets
of an insurable nature at its own expense to the full replacement or
reinstatement value thereof from time to time (including, where
applicable, the cost of demolition and site clearance, architects’,
surveyors’ and other professional fees and incidental expenses in
connection with replacement or reinstatement) against loss or damage
(including loss of rent and profits) by fire, storm, lightning, explosion,
riot, civil commotion, malicious damage, impact, flood, burst pipes,
aircraft and other aerial devices or articles dropped therefrom and such
other risks and contingencies as the Agent shall from time to time
request;
|
|
(ii)
|
maintain
third party and public liability insurance and such other insurance as are
normally maintained by prudent companies carrying on businesses similar to
those of the Company;
|
|
(iii)
|
duly
and promptly pay all premiums and other moneys necessary for effecting and
keeping up such insurances and on demand produce to the Agent the relevant
policies and evidence of such payments and comply in all other respects
with the terms and conditions of the relevant policies including without
limitation any stipulations or restrictions as to the use and/or operation
of any asset; and
|
|
(iv)
|
(in
the case of any Property held under a lease the terms of which prohibit
the Company from complying with the obligations referred to in clause 5.1(j)(i)) procure (where it is empowered
to do so) or otherwise use all reasonable efforts to procure the
maintenance by the landlord (or other third party) of such insurance
obligations in accordance with the provisions of the relevant
lease;
|
|
(k)
|
Property
outgoings
|
punctually
pay, or cause to be paid, and indemnify the Secured Parties and any Receiver or
Administrator (on a several basis) against, all present and future rent, rates,
taxes, duties, charges, assessments, impositions and outgoings whatsoever
(whether imposed by agreement, statute or otherwise) now or at any time during
the continuance of this security payable in respect of its Properties or any
part thereof or by the owner or occupier thereof;
|
(l)
|
Possession
of Properties
|
without
prejudice to the generality of clause 3.5(a), not without the prior written
consent of the Agent part with possession of the whole or any part of its
Properties which are necessary or useful in the proper conduct of its business
or permit any person:
|
(i)
|
to
be registered (jointly with the Company or otherwise) as proprietor under
the Land Registration Acts of any of its Properties which are necessary or
useful in the proper conduct of its business nor create or permit to arise
any unregistered interests which override first registration or registered
dispositions affecting the same within the definition in those Acts or
within any corresponding legislation in any other part of the United
Kingdom; or
|
|
(ii)
|
to
become entitled to any right, easement, covenant, interest or other title
encumbrance which might adversely affect the use, value or marketability
of any of its Properties which are necessary or useful in the proper
conduct of its business;
|
|
(m)
|
Variation
of leasehold interests
|
not
without the prior written consent of the Agent vary, surrender, cancel or
dispose of, or permit to be forfeit, any leasehold interest in any of its
Properties which are necessary or useful in the proper conduct of its
business;
|
(n)
|
Acquisition
of property
|
as soon
as practicable inform the Agent upon making a relevant purchase of any estate or
interest in freehold, leasehold or heritable property and supply the Agent with
such details of the relevant purchase as the Agent may from time to time
request;
|
(o)
|
Environmental
Complaints and Obligations
|
promptly
on becoming aware of it inform the Agent of any Environmental Complaint which is
made or threatened against it or any other Specified Person and of any
requirement which is imposed pursuant to any Environmental Licence or
Environmental Law which requires the Company or any other Specified Person to
make any investment or capital expenditure or to take or desist from taking any
action in either case in respect of any of the Charged Assets in order to comply
with Environmental Law or such Environmental Licence;
|
(p)
|
Access
|
on not
less than 48 hours written notice, procure that the Agent and its agents or
representatives are allowed access during business hours to inspect its
Properties and, where the Agent reasonably believes it to be necessary, to
require testing or the taking of samples at the expense of the Company to verify
its compliance with Environmental Law applicable to it and/or its Environmental
Licences;
|
(q)
|
Hazardous
Substance
|
notify
the Agent forthwith upon becoming aware of any Hazardous Substance present at,
on or under or brought on to any of its Properties which is reasonably likely to
give rise to any Environmental Complaint, or which might lead to or cause a
change in value of any of its Properties or any of its Charged
Assets;
|
(r)
|
Intellectual
Property
|
|
(i)
|
take
all necessary action to safeguard, prosecute and maintain its rights,
present and future, in or relating to its Intellectual Property which is
necessary for the conduct of its business including, without limitation,
observing all covenants and stipulations relating thereto and paying all
applicable application and renewal fees, licence fees and other
outgoings;
|
|
(ii)
|
use
all reasonable efforts to effect registration of applications for
registration of any registered design, patent, trade mark and service mark
and keep the Agent informed of events relevant to any such application and
not without the prior consent in writing of the Agent (such consent not to
be unreasonably withheld or delayed) permit any Intellectual Property
which is necessary for the conduct of its business to be abandoned or
cancelled, to lapse or to be liable to any claim of abandonment for
non-use or otherwise;
|
|
(iii)
|
notify
the Agent forthwith of any infringement or suspected infringement or any
challenge to the validity of any of its Intellectual Property which is
necessary for the conduct of its business which may come to its notice,
supply the Agent with all information in its possession relating thereto
and take all steps necessary to prevent or bring to an end any such
infringement and to defend any challenge to the validity of any such
rights;
|
|
(s)
|
Copies
of notices
|
notify
the Agent as soon as reasonably practicable if it receives any notice in
connection with any of its Properties including, without limitation, any notice
under section 146 Law of Property Act 1925;
|
(t)
|
Jeopardy
|
not do or
cause or permit to be done anything which is reasonably likely to depreciate,
jeopardise or otherwise prejudice the value or marketability of any of its
Charged Assets which are necessary or useful in the proper conduct of its
business.
|
5.2
|
Notice
to Account Bank
|
Save
where the account bank is the Agent, the Company will upon execution of this
deed give notice to the bank with which Accounts are maintained (and forthwith
on any change in the identity of such bank, give notice to the new bank) of this
deed in the form of Part 1 of Schedule 4 (Form of Notice of Charge to Account
Bank) and use its reasonable endeavours to procure that such bank or new bank
(as the case may be) acknowledges such notice to the Agent in the form of Part 2
of Schedule 4 (Form of Acknowledgement of Notice of Charge from the Account
Bank).
|
5.3
|
Power
to remedy
|
If the
Company defaults at any time in complying with any of its obligations contained
in this deed, the Agent shall, without prejudice to any other rights arising as
a consequence of such default, be entitled (but not bound) to make good such
default and the Company hereby irrevocably authorises the Agent and its
employees and agents by way of security to do all such things (including,
without limitation, entering the Company’s property) reasonably necessary or
desirable in connection therewith. Any moneys so expended by the
Agent shall be repayable by the Company to the Agent on demand together with
interest at the Default Rate from the date of payment by the Agent until such
repayment, both before and after judgment. No exercise by the Agent
of its powers under this clause 5.3
shall make it or any other of the Secured Parties liable to account as a
mortgagee in possession.
|
6
|
FURTHER
ASSURANCE
|
|
6.1
|
Further
assurance
|
The
Company shall if and when at any time required by the Agent execute such further
Encumbrances and assurances in favour or for the benefit of the Secured Parties
and do all such acts and things as the Agent shall from time to time reasonably
require over or in relation to all or any of the Charged Assets to secure the
Secured Obligations or to perfect or protect the Agent’s security over the
Charged Assets or any part thereof or to facilitate the realisation of the
same.
