Exhibit 10(z)(6)
DATED JULY 6, 2004
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XXXXXXXX, INC.
AS MORTGAGOR
AND
UNION BANK OF CALIFORNIA, N.A.
AS SECURITY TRUSTEE
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EQUITABLE MORTGAGE OVER
SECURITIES
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XXXXXX XXXX & XXXXXXX
Xxxxxxxx Xxxxx 00 Xx Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX
Telephone x00 000 00 0000 000 Fax x00 000 00 0000 0000
Website X-xxx.xxx.xx.xx DK 155 London CDE
CONTENTS
CLAUSE PAGE
1 INTERPRETATION........................................................... 1
2 CHARGING PROVISIONS...................................................... 4
3 PAYMENT OF THE SECURED OBLIGATIONS....................................... 4
4 REPRESENTATIONS AND WARRANTIES........................................... 4
5 COVENANTS................................................................ 5
6 ENFORCEMENT.............................................................. 9
7 VARIATION AND EXTENSION OF STATUTORY POWERS.............................. 10
8 CONTINUING SECURITY...................................................... 11
9 FURTHER ASSURANCE AND POWER OF ATTORNEY.................................. 12
10 RELEASE OF INVESTMENTS................................................... 13
11 INDEMNITIES.............................................................. 13
12 NO WAIVER................................................................ 14
13 PAYMENTS AND DISCHARGE................................................... 14
14 CURRENCY................................................................. 15
15 NOTICES.................................................................. 16
16 SET-OFF.................................................................. 16
17 TRUSTEE PROVISIONS....................................................... 16
18 COUNTERPARTS............................................................. 22
19 LAW AND JURISDICTION..................................................... 22
SCHEDULE
1 THE SECURITIES........................................................... 25
2 FORM OF NOMINEE UNDERTAKING.............................................. 26
THIS DEED is made on July 6, 2004
BETWEEN:
(1) XXXXXXXX, INC., a Delaware corporation, with offices at 0000 Xxxxx Xxxxxx
Xxxx, Xxxxxxxx, XX 00000, XXX (the "MORTGAGOR"); and
(2) UNION BANK OF CALIFORNIA, N.A. acting through its office at 000 X Xxxxxx,
0xx Xxxxx, Xxx Xxxxx, XX 00000-0000, Mail Code S-420 in its capacity as
security trustee for the Beneficiaries (the "SECURITY TRUSTEE").
WITNESSES as follows:
1 INTERPRETATION
1.1 DEFINITIONS
Throughout this Deed, including the Schedules, the following words
and phrases shall have the following meanings:
ACT: the Law of Property Xxx 0000;
AGREEMENT: the revolving/term loan credit agreement dated on or
about the date of this Deed made between (1) the Mortgagor (2) the
Administrative Agent and (3) the other Lenders Party thereto whereby
it was agreed that there should be made available to the Mortgagor a
revolving credit facility of up to fifty-five million US dollars (US
$55,000,000) upon the terms and conditions contained in it;
BENEFICIARIES: the Administrative Agent, the Agent, the Lenders,
Union Bank of California and the Security Trustee and "BENEFICIARY"
means any one of them;
DERIVATIVE ASSETS: all assets deriving from any of the Securities
including all allotments, accretions, offers, rights, dividends,
interest, income, benefits and advantages whatsoever at any time
accruing, offered or arising in respect of or incidental to any of
the Securities and all stocks, shares, rights, money or property
accruing or offered at any time by way of conversion, redemption,
bonus, preference, exchange, purchase, substitution, option,
interest or otherwise in respect thereof;
EXPENSES: all banking, legal and other costs, charges, expenses
and/or liabilities (including any VAT thereon) paid or, if earlier,
incurred by or on behalf of the Security Trustee and any other
Beneficiary in each case on a full indemnity basis in relation to
any of the Investments, or in protecting, preserving, improving,
considering the enforcement or exercise of or enforcing or
exercising or attempting to enforce or exercise, any rights arising
under or pursuant to any of the Loan Documents, and/or in procuring
the payment, performance or
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discharge of any of the Secured Obligations and including, without
limitation, the principal amount of any borrowings together with
interest thereon and all other expenses and/or liabilities of the
Security Trustee or any other Beneficiary incurred from time to time
in relation to the exercise of any of its rights or powers referred
to in the Loan Documents;
INVESTMENTS: the Securities and the Derivative Assets;
NOMINEE UNDERTAKING: an undertaking substantially in the form set
out in Schedule 2;
SECURED OBLIGATIONS: all monies, obligations and liabilities
(whether present or future, actual or contingent) on the part of the
Mortgagor to any of the Beneficiaries to be paid, performed or
discharged, whether directly or indirectly, under or pursuant to the
terms of any of the Loan Documents and/or in connection with the
loan facility or other financial accommodation from time to time
granted or otherwise made available pursuant thereto, together with
all Expenses and any interest under the terms of this Deed;
SECURITIES: all shares, stocks, debentures, debenture stock, bonds
and securities of any kind whatsoever owned by the Mortgagor
(including rights to subscribe for, convert into or otherwise
acquire the same) whether marketable or otherwise, and all other
interests (including loan capital) of the Mortgagor both present and
future in Xxxxxxxx UK Limited, details of which appear in Schedule 1
and any benefit, entitlement or interest to, in or in relation to
any such Securities;
TRUSTEE ACT: the Trustee Xxx 0000 as amended by the Trustee
Investment Act 1961 and the Trustee Xxx 0000; and
VAT: value added tax or any similar tax substituted therefor.
1.2 CONSTRUCTION
1.2.1 Words and phrases which are not defined or construed in this Deed
but which are defined or construed in the Agreement, the Act or the
Insolvency Xxx 0000 shall be construed as having the meanings
ascribed to them therein. To the extent that there is any
inconsistency between the terms of this Deed and the Agreement, the
terms of the Agreement shall prevail.
1.2.2 In construing this Deed, general words introduced by the word
"OTHER" shall not be given a restrictive meaning by reason of the
fact that they are preceded by words indicating a particular class
of acts, matters or things and general words shall not be given a
restrictive meaning by reason of the fact that they are followed by
particular examples intended to be embraced by the general words. In
addition, the words
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"ANY OF" shall be construed as a reference to any one or more
(including all) of the rights, assets, liabilities or other things
referred to.
1.2.3 The security constituted by, and the rights of the Security Trustee
under, this Deed shall be enforceable notwithstanding any change in
the constitution of the Security Trustee or its absorption in or
amalgamation with any other person or the acquisition of all or part
of its undertaking by any other person.
1.2.4 The headings in this Deed are inserted for convenience only and
shall not affect its construction or interpretation and references
to a clause or Schedule are (unless otherwise stated) to a clause
in, or a Schedule to, this Deed.
