Contract
EXHIBIT
10.9
DATED
December __, 0000
XXX-XXXX
LTD. (1)
and
SILICON
VALLEY BANK (2)
_______________________________
_______________________________
Solicitors
Xxxxxxxx
Xxxxx
0-00
Xxxx Xxxxxx Xxxxxx X0X 0XX DX: 44627 MAYFAIR
Tel:
x00 (0) 00 0000 0000 Fax: x00 (0) 00 0000 0000 Web:
xxxxxx.xxx
THIS DEBENTURE
is 2009
and made
BETWEEN:
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(1)
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GTT-EMEA LTD., a company
incorporated and registered in England and Wales under company number
03580993, whose registered office is at Fifth Floor, Xxxxxx House, 00
Xxxxxxx Xxxxxxx, Xxxxxx XX0X 0XX (“the Chargor”);
and
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(2)
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SILICON VALLEY BANK, a
California chartered bank, with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, X.X.X. (“the Bank”).
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WHEREAS:
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(A)
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The
Bank has agreed to make available jointly to the Chargor, Global Telecom
& Technology, Inc (a company incorporated and registered in the State
of Delaware, U.S.A. which is the parent company of the Chargor) (“GTTI”), Global Telecom
& Technology Americas, Inc (a company incorporated and registered in
the State of Virginia, U.S.A. which is a subsidiary of GTTI) (“GTTA”) and WBS Connect
LLC (a company incorporated in the State of Colorado, U.S.A.) (“WBS”), under the terms
of a second amended and restated loan and security agreement entered into
on the date of this Debenture between the Bank, GTTI, GTTA, WBS and the
Chargor (“the Loan and
Security Agreement”), a revolving loan facility of a maximum amount
of $6,250,000 (six million two hundred and fifty thousand US dollars)
increasing to $10,000,000 (ten million dollars) upon an Increase Event (as
defined in the Loan and Security Agreement) (“the Facility”).
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(B)
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It
is a condition precedent to the availability of the Facility that the
Chargor enters into this Debenture.
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WITNESSES
as follows:
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1.
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Definitions
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In
this Debenture:
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“Permitted
Encumbrance” means:
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(i)
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Permitted
Liens (as defined in the Loan and Security
Agreement);
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(ii)
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Rental
Deposit Agreement dated 8 June 2004 in favour of Xxxxx Xxxx, Xxxx Xxxxxx
Xxxxxx Xxxxx, Xxxx Xxxxxxx and Xxxx Xxxxxx Xxxxx Xxxxxxxx;
and
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(iii)
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Rent
Deposit Agreement dated 1 June 2009 in favour of Price Waterhouse Coopers
LLP.
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1
2. Covenant
to pay
The
Chargor covenants to pay and discharge to the Bank, when the same shall be or
become due, all monies obligations and liabilities whatsoever whether for
principal, interest (to the date of discharge in full) or otherwise in whatever
currency which may now or at any time in the future be due owing or incurred
(whether actual or contingent and whether alone, severally or jointly or as
principal, guarantor, surety or otherwise and in whatever name or style) by the
Chargor to the Bank under the terms of the Loan and Security Agreement
(including any amendment or renewal thereof) or under the terms of any of the
other Loan Documents (as defined in the Loan and Security
Agreement).
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3.
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Charge
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3.1.
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The
Chargor, with full title guarantee and as a continuing security for the
payment or discharge of all monies obligations and liabilities covenanted
to be paid or discharged by the Chargor under this Debenture together with
all reasonable costs and expenses incurred by the Bank in relation to this
Debenture or the monies obligations and liabilities hereby secured, hereby
charges:
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3.1.1.
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by
way of first fixed charge:
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3.1.1.1.
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all
freehold leasehold and other immovable property now or in the future
belonging or charged to the Chargor together with all buildings, trade and
other fixtures, fixed plant and machinery of the Chargor from time to time
thereon and the proceeds of sale
thereof;
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3.1.1.2.
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all
equipment plant machinery vehicles tools furniture fittings computers and
other tangible moveable property now or in the future belonging to the
Chargor (or rights to use any of the same) and the full benefit of any
warranties or maintenance contracts for any of the
same;
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3.1.1.3.
