DATED 2008
|
2008
|
NEW
MEDIA LOTTERY SERVICES PLC
and
TRAFALGAR
CAPITAL SPECIALIZED INVESTMENT FUND
DEBENTURE
Xxxxxx
Xxxxxxx LLP
00
Xxxxxxxxxxx Xxxxxxxxx
Xxxxxx
XX0X 0XX
Tel:
000 0000 0000
Fax:
000 0000 0000
Ref:
DXB/HJM/1325787v2
THIS
DEBENTURE
is made
as a deed on the day of 2008
between:-
|
(1)
|
NEW
MEDIA LOTTERY SERVICES PLC
(incorporated in the Republic of Ireland with registered number
410845)
having its registered office at 00/00 Xxxxxxxxxxx Xxxxxx, Xxxxxx
0,
Xxxxxxx (the "Company");
and
|
|
(2)
|
TRAFALGAR
CAPITAL SPECIALIZED INVESTMENT FUND
an
investment fund in Luxembourg as represented by its general partner,
TRAFALGAR
CAPITAL SARL,
a
corporation organised and existing under the laws of Luxembourg,
with its
principal place of business at 0-00 Xxx Xxxxxxx Xxxxx, XX 0000,
Xxxxxxxxxx
X-0000 (xxx "Lender").
|
Definitions
are given in clause 16.
NOW
THIS DEED WITNESSES as
follows:-
|
1
|
Covenant
to Pay
|
|
1.1
|
The
Company covenants that it will on demand in writing made to it
pay or
discharge the Loan when the same is due and
payable.
|
|
1.2
|
If
the Company shall fail to pay any amount under this Debenture when
it is
due then such amount shall bear interest (after as well as before
judgment
and payable on demand) at the Default Rate from time to time from
the due
date until the date such amount is paid in full to the
Lender.
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|
2
|
Charging
provisions
|
|
2.1
|
The
Company as beneficial owner or with full title guarantee (whichever
is
appropriate) hereby charges to the Lender as a continuing security
for the
payment or discharge of the Loan:-
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|
2.1.1
|
by
way of legal mortgage all estates or interests in the freehold
and
leasehold property described in the Schedule together with all
present and
future buildings, and fixtures (including trade and tenant's fixtures),
which are at any time on or attached to the
property;
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2
|
2.1.2
|
by
way of fixed charge:-
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|
2.1.2.1
|
all
estates or interests in any freehold or leasehold property belonging
to
the Company now or at any time after the date of this Debenture
(other
than any property charged in terms of clause 2.1.1 above) together
with
all buildings, and fixtures (including trade and tenant's fixtures)
which
are at any time on or attached to the
property;
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|
2.1.2.2
|
all
present and future interests of the Company in or over land or
the
proceeds of sale of it and all present and future licences of the
Company
to enter upon or use land;
|
|
2.1.2.3
|
the
benefit of all other agreements relating to land which the Company
is or
may become party or otherwise
entitled;
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|
2.1.2.4
|
all
plant and machinery of the Company now or in the future attached
to
property which is charged by the foregoing provisions of this clause
2.1;
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|
2.1.2.5
|
all
present and future stocks, shares and other securities owned (at
law or in
equity) by the Company and all rights, money or property of a capital
nature at any time accruing or offered in relation to them, whether
by way
of bonus, consolidation, conversion, exchange, option, preference,
return
of capital or otherwise;
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|
2.1.2.6
|
all
rights, money or property of an income nature at any time accruing
or
payable in relation to the stocks, shares and other securities
charged by
clause 2.1.2.5, whether by way of dividend, distribution, interest
or
otherwise;
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3
|
2.1.2.7
|
all
rights and interests in and claims under all insurance contracts
or
policies now or in the future held by or inuring to the benefit
of the
Company which relate to Fixed Charge Assets (including all money
payable
under such contracts and policies);
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|
2.1.2.8
|
all
rights and interest and claims under all other insurance or assurance
contracts or policies now or in the future held by or inuring to
the
benefit of the Company (including all money payable under them);
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|
2.1.2.9
|
all
patents, utility models, registered and unregistered trade and
service
marks, rights in passing off, copyright, registered and unregistered
rights in designs and database rights in each case now or in the
future
held by the Company (whether alone or jointly with others) anywhere
in the
world and including any extensions and renewals of, and any application
for such rights;
|
| 2.1.2.10 |
the
benefit of all agreements and licences now or in the future entered
into
or enjoyed by the Company relating to the use or exploitation by
or on
behalf of the Company in any part of the world of any such rights