1.2.5 Any reference in this Deed to "THIS DEED" or to any other agreement
or document shall, unless the context otherwise requires, be
construed as a reference to this Deed or to such other agreement or
document as the same may from time to time be amended, varied,
supplemented, novated or replaced and shall include any document
which is supplemental to, is expressed to be collateral with, or is
entered into pursuant to or in connection with, the terms of this
Deed or of such other agreement or document.
1.2.6 The illegality, invalidity or unenforceability of any provision of
this Deed under the law of any jurisdiction shall not affect its
validity or enforceability under the law of any other jurisdiction.
1.2.7 This Deed shall constitute a "security agreement", as contemplated
by Section 9.203(b)(3) of the UCC.
1.2.8 Save where the context otherwise requires, the plural of any term
includes the singular and vice versa.
1.2.9 Any reference in this Deed to any statute or statutory provision
shall, unless the context otherwise requires, be construed as a
reference to such statute or statutory provision as in force at the
date of this Deed and as subsequently re enacted or consolidated and
shall also include all instruments, orders and regulations for the
time being made thereunder or deriving validity therefrom.
1.2.10 The terms of this Deed may only be enforced by a party to it and the
operation of the Contracts (Rights of Third Parties) Act 1999 is
excluded.
1.2.11 In this Deed the expressions "THE MORTGAGOR", "THE SECURITY TRUSTEE"
and "A BENEFICIARY" shall, unless the context otherwise requires,
include their respective assignees or successors in title,
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whether immediate or derivative in relation to their respective
interests.
2 CHARGING PROVISIONS
2.1 CHARGE OVER INVESTMENTS
The Mortgagor with full title guarantee and as a continuing security
for the payment and discharge of the Secured Obligations hereby
charges and agrees to mortgage to the Security Trustee the
Investments, provided that:
2.1.1 in the case of any Securities issued and outstanding at any
time, the amount of such Securities which are the subject of
the security constituted by this Deed shall be 65% of any such
Securities at that time; and
2.1.2 in the case of any Derivative Assets relating to any
Securities, the amount of such Derivative Assets which are the
subject of the security constituted by this Deed shall be 65%
of any such Derivative Assets at that time.
2.2 FURTHER ADVANCES
The security constituted by this Deed secures present and further
advances.
3 PAYMENT OF THE SECURED OBLIGATIONS
The Mortgagor hereby covenants to pay, perform and discharge to the
Security Trustee the Secured Obligations on the due date or dates
for payment, performance and discharge or, in the absence of any
such date, forthwith upon any demand made by the Security Trustee.
4 REPRESENTATIONS AND WARRANTIES
The Mortgagor represents and warrants that:
4.1 BENEFICIAL OWNER: it is the sole, absolute and beneficial
owner of the Securities and of all other Investments owned by
it as at the date of this Deed, free and clear from any Lien
other than permitted under the Agreement;
4.2 NO DISPOSALS: except in accordance with the terms of the
Agreement, it has not disposed of any interest in, or granted
any rights (whether of pre-emption or otherwise) over, any of
the Investments nor agreed to do any of the same;
4.3 NO CLAIMS: none of the Investments is the subject of any
claim, assertion, right, action or other restriction or
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arrangement of whatever nature which does or may impinge upon
the ownership of the Investments by the Mortgagor and the
Investments are and will be fully paid up;
4.4 STATUS: it is a corporation duly incorporated and validly
existing under the laws of the State of Delaware, USA and has
the power and authority to own its assets and to conduct the
business and operations which it conducts or proposes to
conduct;
4.5 POWERS AND AUTHORITY: it has full power and authority to enter
into and perform this Deed and has taken all necessary
corporate or other action to authorise the execution, delivery
and performance of this Deed;
4.6 AUTHORISATIONS: all action, conditions and things required by
all applicable laws and regulations to be taken, fulfilled and
done in order to (i) enable it lawfully to enter into,
exercise its rights under and perform and comply with its
obligations under this Deed, (ii) ensure that those
obligations are valid, legally binding and enforceable and
(iii) make this Deed admissible in evidence in England and
Wales and (if different) its jurisdiction of incorporation
have been taken, fulfilled and done (or, in the case of
registrations, will be effected within any applicable required
period);
4.7 NON-VIOLATION: the execution by it of this Deed and the
exercise by it of its rights and performance of or compliance
with its obligations under this Deed do not and will not
violate (i) any law or regulation to which it or any of its
assets is subject or (ii) any agreement to which it is a party
or which is binding on it or any of its assets; and
4.8 OBLIGATIONS BINDING: its obligations under this Deed are
valid, legally binding and enforceable.
5 COVENANTS
5.1 THE INVESTMENTS
The Mortgagor covenants with the Security Trustee that it will:
5.1.1 DEPOSIT OF DOCUMENTS OF TITLE: forthwith upon execution of
this Deed and as soon as practicable following its acquisition
of any Investment, deposit or procure the deposit with the
Security Trustee and permit the Security Trustee to hold and
retain all stock and share certificates and documents of title
relating to each of the Investments mortgaged or charged
pursuant to clause 2.1 of this Deed at such time;
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5.1.2 EXECUTION OF TRANSFERS: forthwith upon execution of this Deed
(in relation to the Investments mortgaged or charged pursuant
to clause 2.1 of this Deed) and as soon as practicable
following its acquisition of any Investment and at any other
time upon request by the Security Trustee, promptly deliver to
the Security Trustee such instruments of transfer (with the
name of the transferee, the consideration and the date left
blank but otherwise duly completed and executed) and other
documents as the Security Trustee may from time to time
require for perfecting its title to any of the Investments
mortgaged or charged pursuant to clause 2.1 of this Deed (duly
executed by or signed on behalf of the registered holder) or
for vesting or enabling it to vest the same in itself or any
of its nominees or in any purchaser provided that, to the
extent that any such Investments are held by any nominee of
the Mortgagor, the provisions of this clause 5.1.2 shall be
satisfied in relation to such Investments if the Security
Trustee receives from such nominee a duly executed Nominee
Undertaking relating to such Investments together with such
instruments of transfer (with the name of the transferee, the
consideration and the date left blank, but otherwise duly
completed and executed) and other documents as the Security
Trustee may from time to time require for perfecting its title
to such Investments and provided also that, in the event of
any transfer being effected, neither the Security Trustee nor
any of its nominees shall be liable for any loss occasioned by
any exercise or non-exercise of rights attached to such
Investments or by any failure to report to the Mortgagor any
notice or other communication received in respect of such
Investments;
5.1.3 NO RESTRICTIONS ON TRANSFER: ensure that the Investments are
at all times free from any restriction on transfer (whether
under any relevant constitutive documents or otherwise) by the
Security Trustee or its nominees to perfect or enforce the
security constituted or intended to be constituted by this
Deed and procure that the board of directors of any company in
which any of the Investments are held approves any transfer of
any of the Investments desired to be made by the Security
Trustee in the exercise of the rights, powers and remedies
conferred upon it by this Deed or by law.
