EXHIBIT 10.43
Execution Copy
Dated 27 July 2004
ASIA NETCOM CORPORATION LIMITED
(as Chargor)
and
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
(as Security Trustee)
---------------------------------------------
DEBENTURE
incorporating Fixed and Floating Charges
---------------------------------------------
XXXXXXXX XXXXXX
HONG KONG
[Debenture]
TABLE OF CONTENTS
CLAUSE NO. CLAUSE HEADING PAGE NO.
--------- -------------- --------
1 DEFINITIONS AND CONSTRUCTION....................................................................... 1
2 COVENANT TO PAY.................................................................................... 3
3 CHARGE AND ASSIGNMENT.............................................................................. 4
4 FLOATING CHARGE.................................................................................... 6
5 FURTHER ASSURANCE.................................................................................. 8
6 PERFORMANCE, RELEASE AND REGISTRATION.............................................................. 8
7 PROPERTIES......................................................................................... 9
8 LEASES............................................................................................. 11
9 RECEIVABLES AND BANK ACCOUNTS...................................................................... 12
10 INTELLECTUAL PROPERTY.............................................................................. 13
12 REPRESENTATIONS AND WARRANTIES..................................................................... 16
13 TAXES AND OTHER DEDUCTIONS......................................................................... 19
14 COSTS, CHARGES AND EXPENSES........................................................................ 20
15 UNDERTAKINGS....................................................................................... 21
16 ENFORCEMENT........................................................................................ 25
17 APPLICATION OF PROCEEDS............................................................................ 30
19 SUSPENSE ACCOUNT................................................................................... 32
20 SET OFF............................................................................................ 32
21 POWER OF ATTORNEY.................................................................................. 32
22 NOTICES............................................................................................ 33
23 WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND COUNTERPARTS.............. 34
24 GOVERNING LAW AND JURISDICTION..................................................................... 35
25 OTHER SECURITY ETC................................................................................. 36
26 MISCELLANEOUS...................................................................................... 36
SCHEDULE 1 - PROPERTIES..................................................................................... 38
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SCHEDULE 2 - BANK ACCOUNTS.................................................................................. 39
SCHEDULE 3 - DETAILS OF SHARES.............................................................................. 40
SIGNATURE PAGE.............................................................................................. 42
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[Asia Netcom Corporation Debenture]
THIS DEED OF DEBENTURE is made on 27 July 2004
BETWEEN:-
(1) ASIA NETCOM CORPORATION LIMITED, a company incorporated under the laws of
Bermuda and whose registered office is situate at Xxxxxxxxx Xxxxx, 0
Xxxxxx Xxxxxx, Xxxxxxxx, XX00, Xxxxxxx (the "CHARGOR"); and
(2) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED, a company
incorporated under the laws of Hong Kong acting through its head office at
ICBC Xxxx Xxxxxxxx, 000-000 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx acting on its
own behalf and as facility agent and security trustee for and on behalf of
the Finance Parties (the "SECURITY TRUSTEE").
WHEREAS:-
(A) By a facility agreement signed on 2nd December, 2003 (but held undated in
escrow) as released from escrow and amended and restated by the
Supplemental Amendment and Restatement Deed (the "FACILITY AGREEMENT"),
entered into by (1) the Chargor, as borrower; (2) the banks and financial
institutions named therein as lenders (the "LENDERS"); (3) Industrial and
Commercial Bank of China (Asia) Limited as arranger; and (4) the Security
Trustee as facility agent, the Finance Parties have agreed, upon and
subject to the terms of the Facility Agreement, to make available to the
Chargor a term loan facility of up to US$150,000,000 (the "FACILITY") for
the purposes more particularly specified therein.
(B) The Security Trustee is acting as facility agent for the Finance Parties
pursuant to the Facility Agreement and as security agent and trustee for
the Finance Parties pursuant to this Deed and the other Finance Documents.
(C) It is a condition precedent to the availability of the Facility under the
Facility Agreement that the Chargor shall have executed and delivered this
Deed to the Security Trustee creating fixed and floating charges over its
assets and undertakings.
NOW THIS DEED WITNESSES as follows:-
1 DEFINITIONS AND CONSTRUCTION
1.1 TERMS DEFINED
In this Deed, unless the context otherwise requires, terms used shall have
the meanings defined in the Facility Agreement and:-
"ACT" means the Conveyancing Xxx 0000 as amended from time to time;
"BANK ACCOUNTS" has the meaning given to it in Clause 3.1(b)
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"COLLATERAL" means all the right, title, interest and benefit of the
Chargor in and to all or any part of the Properties, Receivables,
undertaking, property, assets and rights of the Chargor from time to time
subject or expressed to be subject, to the security constituted by this
Deed or any part of any thereof.
"FIXTURES" means fixtures, fittings (including trade fixtures and
fittings) and fixed plant and machinery.
"INTELLECTUAL PROPERTY" means all patents, designs, copyrights,
topographies, trade marks, service marks, trading names, domain names,
rights in confidential information and know-how, any other intellectual
property and any associated or similar rights of the Chargor, and any
interest in any of the foregoing (in each case whether registered or
unregistered and including any related licences and sub-licences of the
same, applications and rights to apply for the same and wherever
subsisting).
"LEASE" means any lease, tenancy, licence, letting arrangement, exchange,
option, reservation, right of refusal or any other right or interest in
any part of any Properties or any other agreement or contract for any of
these, granted by the Chargor or any person deriving title from the
Chargor.
"LESSEE" means each lessee, tenant or licencee of the Properties or any
part of the Properties pursuant to a Lease.
"PROPERTIES" means any real property described in Schedule 1 and any real
property acquired by the Chargor whether freehold or leasehold, and
subject to and with the benefit of all Rights from time to time attached
or relating to that property and all buildings and Fixtures from time to
time in or on that property.
"PERMITTED SECURITY INTEREST" means, in relation to the Chargor, any
Security Interest permitted by clause 16.16(a) of the Facility Agreement.
"RECEIVABLES" has the meaning given to it in Clause 3.1(b)(i).
"RECEIVER" means any receiver, manager, receiver and manager or other
similar officer appointed in respect of the Collateral by the Security
Trustee in respect of the security hereby granted.
"RIGHTS" means rights (including rights of way), authorities, discretions,
remedies, liberties, privileges, powers, easements, quasi-easements and
appurtenances (in each case, of any nature whatsoever).
"SECURED OBLIGATIONS" means any and all moneys, liabilities and
obligations (whether actual or contingent, whether now existing or
hereafter arising, whether or not for the payment of money, and including,
without limitation, any obligation or liability to pay damages) which are
or may become payable by the Chargor or any other Security Party which is
a member of the CNC HK Group to the Finance Parties or any of them under
or pursuant to the Finance Documents and/or all other obligations hereby
secured.
"SHARES" means all those shares in the companies beneficially owned by the
Chargor at the date hereof, particulars of which are set out in Schedule 3
and "SHARE" means each
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of them.
1.2 TRUST
All rights, benefits, interests, powers and discretions granted to or
conferred on the Security Trustee pursuant to this Deed shall be held by
the Security Trustee on trust for the benefit of itself as Security
Trustee and each Finance Party from time to time. The Security Trustee may
do all acts within its powers to administer and manage the trust
constituted by this Clause including any full or partial release by deed
of the rights, benefits and interest conferred by Clause 3 or the release
of all or any part of the Collateral from this Deed. The trust constituted
by this Clause shall come into existence on the date of this Deed and
shall last for so long as any of the Secured Obligations remain
outstanding provided that for the purposes of the rule against
perpetuities, the perpetuity period applicable to the trust and any
dispositions made or to be made pursuant to this Deed and this trust, is
hereby specified as a period of eighty (80) years less one (1) day from
the date of this Deed.
1.3 CLAUSE HEADINGS
Clause headings and the table of contents are for ease of reference only
and shall be ignored in the interpretation of this Deed.
1.4 CONSTRUCTION
In this Deed, unless the context otherwise requires:-
(a) Clause 1.3 of the Facility Agreement shall be deemed incorporated in
this Deed mutatis mutandis as if set out separately in this Deed;
and
(b) references to the "CHARGOR", the "SECURITY TRUSTEE" or any "FINANCE
PARTY" include, where the context permits, include their respective
successors and transferees and permitted assigns in accordance with
their respective interests.
2 COVENANT TO PAY
The Chargor hereby covenants that it will on demand pay and discharge the
Secured Obligations when due for payment or discharge in accordance with
the Finance Documents or, if no time for payment is specified, within 4
Business Days after demand by the Security Trustee.
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3 CHARGE AND ASSIGNMENT
3.1 CHARGE
In consideration of the Finance Parties agreeing to make the Facility
available to the Chargor, upon the terms and conditions of the Facility
Agreement and as a continuing security for the due and punctual payment
and discharge of the Secured Obligations, the Chargor, as beneficial owner
hereby charges and agrees to charge in favour of the Security Trustee as
trustee for the benefit of the Finance Parties:-
(a) all its right, title and interest in and to the Properties:-
(i) to the extent that its interest in the Properties constitutes
a legal estate, it charges to the Security Trustee by way of a
first fixed legal charge the Properties and all Rights
relating to the Properties at any time used, occupied, held or
enjoyed by the Chargor and all the estate, right, interest,
benefit, title, property, claim and demand of the Chargor in
and to the Property and those Rights; and
(ii) to the extent that its interest (whether present or future) in
the Properties constitutes an equitable interest, it charges
by way of first fixed equitable charge the Properties and all
Rights relating to the Properties at any time used, occupied,
held or enjoyed by the Chargor and all the estate, right,
interest, benefit, title, property, claim and demand of the
Chargor in and to the Properties and those Rights;
(b) by way of first fixed charge all its present and future right, title
and interest in:-
(i) all book and other debts, receivables, monies, revenues,
claims and things in action now or in the future due or owing
to or purchased or otherwise acquired by the Chargor
(including all credit balances and deposits and bank accounts
as set out in Schedule 2 and any other bank accounts of the
Chargor with any Finance Party or any other bank or financial
institution ("BANK ACCOUNTS") and any surplus arising on a
realisation of any legal and/or equitable assignment and/or
charge whether in favour of the Security Trustee or any other
person), the proceeds of the same, and the full benefit of all
guarantees, indemnities, debentures, charges, pledges, liens,
rights of set off, security reservations of proprietary
rights, rights of tracing and all other rights and remedies in
respect of the same in all such cases whether now or in the
future (the "RECEIVABLES");
(ii) the Shares, and all other stocks, shares, bonds or other
securities and investments and securities and all other
interests of the Chargor in any person, any other share,
stock, debenture, bond, certificate of deposit or other
security or investment now or in the future owned at law or in
equity by the Chargor, whether held directly by the Chargor or
by any trustee, nominee, fiduciary or clearance system on its
behalf (other than the investments secured in favour of the
Security Trustee by a Share Mortgage), together with all
dividends, interest and other moneys paid or payable in
respect thereof and all rights, money and assets related to or
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accruing or offered or arising thereon from time to time,
whether by way of redemption, conversion, exercise of option
rights, substitution, exchange, preference, bonus or otherwise
and all rights, benefits and advantages arising in respect of
or incidental to the same;
(iii) the uncalled capital and goodwill of and Intellectual Property
rights owned by the Chargor;
(iv) all fixed plant, other plant, machinery and equipment of the
Chargor (except those the subject of the Security Interest
constituted by Clause 3.1(a) and its respective interest in
any plant, machinery or equipment in its possession, including
the benefit of all contracts and warranties relating to the
same;
(v) all of the Chargor's rights and benefits under any sale or
purchase agreements, and distributorship or any similar
agreements entered into by it, any letters of credit issued in
its favour and all bills of exchange and other negotiable
instruments held by it; and
(vi) the benefit of all licences (to the extent permitted by
applicable law), quota, consents and authorities (statutory or
otherwise) held in connection with its business or the use of
any asset charged by any other sub-paragraph in this Clause
and the right to recover and receive all proceeds and/or
compensation which may be payable to it in respect of them;
other than any asset the subject of any Permitted Security Interest;
(c) by way of second fixed charge ranking behind the Permitted Security
Interests, the assets which are the subject of a Permitted Security
Interests (but excluding Permitted Security Interests to the extent
only that such charge would be contrary to a contractual term or
mandatory provision of law prohibiting such charge) in favour of the
Security Trustee (as trustee for the Finance Parties).