Without
prejudice to the foregoing the Company shall use all reasonable endeavours to
obtain from each landlord in respect of each Property used or occupied by the
Company a waiver, in substantially the form set out at Schedule 8, in respect of
such landlord’s rights in respect of inventory and equipment located at such
Property and afford the Agent and any Receiver rights of access to such
Property. Accordingly the Company shall submit such waiver for consent by the
relevant landlord within 45 days of the date of this Charge in respect of
current Properties and in the event of future Properties, within 45 days of
first use or occupancy by the Company.
|
6.2
|
Certain
documentary requirements
|
Such
further Encumbrances and assurances shall be prepared by or on behalf of the
Agent and shall contain:
|
(a)
|
an
immediate power of sale without
notice;
|
|
(b)
|
a
clause excluding section 93 Law of Property Act 1925 and the restrictions
contained in section 103 Law of Property Act 1925;
and
|
|
(c)
|
such
other clauses for the benefit of the Secured Parties as the Agent may
require,
|
but shall
be on terms no more onerous than those set out in this deed.
|
6.3
|
Implied
Covenants
|
The
provisions of clauses 6.1 (Further
assurance) and 6.2 (Certain documentary
requirements) shall be in addition to and not in substitution for the covenants
for further assurance deemed to be included in this deed by virtue of the Law of
Property (Miscellaneous Provisions) Act 1994.
|
7
|
ENFORCEMENT
|
|
7.1
|
Enforcement
|
At any
time on or after the Enforcement Date the Agent shall be entitled to make demand
for payment of the Secured Obligations and, if such demand is not met in full,
to enforce the Security (in whole or in part) created by this deed.
|
7.2
|
Powers
of the Agent on enforcement
|
At any
time on or after the Enforcement Date the Agent may, without further notice,
without the restrictions contained in section 103 Law of Property Act 1925 and
whether or not an Administrator or a Receiver shall have been appointed,
exercise all the powers conferred upon mortgagees by the Law of Property Act
1925 as varied or extended by this deed and all the powers and discretions
conferred by this deed on a Receiver either expressly or by
reference.
|
7.3
|
Enforcement
in relation to Securities
|
Without
limiting the generality of clause 7.2
(Powers of the Agent on enforcement) the Agent and its nominees at the
discretion of the Agent may at any time on or after the Enforcement Date and
without further notice to or any authority from the Company, exercise in respect
of the Securities any voting rights and all powers given to trustees by the
Trustee Act 2000 in respect of securities or property subject to a trust and any
powers or rights which may be exercisable by the person in whose name any of the
Securities is registered or by the bearer thereof for the time
being.
|
7.4
|
Subsequent
Encumbrances
|
If any
Secured Party receives notice of any subsequent Encumbrance (other than a
Permitted Encumbrance) affecting all or any of the Charged Assets, such Secured
Party may open a new account for the Company. If it does not do so
then, unless such Secured Party gives express written notice to the contrary to
the Company, it shall nevertheless be treated as if it had opened a new account
at the time when it received such notice and as from that time all payments made
by or on behalf of the Company to such Secured Party shall be credited or be
treated as having been credited to the new account and shall not operate to
reduce the amount due from the Company to such Secured Party at the time when it
received such notice.
|
7.5
|
Statutory
power of leasing
|
The Agent
shall have the power to lease and make agreements for leases at a premium or
otherwise, to accept surrenders of leases and to grant options on such terms as
the Agent shall consider expedient and without the need to observe any of the
provisions of sections 99 and 100 Law of Property Act 1925.
|
7.6
|
Fixtures
|
At any
time on or after the Enforcement Date or if requested by the Company the Agent
may sever, and sell separately, any Fixtures from any of the Company's
Properties to which they are attached.
|
8
|
APPOINTMENT
OF ADMINISTRATOR
|
At any
time on or after the Enforcement Date the Agent may appoint an Administrator of
the Company for the purposes of and upon the terms contained in Schedule B1
Insolvency Act 1986.
|
9
|
APPOINTMENT
AND POWERS OF RECEIVER
|
|
9.1
|
Appointment
|
At any
time on or after the Enforcement Date the Agent may, save as specified in this
clause 9.1, by instrument in writing
executed as a deed or under the hand of any director or other duly authorised
officer appoint any person to be a Receiver of such part of the Charged Assets
of the Company, not being the whole or substantially the whole of the Company's
property within the meaning of section 29 Insolvency Act 1986, as the Agent may
specify (the "Receivership
Assets"). Any such appointment may be made subject to such
qualifications, limitations and/or exceptions (either generally or in relation
to specific assets or classes of asset) as may be specified in the instrument
effecting the appointment. Where more than one Receiver is appointed,
each joint Receiver shall have power to act severally, independently of any
other joint Receivers, except to the extent that the Agent may specify to the
contrary in the appointment. The Agent may remove any Receiver so
appointed and appoint another in his place. The Agent shall not,
however, be entitled to appoint a Receiver solely as a result of the obtaining
of a moratorium or of anything done with a view to obtaining a moratorium, under
the Insolvency Act 2000 without the leave of the court.
|
9.2
|
Receiver
as agent
|
A
Receiver shall be the agent of the Company in respect of which he is appointed
and the Company shall be solely responsible for his acts or defaults and for his
remuneration.
|
9.3
|
Powers
of Receiver
|
A
Receiver shall have the power to do or omit to do on behalf of the Company
anything which the Company itself could do or omit to do if the Receiver had not
been appointed, notwithstanding the liquidation of the Company. In
particular (but without limitation) a Receiver shall have power to:
|
(a)
|
take
possession of, collect and get in the Receivership Assets and, for that
purpose, to take such proceedings as may seem to him
expedient;
|
|
(b)
|
sell
or otherwise dispose of the Receivership Assets by public auction or
private auction or private
contract;
|
|
(c)
|
raise
or borrow money and grant security therefor over the Receivership
Assets;
|
|
(d)
|
appoint
a solicitor or accountant or other professionally qualified person to
assist him in the performance of his
functions;
|
|
(e)
|
bring
or defend any action or other legal proceedings in the name and on behalf
of the Company;
|
|
(f)
|
refer
to arbitration any question affecting the
Company;
|
|
(g)
|
effect
and maintain insurances in respect of the business and Properties of the
Company;
|
|
(h)
|
use
the Company's seal;
|
|
(i)
|
do
all acts and to execute in the name and on behalf of the Company any deed,
receipt or other document;
|
|
(j)
|
draw,
accept, make and endorse any bill of exchange or promissory note in the
name and on behalf of the Company;
|
|
(k)
|
appoint
any agent to do any business which he is unable to do himself or which can
more conveniently be done by an agent and employ and dismiss
employees;
|
|
(l)
|
do
all such things (including the carrying out of works) as may be necessary
for the realisation of the Receivership
Assets;
|
|
(m)
|
make
any payment which is necessary or incidental to the performance of his
functions;
|
|
(n)
|
carry
on the business of the Company;
|
|
(o)
|
establish
Subsidiaries of the Company;
|
|
(p)
|
transfer
to Subsidiaries of the Company the whole or any part of the business or
Receivership Assets;
|
|
(q)
|
grant
or accept a surrender of a lease or tenancy of any of the Receivership
Assets and to take a lease or tenancy of any properties required or
convenient for the business of the
Company;
|
|
(r)
|
make
any arrangement or compromise on behalf of the Company in respect of the
Receivership Assets;
|
|
(s)
|
call
up any uncalled capital of the
Company;
|
|
(t)
|
rank
and claim in the bankruptcy, insolvency, sequestration or liquidation of
any person indebted to the Company and to receive dividends, and to accede
to trust deeds for the creditors of any such
person.
|
The
Receiver shall also have all powers from time to time conferred on receivers by
statute without, in the case of powers conferred by the Law of Property Act
1925, the restrictions contained in Section 103 of that Act.
|
9.4
|
Remuneration
|
The Agent
may from time to time determine the remuneration of any Receiver and section
109(6) Law of Property Act 1925 shall be varied accordingly. A
Receiver shall be entitled to remuneration appropriate to the work and
responsibilities involved upon the basis of charging from time to time adopted
by the Receiver in accordance with the current practice of his
firm.
|
9.5
|
Insurance
moneys
|
Any
insurance moneys received by a Receiver shall be applied in accordance with
clause 10.2 (Insurance proceeds) and
accordingly section 109(8) Law of Property Act 1925 shall not
apply.
|
10
|
APPLICATION
OF PROCEEDS; PURCHASERS
|
|
10.1
|
Application
of proceeds
|
All
moneys received by the Agent or by any Receiver shall, subject to clause 13.5 (Suspense accounts), be paid to the
Agent under the Credit Agreement, after the discharge of the remuneration and
expenses of the Receiver and all liabilities having priority in law to the
Secured Obligations, in or towards satisfaction of the Secured Obligations in
accordance with the terms of the Credit Agreement.
|
10.2
|
Insurance
proceeds
|
All
insurance moneys (including any received by a Receiver) deriving from any of the
Insurances (whether before or after the Enforcement Date) shall be applied in
accordance with the terms of the Credit Agreement.