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all
present and future book debts and other debts and other monies due owing
payable or incurred to the Chargor now or in the future (“the Debts”) and
the benefit of any guarantees, indemnities or other assurances in respect
of the Debts and the proceeds of payment or realisation of each of the
Debts until the payment of such proceeds into the separate bank account
mentioned in clause 5.2.5 below;
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3.1.1.4.
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all
funds standing to the credit of the Chargor from time to time on any
account with the Bank or any other bank or financial institution and all
rights deriving therefrom (including the right to
interest);
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3.1.1.5.
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all
stocks shares and other securities now or in the future belonging to the
Chargor together with all dividends and other rights deriving
therefrom;
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3.1.1.6.
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all
bills of exchange promissory notes and negotiable instruments of any
description now or in the future beneficially owned by the
Chargor;
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3.1.1.7.
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all
the goodwill of the Chargor and its uncalled capital for the time
being;
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3.1.1.8.
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all
rights and interests in and claims under all policies of insurance and
assurance held or to be held by or inuring to the benefit of the Chargor
and the benefit of all rights and claims to which the Chargor is now or
may be entitled under any
contracts;
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3.1.1.9.
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the
benefit of all licences, consents and authorisations held or utilised by
the Chargor now or in the future in connection with its business or the
use of any of its assets; and
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3.1.1.10.
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the
benefit of all patents patent applications inventions trade marks service
marks designs and trade names copyright know-how and other intellectual
property rights and all fees royalties and other rights of every kind
deriving therefrom now or in the future belonging to the Chargor;
and
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3.1.2.
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by
way of first floating charge the whole of the Chargor’s undertaking and
all its property and assets whatsoever and wheresoever present and future
other than the property and assets from time to time effectively charged
to the Bank by way of fixed charge by this
Debenture.
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3.2.
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The
Bank may, in its sole discretion, convert the floating charge created by
clause 3.1.2 at any time by notice in writing to the Chargor into a fixed
charge as regards all of the property and assets which for the time being
are the subject of such floating charge or, as the case may be, such of
the said property and assets as are specified by such
notice. The floating charge created by clause 3.1.2 shall
subject to the provisions of Paragraph 43 of Schedule B1 to the Insolvency
Xxx 0000 and unless otherwise agreed in writing by the Bank automatically
and without notice immediately be converted into a fixed charge in the
event that the Chargor shall create or permit to subsist any mortgage
charge pledge lien or other security interest other than this Debenture or
if any person takes any step to levy any distress attachment execution or
other legal process against any of the said property or
assets.
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3.3.
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Paragraph
14 of Schedule B1 to the Insolvency Xxx 0000 applies to the floating
charge created by clause 3.1.2 of this Debenture which is a “qualifying
floating charge” for the purposes of paragraph 14(1) of Schedule B1 to the
Insolvency Xxx 0000.
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3.4.
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The
security from time to time constituted by or pursuant to this Debenture
shall be in addition to and shall not prejudice determine or affect any
other security which the Bank may from time to time hold for or in respect
of all or any part of the monies obligations and liabilities hereby
secured. No prior security held by
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the Bank
over the property charged by this Debenture or any part of it shall merge in the
security created hereby or pursuant hereto which will remain in force and effect
as a continuing security until discharged by the Bank.
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4.
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Restrictions
on Dealing
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4.1.
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The
Chargor shall not without the prior written consent of the
Bank;
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4.1.1.
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create
or permit to subsist any mortgage charge (fixed or floating) pledge lien
(other than a lien arising by operation of law) or other security interest
on any of its assets other than this Debenture and Permitted
Encumbrances;
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4.1.2.
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other
than in respect of Permitted Indebtedness and Permitted Investments (as
defined in the Loan and Security Agreement) and other than as otherwise
specifically permitted in the Loan and Security Agreement sell transfer
lease lend or otherwise dispose of the whole or any part of its
undertaking or (save in the normal course of trading at not less than
market value) of its assets or enter into any agreement or grant any
option for any such sale transfer lease loan or other
disposal;
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4.1.3.
