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THIS DEED is dated 27th day of March 1997
(1) TRANSMEDIA ASIA PACIFIC INC whose registered office is at
c/o United Corporate Services Inc. ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ of Kent Delaware USA ("TMNA");
IN FAVOUR OF
(2) ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ("JV").
WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Charge unless the context otherwise requires:
"DERIVATIVE ASSETS" means all stocks, shares, warrants or other
securities rights dividends interest or other property whether of a
capital or income nature accruing offered issued or deriving at any time
by way of dividend bonus redemption exchange purchase substitution
conversion consolidation sub-division preference option or otherwise
attributable to any of the Shares or any Derivative Assets previously
described.
"ENCUMBRANCE" means any mortgage charge pledge lien assignment
hypothecation security interest title retention preferential right or
trust arrangement or other security arrangement or agreement or any right
conferring a priority of payment
"EVENT OF DEFAULT" means any event set out in Clause 7 of the Facility
Letter.
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"FACILITY LETTER" means the letter dated the date hereof issued by JV in
favour of TMNA.
"LOAN" means the sum of US$ 1,000,000 (one million US dollars) referred
to as the "Loan" in the Facility Letter.
"LPA" means the Law of Property ▇▇▇ ▇▇▇▇
"SHARES" means 50% of the entire issued share capital of Countdown
Holdings Limited.
1.2 References to Clauses are to the clauses to this Charge.
1.3 Clause headings are inserted for ease of reference only and are not to
affect the interpretation of this Charge.
1.4 References to any person or company are to be construed to include
references to that person's or company's successors transferees and
assigns whether direct or indirect.
2. COVENANT TO PAY
2.1 TMNA covenants with JV that it will on demand pay and discharge the Loan
when due to JV in accordance with the Facility Letter.
2.2 TMNA shall pay interest to the date of payment or discharge of the Loan
(notwithstanding any demand or any judgment obtained by JV) at the rate
applicable under the Facility Letter.
3. CHARGE
TMNA as beneficial owner (but not registered owner) pending registration
of the Shares in the name of TMNA (with the intent that the security so
constituted shall extend to all beneficial interests of TMNA in the
Shares and
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to any proceeds of sale or other realisation of the Shares or any part of
them) and as continuing security for the payment and discharge of the
Loan and interest thereon charges the Shares and the Derivative Assets to
JV.
4. DEPOSIT OF TITLE DOCUMENTS AND FURTHER ASSURANCE
4.1 TMNA shall, forthwith upon the issue to it of share certificates for the
Shares following proper stamping of the transfers in its favour, deposit
with JV all stock or share certificates or other documents of title to or
representing the Shares together with such duly executed transfers or
assignments in favour of JV to vest the same in JV or any purchaser only
after the occurrence of an Event of Default to the intent that JV may at
any time after the occurrence of an Event of Default (but not before)
present them for registration.
4.2 TMNA shall subject to clause 4.3 upon the accrual offer issue or receipt
of any Derivative Assets deliver or pay to JV or procure the delivery or
payment to JV of all such Derivative Assets or the stock or share
certificates or other documents of title to or representing them together
with such duly executed transfers or assignments in favour of JV with the
name of the transferee, date and consideration left blank on the same
terms as Clause 4.1
4.3 TMNA shall exercise all voting and other rights and powers attached to
the Shares or the Derivative Assets in its absolute discretion provided
that such voting does not adversely affect the Shares or the Derivative
Assets and is not otherwise inconsistent with this Charge.
4.4 Without prejudice to anything else contained in this Charge, TMNA shall
at the request of JV promptly sign seal execute deliver and do all deeds
and other instruments necessary for creating perfecting or protecting the
security over the Shares or, any part of thereof or if JV shall become so
entitled hereunder, for facilitating their realisation.
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5. REPRESENTATIONS WARRANTIES AND COVENANTS BY TMNA
5.1 TMNA represents and warrants to JV and undertakes that:
5.1.1 it is and will be the sole absolute and beneficial owner and will be
upon the due registration of the transfer of the Shares in its
favour from C.E.C Radbone the registered holder of all of the Shares
free from all Encumbrances with full title guarantee and will not
create or attempt to create or permit to arise or subsist any
Encumbrance (other than this Charge) on or over the Shares;
5.1.2 it will procure insofar as it is reasonably able that the transfers
of the Shares to TMNA are stamped as soon as is reasonably
practicable with the appropriate amount of stamp duty;
5.1.3 it has not sold or otherwise disposed of or agreed to sell or
otherwise dispose of or granted or agreed to grant any option in
respect of all or any of its right title and interest in and to the
Shares or any of them and will not do any of the foregoing at any
time during the subsistence of this Charge provided that TMNA may
transfer the Shares to Transmedia Europe, Inc. or complete the
proposed merger with Transmedia Europe, Inc.;
5.1.4 the Shares have been and will at all times be duly authorised and
validly issued and are and will at all times be free from any
restriction on transfer or right of pre-emption;
5.1.5 it has and will at all times have the necessary power to enter into
and perform its obligations under this Charge;
5.1.6 this Charge constitutes its legal valid binding and enforceable
obligations and save as disclosed herein is a security over all and
every part of the Shares effective in accordance with its terms;
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5.1.7 this Charge does not and will not conflict with or result in any
breach of or constitute a default under any agreement instrument or
obligation to which TMNA is a party or by which it is bound;
5.1.8 all necessary authorisations and consents to enable or entitle it to
enter into this Charge have been obtained and will remain in full
force and effect at all times during the subsistence of the security
constituted by this Charge; and
5.1.9 it will procure due compliance with its obligations in this Charge
by all its nominees (if any) in whose name or names any Shares are
registered or holding any certificates or other documents of title
relating to any Shares.