|
10.3
|
Protection
of purchasers
|
No
purchaser or other person shall be bound or concerned to see or enquire whether
the right of the Agent or any Administrator or Receiver to exercise any of the
powers conferred by this deed has arisen or be concerned with notice to the
contrary or with the propriety of the exercise or purported exercise of such
powers.
|
11
|
INDEMNITIES;
EXCLUSION OF LIABILITY; COSTS AND
EXPENSES
|
|
11.1
|
Enforcement
costs
|
The
Company hereby undertakes with the Agent to pay on demand all costs, charges and
expenses incurred by or on behalf of the Secured Parties or any of them or by
any Administrator or Receiver in or about the enforcement or preservation or
attempted enforcement or preservation of any of the security created by or
pursuant to this deed or any of the Charged Assets on a full indemnity basis,
together with interest at the Default Rate from the date on which such costs,
charges or expenses are so incurred until the date of payment (as well after as
before judgment).
|
11.2
|
No
liability as mortgagee in
possession
|
None of
the Secured Parties or any Receiver shall be liable to account to the Company as
mortgagee in possession in respect of all or any of the Charged Assets or be
liable for any loss upon realisation or for any neglect or default of any nature
whatsoever for which a mortgagee may be liable as such.
|
11.3
|
Recovery
of Debts
|
None of
the Secured Parties or any Receiver shall have any liability or responsibility
of any kind to the Company arising out of the exercise or non-exercise of the
right to enforce recovery of the Debts or shall be obliged to make any enquiry
as to the sufficiency of any sums received in respect of any Debts or to make
any claims or take any other action to collect or enforce the same.
|
11.4
|
Third
Party Contract Rights
|
|
(a)
|
A
person who is not a party to this deed has no rights under the Contracts
(Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of
any term of this deed.
|
|
(b)
|
Notwithstanding
any other provision of this deed, the Agent and the Company shall be
entitled to agree variations to this deed without notifying the other
Indemnified Parties or any retired Agent or seeking the consent
of such Indemnified Parties or any retired Agent or any of them to the
variation.
|
|
11.5
|
Value
Added Tax
|
All fees,
costs and expenses payable under or pursuant to this deed shall be paid together
with an amount equal to any value added tax payable by any Secured Party in
respect of the same. Any value added tax chargeable in respect of any
services supplied by any Secured Party under this deed shall, on delivery of a
value added tax invoice, be paid in addition to any sum agreed to be paid under
this deed.
|
12
|
POWER
OF ATTORNEY
|
|
12.1
|
The
Company by way of security hereby irrevocably appoints each of the Agent
and any Receiver severally to be its attorney in its name and on its
behalf to do all things which the Company may be required to do under this
deed but which it has failed to do
including:
|
|
(a)
|
to
execute and complete any documents or instruments which the Agent or such
Receiver may require for perfecting the title of the Agent to the Charged
Assets or for vesting the same in the Agent, its nominees or any
purchaser;
|
|
(b)
|
to
sign, execute, seal and deliver and otherwise perfect any further security
document referred to in clause 6 (Further assurance);
and
|
|
(c)
|
otherwise
generally to sign, seal, execute and deliver all deeds, assurances,
agreements and documents and to do all acts and things which are required
for the full exercise of all or any of the powers conferred on the Agent
or a Receiver under this deed or which may be deemed expedient by the
Agent or a Receiver in connection with any disposition, realisation or
getting in by the Agent or such Receiver of the Receivership Assets or in
connection with any other exercise of any power under this deed and
including, but not limited to a power in favour of any Receiver to dispose
for value of any of the assets of the Company over which such Receiver may
not have been appointed and which are located at Property over which he
has been appointed, without being liable for any losses suffered by the
Company, or any part thereof.
|
|
12.2
|
The
Company ratifies and confirms (and agrees to do so) whatever any such
attorney shall do, or attempt to do, in the exercise of all or any of the
powers, authorised and discretions pursuant to clause 12.1.
|
|
13
|
CONTINUING
SECURITY AND OTHER MATTERS
|
|
13.1
|
Continuing
security
|
This deed
and the obligations of the Company under this deed (including, without
limitation, the Guarantees) shall extend to the ultimate balance from time to
time owing in respect of the Secured Obligations and shall be a continuing
security notwithstanding any intermediate payment, partial settlement or other
matter whatsoever.
|
13.2
|
Liability
unconditional
|
The
liability of the Company shall not be affected nor shall any guarantee be
discharged or reduced by reason of:
|
(a)
|
the
Incapacity or any change in the name, style or constitution of the Company
or other person liable;
|
|
(b)
|
any
Secured Party granting any time, indulgence or concession to, or
compounding with, discharging, releasing or varying the liability of the
Company or any other person liable;
or
|
|
(c)
|
any
amendment, variation or waiver (however material or fundamental) of the
Credit Agreement; or
|
|
(d)
|
any
act or omission which would not have discharged or affected the liability
of the Company had it been a principal debtor instead of a guarantor or
anything done or omitted which but for this provision might operate to
exonerate the Company.
|
|
13.3
|
Collateral
Instruments
|
None of
the Secured Parties shall be obliged to make any claim or demand on the Company
or any other person liable or to resort to any Collateral Instrument or other
means of payment before enforcing this deed and no action taken or omitted in
connection with any such Collateral Instrument or other means of payment shall
discharge, reduce, prejudice or affect the liability of the Company (including,
without limitation, the liability of the Company under the
Guarantee). None of the Secured Parties shall be obliged to account
for any money or other property received or recovered in consequence of any
enforcement or realisation of any such Collateral Instrument or other means of
payment.
|
13.4
|
Waiver
of Company’s rights
|
Until all
the Secured Obligations have been paid, discharged or satisfied in full (and
notwithstanding payment of a dividend in any liquidation or under any compromise
or arrangement or the discharge by the Company of its liability under its
guarantee) the Company agrees that without the prior written consent of the
Agent it will not:
|
(a)
|
exercise
any rights of subrogation, contribution or indemnity against any other
person liable;
|
|
(b)
|
demand
or accept any Collateral Instrument to be executed in respect of any of
its obligations under this deed or any other Indebtedness now or hereafter
due to the Company from any other person
liable;
|
|
(c)
|
take
any step to enforce any right against other person liable in respect of
any such Secured Obligations;
|
|
(d)
|
exercise
any right of set-off or counter-claim against any other person liable or
claim or prove or vote as a creditor in competition with any of the
Secured Parties in the liquidation, administration or other insolvency
proceeding of the Company or any other person liable or have the benefit
of, or share in, any payment from or composition with, any other person
liable or any Collateral Instrument now or hereafter held by any of the
Secured Parties for any obligations or liabilities of any other person
liable.
|
|
13.5
|
Suspense
accounts
|
Any money
received in connection with a guarantee or pursuant to the realisation of any
security created pursuant to this deed (whether before or after any Incapacity
of the Company or any other person liable) may be placed to the credit of an
interest-bearing suspense account with a view to preserving the rights of the
Secured Parties to prove for the whole of their respective claims against the
Company or any other person liable.
|
13.6
|
Settlements
Conditional
|
Except as
otherwise specified in a deed of release executed by the Agent, any release,
discharge or settlement between the Company and any of the Secured Parties shall
be conditional upon no security, disposition or payment to any of the Secured
Parties by the Company or any other person being void, set aside or ordered to
be refunded pursuant to any enactment or law relating to liquidation,
administration or insolvency or for any other reason whatsoever and if such
condition is not fulfilled the Agent shall be entitled to enforce this deed as
if such release, discharge or settlement had not occurred and any such payment
had not been made.
|
13.7
|
Company
to deliver up certain property
|
If,
contrary to clause 13.4 (Waiver of
Company’s rights), the Company takes or receives the benefit of any security or
receives or recovers any money or other property, such security, money or other
property shall be held on trust for the Agent and shall be delivered to the
Agent on demand.
|
14
|
CURRENCIES
|
All
moneys received or held by the Agent or by a Receiver under this deed at any
time on or after the Enforcement Date in a currency other than a currency in
which the Secured Obligations are denominated may from time to time be sold for
such one or more of the currencies in which the Secured Obligations are
denominated as the Agent or Receiver considers necessary or desirable and the
Company shall indemnify the Agent against the full cost (including all
commissions, charges and expenses) incurred in relation to such
sale. Neither the Agent nor any Receiver shall have any liability to
the Company in respect of any loss resulting from any fluctuation in exchange
rates after any such sale.