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part
with possession of any freehold or leasehold property grant or agree to
grant any option or any licence tenancy or other right of occupation to
any person or exercise the powers of leasing or agreeing to lease or of
accepting or agreeing to accept surrenders conferred by Sections 99 and
100 of the Law of Property Xxx 0000 provided that such restrictions shall
not be construed as a limitation on the powers of any receiver appointed
under this Debenture and being an agent of the Chargor and the Bank may
grant or accept surrenders of leases without restriction at any time after
the Bank shall have demanded the payment or discharge of any of the monies
obligations and liabilities hereby secured;
and
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4.1.4.
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pull
down or remove or redevelop or make any material alteration to the whole
or any part of any buildings or sever unfix or remove any fixtures or
remove any plant or machinery belonging to or in use by the Chargor except
for the purpose of effecting repairs or replacing the
same.
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5.
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Representations,
Warranties and Covenants by the
Chargor
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5.1.
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The
Chargor represents and warrants to the Bank and undertakes
that:
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5.1.1.
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it
has and will at all times have the necessary power and authority to enter
into and perform its obligations under this
Debenture;
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5.1.2.
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this
Debenture constitutes its legal valid binding and enforceable obligations
and is a security over the relevant assets of the Chargor effective in
accordance with its terms;
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5.1.3.
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all
necessary authorisations and consents to enable or entitle it to enter
into this Debenture and to enable it to carry on its business as it is
currently being
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conducted
have been obtained and will remain in full force and effect during the
subsistence of the security constituted by this Debenture;
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5.1.4.
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no
Event of Default under Article 8 of the Loan and Security Agreement has
occurred and/or is continuing and, so far as the Chargor is aware, no
event has occurred which with the giving of notice or lapse of time or
both would constitute such an
event;
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5.1.5.
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there
are no legal proceedings pending or threatened before any court or
tribunal which will adversely affect the Chargor’s financial
situation;
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5.1.6.
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there
are no other mortgages charges (fixed or floating) pledges liens or other
security interests affecting any of the Chargor’s assets existing at the
date of this Debenture (other than Permitted
Encumbrances);
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5.1.7.
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the
Chargor is not insolvent (as defined in the Insolvency Act 1986) at the
date of this Debenture; and
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5.1.8.
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all
information supplied by the Chargor or its agents to the Bank or its agent
on or prior to the date of this Agreement was at the time supplied and
remains at the date of this Debenture true, complete and accurate in all
respects.
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5.2.
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The
Chargor warrants with the Bank to:
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5.2.1.
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keep
all buildings and all vehicles plant machinery fixtures and fittings owned
by the Chargor in good repair and condition and permit any person or
persons nominated by the Bank free access at all reasonable times to view
the state and condition thereof;
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5.2.2.
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insure
and keep insured such of its property as is insurable with such insurer
and against such risks and in such amounts and otherwise in such terms as
the Bank may require and will maintain such other insurances as are
normally maintained by prudent companies carrying on similar businesses
with the interest of the Bank noted upon all policies of such insurance
or, if the Bank shall require and if it is reasonably practicable to do
so, in the joint names of the Chargor and the Bank and the Chargor will
deposit with the Bank all such policies and receipts for all premium and
other payments necessary for effecting and maintaining such
insurances;
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5.2.3.
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apply
any insurance proceeds in making good the loss or damage or at the Bank’s
option in or towards the discharge of the monies obligations and
liabilities secured by this
Debenture;
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5.2.4.
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punctually
pay all rents taxes duties assessments debts and other outgoings and
observe and perform all restrictive and other covenants under which any of
the property subject to this Debenture is
held;
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5.2.5.
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(unless
and until otherwise instructed by the Bank pursuant to the provisions of
the Loan and Security Agreement or otherwise) pay or procure the payment
of all monies which it may receive in respect of the Debts only into a
separate bank account with the Royal Bank of Scotland where the monies
therein are held on trust for the Bank and until payment into such an
account the Chargor shall in any event hold all such monies on trust for
the Bank;
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5.2.6.
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not
allow the bank account mentioned in clause 5.2.5 or any other bank account
into which such monies are paid to become
overdrawn;
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5.2.7.
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deal
with the Debts (and the proceeds thereof) in accordance with clause 5.2.5
and in accordance with any directions from time to time given in writing
by the Bank and in default of and subject to any such directions deal with
the same only in the ordinary and proper course of its trading business
(and for this purpose the realisation of debts by means of block
discounting factoring or the like shall not be regarded as dealing in the
ordinary and proper course of its trading
business);
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5.2.8.