as are
referred to in clause 2.1.2.9 but owned by
others;
|
| 2.1.2.11 |
all
the Company’s rights now or in the future in relation to trade secrets,
confidential information and know how in any part of the world;
|
| 2.1.2.12 |
all
present and future book debts of the
Company;
|
| 2.1.2.13 |
all
other present and future debts or monetary claims of the Company
against
third parties (excluding those charged under clause 2.1.2.7 or
2.1.2.8 or
arising on fluctuating accounts with other Group Companies);
|
| 2.1.2.14 |
the
benefit of all warranties, instruments, guarantees, charges, pledges,
and
other security and all other rights and remedies available to the
Company
in respect of any Fixed Charge Assets;
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4
| 2.1.2.15 |
all
present and future bank accounts, cash at bank and credit balances
of the
Company (excluding those arising on fluctuating accounts) with
any bank or
other person whatsoever and all rights relating or attaching to
them
(including the right to interest);
and
|
| 2.1.2.16 |
all
rights, money or property accruing or payable to the Company now
or in the
future under or by virtue of a Fixed Charge Asset except to the
extent
that such rights, money or property are for the time being effectively
charged by fixed charge under the foregoing provisions of this
clause
2.1;
|
| 2.1.3 |
by
way of floating charge all the Assets not effectively otherwise
mortgaged,
charged or assigned by this clause 2, (including, without limitation,
any
immovable property of the Company in the United Kingdom and the
Republic
of Ireland and any Assets in the United Kingdom and the Republic
of
Ireland falling within any of the types mentioned in clause
2.1.2).
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|
2.2
|
The
Company as beneficial owner or with full title guarantee (whichever
is
appropriate hereby assigns as a continuing security for the payment
or
discharge of the Loan in favour of the Lender (subject to the right
of the
Company to require the re-assignment of it upon payment or discharge
in
full of the Loan):
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|
2.2.1.1
|
all
the right, title and interest of the Company in and to any interest
rate
hedging agreements now or in the future entered into with any person;
and
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|
2.2.1.2
|
(insofar
as they are capable of being assigned by way of security) all the
right,
title and interest of the Company in and to any agreement to which
the
Company is a party except to the extent that it is subject to any
fixed
charge created under any other provisions of this Debenture;
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5
|
2.3
|
To
the extent that any such right, title and interest as is referred
to in
clause 2.2 is not assignable or capable of assignment, the assignment
of
it purported to be effected by such clause shall operate as an
assignment
of any and all compensation, damages, income, profit or rent which
the
Company may derive from it or be awarded or entitled to in respect
of it,
in each case as a continuing security for the payment or discharge
in full
of the Loan.
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|
2.4
|
Any
mortgage, fixed charge or other fixed security created by the Company
in
favour of the Lender shall have priority over the floating charge
created
by this Debenture, except insofar as the Lender shall declare otherwise
whether at or after the time of creation of such fixed
security.
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|
2.5
|
The
Lender may at any time, by notice to the Company, immediately convert
the
floating charge created under clause 2.1.3 into a fixed charge
over any
Assets specified in that notice and the floating charge will, without
notice from the Lender, automatically be converted with immediate
effect
into a fixed charge:-
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|
2.5.1
|
in
respect of any Assets which become subject to any step by any third
party
to take a fixed charge;
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|
2.5.2
|
in
respect of any Assets which become subject to any step by any third
party
to levy any distress, attachment, execution or other legal process
against
them;
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|
2.5.3
|
in
respect of all Assets charged under clause 2.1.3 if and when the
Company
ceases to carry on business or to be a going concern;
and
|
6
|
2.5.4
|
in
respect of all the Assets on the making of an order for the compulsory
winding-up of the Company, on the convening of a meeting for the
passing
of a resolution for the voluntary winding-up of the Company or
the taking
of any steps (including, without limitation, the making of an application
or the giving of any notice) by the Company or any other person
for the
appointment of an administrator in respect of the
Company.