3.2 ASSIGNMENT
The Chargor as beneficial owner, and as continuing security for the due
and punctual payment and discharge of the Secured Obligations hereby
assigns and agrees to assign to the Security Trustee (as trustee for the
benefit of the Finance Parties) by way of security all its present and
future:
(a) Rights (except those the subject of the Security Interest
constituted by Clause 3.1(a)) relating to the Properties including:
(i) all Rights to any payment, covenant, agreement, undertaking or
indemnity contained in any sale and purchase agreement, leases
or other document, agreement or undertaking whatsoever
relating to the Properties now or in the future including all
its rights, title and interest in and to the present and
future leases;
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(ii) the proceeds of sale of any part of the Properties and the
benefits of any covenants for title given or entered into by
any predecessor in title to the Chargor in respect of the
Properties (or any moneys paid or payable in respect of those
covenants); and
(iii) all rights against all past, present and future undertenants
of the Properties and their respective guarantors and
sureties;
(b) right, title and interest in and to all Insurances and all proceeds
and benefits in respect of such Insurances (including the proceeds
of all claims relating to, and all returns of premium in respect of,
such Insurances) which are from time to time taken out by or on
behalf of the Chargor (or to the extent of such interest) in which
the Chargor has an interest; and
(c) Rights relating to any contracts or agreements including all Rights
to any payment, covenant, agreement, undertaking or indemnity
contained therein or other document, agreement or undertaking
whatsoever relating to any contracts or agreements now or in the
future including all its rights, title and interest in and to the
present and future contracts and agreements and any moneys payable
to the Chargor and any claims, awards and judgments in favour of the
Chargor, under or in connection with such contracts or agreements.
3.3 NOTICES AND ACKNOWLEDGEMENTS
The Chargor undertakes to the Security Trustee that, within 5 Business
Days after the execution of this Deed or, if later, within 5 Business Days
after the date on which any of the Collateral referred to therein are
effected, established, acquired, obtained or executed, it shall give such
notices of assignment and/or charge to the relevant parties in respect of
the assignments referred to above in the form requested by the Security
Trustee (acting reasonably) and shall request such relevant parties to
return such acknowledgements to the Security Trustee as the Security
Trustee reasonably considers necessary to perfect the Security Interests
in respect thereof.
4 FLOATING CHARGE
4.1 CREATION
The Chargor, as beneficial owner and as continuing security for the due
and punctual payment and discharge of the Secured Obligations, hereby
charges in favour of the Security Trustee (as trustee for the Finance
Parties) by way of first floating charge its undertaking and all its
assets, both present and future (including Receivables and Bank Accounts
to the extent not otherwise effectively mortgaged or charged under Clause
3.1 or assigned by Clause 3.2 but excluding any assets which are
effectively mortgaged, charged or assigned under any other Security
Document) PROVIDED THAT the Chargor may deal with the assets charged under
this Clause in the ordinary course of its business until the Security
Interest created by this Deed becomes enforceable or this floating charge
is converted into a fixed
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charge pursuant to Clause 4.3 or 4.4 (but so that the Chargor may continue
to deal with any of the aforesaid assets unaffected by any partial
conversion).
4.2 RANKING
The floating charge created by the Chargor ranks:
(a) behind all the fixed charges created by it pursuant to Clause 3.1
and Clause 3.2 or any other Security Documents; but
(b) in priority to any subsequently created Security Interest over the
Collateral of the Chargor.
4.3 CONVERSION BY NOTICE
The Security Trustee may convert any floating charge created pursuant to
Clause 4.1 into a fixed charge (either generally or specifically) by
notice to the Chargor specifying the relevant Collateral:
(a) if it (acting reasonably) considers it desirable to do so in order
to protect or preserve the Security Interests over that Collateral
and/or the priority of those Security Interests; and/or
(b) while an Event of Default is continuing.
4.4 AUTOMATIC CONVERSION
If:
(a) the Chargor takes any step to create any Security Interest in breach
of Clause 16.16 of the Facility Agreement over any of the Collateral
not subject to a Security Interest;
(b) an Event of Default occurs under clause 17.1(f), (g), (h), (i), (j)
or (k) of the Facility Agreement; or
(c) any person takes any step to effect any Expropriation, attachment,
sequestration, distress or execution against any of the Collateral,
the floating charge over the relevant Collateral shall automatically and
immediately be converted into a fixed charge without notice.
4.5 CONVERSION TO FLOATING CHARGE
The Security Trustee may reconvert any fixed charge created pursuant to
Clause 4.3 or Clause 4.4 into a floating charge by notice to the Chargor
specifying the relevant Collateral if:
(a) none of the events or circumstances referred to in paragraphs (a) or
(b) of Clause 4.3 or paragraphs (a), (b) or (c) of Clause 4.4 is
continuing; and
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(b) the Security Trustee considers that such conversion into a floating
charge would not prejudice the interests of any Finance Party under
any Finance Document.
5 FURTHER ASSURANCE
The Chargor shall, at its own expense, promptly take all such action as
the Security Trustee may reasonably require:
(a) for the purpose of perfecting or protecting the Finance Parties'
rights under and preserving the Security Interests intended to be
created or evidenced by this Deed or the priority of such Security
Interests; and
(b) for the purpose of facilitating the realisation of the Collateral or
the exercise of any rights vested in the Security Trustee or any
Receiver,
including the execution of any transfer, conveyance, charge, mortgage,
assignment or assurance of the Collateral (whether to the Security Trustee
or its nominees or otherwise), the making of any registration, the
obtaining of any legal opinion and the giving of any notice, order or
direction.
6 PERFORMANCE, RELEASE AND REGISTRATION
6.1 PERFORMANCE AND INDEMNITY
Notwithstanding the foregoing, the Chargor shall remain liable to perform
all the obligations to be performed by it in respect of the Collateral and
shall discharge fully its obligations thereunder as they become due and
neither the Security Trustee nor any of the Finance Parties shall have any
obligation of any kind whatsoever thereunder or be under any liabilities
whatsoever in the event of any failure to perform their obligations
thereunder, and the Chargor hereby indemnifies and agrees to keep
indemnified the Security Trustee, and the other Finance Parties and each
of them from and against any such liability unless such liability arose
from the gross negligence or wilful misconduct of the Security Trustee or
the Finance Parties.
6.2 RELEASE AND TRANSFER
(a) The Security Trustee shall, upon the full performance and discharge
of the Secured Obligations to the satisfaction of the Security
Trustee and the Finance Parties, at the request and cost of the
Chargor and in such form as the Security Trustee shall reasonably
approve, release and transfer to the Chargor, the Collateral then
the subject of the Security Interest constituted by this Deed.
(b) Notwithstanding any discharge, release or settlement from time to
time between the Security Trustee and/or any other Finance Party and
the Chargor, if any security, disposition or payment granted or made
to the Security Trustee and/or any other Finance Party in respect of
the Secured Obligations by the Chargor or any other person is
avoided or set aside or ordered to be surrendered, paid away,
refunded or reduced by virtue of any provision, law or enactment
relating to bankruptcy, insolvency, liquidation, winding-up,
composition or arrangement for
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the time being in force or for any other reason, the Finance Parties
shall be entitled thereafter to enforce this Deed as if no such
discharge, release or settlement had occurred.
6.3 REGISTRATION
The Chargor hereby authorises the Security Trustee forthwith upon
execution of this Deed to procure the delivery to the Registrar of
Companies of this Deed duly executed, together with the appropriate
Form 9.
7 PROPERTIES
7.1 ACQUISITION
The Chargor shall promptly notify the Security Trustee of its acquisition
of, or agreement to acquire (either itself or through a nominee or
delegate), any Properties, together with a certificate signed by an
authorised officer of the Chargor certifying the total consideration paid
or payable for those Properties.
7.2 DOCUMENTS
The Chargor shall deposit with the Security Trustee, and the Security
Trustee shall be entitled to hold, all title deeds and documents relating
to the Chargor's present and future Properties.
7.3 REGISTRATION OF FUTURE PROPERTIES
In the case of the Chargor's Properties acquired after the date of this
Deed, the Chargor shall:
(a) promptly after it becomes possible to do so, apply to the relevant
local Land Registry for registration of the instrument vesting legal
and beneficial ownership to the Properties in the Chargor;
(b) execute a supplemental deed of charge in favour of the Security
Trustee in substantially the same terms as the charge created by
Clause 3.1(a) in respect of the Properties creating a legal charge
over the same; and
(c) request the relevant local Land Registry to register that
supplemental deed of charge in relation to that Properties and
notice of all charges.
7.4 COMPLIANCE WITH OBLIGATIONS
The Chargor shall comply with any material covenants, stipulations,
conditions, licences, consents, legal requirements, notices and any other
material statutory, regulatory or contractual obligations relating to the
Properties or its use.