5.1.4 DERIVATIVE ASSETS: upon the accrual, offer or issue of any
Derivative Assets (apart from dividends, interest payments or
other payments of money, as the case may be, forming part of
the Investments) which have not accrued or been offered or
issued to the Security Trustee or its nominees as registered
holder of the Investments to which those Derivative Assets
relate deliver or pay to the Security Trustee (or procure the
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delivery or payment to the Security Trustee of) all such
Derivative Assets and any certificates and other documents of
title to or representing the same together with each of the
documents required to be duly executed, completed and
delivered under and in accordance with the terms of clause
5.1.2.
5.1.5 CALLS: duly and promptly pay or procure the payment of all
calls, instalments and other payments in respect of any of
the Investments provided that if it defaults in making or
procuring any such payment the Security Trustee may (but
shall not be obliged to) pay such amounts on behalf of the
Mortgagor and shall be reimbursed by the Mortgagor forthwith
on demand;
5.1.6 COMMUNICATIONS: notify the Security Trustee of the contents
of any communication or document received by it in relation
to any of the Investments;
5.1.7 NEGATIVE PLEDGE: not create or purport to create or permit to
subsist any Lien on or over any of the Investments or any
interest in the Investments other than permitted under the
Agreement;
5.1.8 NO DISPOSALS: not sell, transfer, assign, lend or otherwise
dispose of, or grant any rights (whether of pre-emption or
otherwise) over, any of the Investments or any interest in
the Investments or attempt or agree to do so (other than to
the Security Trustee or a nominee of the Security Trustee);
5.1.9 EXERCISE OF VOTING RIGHTS BY MORTGAGOR: exercise any voting
rights attaching to the Investments in such manner as it
thinks fit, provided that such voting rights shall not be
exercised in any manner which is inconsistent with the
security constituted or intended to be constituted by this
Deed or is in breach of any of the provisions of any of the
Loan Documents and notwithstanding the foregoing, at any time
after the Security Trustee shall have demanded the discharge
of any of the Secured Obligations, procure that all voting
and other rights in respect of the Investments are exercised
in accordance with the Security Trustee's instructions;
5.1.10 VARIATION OF RIGHTS: not, by the exercise of any voting
rights or otherwise, permit or agree to any proposed
compromise, arrangement, capital reorganisation, conversion,
exchange, repayment or takeover offer affecting or in respect
of any of the Investments.
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5.2 EXERCISE OF VOTING RIGHTS BY SECURITY TRUSTEE AND DIVIDEND
ENTITLEMENT
If any of the Investments are transferred into the name of the
Security Trustee or any nominee of the Security Trustee or any
nominee of the Security Trustee, then (subject always to the
provisions of clause 6.1):
5.2.1 the Security Trustee shall use all reasonable endeavours to
procure that all voting rights attached to such Investments
are exercised as the Mortgagor shall direct provided that the
Security Trustee shall not be obliged to comply with the
Mortgagor's directions if, as a result, such voting rights
would be exercised in any manner which (a) is inconsistent
with the security constituted or intended to be constituted by
this Deed or (b) is in breach of any provision of any of the
Loan Documents or (c) would or might result in permission or
agreement being given to any compromise, capital
reorganisation, conversion, exchange, repayment or takeover
offer affecting or in respect of any of the Investments or to
any variation of the rights attaching to or conferred by any
of the Investments; and
5.2.2 any and all dividend and interest payments and other
distributions accruing on or deriving from the Investments
shall be paid to the Mortgagor.
5.3 OTHER COVENANTS
The Mortgagor covenants with the Security Trustee that it will:
5.3.1 OBLIGATIONS GENERALLY: comply with its obligations in the Loan
Documents and comply with every covenant (whether restrictive
or otherwise), obligation and provision on its part to be
complied with (and use its best endeavours to procure
compliance by each other party thereto with every covenant,
obligation and provision on the part of each such other party
to be complied with) contained in any document affecting the
Investments or their use and enjoyment;
5.3.2 VALUE OF THE SECURITY: not do or cause or permit to be done
anything which may in any way depreciate, jeopardise or
otherwise prejudice the value of the security constituted or
intended to be constituted by this Deed.
5.4 INFORMATION COVENANTS
5.4.1 GENERAL: The Security Trustee may at any time seek from any person
having dealings with the Mortgagor such information about the
Mortgagor and its affairs as the Security Trustee may think fit. The
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Mortgagor authorises and requests any such person to provide any
such information to the Security Trustee and agrees to provide such
further authority for this purpose as the Security Trustee may
require from time to time.
5.4.2 INVESTIGATIONS: If the Security Trustee so requests at any time, the
Mortgagor shall appoint accountants nominated by the Security
Trustee to investigate the financial affairs of the Mortgagor and
any Subsidiary of the Mortgagor or company of which the Mortgagor is
a Subsidiary. For the purposes of this clause 5.4.2, the Mortgagor
authorises the Security Trustee to make such appointment on the
Mortgagor's behalf. In every case the costs, fees and expenses of
such accountants shall be paid by the Mortgagor, but the Security
Trustee may, at its sole discretion, pay such costs, fees and
expenses on behalf of the Mortgagor and, in such case, the Mortgagor
agrees to reimburse the Security Trustee forthwith on demand.
6 ENFORCEMENT
6.1 POWER OF SALE
At any time after the occurrence of an Event of Default described in
the Agreement which is continuing, the security constituted by this
Deed shall become enforceable and the Security Trustee (or its
nominee(s)) shall have an immediate and absolute power of sale or
other disposition over the Investments (including, without
limitation, the power to execute, seal, deliver or otherwise
complete any transfers or other documents required to vest any of
the Investments in the Security Trustee, any of its nominees or in
any purchaser of any of the Investments) and pending any such sale
the Security Trustee (or its nominee(s)) shall, notwithstanding any
other provision of this Deed, have the right (a) to exercise (or
direct the exercise of) any and all voting rights attaching to any
of the Investments in such manner as it shall in its sole discretion
think fit and (b) to receive, retain and give a good discharge for
any and all payments falling due in respect of dividends or other
distributions of profits or capital on or arising from any of the
Investments notwithstanding that they may have accrued in respect of
a period prior to the time at which the security constituted by this
Deed shall have become enforceable.
6.2 PROCEEDS OF SALE
The proceeds of any sale of the Investments by the Security Trustee
shall be applied in discharging the Secured Obligations in such
order as the Security Trustee may determine in its absolute
discretion and any balance shall be paid to the Mortgagor.