|
|
2.6
|
The
Company will not without the prior written consent of the
Lender:-
|
| 2.6.1 |
create
or attempt to create or permit to subsist any right in security,
mortgage,
charge, lien (other than a lien arising in the ordinary course
of business
by operation of law) or any encumbrance, trust agreement, declaration
of
trust or trust arising by operation of law over all or any Assets
(except
in favour of the Lender); or
|
| 2.6.2 |
sell,
transfer, assign, factor, lease or otherwise dispose of or part
with
possession in any way of all or any of its Assets (other than in
terms of
a Permitted Disposal); or
|
| 2.6.3 |
in
any way dispose of the equity of redemption of any such Asset or
any
interest in any such Asset.
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|
2.7
|
The
Company shall apply in respect of Properties located in England
an Wales
to the Chief Land Registrar for a restriction to be entered on
the
Register of Title of all present and future registered freehold
and
leasehold property of the Company in the following
terms:
|
"No
disposition of the registered estate by the proprietor of the registered
estate
[or by the proprietor of any registered charge] is to be registered without
a
written consent signed by the proprietor for the time being of the charge
dated
[date] in favour of Trafalgar Capital Specialized Investment Fund referred
to in
the Charges Register or, if appropriate, signed on behalf of such proprietor
by
its authorised signatory”
7
The
Company shall apply in respect of Properties located in the Republic of Ireland
title to which is registered at the Property Registration Authority for an
inhibition on the folio upon terms substantially the same as outlined in
the
paragraph above and in respect of Properties not registered to lodge a caution
at the Property Registration Authority
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2.8
|
The
Company will, in so far as the same have not been delivered to
the Senior
Lender, immediately upon execution of this Debenture, deliver to
the
Lender (or as it shall direct) all certificates and other documents
of
title to the stocks, shares and other securities referred to in
clause
2.1.2.5 above together with stamped stock transfer forms in respect
of the
same executed in blank (except for the number and class of shares
and the
name of the transferor) and left undated. The Lender may at any
time after
the date of this Debenture complete the instruments of transfer
on behalf
of the Company in favour of itself or such other person as it shall
select.
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|
2.9
|
The
Company (at its own cost) will on demand in writing by the Lender
execute
and deliver in such form as the Lender may reasonably
require:-
|
| 2.9.1 |
a
legal mortgage of any freehold or leasehold property of the Company
which
is not effectively charged by clause 2.1.1 and of any freehold
or
leasehold property acquired by the Company after the date of this
Debenture;
|
| 2.9.2 |
a
standard security or other fixed security over the Company's freehold,
leasehold or other property;
|
| 2.9.3 |
a
fixed charge or assignment in or by way of security of any Asset
subject
to a floating charge under clause 2.1.3;
|
| 2.9.4 |
a
chattel mortgage over such chattels, plant and machinery as the
Lender may
specify; and
|
8
| 2.9.5 |
a
notice of any assignment of its right, title and interest in and
to any of
the agreements referred to in clause 2.2
above;
|
and
the
Company will execute such other deeds, documents, agreements and instruments
and
will otherwise do and concur in all such other acts or things as the Lender
may
deem necessary for perfecting, preserving or protecting the security created
(or
intended to be created) by this Debenture or for facilitating the realisation
of
the Assets or the exercise of any rights of the Lender under this
Debenture.
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2.10
|
The
Company shall:
|
| 2.10.1 |
get
in and realise all Receivables in the ordinary course of its business
and
hold the proceeds of the getting in and realisation (until payment
into an
account in accordance with clause 2.12.2 below) upon trust for
the
Lender;
|
| 2.10.2 |
pay
into its account with the Lender (or as the Lender may direct)
all money
which it receives in respect of any Receivables;
and
|
| 2.10.3 |
if
called upon to do so by the Lender execute a legal assignment of
all or
any of the Receivables to the
Lender.