7.5 COMPLIANCE WITH STATUTE
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The Chargor shall comply with all obligations imposed under any present or
future ordinance, statute, regulation, order or instrument or under any
bye-laws, regulations or requirements of any competent authority or any
planning control, building regulation control or other approvals licences
or consents which apply to the Properties or are required to be complied
with for its use or enjoyment.
7.6 PLANNING
The Chargor shall not, without the consent of the Security Trustee (such
consent not to be unreasonably withheld or delayed), change or permit to
be changed the use of any of the Property or carry out any operation or
begin or continue any use of the Properties for which permission under the
relevant local legislation (or other planning permission) is required but
has not been obtained.
7.7 REPAIR AND ALTERATIONS
(a) The Chargor shall repair its Properties and keep it in good and
substantial repair and condition (fair wear and tear excepted)
(provided that where such Properties are held under a lease,
compliance by the Chargor with its obligations under such lease
shall be sufficient (fair wear and tear excepted).
(b) The Chargor shall ensure that neither it nor any other person
demolishes or makes any alterations or additions to the Properties
or injures or in any manner or by any means lessens the value of the
Properties nor, unless it promptly replaces them with others of
equal or greater value, removes any Fixtures from the Properties if,
in any case, doing this will have a material adverse effect on the
value of the Properties.
(c) The Chargor shall permit the Security Trustee, the Receiver or any
other person appointed by any of them on reasonable notice at all
reasonable times on Business Days to have access to and view the
state of repair and condition of the Properties without such person,
by so doing, being deemed to have taken possession of the
Properties.
7.8 NOTICES, ETC
The Chargor shall give to the Security Trustee (within 10 Business Days of
receiving them) full particulars of any notice, order or proposal given,
issued or made to the Chargor in respect of any of the Properties which is
material to the Properties by or on behalf of any planning, local
government, public health, sanitary, housing or other authority and any
other material communication from any person relating to any of the
Properties and, if so required by the Security Trustee, produce such
notice, order, proposal or other communication to the Security Trustee and
also, without delay and within the period prescribed by such notice,
order, proposal or other communication, take all necessary steps to comply
with the provisions of such notice, order, proposal or other communication
and also, at the request or with the consent of the Security Trustee (such
consent not to be unreasonably withheld or delayed) and at the cost of the
Chargor make, or join with the Security Trustee in making, such objection
or representation against or in
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respect of any such notice, order, proposal or other communication as the
Security Trustee or the Chargor considers desirable.
7.9 RECEIPT OF ALL MONIES
The Chargor shall pay promptly following receipt into one of the
Prepayment Escrow Accounts designated by the Security Trustee all monies
which the Chargor may receive in respect of the Properties including all
sale proceeds, licence fees, deposits, commissions, charges and expenses.
7.10 USE PROPERTY FOR PROPER PURPOSES
The Chargor shall not use the Properties or permit the Properties to be
used for purposes other than those for which it has been permitted or
designated by any relevant competent authority (or any building thereon
has been built) and may lawfully be used.
8 LEASES
The Chargor shall:
(a) comply with all material obligations imposed on it under any Lease;
(b) not exercise any power to determine or extend, or accept the
surrender of, any Lease if to do so could have a material adverse
effect on the ability of the Chargor to carry on its business or
perform the obligations under the Finance Documents;
(c) take all reasonable steps to procure the due performance by each
Lessee of its material obligations under the Leases, and shall not
vary the terms of any Leases, or grant any waivers in respect
thereof, or permit or agree to the cancellation of the same if to do
so could have a material adverse effect on the ability of the
Chargor to carry on its business or perform its obligations under
the Finance Documents;
(d) promptly and diligently:
(i) notify the Security Trustee of any default by it or a Lessee
under any Lease which could have a material adverse effect on
the ability of the Chargor to carry on its business or perform
its obligations under the Finance Documents; and
(ii) institute and maintain all such proceedings as may be
necessary or desirable to preserve or protect the interests of
the Chargor and the Finance Parties in any Lease unless not to
do so would not have a material adverse effect on the ability
if the Chargor to carry on its business or perform its
obligations under the Finance Documents.
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9 RECEIVABLES AND BANK ACCOUNTS
9.1 COLLECTION
The Chargor shall promptly collect all Receivables and shall hold the
proceeds of collection on trust for the Security Trustee.
9.2 PAYMENT INTO DESIGNATED BANK ACCOUNT(S)
The Chargor shall promptly pay all moneys received or receivable by it
from any source (including all proceeds of collection of Receivables) into
a Bank Account.
9.3 RESTRICTIONS ON DEALING WITH RECEIVABLES
Without prejudice and in addition to Clause 5:
(a) except for the Security Interests constituted by this Deed and as
otherwise permitted by Clause 16.16 of the Facility Agreement, the
Chargor shall not create or permit to subsist any Security Interest
over, nor do anything else prohibited by Clause 16.16 of the
Facility Agreement in respect of, all or any part of any of its
Receivables; and
(b) except as required by Clause 5 or as otherwise permitted by clause
16.16 of the Facility Agreement, the Chargor shall not enter into a
single transaction or a series of transactions (whether related or
not and whether voluntary or involuntary) to sell, factor, transfer
or otherwise dispose of all or any part of any of its Receivables.
9.4 PROCEEDS OF BOOK DEBTS
So long as none of the Security Interests constituted by this Deed have
not become enforceable, the Chargor shall be entitled to use the proceeds
of collection of its Receivables in the ordinary course of its business.
9.5 DOCUMENTS
The Chargor shall promptly execute and/or deliver to the Security Trustee
such documents relating to such of its Receivables as the Security Trustee
reasonably requires.
9.6 WITHDRAWALS FROM BANK ACCOUNTS
(a) The Chargor may make withdrawals from Bank Accounts (other than
Escrow Accounts) unless prohibited by or pursuant to the Finance
Documents.
(b) The Chargor shall not make any withdrawal from any Escrow Account
except as permitted by the Facility Agreement.
(c) If an amount is withdrawn from a Bank Account as permitted by this
Clause 9.6, that amount shall be automatically released from the
fixed
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charge on that Bank Account on that withdrawal being made. However,
if all or part of that amount is paid into another Bank Account
which is in credit or becomes in credit as a result, it shall
automatically become subject to the fixed charge on that Bank
Account.
(d) Following notice from the Security Trustee of the occurrence of an
Event of Default that is continuing, the Chargor shall not be
entitled to receive, withdraw or transfer credit balances from time
to time on any Bank Account except as agreed by the Security
Trustee.
9.7 RESTRICTIONS ON DEALING WITH BANK ACCOUNTS
Without prejudice and in addition to Clause 5:
(a) except for the Security Interests constituted by this Deed and as
otherwise permitted by Clause 16.16 of the Facility Agreement, the
Chargor shall not create or have outstanding any Security Interest
over, nor do anything else prohibited by Clause 16.16 of the
Facility Agreement in respect of, all or any part of any of its Bank
Accounts; and
(b) except as required by Clause 5 or as otherwise permitted by Clause
16.16 of the Facility Agreement, the Chargor shall not enter into a
single transaction or a series of transactions (whether related or
not and whether voluntary or involuntary) to transfer, assign or
otherwise dispose of all or any part of any of its Bank Accounts.
9.8 DOCUMENTS
The Chargor shall promptly execute and/or deliver to the Security Trustee
such documents relating to such of its Bank Accounts as the Security
Trustee reasonably requires, including any notice to the relevant bank or
financial institution of the charges over them.
10 INTELLECTUAL PROPERTY
10.1 ACQUISITION
The Chargor shall promptly notify the Security Trustee of its acquisition
or grant of, or agreement to acquire or grant, (by licence or otherwise)
any material Intellectual Property, and any application by it or on its
behalf to register any Intellectual Property, and of the deposit of any
Intellectual Property (including source codes of computer software) with
escrow agents.
10.2 DOCUMENTS AND CONSENTS
(i) The Chargor shall, as soon as reasonable practicable after it enters
into this Deed, use reasonable endeavours to obtain such consents as
may be necessary from licensors of any material Intellectual
Property granted to it to ensure that licences of Intellectual
Property granted to the Chargor will not be revoked by any licensor.
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(ii) The Chargor shall as soon as reasonably practicable at the Security
Trustee's request execute and/or deliver to the Security Trustee
(a) originals of any certificate of registration of Intellectual
Property;
(b) all documents necessary to register or record this Deed or any
Security Interest over Intellectual Property with each
relevant government authority or agency responsible for
keeping registers in which any of the Chargor's Intellectual
Property is registered, and each receipt or confirmation of
registration or recording of this Deed or any Security
Interest over Intellectual Property issued by that government
authority or agency; and
(c) each escrow agreement which exists in respect of any of the
Intellectual Property and a notice to each escrow agent
holding any Intellectual Property on behalf of the Chargor
substituting the Security Trustee as the party to whom, upon
the occurrence of an Event of Default which is continuing and
notification to that effect from the Security Trustee to the
escrow agent, that escrow agent shall release the Intellectual
Property (including source codes of computer software) in
discharge of that escrow agent's obligations to release the
Intellectual Property to the Chargor.
11 CONTINUING AND INDEPENDENT SECURITY
11.1 CONTINUING SECURITY
This Deed and the security hereby created shall remain in full force and
effect by way of a continuing security notwithstanding the insolvency or
liquidation or any incapacity or change in the constitution or status of
the Chargor or any other person and in particular but without limitation
shall not be, nor be considered as, satisfied by any intermediate
discharge or payment on account of any liabilities or any settlement of
accounts between the Chargor, and the Security Trustee and/or any Finance
Party.
11.2 ADDITIONAL SECURITY
This Deed and the security hereby created shall be in addition to and not
in substitution for or derogation of any other Security Interest,
guarantee or other security (whether given by the Chargor or otherwise)
now or from time to time hereafter held by the Security Trustee and/or any
Finance Party in respect of or in connection with the Secured Obligations.
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11.3 UNRESTRICTED ENFORCEMENT
The Security Trustee need not before exercising any of the rights, powers
or remedies conferred upon it by this Deed or by law (i) take action or
obtain judgment against the Chargor or any other person in any court, (ii)
make or file any claim or prove in a winding-up or liquidation of the
Chargor or of any other person or (iii) enforce or seek to enforce the
recovery of the moneys and liabilities hereby secured by any other
security or other rights all of which the Chargor hereby waives and this
Deed may be enforced for any balance due after resorting to any one or
more other means of obtaining payment or discharge of the monies,
obligations and liabilities hereby secured.