5.2 TMNA undertakes to JV to provide a copy of any report accounts circular or
notice received in respect of or in connection with any of the Shares to
JV forthwith upon the receipt by TMNA.
5.3 TMNA shall promptly pay all calls or other payments due and will discharge
all other obligations in respect of any of the Shares and if TMNA fails to
fulfil any such obligations JV may, but shall not be obliged to, make such
payments on behalf of TMNA in which event any sums so paid shall be
reimbursed on demand by TMNA to JV together with interest at the rate
referred to in the Facility Letter from the date of payment by JV until
repayment whether before or after judgment.
5.4 TMNA shall indemnify JV on a full indemnity basis against calls or other
payments relating to the Shares and any defect in TMNA's title to the
Shares and against all actions proceedings losses costs claims and demands
suffered or incurred in respect of anything done or omitted in any way
relating to the Shares or in the exercise or purported exercise of the
powers contained in this Charge by JV.
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5.5 TMNA shall not do or cause or permit anything to be done which may
adversely affect the security created or purported to be created by this
Charge or which is a variation or abrogation of the rights attaching to or
conferred by all or any of the Shares without the prior written consent of
JV and shall take such action as JV may in its discretion direct in
relation to any proposed compromise arrangement reorganisation conversion
repayment offer or scheme of arrangement affecting all or any part of the
Shares.
6. RIGHTS OF JV
6.1 JV may at its discretion (in the name of TMNA or otherwise) only after the
occurrence of any Event of Default (but not before) and without any
consent or authority on the part of TMNA at such time exercise the
following rights and powers in respect of the Shares:
6.1.1 any voting rights and any powers or rights which may be exercised by
the person or persons in whose name or names the Shares are
registered; and
6.1.2 all the powers given to trustees by Section 10(3) and (4) of the
Trustee Act 1925 (as amended by Section 9 of the Trustee Investments
Act 1961) in respect of securities or property subject to a trust.
6.2 Following the occurrence of an Event of Default all dividends interest and
other income forming part of the Shares shall, unless otherwise agreed
between JV and TMNA, be paid without any set-off or deduction whatsoever
to an interest bearing account and retained by JV until applied as
hereinafter provided as part of the Shares and any such monies which may
be received by TMNA shall pending such payment he held in trust for JV.
7. ENFORCEMENT
7.1 If any Event of Default shall occur and be continuing then:
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7.1.1 the security constituted by the Charge shall become immediately
enforceable and the power of sale and other powers conferred by
Section 101 of the LPA (as varied or extended by this Charge) shall
become immediately exercisable without the restrictions contained in
the LPA as to the giving of notice or otherwise.
7.2 Section 103 of the LPA (restricting the power of sale) and Section 93 of
the LPA (restricting the right of consolidation) shall not apply to this
Charge.
8. POWER OF SALE
8.1 At any time after the security constituted by this Charge has become
enforceable JV may without further notice to TMNA exercise the power to
sell or otherwise dispose of the whole or any part of the Shares, in such
manner and on such terms and for such consideration (whether payable
immediately or by instalments) as JV shall in his absolute discretion
think fit and without liability for loss whatsoever, and may (without
prejudice to any right which it may have under any other provision of this
Charge) treat such part of the Shares as consists of money as if it were
the proceeds of such sale or other disposal. JV shall apply the proceeds
without prejudice to the right of JV to recover any shortfall from TMNA in
paying the costs of sale and in or towards the discharge of the Loan in
such order as JV in its absolute discretion thinks fit and the surplus (if
any) of such proceeds shall be paid to the person or persons entitled to
it.
9. PROTECTION OF THIRD PARTIES
9.1 No purchaser mortgagee or other person dealing with JV shall be concerned
to enquire whether the Loan has become payable or whether any power which
it is purporting to exercise has become exercisable or whether any money
is due under this Charge or as to the application of any money paid raised
or borrowed or as to the propriety or regularity of any sale by or other
dealing with JV. All the protection to purchasers contained in Sections
104 and 107 of
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the LPA shall apply to any person purchasing from or dealing with JV as if
the Loan had become due and the statutory powers of sale in relation to
the Shares had arisen on the date of this Charge.