|
15
|
DECLARATION
OF TRUST
|
|
15.1
|
Declaration
of Trust
|
The Agent
hereby declares itself trustee of the covenants, agreements and undertakings of
the Company contained in this deed and the security and other rights, titles and
interests constituted by this deed and of the Charged Assets and all other
moneys, property and assets paid to the Agent or held by the Agent or received
or recovered by the Agent pursuant to or in connection with this deed with
effect from the date of this deed to hold the same on trust for the Secured
Parties and to apply the same as follows:
|
(a)
|
first
as to a sum equivalent to the Secured Obligations for the Secured Parties
absolutely; and
|
|
(b)
|
secondly
as to the balance (if any) for the Company or whoever else is entitled to
such balance absolutely.
|
|
15.2
|
Duration
|
The
trusts constituted by this deed shall remain in full force and effect until
whichever is the earlier of:
|
(a)
|
the
expiration of the period of 80 years from the date of this deed;
and
|
|
(b)
|
receipt
by the Agent of confirmation in writing from all the Secured Parties that
the Secured Obligations have been repaid or discharged to the satisfaction
of the Secured Parties and that none of the Secured Parties is under any
obligation to permit any Secured Obligations to be incurred and the Credit
Agreement has been terminated,
|
and the
parties to this deed declare that the perpetuity period applicable to this deed
shall for the purposes of the Perpetuities and Accumulations Act 1964 be the
period of 80 years.
|
15.3
|
Instructions
and Certificates
|
The Agent
shall be entitled to assume that any instructions or certificates received by it
from the Lenders under or pursuant to this deed or the Credit Agreement
are:
|
(a)
|
given
in accordance with the provisions of this deed or the relevant document;
and
|
|
(b)
|
given,
where appropriate, in accordance with the directions of persons or the
provisions of agreements by which the other Secured Parties are
bound;
|
and the
Agent shall not be liable to any other person for any action taken or omitted
under or in connection with this deed in accordance with any such instructions
or certificates unless caused by its gross negligence or wilful
misconduct. The Agent shall be entitled to act and/or rely upon any
notice, request or other communication of any party to this deed for the
purposes of this deed or of the Credit Agreement if such notice, request or
other communication purports to be signed or sent by or on behalf of an
authorised signatory of such party.
|
15.4
|
Powers
and Discretions
|
The Agent
shall have all the powers and discretions conferred upon trustees by the Trustee
Act 1925 (to the extent not inconsistent with this deed) and in addition all the
powers and discretions conferred upon the Agent by this deed and upon a Receiver
appointed under this deed and by way of supplement it is expressly declared as
follows:
|
(a)
|
the
Agent may in relation to any of the provisions of this deed and other
related documents engage and pay all proper fees and expenses for the
advice or services of and act on the opinion or advice of or any
information obtained (whether by the Agent or any other person) from any
lawyer, accountant, banker, broker, surveyor, valuer auctioneer, financial
adviser or other professional adviser or other expert whose advice,
services, opinion or information may to it seem necessary, expedient or
desirable and the Agent shall not be responsible for any loss occasioned
by so acting;
|
|
(b)
|
any
such advice or opinion or information referred to in clause 15.4(a) may be sent or obtained by letter
or facsimile transmission or electronic mail and the Agent shall not be
liable for acting on any advice, opinion or information purporting to be
conveyed by any such letter or facsimile transmission or electronic mail
although the same shall contain some error or shall not be authentic
provided that such error or lack of authenticity is not
manifest;
|
|
(c)
|
the
Agent shall be at liberty to place this deed and any other instruments,
documents or title deeds delivered to it pursuant to or in connection with
this deed for the time being in its possession in any safe deposit, safe
or receptacle selected by the Agent or with any bank, any company whose
business includes undertaking the safe custody of documents or any firm of
lawyers and the Agent shall not be responsible for any loss thereby
incurred (save that the Agent shall take reasonable steps to pursue any
person who may be liable to it in connection with such
loss);
|
|
(d)
|
the
Agent (or any director or officer of the Agent) shall not be precluded by
reason of so acting from underwriting, guaranteeing the subscription of,
subscribing for or otherwise acquiring, holding or dealing with any
debentures, shares or securities whatsoever of the Company or any
subsidiary thereof or any holding company of any the Company or any other
subsidiary of any such holding company or any other company in which the
Company or any such holding company or subsidiary may be interested or
from entering into any contract or financial or other transaction with or
from engaging in any other business with, or from accepting or holding the
trusteeship of any other trust deed constituting or securing any
securities issued by or relating to, the Company or any subsidiary thereof
or any holding company of the Company or any other subsidiary of any such
holding company or any other company in which the Company or any such
holding company or subsidiary may be interested and shall not be liable to
account for any profit made or payment received by it thereby or in
connection therewith;
|
|
(e)
|
the
Agent may act by responsible officers or a responsible officer of the
Agent and may also whenever it thinks fit delegate by power of attorney or
otherwise to any person or persons or fluctuating body of persons all or
any of the rights, trusts, powers, authorities and discretions vested in
it by this deed and such delegation may be made upon such terms and
subject to such conditions (including power to sub-delegate) and subject
to such regulations as the Agent may think fit and the Agent shall not be
bound to supervise the proceedings or (provided that the Agent shall have
exercised reasonable care in the selection of such delegate) be in any way
responsible for any loss incurred by reason of any misconduct or default
on the part of any such delegate or
sub-delegate;
|
|
(f)
|
the
Agent shall not be liable for acting in relation to this deed, or any
related documents on any notice, request, certificate, direction or other
communication or other document purporting to emanate from the Company or
any other person notwithstanding that the same shall include some error or
omission or not be authentic. The Agent shall be in no way
bound to call for further evidence or to be responsible for any loss that
may be occasioned by its failure to do so or by its acting on any such
certificate;
|
|
(g)
|
the
Agent may instead of acting personally employ and pay an agent whether
being a lawyer or other person to transact or concur in transacting any
business and to do or concur in doing all acts required to be done by the
Agent including the receipt and payment of money and any trustee in
respect hereof being a lawyer, accountant, banker, broker, valuer,
auctioneer or other person engaged in any profession or business shall be
entitled to charge and be paid all usual professional and other charges
reasonably incurred for business transactions and acts done by him or his
firm in connection with any this deed and also his charges in addition to
disbursements for all other work and business done and all time spent by
him or his firm in connection with matters arising in connection with this
deed including matters which might or should have been attended to in
person by a trustee not being engaged in any profession or
business;
|
|
(h)
|
the
Agent may call for and rely (as to any matters of fact which might
reasonably be expected to be within the knowledge of the Company) upon a
certificate signed by two authorised signatories of the Company as
sufficient evidence thereof and shall not be bound in any such case to
call for further evidence or be responsible for any loss that may be
occasioned by the Agent failing to do
so;
|
|
(i)
|
notwithstanding
anything else contained herein, the Agent may refrain from doing anything
which would or might in its opinion be contrary to any law of any
jurisdiction or any directive or regulation of any agency of any state
(including any environmental directive or regulation) or which would or
might otherwise render it liable to any person and may do anything which
is, in its opinion, necessary to comply with any such law, directive or
regulation;
|
|
(j)
|
the
Agent shall not be liable for any failure, omission or defect in
perfecting the security constituted by or pursuant to this deed including,
without limitation:
|
|
(i)
|
failure
to obtain any licence, consent or other authority for the execution of
this deed including, without limitation, the consent of any person
required under the terms of any documents constituting the Charged
Assets;
|
|
(ii)
|
failure
to register the same in accordance with any of the documents of title of
any of the Company to any of the Charged
Assets;
|
|
(iii)
|
failure
to effect or to procure registration of or otherwise protect any floating
charge created by or pursuant to this deed by registering under the Land
Registration Act 2002 any notice, restriction or other entry prescribed by
or pursuant to the provisions of that Act, and it is the intention that
the Agent shall not so effect or procure the registration of or otherwise
so protect such floating charge;
|
|
(iv)
|
failure
to take or require the Company to take any steps to render any charge