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at
any time after this Debenture has become enforceable immediately at the
request of the Bank execute a legal assignment (in such form as the Bank
may require) of any of the Debts to the Bank, give notice thereof to the
relevant debtor(s) and take such other steps as the Bank may require to
perfect such legal assignment;
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5.2.9.
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at
any time after this Debenture has become enforceable deal with all licence
fees royalties and other monies deriving from its intellectual property in
accordance with any directions from time to time given in writing by the
Bank;
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5.2.10.
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subject
to the rights of any prior mortgagee and upon the request of the Bank
deposit with the Bank all deeds certificates and documents constituting or
evidencing title to the property or any part thereof charged by this
Debenture (including without limitation all certificates or other
documents of title relating to all stocks shares and other securities now
or in the future belonging to the Chargor) and all insurance
policies;
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5.2.11.
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comply
with the provisions of all present or future statutes and directives and
every notice order direction licence consent or permission given or made
under any of the foregoing and the requirements of any competent authority
so far as any of the same shall relate to its assets or their use or
anything done on any property belonging to or occupied by the
Chargor;
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5.2.12.
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provide
the Bank with all financial and other information with respect to the
assets, liabilities and affairs of the Chargor and its subsidiaries and
associated companies (if any) that the Bank may from time to time require
subject always to the Bank adhering to any general duties of
confidentiality implied by law and the provisions of Section 12.8 of the
Loan and Security Agreement in respect of such
information.
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5.3.
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If
the Chargor shall fail to satisfy the Bank that it has performed any of
its obligations under clause 5.2 then the Bank may take such steps as it
considers appropriate to procure the performance of such obligation and
shall not thereby be deemed to be a mortgagee in possession and the monies
expended by the Bank shall be reimbursed by the Chargor on demand on a
full indemnity basis and be secured on the property charged by this
Debenture.
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6.
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Enforcement
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6.1.
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This
Debenture shall become enforceable:
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6.1.1.
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upon
the occurrence of any Event of Default under Article 8 of the Loan and
Security Agreement which is continuing;
or
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6.1.2.
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upon
the presentation of a petition for the winding up of the Chargor the
making of an order for the winding up of the Chargor or the passing by the
Chargor of a resolution for voluntary winding up save where the winding-up
petition is frivolous or vexatious and is discharged, stayed or dismissed
within fourteen (14) days of commencement;
or
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6.1.3.
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if
an encumbrancer shall take possession of or a receiver shall be appointed
over or any secured creditor of the Chargor shall seek to enforce its
security in respect of all or any of the property or assets charged by
this Debenture; or
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6.1.4.
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if
a petition is presented or if the Chargor or its directors resolve to
present a petition for an administration order in relation to the Chargor
or if an administration application is made or filed in relation to the
Chargor if a notice of intention to appoint an administrator in relation
to the Chargor is given or if any notice of appointment of an
administrator in relation to the Chargor is made or filed;
or
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6.1.5.
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if
the Chargor shall enter into any composition or arrangement for the
benefit of its creditors.
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6.2.
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Section
103 of the Law of Property Xxx 0000 shall not apply and the statutory
power of sale and all other powers under that or any other Act as varied
or extended by this Debenture shall arise on and be exercisable at any
time after the Bank shall have demanded the payment or discharge by the
Chargor of all or any of the monies obligations and liabilities secured by
this Debenture.
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6.3.
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Section
93 of the Law of Property Xxx 0000 dealing with the consolidation of
mortgages shall not apply to this
Debenture.
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7.
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Receiver
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7.1.
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At
any time after this Debenture has become enforceable or if the Chargor so
requests in writing the Bank may without further notice to the Chargor
appoint by writing under hand or under seal any one or more persons either
singly jointly
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severally
or jointly and severally to be a receiver, receiver and manager or
administrative receiver (each a “Receiver”) of all or any part or parts of the
property charged by this Debenture and either at the time of appointment or any
time thereafter may fix his or their remuneration and except as otherwise
required by statute may remove any such Receiver and appoint another or others
in his or their place. This clause shall operate subject to the
provisions of Paragraph 43 of Schedule B1 to the Insolvency Xxx
0000.