10. POWER OF ATTORNEY
10.1 TMNA by way of security irrevocably appoints JV to be the attorney of TMNA
(with full powers of substitution and delegation) for TMNA and in its name
or otherwise and on its behalf and as its act and deed to sign seal
execute deliver perfect and do all deeds instruments transfers
renunciations proxies notices documents acts and things which TMNA may or
ought to do under the covenants and provisions contained in this Charge
and generally in its name and on its behalf to exercise all or any of the
powers authorities and discretions conferred by or pursuant to this Charge
or by the LPA on JV and to execute and deliver and otherwise perfect any
deed assurance agreement instrument or act and to do anything which it may
deem proper in the exercise of all or any of the powers authorities or
discretions conferred on JV pursuant to this Charge.
10.2 TMNA ratifies and confirms and agrees to ratify and confirm anything such
attorney shall lawfully and properly do or purport to do by virtue of
clause 10.1 and all money expended by any such attorney shall be deemed to
be expenses incurred by JV under this Charge.
11. DISCHARGE OF SECURITY
11.1 The security constituted by this Charge shall be continuing and shall not
be considered as satisfied or discharged by any intermediate payment or
settlement of any part of the Loan or any other matter or thing whatsoever
including the insolvency liquidation or administration of TMNA and shall
be binding until the Loan has been unconditionally and irrevocably paid
and discharged in full.
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11.2 Upon the irrevocable payment or discharge in full of the Loan JV will or
will procure that he will at the request and cost of TMNA retransfer if
appropriate to TMNA all JV's right title and interest in or to the Shares
freed from this Charge.
12. AVOIDANCE OF PAYMENTS
No assurance security or payment which may be avoided or adjusted under
any enactment relating to bankruptcy or insolvency binding on TMNA in any
jurisdiction and no release settlement or discharge given or made by JV on
the faith of any such assurance security or payment shall prejudice or
affect the right of JV to recover from TMNA (including the right to
recover any monies which it may have been compelled by due process of law
to refund under the provisions of any relevant legislation and any costs
payable by it pursuant to or otherwise incurred in connection with such
process) or to enforce the security created by or pursuant to this Charge
to the full extent of the Loan.
13. CUSTODY
JV shall be entitled to provide for the safe custody by third parties of
all stock and share certificates and documents of title deposited with JV
relating to the Shares and shall not be responsible for any loss or damage
to any such certificates or documents.
14. COMMUNICATIONS
14.1 Every notice demand or other communication under this Charge shall be in
writing and may be delivered personally or by letter facsimile
transmission despatched by JV to TMNA at its address specified at the head
of this Charge or to the following numbers:-
Facsimile
for the attention of
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or to such other address and or facsimile number as may be notified
in accordance with this clause by the relevant party to the other
party for such purpose.
14.2 Every notice demand or other communication shall be deemed to have been
received (if sent by post) twenty-four hours after being posted first
class postage prepaid (if posted from and to an address within the United
Kingdom) or 5 working days after being posted prepaid airmail (if posted
from or to an address outside the United Kingdom) and (if delivered
personally or despatched by facsimile transmission) at the time of
delivery or despatch if during normal business hours in the place of
intended receipt on a working day in the place of intended receipt and
otherwise at the opening of business in that place on the next succeeding
such working day.
15. MISCELLANEOUS
15.1 No delay or omission on the part of JV in exercising any right or remedy
under this Charge shall impair that right or remedy or operate as or be
taken to be a waiver of it nor shall any single partial or defective
exercise of any such right or remedy preclude any other or further
exercise under this Charge or that or any other right or remedy.
15.2 JV's rights under this Charge are cumulative and not exclusive of any
rights provided by law and may be exercised from time to time and as often
as ▇▇ ▇▇▇▇▇ expedient.
15.3 Any waiver by JV of any terms of this Charge or any consent or approval
given by JV under it shall only be effective if given in writing and then
only for the purpose and upon the terms and conditions if any on which it
is given.
15.4 If at any time any one or more of the provisions of this Charge is or
becomes illegal invalid or unenforceable in any respect under any law of
any jurisdiction neither the legality validity or enforceability of the
remaining provisions of this Charge nor the legality validity or
enforceability of such
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provision under the law of any other jurisdiction shall be in any way
affected or impaired as a result.
16. LAW AND JURISDICTION
This Charge is governed by and shall be construed in accordance with
English law and TMNA hereby irrevocably submits to the jurisdiction of the
English courts in relation to any claim or dispute which may arise
hereunder and hereby agree for the purpose of Order 10 Rule 3 of the Rules
of the Supreme Court of England (or any modification or re-enactment
thereof) and in any proceedings in any other jurisdiction that any process
may be served on any of them in the manner therein provided.
IN WITNESS whereof TMNA and JV have executed and delivered this Charge as a Deed
the day and year first before written.
SIGNED as a Deed and DELIVERED by )
TRANSMEDIA ASIA PACIFIC INC ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:- ) /s/ ▇ ▇ ▇▇▇▇▇
▇ ▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Herts
SIGNED as a Deed and DELIVERED by )
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in the presence )
of:-
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