11.4 NO DISCHARGE
The liabilities and obligations of the Chargor under this Deed and the
security constituted by this Deed shall remain in force notwithstanding
any act, omission, event or circumstance whatsoever until full, proper and
valid payment and discharge of the Secured Obligations and without
limiting the foregoing, neither the liabilities of the Chargor under this
Deed nor the validity or enforceability of this Deed shall be prejudiced,
affected or discharged by:-
(a) the granting of any time or indulgence to the Chargor or any other
person in respect of the Secured Obligations;
(b) any variation or modification of the Facility Agreement, any of the
other Finance Documents or any other documents referred to therein
or related thereto;
(c) the invalidity or unenforceability of any obligation or liability of
any party under the Facility Agreement, any of the other Finance
Documents or any other documents referred to therein or related
thereto;
(d) any invalidity or irregularity in the execution of the Facility
Agreement, any of the other Finance Documents or any other documents
referred to therein or relating thereto;
(e) any lack of capacity or deficiency in the powers of the Chargor or
any other person to enter into or perform any of its respective
obligations under the Facility Agreement or any of the other Finance
Documents to which it is party or any other documents referred to
therein or related thereto or any irregularity in the exercise
thereof or any lack of authority by any person purporting to act on
behalf of the Chargor or such other person;
(f) the insolvency, bankruptcy or liquidation or any incapacity,
disability or limitation or any change in the constitution or status
of the Chargor or any other person;
(g) any other Finance Document, Security Interest, guarantee or other
security or right or remedy being or becoming held by or available
to the Security Trustee, any Finance Party or by any other person or
by any of the same being or becoming wholly or partly void, voidable
or unenforceable or impaired or by the Security Trustee or any
Finance Party at any time releasing, refraining from enforcing,
varying or in any other way dealing with any of the same or any
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power, right or remedy the Security Trustee and/or any Finance Party
may now or hereafter have from or against the Chargor or any other
person;
(h) any waiver, exercise, omission to exercise, compromise, renewal or
release of any rights against the Chargor or any other person or any
compromise, arrangement or settlement with any of the same; or
(i) any act, omission, event or circumstance which would or may but for
this provision operate to prejudice, affect or discharge this Deed
or the liability of the Chargor hereunder.
11.5 NO SUBROGATION
(a) The Chargor shall not exercise any right of subrogation,
contribution or any other rights of a surety nor enforce any
security or other right or claim against any person who has
guaranteed or given any security in respect of the Secured
Obligations nor claim in the insolvency or liquidation of any such
other person in competition with the Security Trustee and/or the
Finance Parties.
(b) If the Chargor receives any payment or benefit in breach of this
Clause 11.5, it shall hold the same upon trust for the Security
Trustee as a continuing security for the Secured Obligations.
12 REPRESENTATIONS AND WARRANTIES
12.1 REPRESENTATIONS AND WARRANTIES
The Chargor hereby severally represents and warrants to the Security
Trustee for the benefit of the Finance Parties that:-
(a) STATUS: it is a company duly incorporated and validly existing and
in good standing under the laws of Bermuda and has full power,
authority and legal right to own its property and assets and to
carry on its business as such business is now being conducted;
(b) POWER AND AUTHORITY: it has all legal power and authority to enter
into this Deed and perform its obligations under this Deed and all
actions (including any corporate action) required to authorise the
execution and delivery of this Deed and the performance of its
obligations under this Deed have been duly taken including the
authorisation of the person or persons who have executed and
delivered this Deed to act for and on its behalf thereby binding the
Chargor to all the terms and conditions hereof;
(c) LEGAL VALIDITY: this Deed constitutes or, when so executed and
delivered, will constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
(d) NON-CONFLICT WITH LAWS: the entry into and performance of this Deed
and the transactions contemplated by this Deed do not and will not
conflict with or result in (i) a breach of any law, judgment or
regulation or any official or judicial order,
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or (ii) a breach of the constitutional documents of the Chargor, or
(iii) a material breach of any agreement or document to which the
Chargor is a party or which is binding upon it or any of its assets
or revenues with a monetary value greater than US$500,000, nor cause
any limitation placed on it or the powers of its directors to be
exceeded or result in the creation or imposition of any Security
Interest on any part of the Collateral pursuant to the provisions of
any such agreement or document;
(e) NO CONSENTS: other than the Consents, no consent, authorisation,
licence or approval of, or registration with or declaration to, any
governmental or public bodies or authorities or courts in Bermuda or
in any relevant jurisdiction is required for or in connection with
the execution, delivery, validity, enforceability and admissibility
in evidence in proceeding of this Deed, or the performance by the
Chargor of any of its respective obligations under this Deed;
(f) NO REGISTRATION: it is not necessary in order to ensure the
legality, validity, enforceability or admissibility in evidence of
this Deed that it or any other instrument be notarised, filed,
recorded, registered or enrolled in any court or other authority or
that any stamp, registration or similar tax or charge be paid on or
in relation to this Deed and this Deed is in proper form for its
enforcement in the courts of Bermuda and Hong Kong and all
jurisdictions the subject of any legal opinion referred to in
paragraph 4 of Schedule 3 of the Facility Agreement;
(g) LITIGATION: except as disclosed in a letter of even date from the
Borrower to the Security Trustee, no litigation, arbitration or
administrative proceeding is currently taking place or pending or,
to the knowledge of the officers of the Chargor, threatened against
the Chargor or any of its assets which could, in the reasonable
opinion of the Security Trustee, materially and adversely affect its
business, assets or financial condition or its respective ability to
perform its obligations under this Deed;
(h) WINDING UP AND STRIKING OFF: it has not taken any corporate action
or no other step has been taken or legal proceedings have been
commenced or threatened against it for its winding-up, dissolution,
administration or reorganisation or for the appointment of a
receiver, administrator, trustee or similar officer of it or all or
any of its assets or revenues, except as permitted by clause 17.1(g)
(Winding-up) of the Facility Agreement;
(i) TAXES ON PAYMENTS: all payments to be made by it under this Deed may
be made by it free and clear of, and without deduction for, Taxes
and no deductions or withholdings are required to be made therefrom
save as specified in any legal opinion referred to in paragraphs 2,
3 and 4 of Schedule 3 to the Facility Agreement; and no Taxes are
imposed on or by virtue of the execution or delivery by the Chargor
of this Deed or any document to be executed or delivered under this
Deed;
(j) TAX LIABILITIES: it has complied with all Taxation laws in all
material respects in all jurisdictions in which it is subject to
Taxation and has paid all Taxes due and payable by it; no material
claims are being asserted against it with respect to Taxes;
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(k) NO DEFAULT:
(i) no Default has occurred and is continuing;
(ii) it is not, or with the giving of notice or lapse of time or
satisfaction of any other condition or any combination
thereof, would not be in material breach of or in default
under any agreement relating to Financial Indebtedness to
which it is a party or by which it may be bound;
(l) NO IMMUNITY: it is generally subject to civil and commercial law and
to legal proceedings and neither it or any of its assets or revenues
are entitled to any immunity or privilege (sovereign or otherwise)
from any set-off, judgment, execution, attachment or other legal
process;
(m) COMPLIANCE, WITH CONSENTS AND LICENSES: every consent,
authorisation, licence or approval required for the time being by it
in connection with the conduct of its business and the ownership,
use, exploitation or occupation of its property and assets has been
applied for and not refused or has been obtained and is in full
force and effect and there has been no material default in the
observance of the conditions and restrictions (if any) imposed on,
or in connection with, any of the same which may have a material
adverse effect on its ability to perform its obligations under this
Deed and, to the knowledge of its officers, no circumstances have
arisen whereby any remedial action is likely to be required to be
taken by it, or at its expense under or pursuant to any law or
regulation applicable to its business, property or assets;
(n) NO FINANCIAL INDEBTEDNESS: it does not have any Financial
Indebtedness other than as permitted by Clause 16.17 of the Facility
Agreement;
(o) SOLE AND BENEFICIAL OWNER: it is or will be the sole, absolute legal
and beneficial owner of the Collateral;
(p) SECURITY INTEREST: no Security Interest exists in any of its rights,
title, interests or benefits in the Collateral (other than as
created by this Deed or any Permitted Security Interests);
(q) THIRD PARTY RIGHT: it has not sold or otherwise disposes of any of
the Collateral or granted in favour of any other person any interest
in or any option or other rights in respect of any of the
Collateral;
(r) PROPERTIES: as at the date of this Deed, the Chargor has no right,
title, interest or benefit in any Property; and
(s) RECEIVABLES: all Receivables are fully collectible in the ordinary
course of business.
12.2 CONTINUING REPRESENTATION AND WARRANTY
The Chargor represents and warrants to and undertakes with the Security
Trustee that the foregoing representations and warranties in Clause
12.1(a) to (n) inclusive are
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deemed to be made by the Chargor on each Drawdown Date and on each
Interest Payment Date with reference to the facts and circumstances then
existing and that the foregoing representations in Clause 12.1(o), (r) and
(s) will be true and accurate throughout the continuance of this Deed with
reference to the facts and circumstances from time to time.
13 TAXES AND OTHER DEDUCTIONS
13.1 TAX GROSS-UP
(a) All sums payable by the Chargor or any other person under this Deed
shall be paid in full without any restriction or condition and free
and clear of any Tax or other deductions or withholdings of any
nature.
(b) If at any time the Chargor or any other person is required in any
jurisdiction to make any deduction or withholding in respect of
Taxes or otherwise from any payment due under this Deed for the
account of the Security Trustee or any Finance Party (or if the
Security Trustee is required to make any such deduction or
withholding from a payment to other Finance Parties), the sum due
from the Chargor in respect of such payment shall be increased to
the extent necessary to ensure that, after the making of such
deduction or withholding, the Security Trustee and each Finance
Party receives on the due date for such payment (and retains, free
from any liability in respect of such deduction or withholding) a
net sum equal to the sum which it would have received had no such
deduction or withholding been required to be made.
(c) The Chargor's obligations under Clause 13(a) and (b) shall not apply
in respect of any Tax on Overall Net Income levied on the Security
Trustee or any other Finance Party.
(d) All Taxes required by law to be deducted or withheld by the Chargor
from any amounts paid or payable under this Deed shall be paid by
the Chargor when due (except for such amounts being disputed by the
Chargor in good faith) to the relevant tax authority.