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7 VARIATION AND EXTENSION OF STATUTORY POWERS
7.1 STATUTORY POWERS GENERALLY
The powers conferred on mortgagees by the Act and the Insolvency Xxx
0000 shall apply to this Deed except insofar as they are expressly
or impliedly excluded and where there is any ambiguity or conflict
between the powers contained in the Act and/or the Insolvency Xxx
0000 and those contained in this Deed the terms of this Deed shall
(so far as the law allows) prevail.
7.2 SECURITY TRUSTEE'S POWERS
The restrictions contained in sections 93 and 103 of the Act shall
not apply to the security constituted or intended to be constituted
by this Deed and the powers contained in section 101 of the Act
shall be immediately exercisable after the Security Trustee shall
have demanded the discharge of any of the Secured Obligations.
7.3 TRUSTEE POWERS
The Security Trustee and its nominees may in relation to any of the
Investments, at any time exercise all the powers given to trustees
by the Trustee Act in respect of any securities or property subject
to a trust. Any payments made by the Security Trustee under this
clause shall be paid by the Mortgagor to the Security Trustee
forthwith on demand.
7.4 NO LIABILITY
It is agreed and declared that no exercise by the Security Trustee
of any one or more of the powers contained in this Deed shall render
the Security Trustee liable for any loss or damage (including,
without limitation, loss upon realisation of any of the Investments)
save where caused by its gross negligence or wilful default.
7.5 PROTECTION FOR THIRD PARTIES
No third party dealing with the Security Trustee or its or his
agents shall, whether before, on or after any contract, disposition
or assurance in relation to any of the Investments in such third
party's favour be concerned to enquire whether any of the Secured
Obligations have become payable or whether any power which the
Security Trustee purports to exercise has become exercisable or
whether any of the Secured Obligations remain undischarged or to see
to the application of any money paid to the Security Trustee.
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7.6 DELEGATION
The Security Trustee may at any time delegate by power of attorney
or in any other manner to any person or persons any of the powers
(including the power of attorney contained in clause 9.3),
authorities and discretions which are for the time being exercisable
by the Security Trustee under this Deed in relation to any of the
Investments. Any such delegation may be made upon such terms
(including power to sub-delegate) and subject to such regulations as
the Security Trustee may think fit. The Security Trustee shall not,
save for its gross negligence or wilful default, be in any way
liable or responsible to the Mortgagor for any loss or damage
arising from any act, default, omission or misconduct on the part of
any such delegate or sub-delegate.
7.7 SUSPENSE ACCOUNTS
The Security Trustee may place and keep (for such time as it or he
shall consider prudent) any money received, recovered or realised
pursuant to this Deed in a separate suspense account (to the credit
of either the Mortgagor or the Security Trustee as the Security
Trustee shall think fit) without any obligation to apply the same or
any part thereof in or towards the discharge of the Secured
Obligations.
7.8 SECURITY TRUSTEE'S POWER TO REMEDY BREACHES
If at any time the Mortgagor fails to perform any of the covenants
contained in this Deed it shall be lawful for the Security Trustee,
but the Security Trustee shall have no obligation, to take such
action on behalf of the Mortgagor (including, without limitation,
the payment of money) as may in the Security Trustee's reasonable
opinion be required to ensure that such covenants are performed. Any
losses, costs, charges and expenses incurred by the Security Trustee
in taking such action shall be reimbursed by the Mortgagor on
demand.
8 CONTINUING SECURITY
8.1 SUBSEQUENT CHARGES
8.1.1 If the Security Trustee receives notice (whether actual or
constructive) of any subsequent Lien or other interest affecting any
of the Investments or any interest in any of the Investments, or of
any other matter which may cause the security created by or pursuant
to the terms of this Deed to cease to be a continuing security the
Security Trustee may open a new account or accounts for the
Mortgagor.
8.1.2 If the Security Trustee does not open a new account pursuant to
clause 8.1.1 then, unless the Security Trustee shall notify the
Mortgagor to the contrary, it shall nevertheless be treated as if it
had done so at the
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time when it received such notice and as from that time all payments
made by or on behalf of the Mortgagor to the Security Trustee shall
be credited or deemed to have been credited to the new account and
shall not operate to reduce the amount due from the Mortgagor at the
time when it received such notice.
8.2 GENERAL
The security constituted by this Deed shall be a continuing security
notwithstanding any settlement of account or other matter whatsoever
and is in addition to and shall not merge or otherwise prejudice or
affect (or be prejudiced or affected by) the security constituted by
any Lien, guarantee or other assurance now or hereafter held by the
Security Trustee or any right or remedy of the Security Trustee in
respect of the same and shall not be in any way prejudiced or
affected by the invalidity thereof, or by the Security Trustee now
or hereafter dealing with, exchanging, releasing, modifying or
abstaining from perfecting or enforcing any of the same, or any
rights which it may now or hereafter have, or giving time for
payment or indulgence or compounding with any other person liable.
9 FURTHER ASSURANCE AND POWER OF ATTORNEY
9.1 FURTHER ASSURANCE
The Mortgagor shall execute in favour of the Security Trustee, or as
the Security Trustee may otherwise direct, such further assignments,
transfers, mortgages, charges, Lien or other documents as in each
case the Security Trustee shall stipulate (any such assignment,
transfer, mortgage, charge, Lien or document to be in such form and
to contain such provisions as the Security Trustee shall require)
over the Investments and do such other acts or things, in each case
for the purpose of more effectively providing security for the
payment, performance and discharge of the Secured Obligations, in
accordance with the terms of this Deed, or of enabling the Security
Trustee to vest any of the Investments in the Security Trustee or
its nominee(s).
9.2 VESTING OF TITLE
The Mortgagor agrees that it will from time to time execute as a
deed or under hand (as applicable) and deliver all transfers, powers
of attorney and other documents which the Security Trustee may
require for perfecting its title to any of the Investments, in
accordance with the terms of this Deed, or for vesting or enabling
it to vest any of the Investments in itself or its nominees. The
Mortgagor further agrees that if at any time the Security Trustee
should hold any transfer with any detail not yet completed the
Security Trustee shall have the authority to complete and deliver
such transfer.
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9.3 APPOINTMENT
9.3.1 The Mortgagor, by way of security for the performance of the
Mortgagor's obligations under this Deed, irrevocably appoints the
Lender and the persons deriving title under it and separately any
Receiver jointly or severally to be its attorney or attorneys for it
and in the name and on behalf and as the act and deed or otherwise
of the Mortgagor to sign, seal, execute, deliver, perfect and do all
deeds, instruments, acts and things which may be required:
(a) for carrying out any obligations imposed on the Mortgagor by
or pursuant to this Deed;
(b) for carrying any sale, lease or other dealing whatsoever. by
the Lender or Receiver into effect;
(c) for conveying or transferring any legal estate or other
interest in land or any other property whatsoever;
(d) for getting in all or any part of the Securities; and
(e) generally for enabling the Lender and any Receiver to exercise
the respective powers, authorities and discretions conferred
on them by or pursuant to this Deed or by law.