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7.2.
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Any
Receiver shall be the agent of the Chargor and the Chargor alone shall be
responsible for such agent’s acts and defaults and liable under any
contracts or engagements made or entered into by such agent and the Bank
shall in no way be responsible for such agent’s misconduct, negligence or
default.
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7.3.
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The
remuneration of any Receiver shall form part of the sums secured under
this Debenture and accordingly shall be secured on such part of the
property charged by the debenture in respect of which he has been
appointed.
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7.4.
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Any
Receiver shall have all the powers conferred by the Law of Property Xxx
0000 and the Insolvency Xxx 0000 on mortgagors mortgagees in possession
(but without liability as such) receivers administrative receivers and
administrators appointed under those Acts which in the case of joint
receivers may be exercised either jointly or severally. In addition, but
without prejudice to the generality of the foregoing the Receiver shall
have power (in the name of the Chargor or otherwise and in such manner and
on such terms and conditions as he shall think fit)
to:
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7.4.1.
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take
possession of collect and get in all or any part of the property (or
related rents or income) in respect of which he is appointed and for that
purpose to take any proceedings;
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7.4.2.
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carry
on or concur in carrying on the business of the Chargor and to raise money
from the Bank or others on the security of any property charged by this
Debenture;
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7.4.3.
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purchase
or acquire any land and purchase, acquire and grant any interest in or
right over land;
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7.4.4.
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sell
or concur in selling let or concur in letting and terminate or accept
surrenders of leases or tenancies of any of the property charged by this
Debenture in respect of which he has been appointed and to carry any such
transactions into effect;
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7.4.5.
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sell,
assign let or otherwise dispose of or concur in selling, assigning,
letting or otherwise disposing of all or any of the debts and any other
property in respect of which he is
appointed;
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7.4.6.
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make
any arrangement or compromise or enter into any contracts between the
Chargor and any other person which he may think
expedient;
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7.4.7.
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make
and effect all repairs improvement and
insurances;
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7.4.8.
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purchase
materials tools equipment goods or
supplies;
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7.4.9.
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call
up any uncalled capital of the Chargor with all the powers conferred by
the Articles of Association of the Chargor in relation to
calls;
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7.4.10.
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employ
engage and appoint managers and other employees and `professional
advisers;
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7.4.11.
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do
all such other acts and things as may be considered to be incidental or
conducive to any other matters or powers aforesaid or to the realisation
of the security constituted by this Debenture and which he lawfully may or
can do.
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8.
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Application
of Proceeds
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8.1.
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The
provisions of Section 109(6) and (8) of the Law of Property Xxx 0000 shall
not apply and any monies received by the Bank or any Receiver shall
subject to the repayment of any claims having priority to the charges
created by this Debenture be applied in the following order but without
prejudice to the right of the Bank to recover any shortfall from the
Chargor:
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8.1.1.
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in
the payment of all costs charges and expenses of and incidental to the
appointment of the Receiver and the exercise of all or any of his powers
and of all outgoings paid by him;
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8.1.2.
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in
the payment of the Receiver’s
remuneration;
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8.1.3.
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in
or towards payment of any debts or claims which are by statute payable in
preference to money secured by this
Debenture;
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8.1.4.
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in
or towards the satisfaction of the monies obligations and liabilities
secured by this Debenture in such order as the Bank in its absolute
discretion thinks fit;
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8.1.5.
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in
payment of the surplus (if any) to the person or persons entitled to
it.
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8.2.
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All
monies received recovered or realised by the Bank under this Debenture may
be credited at the discretion of the Bank to any suspense or impersonal
account and may be held in such account for so long as the Bank shall
think fit pending its application from time to time in or towards the
discharge of any of the monies obligations and liabilities secured by this
Debenture.
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9.
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Protection
of Third Parties
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No person
dealing with a Receiver or the Bank shall be concerned to enquire whether any
power which he or it is purporting to exercise has become exercisable or whether
any money is due under this Debenture or as to the application of any money paid
raised or borrowed or as to the propriety or
9
regularity
of any sale by or other dealing with such Receiver or the Bank. All the
protection to purchasers contained in Sections 104 and 107 of the Law of
Property Xxx 0000 shall apply to any person purchasing from or dealing with a
Receiver or the Bank.