created by this deed effective as regards assets (if any) outside England
and Wales or to secure the creation of any ancillary charge under the laws
of any other territory concerned;
or
|
|
(v)
|
failure
by the Company to perfect its title to all or any part of the
Charged Assets so that the Agent shall not be bound to make any enquiries
whatsoever as regards such title;
|
|
(k)
|
the
Agent and every attorney, agent or other person appointed by it under or
in connection with this deed or any of the Credit Agreement shall be
entitled to be indemnified and/or secured out of amounts received by the
Agent under this deed or the Credit Agreement against all liabilities and
expenses properly incurred in the execution of any power, trust, authority
or discretion in connection with this deed and against all actions,
proceedings, costs, claims and demands in respect of any matter or thing
done or omitted to be done in any way relating to this deed, save to the
extent that any such actions, proceedings, costs, claims or demands are
caused by the gross negligence or wilful misconduct of the indemnified
person;
|
|
(l)
|
all
moneys which under the trusts contained in this deed are received or held
by the Agent following an Event of Default may be invested in the name of
the Agent or any nominee or under the control of the Agent by placing the
same on deposit in the name of the Agent or any nominee or under the
control of the Agent at a bank and the Agent shall not be responsible for
any loss occasioned thereby, whether by depreciation in value, fluctuation
in exchange rates or otherwise;
|
|
(m)
|
save
as otherwise provided herein, the Agent shall (as between itself and the
other Secured parties) have full power to determine all questions and
doubts arising in relation to the interpretation or application of any of
the provisions of this deed or the Credit Agreement as it affects the
Agent and every such determination (whether made upon a question actually
raised or implied in the acts or proceedings of the Agent) shall be
conclusive and shall bind the other Secured Parties and the
Company;
|
|
(n)
|
the
Agent shall not be bound to give notice to any person of the execution of
this deed or the Credit Agreement or any transactions contemplated hereby
or thereby;
|
|
(o)
|
notwithstanding
any other provision in the Credit Agreement, the other Secured Parties and
the Company acknowledge that when exercising the rights, benefits, powers,
trusts, authorities, discretions and obligations expressed to be granted
to the Agent by this deed, the Credit Agreement or by operation of law,
the Agent shall not be responsible for any loss, costs, damages, expenses
or inconveniences that may result from the exercise or non-exercise
thereof save that the Agent shall not be bound to act unless it is first
indemnified and/or secured to its satisfaction by the Secured Parties (as
the case may be) against all actions, proceedings, claims and demands to
which it may render itself liable and all costs, charges, damages,
expenses and liabilities which it may incur by so doing, save to the
extent that any such actions, proceedings, costs, claims or demands are
caused by the gross negligence or wilful misconduct of the
Agent;
|
|
(p)
|
any
consent or approval given by the Agent for the purpose of this deed or the
Credit Agreement may be given on such terms and subject to such conditions
(if any) as the Agent may require and notwithstanding anything to the
contrary contained in this deed;
|
|
(q)
|
the
Agent shall not be bound to take any steps to ascertain whether any event,
condition or act, the happening of which would cause a right or remedy to
become exercisable by the Agent under this deed or the Credit Agreement,
has happened or to monitor or supervise the observance and performance by
the Company or any of the other parties thereto of their respective
obligations under the Credit Agreement or the obligations of the other
Secured Parties and, until it shall have actual knowledge or express
notice to the contrary, the Agent shall be entitled to assume that no such
event, condition or act has happened and that the Company and each of the
other parties thereto are observing and performing all their respective
obligations thereunder;
|
|
(r)
|
without
prejudice to the provisions hereof and of the Credit Agreement relating to
insurance, the Agent shall not be under any obligation to insure any of
the Charged Assets or documents of title or other evidence in respect
thereof or to require any other person to maintain any such insurance,
shall not be under any responsibility in respect of the insurances
required to be taken out pursuant to the Credit Agreement and shall not be
responsible for any loss, expense or liability which may be suffered as a
result of the lack of or inadequacy of any such
insurance;
|
|
(s)
|
the
Agent shall not be responsible for any loss, expense or liability
occasioned to the Charged Assets however caused by any act or omission of
the Company or any other person (including any bank, broker, depository,
warehouseman or other intermediary or any clearing system or the operator
thereof) whether acting in accordance with or contrary to the terms of any
agreement or otherwise and irrespective of whether the Charged Assets are
held by or to the order of any of the foregoing persons, unless such loss
is occasioned by the wilful neglect or misconduct or fraud of the
Agent;
|
|
(t)
|
the
Agent shall not be liable for any error of judgment made in good faith by
any officer or employee of the Agent assigned by the Agent to administer
its corporate trust matters unless it shall be proved that the Agent was
grossly negligent in ascertaining the pertinent
facts;
|
|
(u)
|
no
provision of this deed or the Credit Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties, or in the exercise of any of its
rights or powers solely in its capacity as trustee under this deed
(including, without limitation, where it is so bound to act at the
direction of the Agent), if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity and/or security against
such risk or liability is not assured to
it;
|
|
(v)
|
the
Agent shall have no responsibility whatsoever to the Company or any of the
Secured Parties as regards any deficiency or additional payment, as the
case may be, which might arise because the Agent or the Company is subject
to any tax in respect of the Charged Assets or any part thereof or any
income therefrom or any proceeds
thereof;
|
|
(w)
|
the
Agent shall have only those duties, obligations and responsibilities
expressly specified in this deed and the Credit Agreement and shall not
have any implied duties, obligations or responsibilities. In
performing or carrying out its duties, obligations and responsibilities,
the Agent shall be considered to be acting only in a mechanical and
administrative capacity (save as expressly provided in this deed or the
Credit Agreement) and shall not have or be deemed to have any duty,
obligation or responsibility to or relationship of trust or agency with
the Company;
|
|
(x)
|
notwithstanding
anything else herein contained, the Agent may refrain from taking any
action or exercising any right, power, authority or discretion vested in
it under this deed or the Credit Agreement, any of the Charged Assets or
any other agreement relating to the transactions herein or therein
contemplated until it has been indemnified and/or secured to its
satisfaction against any and all actions, charges, claims, costs, damages,
demands, expenses, liabilities, losses and proceedings (including legal
and other professional fees) which might be brought, made or conferred
against or suffered, incurred or sustained by it as a result and nothing
contained in this deed shall require the Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of its
duties or the exercise of any right, power, authority or discretion
hereunder if it has reasonable grounds for believing the repayment of such
funds or adequate indemnity against, or security for, such risk or
liability is not reasonably assured to it;
and
|
|
(y)
|
notwithstanding
anything contained in this deed, to the extent required by any applicable
law, if the Agent is required to make any deduction or withholding from
any distribution or payment made by it under this deed or if
the Agent is otherwise charged to, or may become liable to, tax as a
consequence of performing its duties under this deed or the Credit
Agreement, whether as principal, agent or otherwise, and whether by reason
of any assessment, prospective assessment or other imposition of liability
to taxation of whatsoever nature and whensoever made upon the Agent, and
whether in connection with or arising from any sums received or
distributed by it or to which it may be entitled under these presents
(other than in connection with its remuneration as provided for herein) or
any investments from time to time representing the same, including any
income or gains arising therefrom, or any action of the Agent in or about
the administration of the trusts of this deed (other than the remuneration
herein specified) or otherwise, then the Agent shall be entitled to make
such deduction or withholding or (as the case may be) to retain out of
sums received by it an amount sufficient to discharge any liability to tax
which relates to sums so received or distributed or to discharge any such
other liability of the Agent to tax from the funds held by the Agent on
the trusts of this deed.
|
|
15.5
|
Power
in addition
|
The
powers conferred by this deed upon the Agent shall be in addition to any powers
which may from time to time be vested in it by general law or as the holder or
mortgagee in possession of any of the Charged Assets. Part 1 of the
Trustee Act 2000 shall not apply to the trusts created by this
deed.