9.3.2 The provisions of this clause 9.3 shall take effect as and by way of
variation to the provisions of Section 109(8) of the Xxx 0000 which
provisions as so varied and extended shall be deemed incorporated
herein as if they related to a receiver of the Securities and not
merely a receiver of the income thereof.
10 RELEASE OF INVESTMENTS
The Mortgagor agrees that if any of the Investments charged by this
Deed are released from such charge the Security Trustee may release
securities of the same class and denomination as the Investments
concerned rather than the identical Investments deposited or
transferred under this Deed.
11 INDEMNITIES
11.1 GENERAL
The Mortgagor agrees to indemnify the Security Trustee (and its
nominees) on demand against all losses, actions, claims, expenses,
demands or liabilities whether in contract, tort or otherwise now or
hereafter incurred by any of them or by any manager, agent, officer
or employee for whose liability, act or omission any of them may be
answerable for anything done or omitted in the exercise or purported
exercise of the powers contained in this Deed or occasioned by any
13
breach by the Mortgagor of any of its covenants or other obligations
under this Deed or otherwise arising out of or in connection with
any of the Investments or the security constituted or intended to be
constituted by this Deed save where the same arises as a result of
the negligence, fraud, default or wilful misconduct of the Security
Trustee.
11.2 TAXES
The Mortgagor agrees to indemnify the Security Trustee on demand
against all present or future stamp or other taxes or duties and any
penalties or interest with respect thereto which may be imposed by
any competent authority in connection with the execution or
enforcement of this Deed or in consequence of any payment made
pursuant hereto being impeached or declared void for any reason
whatsoever.
12 NO WAIVER
No failure or delay by the Security Trustee in exercising any right
or remedy shall operate as a waiver thereof, nor shall any single or
any partial exercise or waiver of any right or remedy preclude its
further exercise or the exercise of any other right or remedy as
though no waiver had been made and no relaxation or indulgence
granted.
13 PAYMENTS AND DISCHARGE
13.1 PAYMENT WITHOUT DEDUCTION
All payments to be made to the Security Trustee under this Deed
shall be made free and clear of and (save as required by law)
without any deduction for or on account of any tax, withholding,
charges, set-off or counterclaim. All payments shall be made into
such account or accounts as the Security Trustee may from time to
time specify for that purpose.
13.2 GROSS-UP AND TAX RECEIPTS
If the Mortgagor is required by law to make a deduction or
withholding from any payment made under this Deed then the sum
payable by the Mortgagor in respect of which such deduction or
withholding is required to be made shall be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, the Security Trustee receives and retains (free from
any liability in respect of any such deduction or withholding) a net
sum equal to the sum which it would have received and so retained
had no such deduction or withholding been made or been required to
be made. If the Mortgagor makes any payment under this Deed in
respect of which it is required by law to make any deduction or
withholding it shall pay the full amount to be deducted or withheld
to the relevant taxation or other authority within the time allowed
for such payment
14
under applicable law and shall deliver to the Security Trustee
within thirty days after it has made such payment to the applicable
authority an original receipt or other appropriate evidence issued
by such authority evidencing the payment to such authority of all
amounts so required to be deducted or withheld from such payment.
13.3 REINSTATEMENT
Any settlement or discharge under this Deed between the Security
Trustee and the Mortgagor shall be conditional upon no security or
payment to the Security Trustee by the Mortgagor or any other person
being avoided or set aside or ordered to be refunded or reduced by
or pursuant to any applicable law or regulation and, if such
condition is not satisfied, the Security Trustee shall be entitled
to recover from the Mortgagor on demand the value of such security
or the amount of any such payment as if such settlement or discharge
had not occurred.
13.4 RELEASES
Without prejudice to any terms of any of the Loan Documents
regarding the giving of consents, releases and/or discharges to the
Mortgagor (whether to facilitate any disposition in relation to any
of the Investments or otherwise) the Security Trustee shall, at the
request and cost of the Mortgagor following the irrevocable payment
and discharge in full of the Secured Obligations (with the Security
Trustee being under no further obligation, actual or contingent, to
the Mortgagor) and provided that the security constituted by this
Deed shall not have been enforced, and the Security Trustee is
satisfied that such payment is not subject to avoidance or liable to
be set aside, refunded or reduced as referred to in clause 13.3,
duly execute and do all such deeds, acts and things as may be
necessary to release from the security constituted by this Deed the
assets which are then subject to it.
14 CURRENCY
Any amount received or recovered by the Security Trustee in respect
of any sum expressed to be due to it from the Mortgagor under this
Deed in a currency other than the currency (the "contractual
currency") in which such sum is so expressed to be due (whether as a
result of, or of the enforcement of, any judgment or order of the
court or tribunal of any jurisdiction, the winding up of the
Mortgagor or otherwise) shall only constitute a discharge to the
Mortgagor to the extent of the amount of the contractual currency
that the Security Trustee is able, in accordance with its usual
practice, to purchase with the amount of the currency so received or
recovered on the date of receipt or recovery (or, if later, the
first date on which such purchase is practicable). If the amount of
the contractual currency so purchased is less than the amount of the
contractual currency so expressed to be due, the Mortgagor shall
indemnify the Security Trustee against any loss
15
sustained by it as a result, including the cost of making any such
purchase.
15 NOTICES
Any demand, notice or other communication to be made on or delivered
to the Mortgagor hereunder or in respect of any of the Secured
Obligations shall be made in accordance with clause 10.02 of the
Agreement.
16 SET-OFF
The Mortgagor authorises the Security Trustee without prior notice
to the Mortgagor to apply any credit balance (whether or not then
due) to which the Mortgagor is at any time beneficially entitled on
any account at any office of the Security Trustee in or towards
satisfaction of the Secured Obligations (and on or at any time after
the Security Trustee shall have demanded the discharge of the
Secured Obligations the Security Trustee may make such application
notwithstanding any specified maturity of any deposits standing to
the credit of any account of the Mortgagor with the Security
Trustee) and for this purpose the Security Trustee is authorised to
purchase with the monies standing to the credit of any such account
such other currencies as may be necessary to effect such
application. The Security Trustee shall not be obliged to exercise
any of its rights under this clause which shall be without prejudice
to and in addition to any rights of set-off, combination of
accounts, consolidation or other rights to which it is at any time
otherwise entitled (whether by operation of law, contract or
otherwise).