13.2 TAX INDEMNITY
The Chargor shall indemnify the Security Trustee and each other Finance
Party against any losses or costs incurred by any of them by reason of:
(a) any failure of the Chargor or any other person to make any such
deduction or withholding referred to in Clause 13.1; or
(b) any increased payment referred to in Clause 13.1 not being made on
the due date for such payment; or
(c) any Taxes which are being disputed by the Chargor and remaining
unpaid; and
(d) any liability suffered (directly or indirectly) for or on account of
Tax by that Finance Party in respect of any payment received or
receivable or deemed to
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be received or receivable under this Deed.
13.3 EVIDENCE OF PROOF
The Chargor shall promptly deliver to the Security Trustee any receipts,
certificates or other proof evidencing the amounts (if any) paid or
payable in respect of any deduction or withholding as aforesaid. Any
certificate or determination of the Security Trustee showing in reasonable
details the calculations made by the Security Trustee as to any amount for
the purposes of this Clause 13 shall, in the absence of manifest error, be
conclusive and binding on each Chargor.
13.4 TAX CREDIT
If the Chargor makes a Tax Payment and the Security Trustee determines
that:-
(a) a Tax Credit is attributable either to an increased payment of which
that Tax Payment forms part, or to that Tax Payment; and
(b) it has obtained, utilised and retained that Tax Credit,
the Security Trustee shall, promptly after obtaining the benefit of that
Tax Credit, pay an amount to the Chargor which will leave it (after that
payment) in the same after-Tax position as it would have been in had the
Tax Payment not been required to be made by the Chargor. Any certificate
or determination of the Security Trustee showing in reasonable details the
calculations made by the Security Trustee as to any amount for the
purposes of this Clause 13 shall, in the absence of manifest error, be
conclusive and binding on the Chargor.
14 COSTS, CHARGES AND EXPENSES
14.1 COSTS, CHARGES AND EXPENSES
The Chargor shall from time to time forthwith on demand pay to or
reimburse the Finance Parties and the Receiver (on the basis of a full
indemnity) the amount of:
(a) all costs, charges and expenses properly incurred by the Finance
Parties or the Receiver in connection with the investigation of
title to or any survey, inspection or valuation of the Collateral
under or in connection with this Deed following an Event of Default,
and the negotiation, preparation, registration, perfecting,
amendment, modification or administration of this Deed (or any of
the charges therein contained) or any other document relating
thereto;
(b) all costs, charges and expenses properly incurred by the Finance
Parties or the Receiver in connection with the exercise, or the
attempted exercise, by or on behalf of the Security Trustee or any
other Finance Party or the Receiver of any of the powers of the
Security Trustee or any other Finance Party or the Receiver, or any
other action taken by or on behalf of the Security Trustee or any
other Finance Party with a view to or in connection with the
recovery by the Security Trustee or any other Finance Party of the
Secured Obligations from the Chargor or any other person;
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(c) all costs, charges and expenses properly incurred by the Finance
Parties or the Receiver in connection with the carrying out of any
other act or matter which the Security Trustee or any Finance Party
or the Receiver may reasonably consider to be necessary or required
for the preservation of the Collateral; and
(d) all costs, charges and expenses (including legal and other fees on a
full indemnity basis) properly incurred by the Security Trustee or
any other Finance Party or Receiver in exercising any of its rights
or powers hereunder or in suing for or seeking to recover any sums
due hereunder or otherwise preserving or enforcing its rights
hereunder or in defending any claims brought against it in respect
of this Deed or in releasing or re-assigning this Deed upon payment
of all moneys hereby secured,
and until payment of the same in full, all such costs, charges and
expenses shall be secured by this Deed.
14.2 STAMP DUTY
The Chargor shall pay all stamp, documentary, registration or other like
duties or taxes (including any duties or taxes payable by the Security
Trustee or any Finance Party) imposed on or in connection with this Deed
and shall indemnify each of the Security Trustee and the other Finance
Parties against any liability arising by reason of any delay or omission
by any Chargor to pay such duties or taxes.
The amounts payable under Clause 14 shall carry interest from the dates on
which they were paid by the Security Trustee or such other Finance Party
or the Receiver (as the case may require), and such amounts and interest
may be debited by the Security Trustee to any account of the Chargor, but
shall, in any event, form part of the Secured Obligations and accordingly
be secured on the Collateral under the charges contained in this Deed. The
computation of such interest shall be in accordance with the terms of the
Facility Agreement.
15 UNDERTAKINGS
15.1 AFFIRMATIVE UNDERTAKINGS
The Chargor hereby jointly and severally undertakes and agrees with the
Security Trustee, for the benefit of the Finance Parties, throughout the
continuance of this Deed and so long as the Secured Obligations or any
part thereof remains owing that, unless the Security Trustee otherwise
agrees in writing, it will:-
(a) INSURANCE: keep all Collateral of an insurable nature issued with
reputable underwriters or insurance companies in such manner and to
such extent as is reasonable and customary for a business enterprise
engaged in the same or a similar business as the relevant Chargor
and in the same or similar localities and whose practice is not
self-insure;
(b) INTEREST OF FINANCE PARTIES: procure that the interest of the
Finance Parties is noted on all Insurances and that clauses noting
the interest of the Finance Parties
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as chargee are incorporated therein in such manner and on such terms
as the Finance Parties may reasonably require and the Chargor
assigns to the Security Trustee the benefit of all such policy or
policies and agrees to enter into such further assignments in
relation thereto in such manner and on such terms as the Security
Trustee may reasonably require;
(c) PAYMENT OF PREMIUM: pay all premiums or sums of money necessary for
effecting such Insurances as when due and payable (or within any
applicable grace periods therefor in the policies for such
Insurances), to comply with all warranties or other requirements
relating thereto, and endorse over, produce or deliver to the
Security Trustee all policy or policies of insurance and the
receipts for every such payment.
(d) APPLICATION OF MONIES RECEIVED: apply any monies received by it in
respect of any Insurances or from any other party in respect of the
Insurances in repairing or reinstating the property or assets in
respect of which the monies were received or as required under
Clause 7.5 of the Facility Agreement;
(e) MAINTENANCE OF PROPERTY AND ASSETS: keep all its property and assets
including, but not limited to, all plant, equipment, machinery,
buildings, fixtures, fittings, vehicles and other effects in good
and substantial repair and in good working order and condition fair
wear and tear excepted and not pull down, dismantle or remove any of
the same except in the ordinary course of use, repair, maintenance
or improvement;
(f) PAY OUTGOINGS: pay all rents, rates, Taxes, duties, fees,
impositions and outgoings when due and payable (or within any
applicable grace period therefor in the agreements stipulating such
payments) which may be payable in respect of the Collateral and
observe and perform in all material respects all the covenants,
terms and conditions contained in any title deeds, leases or other
documents of title under which any assets hereby charged is for the
time being held provided that if the Chargor defaults in making any
such payments or in the performance or observance of any of the
above undertakings or in effecting Insurances or in paying insurance
premiums or in repairing, the Security Trustee may make such
payments or perform and observe such undertakings, effect such
Insurances or repairs or pay such insurance premiums and the Chargor
shall forthwith repay to the Security Trustee on demand all monies
expended by the Security Trustee in so doing together with interest
thereon at the rates determined in accordance with the terms of the
Facility Agreement determined in accordance with the terms of the
Facility Agreement from the time of the same having been paid or
incurred and until such repayment such monies together with such
interest shall be secured by this Deed;
(g) ACCESS TO COLLATERAL: permit the Security Trustee or any other
person appointed by it on reasonable notice to have access to and
view the state, order and condition of the Collateral and take
inventories thereof;
(h) NOTICE: attach to each item of the Properties or other plant,
machinery and equipment, if reasonably required by the Security
Trustee (but not so as to impede or restrict the normal use or
operations thereof), a notice in such conspicuous place and in such
form as the Security Trustee may specify stating
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that such item is subject to a charge in favour of the Security
Trustee;
(i) DOCUMENTS OF TITLE: deposit with the Security Trustee or such person
as the Security Trustee may appoint for such purpose, all documents
of title relating to the Collateral when called upon by the Security
Trustee;
(j) DISCHARGE OF DEBTS: pay and discharge in accordance with relevant
agreement relating to the same all debts and obligations which by
law have priority over the Security Interests hereby constituted;
(k) RECEIVABLES: upon a request from the Security Trustee, give notice
of the charges hereby created in respect of the Receivables or the
Bank Accounts or any of them to the relevant debtor in such form as
the Security Trustee may reasonably direct and from time to time
give such further notices in respect of the Receivables or the Bank
Accounts or any of them as the Security Trustee may reasonably
require;
(l) REALISATION OF RECEIVABLES: get in and realise all Receivables in
the ordinary course of its business
(m) NOTIFICATION OF DEFAULT: promptly inform the Security Trustee of any
occurrence of any event which it becomes aware of which may
materially and adversely affect its ability to perform its
obligations under this Deed
(n) SECURITY TRUSTEE ACCOUNT: at any time upon written notice from the
Security Trustee to the Chargor, to pay all moneys which it may
receive in respect of such debts to such account and bank, in the
name of the Security Trustee or otherwise (as the Security Trustee
may specify) and, in such form and on such terms as the Security
Trustee may reasonably requires, to give such notice and instruction
to the bank in question authorising the Security Trustee to operate
such account (including, without limitation, to enable the Security
Trustee to consent to the Chargor utilising the funds from such
account and to revoke such consent) and to obtain the
acknowledgement of, and undertaking to comply with, such notice and
instruction from the bank in question, but so that nothing in this
paragraph shall be taken to affect the validity of the first fixed
charge of such debts and moneys which is contained in clause
3.1(b)(i);
(o) NOTIFICATION OF INFORMATION AFFECTING THE COLLATERAL: forthwith to
notify the Security Trustee in writing of any notice received by the
Chargor affecting any of its interest in any of the Collateral, and,
at the cost of the Chargor, to take any action regarding any such
notice or information as the Security Trustee may reasonably
require;
(p) FACILITY AGREEMENT UNDERTAKINGS: perform the undertakings set out in
Clause 16 of the Facility Agreement which the Chargor is obliged to
procure the Chargor to perform as if the same were separately set
out herein mutatis mutandis.