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10.
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Entry
into Possession
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If the
Bank or any Receiver shall enter into possession of the property hereby charged
or any part thereof it or he may from time to time and at any time go out of
such possession. Neither the Bank nor any Receiver shall in any circumstances
(either by reason of any entry into or taking of possession of any such property
or for any other reason and whether as mortgagee in possession or on any other
basis) other than its gross negligence or wilful misconduct be liable to account
to the Chargor for anything except its or his actual receipts or be liable to
the Chargor for any loss or damage arising from any realisation of the property
hereby charged or from any act default or omission in relation
thereto.
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11.
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Power
of Attorney
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The
Chargor irrevocably appoints the Bank any Receiver and any person nominated by
the Bank jointly and also severally to be the attorney of the Chargor with the
power of substitution and in its name and otherwise on its behalf and as its act
and deed, regardless of whether this Debenture has become enforceable, to sign
or execute all deeds instruments and documents which the Bank or any Receiver
may deem necessary or expedient, as determined solely and exclusively by the
Bank, to protect or preserve the Bank’s rights and remedies under this
Debenture, as directed by the Bank. The Chargor agrees to ratify and confirm
anything such attorney shall lawfully and properly do in accordance with this
provision.
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12.
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Appointment
of Administrator
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The
Bank may without notice to the Chargor appoint any one or more persons to
be an administrator of the Chargor pursuant to paragraph 14 of Schedule B1
of the Insolvency Xxx 0000 if this debenture becomes
enforceable.
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take
effect, in accordance with paragraph 19 of Schedule B1 of the Insolvency
Xxx 0000, when the requirements of paragraph 18 of Schedule B1 of the
Insolvency Xxx 0000 are satisfied.
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12.3.
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The
Bank may (subject to any necessary approval from the court) end the
appointment of an Administrator and under this clause 12 appoint a
replacement for any Administrator whose appointment ends for any
reason.
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13.
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Currency
Indemnity
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If for
the purposes of obtaining judgment in any court in any jurisdiction with respect
to this Debenture it becomes necessary to convert into the currency of such
jurisdiction ("the Judgment Currency") any amount due under this Debenture in
any currency other than the Judgment Currency, then conversion shall be made at
the rate of exchange prevailing on the Business Day (as defined in the Loan and
Security Agreement) before the day on which judgment is given. For this
purpose "rate of exchange" means the spot rates at which the Bank will on the
relevant date at or about 12 noon UK time sell such currency against the
Judgment Currency. In the event that there is a change in the rate of
exchange prevailing between the Business Day before the day on which the
judgment is given and the date of payment of the amount due, the Chargor will on
the date of payment pay such additional amounts (if any) as may be necessary to
ensure that the amount paid on such date is the amount in the Judgment Currency
which when converted at the rate of exchange prevailing on the date of payment
is the amount then due under this Debenture in such other currency. Such
additional amounts (if any) payable under this Clause will be due as a separate
debt and shall not be affected by judgment being obtained for any other sums due
under or in respect of this Debenture.
|
14.
|
New
Accounts
|
If the
Bank shall at any time receive actual or constructive notice of any charge or
other interest affecting any part of the property hereby charged then the Bank
may open a new account or accounts for the Chargor and if the Bank does not do
so then the Bank shall be treated as if it had in fact done so at the time when
it received or was deemed to receive notice and as from that time all payments
made by the Chargor to the Bank shall be credited or treated as having been
credited to the new account and shall not operate or reduce the amount secured
by this Debenture at the time when the Bank received or was deemed to have
received such notice.
|
15.
|
Further
Assurance
|
The
Chargor shall at its own cost whenever requested by the Bank immediately execute
and sign all such deeds and documents and do all such things as the Bank may
require for the purpose of perfecting or more effectively providing security to
the Bank for the payment and discharge of the monies obligations and liabilities
secured by this Debenture or to facilitate the realisation of the property and
assets mortgaged and charged by this Debenture or the exercise of any rights
vested in the Bank or any Receiver.