|
15.6
|
Exculpation
of Agent
|
The Agent
shall:
|
(a)
|
not
be bound to (and it is the intention that it shall not) account to any
person for any sum received by it for its own account or the profit
element of any such sum;
|
|
(b)
|
not
have any duty or responsibility, either initially or on a continuing
basis:
|
|
(i)
|
to
provide any other Secured Party with any information with respect to the
Company whenever coming into its possession or to provide any other person
with any communication received by it under or in connection with this
deed; or
|
|
(ii)
|
to
investigate the application of sums distributed pursuant to this
deed;
|
|
(c)
|
not
examine or enquire into (unless the Agent considers it appropriate to do
so following receipt of instructions to enforce the security constituted
by or pursuant to this deed) or be responsible for the legality, validity,
effectiveness, adequacy or enforceability of this deed, the Credit
Agreement or any agreement, assignment or other document relating to any
of the foregoing or its ability to exercise the rights, trusts, powers,
authorities and discretions conferred by this deed or any other of the
foregoing, and so that the Agent shall not be responsible for its
inability to exercise any of the same or for any loss or damage thereby
occasioned and, in particular but without prejudice to the generality of
the foregoing, the Agent shall not be liable to the other Secured Parties
for any damage or loss arising from any want of due formality in the
constitution of the security constituted by or pursuant to this deed
resulting in the illegality, invalidity, ineffectiveness, inadequacy or
unenforceability of such security and it is hereby confirmed that prior to
the date hereof the Agent has not made (and it was the intention that it
should not make) any such examination or enquiry as
aforesaid;
|
|
(d)
|
not
be bound to disclose to any other person any information relating to the
Company or any of them if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise actionable at
the suit of any person;
|
|
(e)
|
not
under this deed be concerned with the interests of or owe any duty
whatsoever to any persons other than the Secured
Parties;
|
|
(f)
|
be
entitled at any time to appoint (and subsequently to dismiss) such other
person or persons as it thinks fit to become additional trustees under
this deed to assist it in carrying out its duties under this deed and each
such additional trustee shall be entitled to the same rights and subject
to the same obligations under this deed as the
Agent;
|
|
(g)
|
accept
without enquiry, requisition or objection or investigation of title such
title as the Company may have to the Charged Assets;
and
|
|
(h)
|
subject
to the Agent's discretions given to it under this deed, not be under any
obligation to hold any title deeds or other documents in connection with
the Charged Assets in its own
possession or under its own control or to take any steps to protect or
preserve or insure the same and the Agent may permit the Company to retain
all such title deeds and other documents in connection with the Charged
Assets in their possession and the Agent shall not be responsible for any
loss incurred in connection with such deposit or
possession.
|
|
15.7
|
Investigations
|
It is
understood and agreed by each Secured Party that it has itself been, and will
continue to be, solely responsible for making its own independent appraisal of,
and investigations into, the financial condition, creditworthiness, condition,
value, affairs, status and nature of the Company and the Charged Assets and,
accordingly, each Secured Party is deemed to confirm to the Agent that it has
not relied and will not hereafter rely on the Agent:
|
(a)
|
to
check or enquire on its behalf into the adequacy, accuracy or completeness
of any information provided by the Company in connection with this deed;
or
|
|
(b)
|
to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, value, affairs, status or nature of the
Company and its respective subsidiaries or the Charged
Assets.
|
|
15.8
|
Written
certificates
|
The
Company will, on request from the Agent, promptly give to the Agent a written
certificate in such form as the Agent may reasonably require setting out all
information available to it reasonably requested by the Agent to facilitate the
performance by the Agent of its rights, trusts, powers, authorities,
discretions, duties and obligations under this deed, such certificate to be
signed by two directors.
|
15.9
|
Accession
Undertakings
|
Each of
the Secured Parties hereby appoints the Agent to receive on its behalf each
Accession Undertaking and to countersign the same if, in the Agent's opinion, it
is complete and appears on its face to be authentic and duly
executed. No Accession Undertaking shall be effective unless and
until duly countersigned by the Agent.
|
15.10
|
Costs
and Expenses
|
The
Company shall on demand pay to the Agent an amount equal to all costs and
expenses of the Agent reasonably and properly incurred in the negotiation,
preparation and execution of this deed and any documents relating hereto or in
the release of the security constituted by this deed (in each case including but
not limited to legal fees and stamp duty) and all value added tax and similar
tax charged or chargeable in respect thereof.
|
15.11
|
Resignation
|
|
(a)
|
The
Agent may at any time, and without assigning any reason therefor or being
responsible for any costs occasioned thereby, give not less than 30 days'
notice to the Secured Parties of its desire to retire from the trusteeship
of this deed and request the Secured Parties within such 30 day period to
appoint a replacement Agent, whereupon the Secured Parties may appoint a
replacement Agent.
|
|
(b)
|
The
retirement of the Agent under clause 15.11(a) shall not take effect until the
appointment of a replacement trustee has been effected by the Secured
Parties pursuant to clause 15.11(a) and the replacement Agent has
confirmed its agreement to be bound by the provisions of this deed
whereupon the retiring Agent shall thereby forthwith be discharged from
any further obligations under this deed (but without prejudice to any
accrued liabilities under this deed) but shall remain entitled to the
benefit of clause 15 and the
replacement Agent shall have all the rights, trusts, powers, authorities,
discretions, duties and obligations of the Agent under this deed as if it
had been a party to this deed.
|
|
(c)
|
The
resignation or removal of the retiring Agent and the appointment of any
successor Agent shall both become effective upon the successor Agent
notifying the other Secured Parties and the Company in writing that it
accepts such appointment and executing an Accession Undertaking whereupon
the successor Agent shall succeed to the position of the retiring Agent
and the term "Agent" in this deed and the Credit Agreement shall include
such successor Agent where appropriate. Clause 15 shall continue to benefit a
retiring Agent in respect of any action taken or omitted by it under this
deed or the Credit Agreement while it was a
Agent.
|
|
(d)
|
The
Company shall take such action as may be necessary, and the Agent at the
request (and properly incurred cost) of the Company shall take
such action as may be practicable, in order that the Credit Agreement and
this deed or replacements therefor shall provide for effective and
perfected security in favour of any replacement Agent including making
available to the replacement Agent such documents and records as the
successor Agent shall request (acting reasonably) and entering into any
documentation necessary to transfer title to the Charged Assets to the
replacement Agent.
|
|
16
|
MISCELLANEOUS
|
|
16.1
|
Liabilities
survive deficiencies and releases
|
The
Company agrees to be bound by this deed notwithstanding that any person intended
to execute or to be bound by this deed may not do so or may not be effectually
bound and notwithstanding that any guarantees or charges contained in this deed
may be terminated or released or may be or become invalid or unenforceable
whether or not the deficiency is known to any of the Secured
Parties.
|
16.2
|
Exchange
of information
|
The
Company hereby authorises the Secured Parties to exchange between themselves any
information concerning the Company and its business including the operation and
state of its bank accounts.
|
16.3
|
Remedies
Cumulative
|
No
failure or delay on the part of the Secured Parties or any of them to exercise
any power, right or remedy shall operate as a waiver thereof nor shall any
single or any partial exercise or waiver of any power, right or remedy preclude
its further exercise or the exercise of any other power, right or
remedy.
|
16.4
|
Statutory
power of leasing
|
Following
the Enforcement Date, the statutory and any other powers of leasing, letting,
entering into agreements for leases or lettings and accepting or agreeing to
accept surrenders of leases or tenancies shall not be exercisable by the Company
in relation to the Charged Assets or any part thereof.
|
16.5
|
Successors
and assigns
|
Any
appointment or removal of a Receiver under clause 9 (Appointment and Powers of
Receiver) and any consents under this deed may be made or given in writing
signed or sealed by any successors or assigns of the Agent and accordingly the
Company hereby irrevocably appoints each successor and assign of the Agent to be
its attorney in the terms and for the purposes set out in clause 12 (Power of Attorney).
|
16.6
|
Consolidation
|
Section
93 Law of Property Act 1925 shall not apply to the security created by this deed
or to any security given to the Agent or any of the other Secured Parties
pursuant to this deed.
|
16.7
|
No
Set-Off or Withholding
|
|
(a)
|
All
payments to be made by the Company to the Agent under this deed shall be
made in full. They will be free and clear of any right of set-off and from
any restriction, condition or deduction because of any
counterclaim.
|
|
(b)
|
If
the Company is required by law to make any deduction, payment or
withholding in respect of any payment made, or due to be made, by it to
the Agent, then the sum payable by the Company shall be increased to the
extent necessary to ensure that, after making the deduction, withholding
or payment, the Agent receives on the due date and retains (free from any
liability in respect of the deduction, withholding or payment) a net sum
equal to that which it would have received and retained had no deduction,
withholding or payment been required or
made.