17 TRUSTEE PROVISIONS
17.1 DECLARATION OF TRUST
The Security Trustee shall hold the security constituted by this
Deed and the benefit of all related rights in trust for the benefit
of the Beneficiaries on the terms and subject to the conditions set
out in this Deed.
17.2 PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities (if
applicable to this Deed) shall be the period of eighty years from
the date of this Deed.
17.3 SUMS RECEIVED BY THE SECURITY TRUSTEE
Pending distribution under clause 17.4, the Security Trustee shall,
if reasonably practicable, place any sum received, recovered or held
by it in respect of the Investments in an interest bearing suspense
account
16
with a bank or financial institution in the name of or under the
control of the Security Trustee. The interest paid on such account
shall be credited to the relevant account.
17.4 APPLICATION OF SUMS RECEIVED
Subject to the other provisions of this clause 17, the Security
Trustee shall apply all amounts standing to the credit of any
account referred to in clause 17.3 and any other amounts realised
pursuant to the exercise of any rights or powers it might have
pursuant to this Deed:
17.4.1 first, in the payment of any costs, charges and expenses of
or incidental to the appointment of any receiver under the
Act, the payment of his remuneration and the payment and
discharge of any other Expenses incurred by or on behalf of
such receiver;
17.4.2 secondly, in or towards payment of any debts or claims which
are by statute payable in preference to the Secured
Obligations but only to the extent to which such debts or
claims have such preference;
17.4.3 thirdly, in or towards payment and discharge pro rata of any
Secured Obligations then due, owing or incurred to the
Security Trustee, in its capacity as Security Trustee (and
not in any other capacity) for its own account;
17.4.4 fourthly, in payment to the Agent to be applied by the Agent
in or towards payment and discharge of the balance of the
Secured Obligations (if any) in accordance with the
provisions of Section 3 of the Agreement; and
17.4.5 fifthly, in payment of the surplus (if any) to the Mortgagor
or such other person entitled thereto.
17.5 SECURITY TRUSTEE'S SOLE RIGHT TO APPROPRIATE
The Mortgagor shall not have the right to appropriate any payment
to, or other sum received, recovered or held by, the Security
Trustee in or towards payment of any particular part of the Secured
Obligations and the Security Trustee shall have the exclusive right
to appropriate any such payment or other sum as provided in this
clause 17.
17.6 TIMING OF DISTRIBUTION
Distributions by the Security Trustee shall be made at such times as
the Security Trustee in its absolute discretion determines to be as
soon as is reasonably practicable, having regard to all relevant
circumstances, and the Security Trustee shall have no liability
whatsoever for any loss or damage which any Beneficiary might
sustain as a consequence of the timing of any such distribution.
17
17.7 DATE FOR CALCULATION OF SECURED OBLIGATIONS
For the purpose of any distribution by the Security Trustee, the
Security Trustee may, by written notice to the Beneficiaries, fix a
date (being not earlier than the date of such notice) as at which
the amount of the Secured Obligations are to be calculated.
17.8 CERTIFICATE FROM BENEFICIARY
For the purposes of determining the amount of any payment to be made
to any Beneficiary pursuant hereto the Security Trustee shall be
entitled to call for and rely upon (and it is the intention of the
parties that the Security Trustee shall rely upon) a certificate
from the relevant Beneficiary of the amount and nature of any amount
due, owing or incurred to the relevant Beneficiary at the date fixed
by the Security Trustee for such purpose and as to such other
matters as the Security Trustee may deem necessary or desirable to
enable it to make a distribution.
17.9 MISTAKEN PAYMENTS
If the Security Trustee makes any distribution contrary to any of
the provisions of this clause 17 or any distribution made by it
otherwise transpires to have been invalid or the Security Trustee
and the person receiving such distribution agree that it should be
refunded, the recipient shall, to the extent that no charge is
thereby created, hold the proceeds of that distribution on trust to
repay to the Security Trustee forthwith on demand. If the trust
imposed by this clause 17.9 cannot be given effect to for whatever
reason, including the possible creation thereby of a charge, the
relevant recipient shall, if and when so requested by the Security
Trustee, pay an amount equal to the proceeds of that distribution
required to be held on trust to the Security Trustee.
17.10 SUPPLEMENT TO TRUSTEE ACT
By way of supplement to the Trustee Act it is expressly declared as
follows:
17.10.1 EXPERTS: the Security Trustee may, in relation to this Deed, act or
rely upon the opinion or advice of, or any information obtained
from, any lawyer, valuer, surveyor, broker, auctioneer, accountant
or other expert commissioned by the Security Trustee and shall not
be responsible to anyone for any loss or damage occasioned by so
acting or relying. Any such opinion, advice or information may be
sent or obtained by letter, telex, cable, facsimile transmission or
otherwise and the Security Trustee will not be liable to anyone for
acting in good faith on any opinion, advice or information
purporting to be conveyed by such means even if it contains some
error or is not authentic or validly signed;
18
17.10.2 CERTIFICATE OF THE MORTGAGOR: the Security Trustee may call for and
may accept as sufficient evidence a certificate of the Mortgagor
signed by any director of the Mortgagor to the effect that any
particular dealing, transaction, step or thing is, in the opinion of
the said director, suitable or expedient or as to any other fact or
matter upon which the Security Trustee may, in the exercise of any
of its rights, powers or duties hereunder, require to be satisfied
and the Security Trustee need not call for further evidence and will
not be responsible to anyone for any loss or damage occasioned by
acting on any such certificate;
17.10.3 INTERPRETATION OF THIS DEED: the Security Trustee (as between itself
and each of the Beneficiaries) shall have full power to determine in
good faith all questions and doubts arising in relation to any of
the provisions of this Deed and every such determination, whether
made upon such a question actually raised or implied in the acts or
proceedings of the Security Trustee, shall be conclusive and shall
(save for manifest error) bind the Security Trustee and each
Beneficiary;
17.10.4 TITLE: the Security Trustee shall accept without enquiry,
requisition, objection or investigation such title as the Mortgagor
(or, as the case may be, any nominee) has to the Investments to the
intent that the Security Trustee shall not in any way be responsible
for its inability to exercise any of its rights or powers or duties
hereunder or for any loss or damage thereby occasioned;
17.10.5 PERFECTION OF SECURITY: the Security Trustee shall not be liable for
any failure, omission or defect in perfecting any security created
or purported to be created by or pursuant to this Deed including
(without prejudice to the generality of the foregoing):
(a) failure to obtain any licence, consent or other authority for
the execution, delivery, validity, legality, adequacy,
performance, enforceability or admissibility in evidence of
any of this Deed or any other document;
(b) failure to effect or procure registration of or otherwise
protect any security created or purported to be created by or
pursuant to any of this Deed or any other document by