15.2 NEGATIVE UNDERTAKINGS
The Chargor undertakes and agrees with the Security Trustee for the
benefit of the
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Finance Parties throughout the continuance of this Deed and so long as the
Secured Obligations or any part thereof remains owing that, unless the
Security Trustee otherwise agrees in writing, it will not:
(a) without the consent of the Security Trustee (acting on the
instructions of the Majority Lenders) either in a single transaction
or in a series of transactions whether related or not and whether
voluntarily or involuntarily, sell, transfer, lease, assign or
otherwise dispose of all or any material part of the Collateral,
except, disposals made in good faith for full consideration on an
arm's length basis in the ordinary course of its business unless
such disposal is of an asset which is material to the Borrower Group
or assign, discount or factor any of the Receivables, and provided
in all cases that such disposal does not, materially and adversely
affect the ability of the Chargor to perform its respective
obligations under this Deed or the rights of the Finance Parties
under the Finance Documents;
(b) other than the Permitted Security Interests, create or attempt or
agree to create or permit to arise or exist any Security Interest
over the Collateral or any interest therein (except under or
pursuant to this Deed) unless contemporaneously therewith or prior
thereto and subject to the prior written consent of the Security
Trustee, the Indebtedness owing to the Finance Parties under this
Deed is equally and rateably secured and to the intent of affording
the Security Trustee's further and better security the Chargor
agrees and declares that the rule in Xxxxxxx'x Case or any other
rule of law or equity shall not apply so as to affect or diminish in
any way the Security Trustee's rights under this Deed provided
always that upon the commencement of the winding-up of the Chargor
or of this Deed ceasing for any reason to be binding on the Chargor
or if the Security Trustee shall at any time receive notice (either
actual or otherwise) of any Security Interest affecting the
Collateral or any part of it or any such breach by the Chargor the
Security Trustee may open new or separate accounts in the name of
the Chargor in the Security Trustee's books and if the Security
Trustee has not in fact opened such new or separate accounts the
Security Trustee shall nevertheless be deemed to have done so at the
time of such breach and as from that time all payments made by the
Chargor to the Security Trustee shall (notwithstanding any legal or
equitable rule or presumption to the contrary) be placed or deemed
to have been placed to the credit of such new or separate accounts
and shall not go in reduction of the amounts due by the Chargor to
the Security Trustee at the time of such breach notwithstanding that
such payments had been paid into the existing accounts of the
Chargor or were shown to be credited to that Chargor's existing
accounts on the Security Trustee's statements and the Security
Trustee shall immediately after the time of such breach have an
absolute right of appropriation of such payments;
(c) (i) sell, transfer or otherwise dispose of any of its assets on
terms whereby it is or may be leased to or re-acquired or
acquired by the Chargor or any of its affiliates; or
(ii) sell, transfer or otherwise dispose of any of its receivables
on recourse terms, except for the discounting of bills or
notes in the ordinary course of trading,
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in circumstances where the transaction is entered into
primarily as a method of raising finance or of financing the
acquisition of an asset;
(d) do or cause or permit to be done any act, matter or thing in or on
or respecting the Collateral which shall contravene the provisions
of any ordinance, order, rule or regulation now or hereafter
affecting the same unless such contravention could not reasonably be
expected to have a material adverse effect on the rights of the
Finance Parties under the Finance Documents or the ability of the
Chargor to perform its obligations hereunder;
(e) do or cause or permit to be done anything which may in any way
depreciate, jeopardise or otherwise prejudice the value of the
Security Interest created in favour of the Security Trustee
hereunder;
(f) transfer, sell, lend or otherwise dispose of any of the Collateral,
and, in particular not to exercise the statutory or other powers of
making leases or of accepting or agreeing to accept surrenders of
leases, nor to part with possession of, nor grant any licence or
right to occupy, any of the freehold or leasehold property for the
time being owned by the Chargor, but so that the Chargor may dispose
of property and assets which are for the time being subject to the
floating charge contained in Clause 4 by sale by way of bargain made
at arms length in the usual course of the Chargor's day-to-day
trading; and
(g) not, without the prior written consent of the Security Trustee, to
enter into any debtor-creditor relationship (as a debtor) with any
third party, including related or associated companies of the
Chargor, except in the ordinary course of business of the Chargor.
16 ENFORCEMENT
16.1 POWERS OF SECURITY TRUSTEE
The security created by this Deed shall become enforceable immediately
upon the occurrence of an Event of Default which is continuing and at any
time thereafter, the Security Trustee shall be entitled to exercise,
without prior notice and without the restrictions contained in Section 31
of the Act, whether or not it shall have appointed a Receiver, all the
powers and discretions conferred on mortgagees by the Act, as hereby
varied or extended and all the powers and discretions hereby conferred,
either expressly or by implication on a Receiver (and in relation to
express powers and discretions as if any reference to the Receiver were a
reference to a Finance Party) and all other powers conferred upon
mortgagees by law or otherwise. Section 29 of the Act shall not apply to
this Deed or to any other security given to the Security Trustee pursuant
hereto.
16.2 APPOINTMENT OF RECEIVER
(a) At any time after the security constituted hereby has become
enforceable or if requested by the Chargor the Security Trustee may
by deed appoint such person or persons (including an officer or
officers of the Security Trustee) as it thinks fit to be the
Receiver or Receivers of the Collateral or any part thereof.
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(b) The Security Trustee may by deed remove the Receiver and appoint
another in his place, and the Security Trustee may also appoint
another receiver if the Receiver resigns.
(c) The exclusion of any part of the Collateral from the appointment of
the Receiver shall not preclude the Security Trustee from
subsequently extending his appointment (or that of the Receiver
replacing him) to that part.
(d) The Receiver shall, so far as the law permits, be the agent of each
of the Chargor; and the Chargor shall be solely responsible for his
acts and defaults (except for his wilful misconduct, wilful default
and negligence) and liable on any contracts or engagements made or
entered into by him; and in no circumstances whatsoever shall the
Security Trustee be in any way responsible for any misconduct, or
default of the Receiver.
(e) The remuneration of the Receiver may be fixed by the Security
Trustee, but such remuneration shall be payable by the Chargor
alone; provided that any remuneration so fixed by the Security
Trustee shall in the reasonable opinion of the Security Trustee be
appropriate to the work and responsibilities involved upon the basis
of charging from time to time adopted in accordance with the
Receiver's current practice or the current practice of his industry
and the amount of such remuneration may be debited by the Security
Trustee to any account of the Chargor, but shall, in any event, form
part of the Secured Obligations and accordingly be secured on the
Collateral under the charges contained in this Deed.
16.3 POWERS OF RECEIVER
The Receiver shall, in addition to all powers conferred from time to time
on mortgagees or receivers by law or otherwise, have power (exercisable
without further notice) either in his own name or in the name of the
Chargor or otherwise and in such manner and upon such terms and conditions
as the Receiver shall think fit and either alone or jointly with any other
person:
(a) to take possession of, collect and get in and give receipts for the
Collateral;
(b) to sell by public auction or private contract or otherwise dispose
of or deal with the Collateral in such manner, for such
consideration and generally on such terms and subject to such
conditions as the Receiver may think fit with full power to convey
or otherwise transfer the Collateral in the name of the Chargor or
other legal or registered owner. Any consideration may be in the
form of cash, debentures, shares, stock or other valuable
consideration and may be payable immediately or by instalments
spread over such period as the Receiver shall think fit and so that
any consideration received in a form other than cash shall forthwith
on receipt be and become charged with the payment of the Secured
Obligations. Plant, equipment and machinery and other Fixtures or
any part there of may be severed and sold separately from the
premises containing them and the Receiver may apportion any rent and
the performance of any obligations affecting such premises sold
without the consent of the Chargor;
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(c) to insure and keep insured against loss or damage by such risks and
contingencies as the Receiver may reasonably think fit the
Collateral of an insurable nature in such manner in all respects as
the Receiver may reasonably think fit and to maintain, renew or
increase any Insurances in respect of the Collateral;
(d) to institute, prosecute, submit to arbitration, negotiate,
compromise, abandon, settle and defend any claims and proceedings in
the name of the Chargor or otherwise as may seem expedient
concerning the Collateral;
(e) to make and effect all repairs, renewals, alterations, improvements
and developments to or in respect of the Collateral;
(f) to carry on or authorise or concur in the carrying on of the
business of the Chargor or any part thereof and to manage and
conduct the same without being responsible for loss or damage unless
caused by his negligence or wilful default;
(g) to form or promote the formation of companies with a view to the
same purchasing all or any of the undertaking, property, assets and
rights of the Chargor or otherwise;
(h) to make calls, conditionally or unconditionally, on the members of
the Chargor in respect of uncalled capital;
(i) to redeem an Security Interest (whether or not having priority to
the security constituted by this Deed) and make any arrangement,
settlement or compromise or enter into any contracts and to perform,
repudiate, rescind or vary any contract or arrangement to which the
Chargor is a party in all such cases which the Receiver shall think
expedient in the interests of the Finance Parties;
(j) for the purpose of exercising any of the powers, authorities and
discretions conferred on him by or pursuant to this Deed and of
defraying any costs, charges, losses or expenses (including his
remuneration) which shall be incurred by him in the exercise thereof
or for any other purpose in connection herewith, to enter into
bonds, covenants, guarantees, indemnities and other commitment
and/or to raise and borrow money either unsecured or on the security
of the Collateral either in priority to this Deed or otherwise and
generally on such terms and conditions as he may think fit provided
that:
(i) no Receiver shall exercise such power without first obtaining
the written consent of the Security Trustee and the Finance
Parties shall incur no liability to the Chargor or any other
person by reason of its giving or refusing such consent
whether absolutely or subject to any limitation or condition;
and
(ii) no person lending such money shall be concerned to enquire as
to the existence of such consent or the terms thereof or as to
the propriety or purpose of the exercise of such power or to
see to the application of any money so raised or borrowed;
(k) to appoint managers, agents, officers, solicitors, accountants,
auctioneers,
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brokers, architects, engineers, workmen or other professional or
non-professional advisers, agents or employees for any of the
aforesaid purposes at such salaries or for such remuneration and for
such periods as the Receiver may determine and to dismiss any of the
same or any of the existing staff of the Chargor and to delegate to
any person any of the powers hereby conferred on the Receiver;
(l) in the exercise of any of the above powers to expend such sums as
the Receiver may think fit and the Chargor shall forthwith on demand
repay to the Receiver all sums so expended together with interest
thereon at such rates as the Security Trustee may from time to time
determine from the time of the same having been paid or incurred and
until such repayment such sums together with such interest shall be
secured by this Deed;
(m) to have access to and make use of any tool, equipment, premises and
the accounting and other records of the Chargor and the services of
its staff for all or any of the purposes aforesaid;
(n) to transfer all or any of the Collateral and/or any of the
liabilities of the Chargor to any other company or body corporate or
person, whether or not formed or acquired for the purpose;
(o) to grant leases, tenancies, licences and rights of user, grant
renewals and accept surrenders of leases, tenancies, licences or
rights of user, and to give to any Lessee(s) notice to quit or to
remedy a breach of covenant or to otherwise reach agreements and
make arrangements with, and to make allowances to, any lessees,
tenants or other persons (including a new company formed pursuant to
paragraph (g)) from whom any rents and profits may be receivable
(including those relating to the grant of any licences, the review
of rent in accordance with the terms of, and the variation of, the
provisions of any leases, tenancies, licences or rights of user
affecting the Collateral;
(p) to manage and use the Collateral and to exercise and do (or permit
the Chargor or any nominee of it to exercise and do) all such rights
and things as the Receiver would be capable of exercising or doing
if he were the absolute beneficial owner of the Collateral and in
particular, without limitation, to exercise any rights of enforcing
any Security Interest to entry into possession, foreclosure, sale or
otherwise and to arrange for or provide all services which he may
deem proper for the efficient management or use of the Collateral or
the exercise of such rights;
(q) to enforce any covenant in any Lease (whether existing at the time
of the appointment of such Receiver or otherwise created in any
manner) and to exercise any right of re-entry or to commence
proceedings to recover possession whenever such right to re-enter
the Property arises, whether out of the proviso for re-entry
contained in any Lease or by virtue of a notice to quite or
otherwise and in the exercise of the power of sale in relation to
the Property, to enter into any deed of mutual covenant or grant of
any rights, easements or privileges as it shall think fit and to
enter into such deeds, contracts, stipulations and agreements and to
execute and do all such assurances and things as it may deem
expedient or necessary;
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(r) for such consideration and on such terms as he may think fit, to
purchase outright or acquire by leasing, hiring, licensing or
otherwise, any land, buildings, plant, equipment, vehicles or
materials or any other property, assets or rights of any description
which he considers necessary or desirable for the carrying on,
improvement or realisation of any business of the Chargor or
otherwise for the benefit of the Collateral;
(s) to do all such other acts and things as may be considered by the
Receiver to be incidental or conducive to any of the matters or
powers aforesaid or otherwise incidental or conducive to the
exercise of any of the rights conferred on the Receiver under any
Finance Document to which the Chargor is a party or under
legislation or common law or to the realisation of the Finance
Parties' security created by this Deed and which the Receiver may
lawfully do.