|
|
16.8
|
Reorganisation
|
This deed
shall remain binding on the Company notwithstanding any change in the
constitution of any of the Secured Parties or its absorption in, or amalgamation
with, or the acquisition of all or part of its undertaking by, any other person,
or any reconstruction or reorganisation of any kind. The security
granted by this deed shall remain valid and effective in all respects in favour
of the Agent for itself and as trustee for the Secured Parties and any assignee,
transferee or other successor in title of a Secured Party in the same manner as
if such assignee, transferee or other successor in title had been named in this
deed as a party instead of, or in addition to, that Secured Party.
|
16.9
|
Unfettered
discretion
|
Save
where specifically provided to the contrary in this deed, any liability or power
which may be exercised or any determination which may be made under this deed by
the Agent may be exercised or made in its absolute and unfettered discretion and
it shall not be obliged to give reasons therefor.
|
16.10
|
Law
of Property (Miscellaneous Provisions) Act
1989
|
For the
purposes of the Law of Property (Miscellaneous Provisions) Act 1989 any
provisions of the Credit Agreement relating to any disposition of an interest in
land shall be deemed to be incorporated in this deed.
|
16.11
|
Accession
|
Each
party to this deed agrees that a new Agent or Secured Party may accede to and
become a party to this deed in its relevant capacity by duly completing an
Accession Undertaking.
|
16.12
|
Release
|
Upon all
the Secured Obligations having been paid or discharged in full and the Agent and
all other Lenders having ceased to have any further obligations under any of the
Other Documents whether actual or contingent to make any credit or accommodation
to any of the Borrowers or Guarantors, the Agent will, to the extent permitted
in accordance with the terms of the Credit Agreement, at the request and cost of
the Company, execute, reassign and/or do all such deeds, acts and things
as may be reasonably necessary to release the Charged Assets from the security
created by or pursuant to this deed.
|
17
|
NOTICES
|
|
17.1
|
Requirements
for Notices
|
Every
notice, request, demand or other communication under this deed
shall:
|
(a)
|
be
in writing delivered personally or by first-class pre-paid letter or
facsimile transmission only;
|
|
(b)
|
be
deemed to have been received, subject as otherwise provided in this deed,
in the case of a letter, when delivered and, in the case of a facsimile
transmission, when a complete and legible copy is received by the
addressee (unless the time of despatch is after close of business in which
case it shall be deemed to have been received at the opening of business
on the next business day); and
|
|
(c)
|
be
sent:
|
|
(i)
|
to
the Company at:
|
Unit
1
The
Summit Centre
Syport
Drive, Harmondsworth
West
Drayton, Middlesex
UB7
0LJ
Fax
Number: +44
20-3745-8151
Attention: The
Directors
|
(ii)
|
to
the Agent at such address as provided for from time to time under the
Credit Agreement,
|
or to
such other address or fax number as is notified by the Company or, as the case
may be, the Agent to the other party.
|
18
|
LAW
|
This deed
shall be governed by English law.
IN WITNESS of which this deed
has been executed and delivered by or on behalf of the parties on the date
stated at the beginning of this deed.
BST99
1649183-1.069646.0035
SCHEDULE
1
Properties
BST99
1649183-1.069646.0035
SCHEDULE
2
Securities
|
Shareholder
|
Company
in which shares are held
|
Number
and type of shares
|
BST99
1649183-1.069646.0035
SCHEDULE
3
Intellectual
Property
None.
BST99
1649183-1.069646.0035
SCHEDULE
4
Notice
of Charge
Part
1
Form
of Notice of Charge to Account Bank
To:
[Branch Address]
Date: [· ]
Dear
Sirs,
We hereby
give you notice that, by a Guarantee and Debenture dated [· ]
(a copy of which is attached) (the "Debenture"), we charged to
PNC Bank, National Association (the "Agent") all moneys (including
interest) from time to time standing to the credit of each of our present and
future accounts with any bank, financial institution or other person, which
includes all of our rights in respect of the following accounts held with you
(the "Accounts") and the
debt or debts represented thereby:
|
Account
Holder
|
Currency
|
Account
number
|
|
Presstek
Europe Ltd.
|
GBP
|
________________________
|
|
Presstek
Europe Ltd.
|
EURO
|
________________________
|
|
Presstek
Europe Ltd.
|
USD
|
________________________
|
|
Presstek
Europe Ltd.
|
YEN
|
________________________
|
We hereby
irrevocably authorise and instruct you, upon receipt by you of a written request
from the Agent stating that it is enforcing its rights under the
Debenture:
|
1
|
to
disclose to the Agent without any reference to, or further authority from,
us and without any inquiry by you as to the justification for such
disclosure, such information relating to any of the Accounts as the Agent
may, at any time and from time to time, request you to disclose to
it;
|
|
2
|
to
hold to the order of the Agent all sums from time to time standing to the
credit of the Accounts in our name with
you;
|
|
3
|
to
pay or release all or any part of the sums from time to time standing to
the credit of the Accounts in accordance with the written instructions of
the Agent at any time or times;
|
|
4
|
to
comply with the terms of any written notice or instructions in any way
relating to or purporting to relate to the charge specified above, the
sums standing to the credit of the Accounts from time to time or the debts
represented thereby which you receive at any time from the Agent without
reference to, or further authority from, us and without any inquiry by you
as to the justification for or validity of such notice or
instructions.
|
Please
also note that these instructions shall not be revoked or varied without the
prior written consent of the Agent.
This
letter shall be governed by English law.
Would you
please confirm your agreement to the above by sending the enclosed
acknowledgement to the Agent with a copy to ourselves.
Yours
faithfully
For and
on behalf of Presstek Europe Limited
……………………………………………..
(Authorised
signatory)
BST99
1649183-1.069646.0035
Part
2
Form
of Acknowledgement of Notice of Charge from the Account Bank
To: PNC
Bank, National Association
cc: Presstek
Europe Limited
[· ]
Dear
Sirs,
We
confirm receipt from [name of account holding Company] (the "Company") of a notice dated
[· ]
of a charge upon the terms of a Guarantee and Debenture dated [· ]
(the "Debenture") of all
moneys (including interest) from time to time standing to the credit of each of
the Company’s present and future accounts with us (the "Accounts") and the debt or
debts represented thereby.
We
confirm that we have not received notice of the interest of any third party in
any of the Accounts.
We
confirm that we will not claim or exercise any right of set-off or any
combination of accounts or counterclaim in relation to the Company and/or the
Accounts.
We note
that the Company has the right to continue to operate the Accounts until the
date on which we receive from you a written request stating that you are
enforcing your rights under the Debenture.
This
letter shall be governed by English law.
Yours
faithfully
for and
on behalf of [Bank]
…………………………………….
(Authorised
signatory)
BST99
1649183-1.069646.0035
SCHEDULE
5
Disposal
of Charged Assets
Part
1
Form
of letter of Request to dispose of Charged Assets
To: PNC
Bank, National Association
Dear
Sirs
We refer
to clause 3.5 of the guarantee and debenture dated [· ]
granted to you by us ("Debenture").
We hereby
request your consent to dispose of [asset] being a Fixed Charged Asset (as
defined in the Debenture). We wish to dispose of [asset] to
[purchaser] [describe terms].
Please
confirm your consent to the above disposal by signing and returning the enclosed
letter.
Yours
faithfully
……………………………….
for and
on behalf of
[Company]
BST99
1649183-1.069646.0035
Part
2
Form
of letter of consent to dispose of Charged Assets
To: [Company]
[· ]
Dear
Sirs
We refer
to your letter of [date], a copy of which is attached.
We hereby
consent to the disposal of [asset] to [purchaser] [on terms] [on the condition
that [specify conditions of consent to disposal]].
Yours
faithfully
………………………………………….
for and
on behalf of
PNC Bank,
National Association
BST99
1649183-1.069646.0035
SCHEDULE
6
Accession
Undertaking
THIS UNDERTAKING is made the
day of
20 by
[new Agent/ new Secured Party] (the “Acceding Agent / Secured
Party") in relation to the Guarantee and Debenture (the "Guarantee and Debenture")
dated
[ ]
between, inter alios, [ ]. Terms defined in the
Guarantee and Debenture shall bear the same meanings herein.