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16.
|
Set-off
|
The Bank
may at any time after this Debenture has become enforceable and without notice
to the Chargor combine or consolidate all or any of the Chargor’s
11
then
existing accounts with and liabilities to the Bank and set off or transfer any
sum or sums standing to the credit of any one or more of such accounts in or
towards satisfaction of any of the liabilities of the Chargor to the Bank on any
other account or in any other respects. The Bank shall notify the
Chargor that such a transfer has been made.
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17.
|
Costs
and Indemnity
|
|
17.1.
|
All
costs and expenses incurred by the Bank in relation to this Debenture or
the monies obligations and liabilities hereby secured including without
limitation and for the avoidance of doubt all amounts the Bank may from
time to time require to compensate it for his internal management and
administrative costs and expenses shall be reimbursed by the Chargor to
the Bank on demand on a full indemnity basis and until so reimbursed shall
carry interest at the rate of 3 per cent above the base rate of Barclays
Bank Plc from time to time from the date of demand to the date of
reimbursement and be secured on the property charged by this
Debenture. A certificate signed by the Bank as to the amount of
such costs and expenses shall be conclusive and binding upon the
Chargor.
|
|
17.2.
|
The
Bank and every Receiver attorney or other person appointed by the Bank
under this Debenture and their respective employees (“the Indemnified
Persons”) shall be entitled to be indemnified on a full indemnity basis
out of the property charged by this Debenture in respect of all
liabilities and expenses incurred by any of them in or directly or
indirectly as a result of the exercise or purported exercise of any of the
powers authorities or discretions vested in them under this Debenture and
against all actions proceedings losses costs claims and demands (save
where the same is due to the gross negligence or wilful misconduct of any
of the Indemnified Persons) in respect of any matter or thing done or
omitted in any way relating to the property charged by this Debenture and
the Bank and any such Receiver may retain and pay all sums in respect of
the same out of the monies received under the powers conferred by this
Debenture.
|
|
18.
|
Miscellaneous
|
|
18.1.
|
The
Bank may without discharging or in any way affecting the security created
by this Debenture or any remedy of the Bank grant time or other indulgence
or abstain from exercising or enforcing any remedies securities guarantees
or other rights which it may now or in the future have from or against the
Chargor and may make any arrangement variation or release with any person
or persons without prejudice either to this Debenture or the liability of
the Chargor for the monies obligations and liabilities secured by this
Debenture.
|
|
18.2.
|
The
Bank shall have a full and unfettered right to assign the whole or any
part of the benefit of this Debenture and the expression ‘the Bank’ shall
include its successors and assigns and the Bank shall be entitled to
disclose any information relating to the Chargor and/or its obligations
and liabilities under this Debenture and/or under the Loan and Security
Agreement and/or under any of the
other
|
12
Loan
Documents (as defined in the Loan and Security Agreement) to any actual or
prospective assignee successor or participant.
|
18.3.
|
The
Chargor shall not and shall not purport to assign, transfer or otherwise
dispose of any of its rights or obligations under this
Debenture.
|
|
18.4.
|
The
provisions of this Debenture shall be severable and if at any time any one
or more such provisions is or becomes invalid illegal or unenforceable the
validity legality and enforceability of the remaining provisions shall not
in any way be impaired.
|
|
18.5.
|
The
rights and remedies of the Bank provided by this Debenture are cumulative
and are not exclusive of any rights powers or remedies provided by law and
may be exercised from time to time and as often as the Bank may deem
expedient.
|
|
18.6.
|
Any
reference in this Debenture to any statute or any section of any statute
shall be deemed to include reference to any statutory modification or
re-enactment thereof for the time being in
force.
|
|
18.7.
|
A
person who is not a party to this Debenture has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Debenture but this does not affect any right or remedy of a third party
which exists or is available apart from that
Act.
|
|
19.
|
Communications
|
|
19.1.
|
Every
notice demand or other communication under this Debenture shall be in
writing and may be delivered personally or by letter or facsimile
transmission dispatched as follows:
|
(a) if
to the Bank to:
|
Address:
|
Silicon
Valley Bank
0000
Xxxxxxxxxx Xx.