16.4 RECEIVER TO CONFORM TO SECURITY TRUSTEE'S DIRECTIONS
The Receiver shall in the exercise of the Receiver's powers, authorities
and discretions conform to the directions and regulations from time to
time given or made by the Security Trustee.
16.5 POWERS TO BE GIVEN WIDE CONSTRUCTION
The powers of the Security Trustee and the Receiver hereunder shall be
construed in the widest possible sense to the intent that the Security
Trustee and the Receiver shall be afforded as wide and flexible a range of
powers as possible.
16.6 NO LIABILITY TO ACCOUNT AS MORTGAGEE IN POSSESSION
(a) Neither the Security Trustee nor the Receiver shall be liable in
respect of any loss or damage which arises out of the exercise, or
the attempted or purported exercise of, or the failure to exercise
any of their respective powers unless such loss or damage is caused
by its or his negligence, wilful default or misconduct in the
exercise of their respective powers.
(b) Without prejudice to the generality of clause 16.6(a), entry into
possession of the Collateral shall not render the Security Trustee
or the Receiver liable to account as mortgagee in possession unless
the Security Trustee, the Receiver or its officers, employees or
agents had acted in wilful default, negligence or misconduct in the
exercise of its powers; and if and whenever the Security Trustee or
the Receiver enters into possession of the Collateral, it shall be
entitled at any time at its pleasure to go out of such possession.
16.7 EVIDENCE OF DEBT
Any statement of account signed as correct by the Security Trustee showing
any amount due under the Facility Agreement or under this Deed or under
any other Finance Document shall, in the absence of manifest error, be
conclusive evidence of the amount so due.
16.8 SALE OF COLLATERAL
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Each of the Security Trustee and the Receiver shall be entitled to
exercise such power of sale in such manner and at such time or times and
for such consideration (whether payable immediately or by instalments) as
it shall in its absolute discretion think fit (whether by private sale or
otherwise) and so that the Collateral (or any relevant part thereof) may
be sold (i) subject to any conditions which the Security Trustee or the
Receiver may think fit to impose, (ii) to any person (including, without
limitation, any person connected with the Chargor, the Security Trustee or
the Finance Parties) and (iii) at any price which the Security Trustee or
the Receiver in its absolute discretion, considers to be the best
obtainable in the circumstances taking into account the nature of the
Chargor as a private company.
16.9 PURCHASER NOT BOUND TO ENQUIRE
(a) No purchaser from, or other person dealing with, the Security
Trustee and/or the Receiver shall be concerned to enquire whether
any of the powers which they have exercised or purported to exercise
has arisen or become exercisable, or whether the Secured Obligations
remain outstanding, or whether any event has happened to authorise
the Receiver to act or as to the propriety or validity of the
exercise or purported exercise of any such power; and the title of
such a purchaser and the position of such a person shall not be
impeachable by reference to any of those matters.
(b) The receipt of the Security Trustee or the Receiver shall be an
absolute and a conclusive discharge to a purchaser and shall relieve
him of any obligation to see to the application of any moneys paid
to or by the direction of the Security Trustee or the Receiver.
(c) In clauses 16.9(a) and 16.9(b), "PURCHASER" includes any person
acquiring, for money or money's worth, any lease of, or Security
Interest over, or any other interest or right whatsoever in relation
to, the Collateral.
16.10 NO LIABILITY FOR LOSSES
The Chargor shall not have any claim against the Security Trustee or the
Receiver or any Finance Party in respect of any loss arising out of any
such sale or any postponement thereof howsoever caused and whether or not
a better price could or might have been obtained upon the sale of the
Collateral or any of them by deferring or advancing the date of such sale
or otherwise howsoever except in the case of the Security Trustee's or the
Receiver's negligence or wilful default.
17 APPLICATION OF PROCEEDS. APPLICATION OF PROCEEDS
17.1 All monies received by the Security Trustee or the Receiver hereunder
shall be applied in or towards satisfaction of the Secured Obligations in
(subject to the prior discharge of all liabilities having priority thereto
by law) in the following order of priority:-
(a) in payment or satisfaction of all costs, charges, expenses and
liabilities properly incurred and payments made by or on behalf of
the Security Trustee or the Receiver in connection with the exercise
of any powers hereunder and in
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preserving or attempting to preserve this security or the Collateral
and of all outgoings in respect of the Collateral paid by the
Security Trustee or the Receiver pursuant to this Deed;
(b) in payment to the Receiver of all remuneration as may be agreed
between it and the Security Trustee to be paid to him at, or at any
time after, its appointment;
(c) in or towards reduction of the remaining Secured Obligations in such
manner as is provided in the Facility Agreement;
(d) the surplus (if any) to the Chargor;
but so that if and for so long as any Chargor has any future or
contingent liability to the Security Trustee, the Security Trustee
may place and keep any such moneys to the credit of such account or
accounts, in such name or names, as the Security Trustee may deem
fit, without obligation to apply the same as mentioned above until
all such liability is ascertained and due, and the same shall form
part of the Collateral.
18 INDEMNITY
18.1 GENERAL INDEMNITY
The Chargor hereby undertakes with the Security Trustee to indemnify and
keep indemnified the Finance Parties and each of them (each an
"INDEMNITEE") from and against all costs, charges and expenses which such
Finance Party shall properly incur in connection with the exercise of any
powers conferred by this Deed or the perfection, preservation or
enforcement of the security created by this Deed (unless and to the extent
that any of the foregoing results directly from the fraud, gross
negligence or wilful misconduct of that indemnitee).
18.2 CURRENCY INDEMNITY
(a) If an amount due to the Security Trustee or any Finance Party from
the Chargor this Deed (a "SUM"), or any order, judgment or award
given or made in relation to a sum, has to be converted from the
currency (the "FIRST CURRENCY") in which that sum is payable into
another currency (the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Chargor;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Chargor shall, as an independent obligation to the Security
Trustee or such Finance Party, indemnify the Security Trustee or
such Finance Party to whom that sum is due against any cost, loss or
liability arising out of or as a result of the conversion including
any discrepancy between (A) the rate of exchange used to convert
that sum from the first currency into the second currency and (B)
the rate or rates of exchange available to that person at the time
of its receipt of that sum.
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(b) The Chargor hereby waives any right it may have in any jurisdiction
to pay any amount under the Facility Agreement or any other Finance
Document in a currency or currency unit other than that in which it
is expressed to be payable.
18.4 PAYMENT AND SECURITY
The Security Trustee or any Finance Party may retain and pay out of any
money in the hands of the Security Trustee or such Finance Party all sums
necessary to effect the indemnity contained in this Clause and all sums
payable by the Chargor under this Clause shall form part of the monies
hereby secured.
19 SUSPENSE ACCOUNT
The Security Trustee may, notwithstanding Clause 17 (Application of
Proceeds), place and keep any monies received under this Deed, before or
after the insolvency of the Chargor, to the credit of a suspense account
in order to preserve the rights of the Finance Parties to xxx or prove for
the whole amount in respect of claims against the Chargor or any other
person
20 SET OFF
20.1 Without prejudice to any right of set-off, combination of accounts, lien
or other rights which the Security Trustee or the Receiver is at any time
entitled whether by operation of law or contract or otherwise, the
Security Trustee and the Receiver may (but shall not be obliged to) set
off against any obligation of the Chargor due and payable by it hereunder
without prior notice any moneys held by the Security Trustee or such
Receiver for the account of the Chargor at any office of the Security
Trustee or such Receiver anywhere and in any currency. The Security
Trustee or such Receiver may effect such currency exchanges as are
appropriate to implement such set-off.
20.2 If the obligations are in different currencies, the Security Trustee or
such Receiver may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of the set-off.
21 POWER OF ATTORNEY
21.1 POWER OF ATTORNEY
The Chargor irrevocably appoints the Security Trustee, the Receiver and
any persons deriving title under either of them by way of security jointly
and severally to be its attorney (with full power of substitution) and in
its name or otherwise on its behalf and as its act and deed to sign, seal,
execute, deliver, perfect and do all deeds, instruments, acts and things
which may be required or which the Security Trustee or the Receiver shall
think proper or reasonably expedient for carrying out any obligations
imposed on the Chargor hereunder or for exercising, following the security
constituted by this Deed becoming enforceable, any of the powers conferred
by this Deed or in connection with any sale or disposition of the
Collateral or the exercise of any rights in respect thereof or
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for giving to the Security Trustee and the Receiver the full benefit of
this security and so that this appointment shall operate to authorise the
Security Trustee and the Receiver to do on behalf of the Chargor anything
it can lawfully do by an attorney. The Chargor ratifies and confirms and
agrees to ratify and confirm any deed, instrument, act or thing which such
attorney or substitute may execute or do in exercising its powers under
this Clause.