The
Acceding Agent / Secured Party hereby agrees with each other person who is or
becomes a party to the Guarantee and Debenture that with effect on and from the
date hereof it will be bound by the Guarantee and Debenture as [the Agent / a
Secured Party] as if it had been an original party thereto in that
capacity.
This
Undertaking shall be governed by and construed in accordance with English
law.
[Execution
as a deed]
BST99
1649183-1.069646.0035
SCHEDULE
7
Notice
of Assignment
To: [insert
name and address of counterparty]
Dated:
Dear
Sirs
Re:
[here identify the relevant Assigned Agreement] (the "Agreement")
We notify
you that [insert name of
Company] (the
"Company") has assigned
to PNC Bank, National Association (the "Agent") for the benefit of
itself and certain other financial institutions (the "Secured Parties") all its
right, title and interest in the Agreement as security for certain obligations
owed by the Company to the Secured Parties.
We
further notify you that:
|
1
|
you
may continue to deal with the Company in relation to the Agreement until
you receive written notice to the contrary from the Agent stating that it
is accelerating its rights under a financing agreement dated
[ ]. Thereafter the Company will cease to have
any right to deal with you in relation to the Agreement and therefore from
that time you should deal only with the
Agent;
|
|
2
|
you
are authorised to disclose information in relation to the Agreement to the
Agent on request;
|
|
3
|
after
receipt of written notice in accordance with paragraph 1 above, you must
pay all monies to which the Company is entitled under the Agreement direct
to the Agent (and not to the Company) unless the Agent otherwise agrees in
writing; and
|
|
4
|
the
provisions of this notice may only be revoked with the written consent of
the Agent.
|
Please
sign and return the enclosed copy of this notice to the Agent by way of
confirmation that:
|
(a)
|
you
agree to the terms set out in this notice and to act in accordance with
its provisions; and
|
|
(b)
|
you
have not received notice that the Company has assigned its rights under
the Agreement to a third party or created any other interest (whether by
way of security or otherwise) in the Agreement in favour of a third
party.
|
The
provisions of this notice are governed by English law.
Yours
faithfully
….........................
for and
on behalf of
[insert name of
Company]
[On
acknowledgement copy]
To: PNC
Bank, National Association
[Address]
We
acknowledge receipt of the above notice and confirm the matters set out in
paragraphs (a) and (b) above.
…..........................
for and
on behalf of
[insert name of
Counterparty]
Dated:
BST99
1649183-1.069646.0035
SCHEDULE
8
Notice
of Assignment
|
447375.132-1786848.2
|
LANDLORD’S
WAIVER AND CONSENT
NAME OF OWNER OF
PROPERTY:___________________(the “Landlord”)
ADDRESS OF
PROPERTY:_________________________________ (the “Premises”)
WHEREAS, the Landlord is the
owner or superior landlord of the Premises and has or is about to enter into a
lease or sub-lease (the “Lease”) with Presstek Europe Limited (the “Guarantor”)
pursuant to which the Guarantor has or will acquire a leasehold interest in all
or a portion of the Premises; and
WHEREAS, PNC BANK, NATIONAL
ASSOCIATION (“PNC”) and various other financial institutions (collectively, the
“Lenders”) and PNC as agent for the Lenders (the “Agent”) has or is about to
enter into a financing transaction with the Guarantor’s ultimate parent company,
Presstek, Inc., and related companies (the “Group”); and
WHEREAS to secure the
financing to the Group, the Guarantor has granted to the Agent for its benefit
and for the ratable benefit of the Lenders a guarantee and debenture over all
property and assets of the Guarantor from time to time, including, without
limitation, goods, inventory, machinery and equipment, together with all
additions, substitutions, replacements and improvements to, and the products and
proceeds of the foregoing (collectively, the “Collateral”) and a qualifying
floating charge over substantially all of the assets of the Guarantor;
and
WHEREAS, all or a portion of
the Collateral may from time to time be located at the Premises or may become
wholly or partially affixed to the Premises;
NOW THEREFORE, in
consideration of any financial accommodation extended by the Agent and the
Lenders at any time the Landlord hereby agrees as follows:
1 A
true and correct copy of the Lease is attached hereto as Exhibit
A. The Lease is in full force and effect and the Landlord is not
aware of any existing default under the Lease.
2. The
Collateral may be stored, utilized and/or installed at the Premises and shall
not be deemed a fixture or part of the Premises but shall at all times be
considered personal property, whether or not any of the Collateral becomes so
related to the land that an interest therein arises under land law.
3. Until
such time as the obligations of the Guarantor to the Agent and the Lenders are
paid in full, the Landlord disclaims any interest in the Collateral, and agrees
not to distrain or levy upon any of the Collateral or to assert any claim
against the Collateral for any reason.
4. The
Agent, any the Lender or their representatives may enter upon the Premises at
any time to inspect or remove the Collateral, and may advertise and conduct
public auctions or private sales of the Collateral at the Premises, in each case
without liability of the Agent or the Lenders to Landlord; provided however,
that the Agent and the Lenders shall promptly repair, at their expense, any
physical damage to the Premises actually caused by said removal by the Agent and
the Lenders. the Agent and the Lenders shall not be liable for any diminution in
value of the Premises caused by the absence of Collateral actually removed or by
any necessity of replacing the Collateral.
5. The
Landlord shall not interfere with any sale of the Collateral, by public auction
or otherwise, conducted by or on behalf of the Agent and the Lenders on the
Premises.
6. The
Landlord agrees to provide the Agent with written notice of any default or
claimed default by the Guarantor under the Lease, and prior to the termination
of the Lease, to permit the Agent and the Lenders the same opportunity to cure
or cause to be cured such default as is granted the Guarantor under the Lease,
provided, however that the Agent and the Lenders shall have at least ten (10)
days following receipt of said notice to cure such default. The
Landlord will permit the Agent and the Lenders to remain on the Premises for a
period of up to one hundred eighty (180) days following receipt by the Agent of
written notice from Landlord that Landlord is in possession and control of the
Premises, has terminated the Lease and is directing removal of the Collateral,
subject, however, to the payment to Landlord by the Agent and/or the Lenders of
the basic rent due under the Lease for the period of occupancy by the Agent and
the Lenders, pro-rated on per diem basis determined on a 30 day
month. The Agent’s and the Lenders’ right to occupy the Premises
under the preceding sentence shall be extended for the time period the Agent and
the Lenders are prohibited from selling the Collateral due to the imposition of
the automatic stay by the commencement of an administration by the Guarantor or
the making of an administration order in respect of the
Guarantor. The Agent and the Lenders shall not assume nor be liable
for any unperformed or unpaid obligations of the Guarantor under the
Lease.
7. This
waiver shall inure to the benefit of the Agent, the Lenders, their successors
and assigns and shall be binding upon Landlord, its heirs, assigns,
representatives and successors. Landlord agrees and consents to the
filing of this document for recording at the Land Registry.
8. All
notices to the Agent hereunder shall be in writing, sent by certified mail, and
shall be addressed to the Agent at the following address: 340 Madison Avenue,
New York, New York 10173, Attn: Relationship Manager - Presstek,
Inc.
[Signature Page Follows This
Page]
BST99
1649183-1.069646.0035
Dated
this _____ day of March, 2010.
|
LANDLORD:_________________________
|
|
|
By:______________________________
|
|
|
Name:
|
|
|
Title:
|
BST99
1649183-1.069646.0035
BST99
1649183-1.069646.0035
SIGNATURE
PAGES
TO
THE COMPOSITE GUARANTEE AND DEBENTURE
EXECUTED and delivered as a
deed by PRESSTEK
EUROPE LIMITED acting by:
|
Director
|
|
|
Signature
|
: /S/
James R. Van Horn
|
|
Name
|
: James
R. Van Horn
|
In the
presence of:
Witness
Name: Ineke
Kuijpers
Witness
Signature: /S/
Ineke Kuijpers
SIGNED for and on behalf of
PNC BANK, NATIONAL ASSOCIATION
by:
|
Authorised
Signatory
|
|
|
Signature
|
/S/ Thomas J.
Lorenz
|
|
Name
|
Thomas J.
Lorenz
|
Composite
Guarantee and Debenture
BST99
1649183-1.069646.0035