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|
2.11
|
If
the Lender releases, waives, or postpones its rights in respect
of any
Receivables to enable the Company to factor or discount them to
any third
party (the“factor”),
the charges created by this Debenture shall in all other respects
remain
in full force and effect. All amounts becoming due to the Company
from the
factor and any Receivables re-assigned, or due to be re-assigned
to the
Company, shall be subject to the relevant fixed charge created
by this
Debenture, subject only to any defences or rights of set-off which
the
factor may have against the
Company;
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|
2.12
|
Paragraph
14 of Schedule B1 to the Insolvency Xxx 0000 or its Irish equivalent
if
any shall apply to the charges created by or pursuant to this
Debenture.
|
9
|
3
|
Continuing
Security
|
This
security will be a continuing security for the Loan notwithstanding any
intermediate payment or settlement of all or any part of the Loan or other
matter or thing whatsoever and will be without prejudice and in addition
to any
other right, remedy or security of whatever sort which the Lender may hold
at
any time for the Loan or any other obligation whatsoever and will not be
affected by any release, reassignment or discharge of such other right remedy
or
security.
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4
|
Undertakings
|
Save
to
the extent that the provisions of this clause are inconsistent with or conflict
with the terms of the Convertible Loan Agreement, the Company
will:-
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4.1
|
at
all times comply with the terms of this Debenture and of all agreements
relating to the Loan;
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|
4.2
|
keep
the Assets in good and substantial repair and in good working order
and
condition, ordinary wear and tear excepted;
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|
4.3
|
preserve
and maintain all intellectual property rights owned or used by
the Company
(including those referred to in clauses 2.1.2.9 to
2.1.2.11);
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|
4.4
|
comply
in all material respects with the terms of all applicable laws
and
regulations including (without limitation) all environmental laws,
legislation relating to public health, town & country planning,
control and handling of hazardous substances or waste, fire precautions
and health and safety at work;
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|
4.5
|
promptly
notify the Lender of the acquisition by the Company of any estate
or
interest in any freehold or leasehold
property;
|
10
|
4.6
|
ensure
that all Assets that are insurable are insured with reputable insurance
companies or underwriters to such extent and against such risks
as is
normal for prudent companies in businesses similar to those of
the Company
(or as otherwise requested in writing by the Lender from time to
time) and
(without limitation to the generality of the
foregoing):-
|
| 4.6.1 |
pay
all premiums and other money due and payable under all such insurances
and
provide premium receipts or any other evidence of payment promptly
upon
request to do so by the Lender;
|
| 4.6.2 |
ensure
that the interest of the Lender is noted on the policies in respect
of
such insurances or, at the request of the Lender, that such policies
contain such other provisions for the protection of the Lender
as the
Lender may from time to time
require;
|
|
4.7
|
promptly
upon request by the Lender deposit with the Lender all deeds, certificates
and documents of title relating to the Assets or any part of them
charged
by this Debenture and all policies of insurance and
assurance;
|
|
4.8
|
promptly
pay or cause to be paid and indemnify the Lender and
any Receiver against all present and future rent, rates, taxes,
duties,
charges, assessments, impositions and outgoings whatsoever now
or at any
time in the future payable in respect of any of its Properties
(or any
part of them) or by the owner or occupier of
them;
|
|
4.9
|
not
make any structural or material alteration to or to the user of
any of its
Properties or do or permit to be done anything which is a "development"
within the meaning of the Local Government (Planning and Development)
Acts
1963 to 2000 or the Town and County Planning Acts (as appropriate)
from
time to time (or any orders or regulations under such Acts) or
do or
permit to be done any act, matter or thing where to do so would
have a
material and adverse effect on the value of any of its Properties
or on
the marketability of any of such