registering under any applicable registration laws in any
territory, any notice, caution or other entry prescribed by or
pursuant to the provisions of the said laws;
(c) failure to take or require the Mortgagor to take any steps to
render the security created or purported to be created by or
pursuant to any of this Deed effective as regards any property
outside England and Wales or to secure the creation of any
ancillary charge under the laws of any territory concerned; or
19
(d) failure to call for delivery of documents of title to or
require transfers, legal mortgages, charges or other further
assurances in relation to any of the Investments;
17.10.6 ACTS AND OMISSIONS: the Security Trustee shall not in fulfilling its
duties and discharging its responsibilities as Security Trustee be
liable or responsible for any loss or damage which may result from
anything done or omitted to be done by it in accordance with the
provisions of this Deed;
17.10.7 COMPLIANCE WITH LAWS: the Security Trustee may refrain from doing
anything which would or might in its opinion be contrary to any law
of any jurisdiction or any regulation or which would or might
otherwise render it liable to any person and may do anything which
is, in its absolute discretion, necessary to comply with any such
law or regulation;
(a) DEPOSIT OF SECURITY DOCUMENTS: the Security Trustee shall be
at liberty to place all title deeds and other documents
certifying, representing or constituting the title to any of
the Investments for the time being in its hands in any safe
deposit, safe or receptacle selected by the Security Trustee
or with any bankers or banking company (including the Security
Trustee or any of the other Beneficiaries) or company whose
business includes undertaking the safe custody of documents or
solicitors or firm of solicitors, may pay all reasonable sums
required to be paid on account of or in respect of such
deposit and may make any such arrangements as it thinks fit
for allowing the Mortgagor or its lawyers or auditors access
to or possession of such title deeds and other documents when
necessary or convenient and the Security Trustee shall not be
responsible for any loss incurred in connection with any such
deposit, access or possession;
17.10.8 USE OF NOMINEES: any investment of any part or all of the
Investments may, at the discretion of the Security Trustee, be made
or retained in the names of nominees;
17.10.9 DELEGATION: the Security Trustee may, whenever it thinks fit,
delegate by power of attorney or otherwise to any person or persons,
or fluctuating body of persons, all or any of the rights, powers,
authorities and discretions vested in it by any of the Loan
Documents and such delegation may be made upon such terms and
subject to such conditions (including the power to sub-delegate) and
subject to such regulations as it may think fit and it shall not be
bound to supervise, or to be in any way responsible for any loss,
liability, costs, charges or expenses incurred by reason of any
misconduct or default on the part of, any such delegate or
subdelegate; and
20
17.10.10 INSURANCE: without prejudice to any other provision of any of the
Loan Documents, the Security Trustee shall not be under any
obligation to insure any of the Investments or to require any other
person to maintain any such insurance and shall not be responsible
for any loss or damage which may be suffered by any person as a
result of the lack of or inadequacy or insufficiency of any such
insurance.
17.11 RELATIONSHIP WITH THE BENEFICIARIES
The Security Trustee shall, for the purposes of the Loan Documents,
be entitled to deal with each of the Beneficiaries by dealing
exclusively with the Agent.
17.12 INDEMNITY PROVISIONS
The Security Trustee and every attorney, agent or other person
appointed by it under any of the Loan Documents may indemnify itself
or himself out of the Investments against all claims, demands,
liabilities, proceedings, costs, fees, charges, losses and expenses
properly incurred by any of them in relation to or arising out of
the taking or holding of the Investments, the exercise or purported
exercise of the rights, trusts, powers and discretions vested in any
of them or any other matter or thing done or omitted to be done in
connection with any of the Loan Documents or pursuant to any law or
regulation.
17.13 APPOINTMENT OF ADDITIONAL SECURITY TRUSTEES
The Security Trustee may at any time appoint any person (whether or
not a trust corporation) to act either as a separate trustee or as a
co-trustee jointly with it (i) if it considers such appointment to
be in the interests of the Beneficiaries or (ii) for the purposes of
conforming to any legal requirements, restrictions or conditions
which the Security Trustee deems relevant for the purposes hereof.
Any person so appointed shall have such powers, authorities and
discretions and such duties and obligations as shall be conferred or
imposed on such person by the instrument of appointment and shall
have the same rights, powers, discretions and benefits under the
Loan Documents as the Security Trustee. Save where the contrary is
indicated or unless the context otherwise requires any reference in
the Loan Documents to the Security Trustee shall be construed as a
reference to the Security Trustee and each such separate trustee and
co-trustee. The Security Trustee shall have power in like manner to
remove any person so appointed. Such remuneration as the Security
Trustee may pay to any person so appointed, and any costs, charges
and expenses incurred by such person in performing its functions
pursuant to such appointment, shall for the purposes hereof be
treated as costs, charges and expenses incurred by the Security
Trustee in performing its function as trustee hereunder.
21
17.14 RESIGNATION
The Security Trustee may, following consultation with the
Beneficiaries, resign at any time by giving not less than 30 days
notice in writing to that effect to each of the Beneficiaries
provided that such resignation shall not become effective until a
successor to the Security Trustee has been appointed and accepted
its appointment and all necessary documents have been entered into
to ensure that the benefit of this Debenture is held by such
successor.
18 COUNTERPARTS
This Deed may be executed in any number of counterparts and by
facsimile transmission and by different parties on separate
counterparts each of which will constitute an original and all the
counterparts together will constitute the same instrument.
19 LAW AND JURISDICTION
19.1 LAW
This Deed and the rights and obligations of the parties hereto shall
be governed by and construed in accordance with English law.
19.2 JURISDICTION
19.2.1 SUBMISSION: Each of the parties to this Deed (other than the
Security Trustee) agrees for the benefit of the Security Trustee
that the courts of England shall have jurisdiction to hear and
determine, any suit, action or proceeding, and to settle any
dispute, which may arise out of or in connection with this Deed and,
for such purposes, irrevocably submits to the jurisdiction of such
courts.
19.2.2 FORUM: The Mortgagor irrevocably waives any objection which it might
now or hereafter have to the courts referred to in clause 19.2.1
being nominated as the forum to hear and determine any suit, action
or proceeding, and to settle any dispute, which may arise out of or
in connection with this Deed and agrees not to claim that any such
court is not a convenient or appropriate forum.
19.2.3 SERVICE OF PROCESS: The Mortgagor agrees that the process by which
any suit, action or proceeding is begun may be served on it by being
delivered to Xxxxxxxx, Inc., c/x Xxxxxxxx UK Limited, 21 St Xxxxxx
Street, Bristol, BS 1 6JS.