21.2 DELEGATION
The Security Trustee and/or the Receiver may delegate to any person all or
any of the rights or powers conferred on it by this Deed or by law. Any
such delegation may be made upon such terms and conditions (including
power to sub-delegate) as the Security Trustee or the Receiver thinks fit.
22 NOTICES
22.1 NOTICES
Any notice or communication under or in connection with this Deed shall be
in writing and shall be delivered personally or by prepaid letter (airmail
if available) or facsimile transmission to the addresses or facsimile
numbers set out below or at such other address or facsimile number as the
recipient may have notified to the other parties in writing. Proof of
posting or despatch of any notice or communication to any party hereto
shall be deemed to be proof of receipt:-
(a) in the case of a letter, on the fifth Business Day after posting if
airmail or second Business Day if local mail;
(b) in the case of a facsimile transmission, on the Business Day
immediately following the date of despatch with confirmed facsimile
report.
All communications or other correspondence between the Chargor and any of
the Finance Parties in connection with this Deed shall be made through the
Security Trustee.
22.2 ADDRESSES
Notices or communications shall be sent to the following addresses:-
To the Chargor:-
Name Asia Netcom Corporation Limited
Address 00/X Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax (000) 0000 0000
Attention Xxxxxxx Xxxxxxxx/Wenlong Sun
With a copy to: Asia Netcom Singapore Pte Limited
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0 Xxxxxxx Xxx #00-00
XXX Xxxxxx 0
Xxxxxxxxx 000000
Fax (00) 0000 0000
Attention Xxxxxx Xx
To the Security Trustee:-
Name Industrial and Commercial Bank of China (Asia)
Limited
Address 10/F, ICBC Asia Xxxxxxxx
000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax (000) 0000 0000
Attention Xx. Xxxxxx Xxxxx/ Ms. Xxx Xxxx
22.3 LANGUAGE
Each notice or document referred to in this Deed or to be delivered under
this Deed shall be in the English language.
23 WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND
COUNTERPARTS
23.1 WAIVERS
No failure or delay on the part of the Security Trustee or any Finance
Party to exercise any power, right or remedy under this Deed shall operate
as a waiver thereof, nor shall any single or partial exercise by the
Security Trustee or any Finance Party of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy.
23.2 AMENDMENTS AND CONSENTS
(a) Any amendment of any provision of this Deed shall only be effective
if made in accordance with the provisions of this Deed and if all
parties hereto so agree in writing and any waiver of any breach or
default under this Deed shall only be effective if the Security
Trustee acting on the instructions of the Lenders or the Majority
Lenders (as the case may be), agrees in writing. Any consent by the
Security Trustee under this Deed must be made in writing.
(b) Any such waiver or consent may be given subject to any conditions
thought fit by the Security Trustee acting on the instructions of
the Lenders or the Majority Lenders, as the case may be, and shall
be effective only in the instance and for the purpose for which it
is given.
23.3 REMEDIES
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The remedies provided in this Deed are cumulative and are not exclusive of
any remedies provided by law.
23.4 SEVERABILITY
If any provision of this Deed is prohibited or unenforceable in any
jurisdiction such prohibition or unenforceability shall not invalidate the
remaining provisions hereof or affect the validity or enforceability of
such provision in any other jurisdiction.
23.5 ASSIGNMENT
The Security Trustee may assign its rights under this Deed in accordance
with the provisions of the Facility Agreement. The Chargor shall not
assign any of its rights hereunder without the prior written consent of
the Security Trustee.
23.6 COUNTERPARTS
This Deed may be executed in any number of counterparts including by
facsimile and all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Deed by signing any
such counterpart.
24 GOVERNING LAW AND JURISDICTION
24.1 GOVERNING LAW
This Deed is governed by and construed in accordance with the laws of
Bermuda.
24.2 SUBMISSION TO JURISDICTION
For the benefit of the Security Trustee and each Finance Parties, the
Chargor irrevocably agrees that the courts of Bermuda and Hong Kong are to
have jurisdiction to settle any disputes which may arise out of or in
connection with this Deed and that, accordingly, any legal action or
proceedings arising out of or in connection with this Deed ("PROCEEDINGS")
may be brought in those courts and the Chargor irrevocably submits to the
jurisdiction of those courts.
24.3 OTHER JURISDICTIONS
Nothing in this Clause 24 (Governing Law and Jurisdiction) shall limit the
right of the Security Trustee or any Finance Party to take Proceedings
against the Chargor in any other court of competent jurisdiction nor shall
the taking of Proceedings in one or more jurisdictions preclude the
Security Trustee or any Finance Party from taking Proceedings in any other
jurisdiction, whether concurrently or not.
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24.4 WAIVER OF INCONVENIENT FORUM
The Chargor irrevocably waives any objection which it may at any time have
to the laying of the venue of any Proceedings in any court referred to in
this Clause 24 (Governing Law and Jurisdiction) and any claim that any
such Proceedings have been brought in an inconvenient forum.
24.5 SERVICE
The Chargor irrevocably consents to any process in any Proceeding anywhere
being served by mailing a copy by post in accordance with Clause 22
(Notices). Nothing shall affect the right to serve any process in any
other manner permitted by law.
24.6 WAIVER OF IMMUNITIES
To the extent that the Chargor has or hereafter may acquire any immunity
(sovereign or otherwise) from any legal action, suit or proceeding, from
jurisdiction of any court or from set-off or any legal process (whether
service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) with respect to
itself or any of its property, the Chargor hereby irrevocably waives and
agrees not to plead or claim such immunity in respect of its obligations
under this Deed.
25 OTHER SECURITY ETC.
25.1 If the Security Trustee is obliged for any reason whatsoever to repay,
whether to the Chargor or any other person, any amount received, recovered
or applied by the Security Trustee in or towards satisfaction of the
Secured Obligations, the liability of the Chargor for such Secured
Obligations shall not be satisfied by such receipt, recovery or
application, and the same shall remain due and payable by the Chargor as
part of the Secured Obligations and secured by this Deed accordingly.
26 MISCELLANEOUS
26.1 The Security Trustee may act under this Deed through any of its branches
or offices.
26.2 The Chargor hereby irrevocably consents to the disclosure by the Security
Trustee and the Finance Parties of such information about the Chargor as
has been made available to them following, other than in the case of
paragraphs (ii) and (vi) below, the execution of a confidentiality
agreement in agreed form by the following parties, to (i) any of their
head office, representative and branch offices and any of their related
corporations in any jurisdiction (ii) any authority including without
limitation any central bank or other fiscal or monetary authority in any
jurisdiction (iii) any potential assignee or transferee in respect of
their rights and/or obligations under or in connection with this Deed (iv)
any other party which the Security Trustee and the Finance Parties
determine it is in their interests to do so or (vi) any other party to
whom the Security Trustee and the Finance Parties are permitted by laws in
the applicable jurisdiction to make such disclosure to.
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[Asia Netcom Corporation Debenture]
26.3 It is intended that this document takes effect as a deed notwithstanding
the fact that a party may only execute this document under hand.
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered by the Chargor as its deed on the day and
year first above written.
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[Asia Netcom Corporation Debenture]
SCHEDULE 1
PROPERTIES
Asia Netcom Corporation Limited has no properties at the date of this Deed.
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[Asia Netcom Corporation Debenture]
SCHEDULE 2
BANK ACCOUNTS
Name of Bank Account Holder : Asia Netcom Corporation Ltd
Bank Name : Industrial and Commercial Bank of China (Asia) Ltd
Bank Branch : Central, Hong Kong.
Bank Account Number : 01-56-00607-5
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[Asia Netcom Corporation Debenture]
SCHEDULE 3
DETAILS OF SHARES
NAME OF CHARGOR NAME OF COMPANY DETAILS OF SHAREHOLDING
--------------- --------------- -----------------------
ASIA NETCOM SERVICES (S) NIL NIL
PTE. LTD.
ASIA NETCOM CORPORATION Asia Netcom Australia 100,000 shares of A$1.00 each
(SINGAPORE) PTE. LTD. Pty Ltd 87,573 shares of A$600 each
Asia Netcom Japan Corp. 4,800 shares of Yen50,000
each
Asia Netcom Tsushin Corp. 200 shares
Asia Netcom Korea Ltd. 882,000 shares of Won5,000
each
Asia Netcom Holdings 19,600 shares at Baht5 each
(Thailand) Ltd
Saturn Global Network 507,097 shares of GBP1.00
Services Holdings Limited each
Asia Netcom USA, Inc. 1 share of US$1.00 each
China Netcom (Hong 999 shares of HK$1.00 each
Kong) Operations Limited
China Netcom (USA) 1,000 shares of US$50 each
Operations Limited
Asia Netcom (UK) Limited 5,000 shares of GBP1.00
each
South Asia ANC 499,993 shares of Peso1.00
Philippines Services Inc each
Asia Netcom Services 2 shares of RM1.00 each
Sdn Bhd
Asia Netcom Singapore 2 shares of S$1.00 each
Pte. Ltd.
Asia Netcom Services (S) 13,975,691 shares of S$1.00
Pte. Ltd. each
ASIA NETCOM SINGAPORE Asia Netcom India Private 722,973 shares of Rs10 each
PTE. LTD. Limited
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[Asia Netcom Corporation Debenture]
Southeast Asia Netcom 2,356,780 shares of S$1.00
(Singapore) Pte. Ltd. each
SOUTHEAST ASIA NETCOM NIL NIL
(SINGAPORE) PTE. LTD.
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[Asia Netcom Corporation Debenture]
SIGNATURE PAGE
THE CHARGOR
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly authorised attorney )
Xxxx, Xxxxx-Chi ) /s/ Xxxx, Xxxxx-Chi
for and on behalf of )
ASIA NETCOM CORPORATION LIMITED )
in the presence of:- )
/s/ Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxx
Solicitor
XXXXXXXX XXXXXX
00/X Xxxxxxxxx Xxxxx
Xxxx Xxxx SAR
SECURITY TRUSTEE
SIGNED by )
Xxxx Xxx, Xxxxxx Xxx ) /s/ Xxxx Xxx /s/ Xxxxxx Xxx
for and on behalf of )
INDUSTRIAL AND COMMERCIAL )
BANK OF CHINA (ASIA) LIMITED )
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