Properties;
|
11
|
4.10
|
not
grant any lease of, part with possession or share occupation of,
the whole
or any part of any of its Properties or confer any licence, right
or
interest to occupy or grant any licence or permission to assign,
under-let
or part with possession of the same;
|
|
4.11
|
not
vary, surrender, cancel or dispose of, or permit to be forfeit,
any
leasehold interest in any of its
Properties;
|
|
4.12
|
observe
and perform all covenants, agreements and stipulations from time
to time
affecting its interest in any of its Properties or contained in
any lease,
agreement for lease or tenancy agreement under which any part of
such
Properties may be held;
|
|
4.13
|
notify
the Lender immediately in the event of any creditor executing diligence
against the Company or any distress or execution is levied or enforced
against the Company or any third party debt order or freezing order
is
made and served on the Company;
|
|
4.14
|
notify
the Lender immediately if any steps (including, without limitation,
the
making of any application or the giving of any notice) are taken
by any
person (including, without limitation, the Company) in relation
to the
administration, receivership, winding-up or dissolution of the
Company;
|
|
4.15
|
not
allow any person other than itself to be registered under the Land
Registration Act 2002 as proprietor of any of its Properties (or
any part
of them) or create or permit to arise any overriding interest (as
specified in Schedule 1 or Schedule 3 to the affecting any such
property;
|
|
4.16
|
not
allow any person other than itself to be registered under the Conveyancing
Acts as owner of any of its Properties (or any part of them), or
create or
permit to arise any burden under section 72 Registration of Title
Xxx
0000, affecting any such property
|
12
|
4.17
|
not
do or cause or permit to be done anything which may in any way
depreciate,
jeopardise or otherwise prejudice the value or marketability of
any of its
Assets.
|
|
4.18
|
maintain
its centre of main interests (COMI) for the purposes of the EU
Regulation
on Insolvency Proceedings 2000 (NO 1346/2000), in the United Kingdom.
|
|
5
|
Protection
of Security
|
|
5.1
|
If
the Company fails to keep any of the Assets in good and substantial
repair
and in good working order and condition or does not take out and
maintain
such insurances as set out above or prove to the Lender that the
premiums
and other money have been paid then the Lender may (as it thinks
fit)
repair and keep in repair the Assets or any of them (and for that
purpose
it or any of its agents may enter upon the properties of the Company)
or
take out or renew any such insurance in any sum and on terms as
the Lender
may think fit.
|
|
5.2
|
The
Lender will be entitled to be paid the proceeds of any policy of
insurance
of the Company (other than in respect of employers' or public liability)
and the Company will promptly irrevocably instruct any insurer
of a policy
to pay the proceeds of it to the Lender and undertakes to the Lender
to
repeat that instruction if the Lender
requires.
|
|
5.3
|
All
money received on any insurance policy of the Company (unless paid
to the
Lender in terms of clause 5.2) will, as the Lender requires, be
applied
either in making good the loss or damage in respect of which the
money is
received or in or towards discharge of the
Loan.
|
|
5.4
|
The
Company will permit any authorised representative of the Lender
at all
reasonable times to enter upon any part of the Properties of the
Company
and of any other property where the Company may be carrying out
any
contract or other works and to inspect the Company’s books of account and
other books and documents and those of its
subsidiaries.
|
13
|
5.5
|
The
Lender shall be entitled, at its sole discretion, to have a valuation
of
the Assets or any part of them carried out from time to time by
an
independent surveyor or valuer (to be appointed at the Lender’s sole
discretion) and the Company consents to any such valuation report
being
prepared and agrees to provide such access and other assistance
as may be
reasonably required by the Lender for such purposes; and the Company
shall
ensure that any tenant or other occupier of the Properties shall
ensure
access and assistance is provided for the foregoing purposes.
|
|
5.6
|
No
statutory or other power of granting or agreeing to grant or of
accepting
or agreeing to accept surrenders of leases or tenancies of the
whole or
any part of the Properties charged under this Debenture will be
capable of
being exercised by the Company without the previous written consent
of the
Lender.