19.2.4 OTHER COMPETENT JURISDICTIONS: The submission to the jurisdiction of
the courts referred to in clause 19.2.1 shall not (and shall not be
construed so as to) limit the right of the Security Trustee to take
proceedings against the Mortgagor in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or more
22
jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not.
19.2.5 CONSENT TO ENFORCEMENT: The Mortgagor hereby consents generally in
respect of any legal action or proceeding arising out of or in
connection with this Deed to the giving of any relief or the issue
of any process in connection with such action or proceeding
including, without limitation, the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended
use) of any order or judgment which may be made or given in such
action or proceeding.
23
IN WITNESS whereof the Mortgagor has duly executed this Deed as a deed and
intends to deliver and hereby delivers the same on the date first above written
and, prior to such delivery, this Deed has been duly signed on behalf of the
Security Trustee, in the manner appearing below.
THE MORTGAGOR
EXECUTED as a DEED by
XXXXXXXX, INC.
By:____________________________________
Xxxxxxx X. Xxxxx
Its: Executive Vice President, Chief Operating
Officer, Chief Financial Officer, Chief
Accounting Officer and Treasurer
Address: 0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
XXX
Fax: (000) 000-0000
THE SECURITY TRUSTEE
SIGNED for and on behalf of
UNION BANK OF CALIFORNIA, N.A. AS
Security Trustee by:
____________________________________
Name: ______________________________
Title: _____________________________
Address: 000 X Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000-0000
Mail Code: S-420
Fax: (000) 000-0000
[SIGNATURE PAGE TO EQUITABLE MORTGAGE OVER SECURITIES]
SCHEDULE 1
THE SECURITIES
ISSUED SHARE DESCRIPTION AND NUMBER SHARE CERTIFICATE
NAME OF COMPANY CAPITAL OF SHARES NUMBER(s)
--------------- ------- --------- ---------
Xxxxxxxx U.K., Limited (pound)205,000 205,000 Ordinary Shares 1, 2, 3, 4
(Company No.: 02862712) of (pound)1 each
SCHEDULE 2
FORM OF NOMINEE UNDERTAKING
To: Union Bank of California, N.A.
[ ]
From: [ ]
[Date]
Dear Sirs,
1 I/We refer to the Equitable Mortgage over Securities dated [ ] (such
Mortgage, as the same may have been or may from time to time be
amended, varied, supplemented, novated or replaced being referred to
as "the Deed") and made between [ ] ("THE MORTGAGOR") and
yourselves as Security Trustee. Terms defined in the Deed shall
(unless otherwise defined in this Undertaking or the context
otherwise requires) bear the same meanings in this Undertaking.
2 I/We declare that I/we hold the securities listed in the Appendix
("THE NOMINEE SECURITIES") to your order subject to the terms and
conditions of the Deed.
3 I/We declare that I/we am/are not and shall never be entitled to any
interest, claim or lien in or over the Nominee Securities.
4 I/We will following notice from you to me/us [of the happening of
any event or circumstance which entitles you to take any action by
way of enforcement of your rights under the Deed] (such notice to be
deemed conclusive and binding on me/us for all purposes) forthwith
pay to you any dividends or other payments of money received by
me/us in respect of the Nominee Securities and I/we hereby declare
myself/ourselves as trustee of such dividends or other payments of
money to hold the same, pending such payment, upon trust to pay the
same to you in the manner aforesaid.
5 I/We will forthwith notify you of the contents of any communication
or document received by me/us as holder of the Nominee Securities.
6 I/We will following notice from you to me/us [of the happening of
any event or circumstance which entitles you to take any action by
way of enforcement of your rights under the Deed] (such notice to be
deemed conclusive and binding on me/us for all purposes) exercise,
or refrain from exercising, all of my/our voting rights in respect
of the Nominee Securities in accordance with your instructions
provided that prior to the receipt of any such notice as aforesaid,
I/we will not exercise such voting rights or
any other rights forming part of the Nominee Securities other than
in accordance with the terms of the Deed.]
7 I/We will, forthwith upon receipt by me/us of any Derivative Assets
in respect of the Nominee Securities, deliver to you all
certificates and other documents constituting or evidencing title to
such Derivative Assets and each part thereof together with
instruments of transfer relating to the same complying with the
provisions of clause 5.1.4 of the Deed and otherwise in such manner
as you may require.
8 I/We hereby irrevocably appoint you, and each and every person to
whom you shall from time to time have delegated the exercise of the
power of attorney conferred by this paragraph 8 to be my/our
attorney or attorneys and in my/our name and otherwise on my/our
behalf and as my/our act and deed to sign, seal, execute, deliver
and perfect and do all other deeds, instruments, acts and things
which may be required (or which you shall consider requisite) for
carrying out any obligation imposed on me/us by or pursuant to this
Undertaking (including, any covenants for further assurance implied
by section 1(2) of the Law of Property (Miscellaneous Provisions)
Xxx 0000, which shall be deemed to be within this power as if I/we
had legally mortgaged the Nominee Securities to you with full title
guarantee) for carrying any sales or other dealing by you into
effect, for conveying or transferring any legal estate, entitlement
or other interest in the Nominee Securities or otherwise howsoever
and generally for enabling you to exercise the respective powers
conferred on you by or pursuant to this Undertaking or the Deed, as
the case may be, or by law. You shall have full power to delegate
the power conferred on you by this paragraph 8, but no such
delegation shall include the subsequent exercise of such power by
you or preclude you from making a subsequent delegation of such
power to some other person. Any such delegation may be revoked by
you at any time.
9 I/We shall ratify and confirm all transactions entered into by you
or any delegate of yours in the exercise or purported exercise of
the respective powers of any such person and all transactions
entered into, documents executed and things done by you or any
delegate by virtue of the power of attorney given by paragraph 8
above.
10 The power of attorney granted by this Undertaking is granted
irrevocably and for value as part of the security constituted by
this Undertaking and the Deed to secure the proprietary interest of,
and the performance of obligations owed to, to respective donee(s)
within the meaning of the Powers of Xxxxxxxx Xxx 0000.
11 This Undertaking shall be governed by and construed in accordance
with English law.
IN WITNESS whereof I/we have caused this Undertaking to be executed as a deed
the day and the year first before written.
SIGNED and DELIVERED )
by [NAME OF NOMINEE] )
in the presence of: )
Witness' Signature ___________________________
Name in blocks letters ___________________________
Address ___________________________
___________________________
___________________________
___________________________
Occupation ___________________________
THE APPENDIX
THE NOMINEE SECURITIES
ISSUED SHARE DESCRIPTION AND NUMBER SHARE CERTIFICATE
NAME OF COMPANY CAPITAL OF SHARES NUMBER(s)
--------------- ------- --------- ---------
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6