Xxx
Xxxxxx Xxxxxxxxx Xxxx, Xxx 000
Xxxxxx,
XX 00000-0000, U.S.A
|
|
|
Fax
No.
|
(001)
(000) 000-0000
|
|
|
For
the Attention of:
|
Xxxxxxxxx
Xxxxxx
|
(b) if
to the Chargor:
|
Address:
|
c/o
Global Telecom & Technology, Inc
0000
Xxxxxxxx Xxxxx, Xxxxx 000
XxXxxx,
XX 00000, U.S.A
|
|
|
Fax
No.
|
(001)
(000) 000-0000
|
|
|
For
the Attention of:
|
Chief
Financial Officer
|
13
or such
other address or facsimile number as may be notified in accordance with this
clause by the relevant party to the other party for such purpose.
|
19.2.
|
Every
notice demand or other communication shall be deemed to have been received
(if sent by post) 24 hours after being posted first class postage prepaid
(if posted from and to an address within the United Kingdom) or 5 working
days after being posted prepaid airmail (if posted from or to an address
outside the United Kingdom) and (if delivered personally or by facsimile
transmission) at the time of delivery or dispatch if during normal
business hours on a working day in the place of intended receipt and
otherwise at the opening of business in that place on the next succeeding
such working day.
|
|
19.3.
|
The
Bank and any Receiver may but shall not be obliged to rely upon and act in
accordance with any communication which may be or purport to be given by
telephone or facsimile transmission on behalf of the Chargor by any person
notified to the Bank by the Chargor as being authorised to give such
communication without enquiry as to the authority and identity of the
person making or purporting to make such communication. The
Chargor shall indemnify and keep the Bank or any Receiver indemnified on a
full indemnity basis against all losses, claims, actions, proceedings,
damages, costs and expenses incurred or sustained by the Bank as a result
of relying upon or acting in accordance with any such
communication.
|
|
19.4.
|
All
notices, demands or other communications under or in connection with this
Debenture shall be in English.
|
|
20.
|
Governing
Law and Jurisdiction
|
|
20.1.
|
This
Debenture and all disputes or claims arising out of or in connection with
it or its subject matter or formation (including non-contractual disputes
or claims) shall be governed by and construed in accordance with the laws
of England and Wales.
|
|
20.2.
|
The
parties to this Debenture irrevocably agree that, subject as provided
below, the courts of England and Wales shall have exclusive jurisdiction
to settle any dispute or claim that arises out of or in connection with
this Debenture or its subject matter or formation (including
non-contractual disputes or claims). Nothing in this clause 20 shall limit
the right of the Bank to take proceedings against the Chargor in any other
court of competent jurisdiction, nor shall the taking of proceedings in
any one or more jurisdictions preclude the taking of proceedings in any
other jurisdictions, whether concurrently or not, to the extent permitted
by the law of such other
jurisdiction.
|
|
21.
|
Certificate
|
The
Chargor certifies that neither its entry into the Loan and Security Agreement
nor its entry into this Debenture contravenes its Memorandum and Articles of
Association or any regulations, restrictions, conditions or stipulations
affecting
14
the
charged property and that both the Loan and Security Agreement and this
Debenture have been executed in accordance with such constitutional documents
and other factors.
|
22.
|
Land
Registry Restriction
|
Insofar
as the title to any leasehold or freehold property comprised in the property
charged under this Debenture is registered, the Chargor hereby applies to the
Registrar for a restriction in the following terms to be entered on the
register:
“Except
under an Order of the Registrar no disposition of the registered estate by the
proprietor of the registered estate (other than by a prior charge) is to be
registered without a written consent signed by Silicon Valley Bank or by its
solicitors,
[ ]
of
[ ].”
IN WITNESS WHEREOF this
Debenture has been duly executed and delivered as a Deed on the date written at
the beginning of this Deed.
|
EXECUTED AND DELIVERED
as a DEED
by
acting
by Xxxxxxx D CalderJr
a
director in the presence of:-
|
)
)
)
)
)
|
…………………………………………
|
|
Director
|
|
Witness’
signature
|
…………………………
|
|
|
Name
|
…………………………
|
|
|
Address
|
…………………………
|
|
|
…………………………
|
||
|
Occupation
|
…………………………
|
|
EXECUTED AND DELIVERED
as a DEED
on
behalf of SILICON VALLEY
BANK
a
company incorporated in
the
State of California, U.S.A.
by
being
a person who, in accordance
with
the laws of that territory, is acting
under
the authority of the company
|
)
)
)
)
)
)
)
)
|
|
15