|
|
5.7
|
The
obligations of the Company under this Debenture will not be affected
by
any act, omission, circumstance, matter or thing which but for
this
provision might operate to release or otherwise exonerate it from
any of
its obligations hereunder in whole or in part, including (without
limitation):-
|
|
5.7.1
|
any
variation, extension, discharge, compromise, dealing with, exchange
or
renewal of any right or remedy which the Lender may have now or
in the
future from or against the Company or any other person in respect
of the
Loan;
|
|
5.7.2
|
any
act or omission by the Lender or any other person in taking up,
perfecting
or enforcing any security or guarantee from or against the Company
or any
other person or the invalidity or unenforceability of any such
security or
guarantee;
|
|
5.7.3
|
any
amendment, variation, restatement or supplement of or to, or novation,
transfer or termination (in whole or in part) of, any document
relating to
the Loan or any exercise by the Lender (in its absolute discretion)
of its
rights to refuse, grant, continue, vary, review, determine or increase
any
credit or facilities to the Company or any other
person;
|
14
|
5.7.4
|
any
grant of time, indulgence, waiver or concession to the Company
or any
other person;
|
|
5.7.5
|
any
arrangement or compromise entered into between the Lender and the
Company
or any other person;
|
|
5.7.6
|
the
administration, insolvency, bankruptcy, sequestration, liquidation,
winding-up, receivership, dissolution, incapacity, limitation,
disability,
discharge by operation of law or any change in the constitution,
name and
style of, the Company or any other
person;
|
|
5.7.7
|
the
invalidity, illegality, unenforceability, irregularity or frustration
of
the Loan or any of the obligations of the Company or any other
person;
|
|
5.7.8
|
any
postponement, discharge, reduction, non-provability or other similar
circumstance affecting any obligation of any other person resulting
from
any administration, insolvency, liquidation, receivership or dissolution
proceedings or from any law, regulation or
order.
|
|
6
|
Enforcement
|
|
6.1
|
The
security constituted by this Debenture shall become enforceable
and the
Lender may exercise all the powers conferred on mortgagees by the
Law of
Property Xxx 0000 (as varied or extended by this Debenture) or
the
Conveyancing Acts of the Republic Of Ireland as the case may be
all the
powers conferred on the holder of a qualifying floating charge
(as defined
in the Insolvency Act 1986) by the Insolvency Xxx 0000 (or in the
Republic
of Ireland as defined by the Companies Acts) and all or any of
the rights
and powers conferred by this Debenture without further notice to
the
Company upon and at any time after the occurrence of any of the
following
events:
|
15
| 6.1.1 |
if
the Company has failed to pay all or any of the Loan following
a demand
for payment by the Lender;
|
| 6.1.2 |
any
step is taken (including, without limitation, the making of an
application
or the giving of any notice) by the Company or by any other person
to
appoint an administrator in respect of the
Company;
|
| 6.1.3 |
any
step is taken (including, without limitation, the making of an
application
or the giving of any notice) by the Company or by any other person
to wind
up or dissolve the Company or to appoint a liquidator, trustee,
receiver,
administrative receiver or similar officer of the Company or any
part of
its undertaking or assets;
|
| 6.1.4 |
the
making of a request by the Company for the appointment of a Receiver
or
administrator;
|
| 6.1.5 |
if
the Company breaches any of the provisions of this
Debenture.
|
|
6.2
|
Section
103 of the Law of Property Xxx 0000 and section 20 of the Conveyancing
Xxx
0000 (Regulation
of exercise of power of sale) will
not apply to this Debenture but the statutory power of sale will
as
between the Lender and a purchaser from the Lender arise on and
be
exercisable at any time after the execution of this Debenture provided
that the Lender will not exercise the power of sale until payment
of all
or any part of the Loan has been demanded or a Receiver or administrator
has been appointed but this proviso will not affect a purchaser
or put him
upon inquiry whether such demand or appointment has been validly
made.
|
16
|
6.3
|
The
Company shall not, without the prior written consent of the Lender,
exercise any of the powers of leasing or of accepting surrenders
of leases
conferred by Sections 99 (Leasing
powers of mortgagor and mortgagee in possession) and
100 (Powers
of mortgagor and mortgagee in possession to accept surrenders of
leases)
of
the Law of Property Xxx 0000, Xxxxxxx 00 Xxxxxxxxxxxx Xxx 0000 and
Section
3 of the Conveyancing Xxx 0000. The statutory powers of sale, leasing
and
accepting surrenders exercisable by the Lender under this Debenture
are
extended so as to authorise the Lender whether in its own name or
in that
of the Company to grant a lease or leases of the whole or any part
or
parts of the freehold and leasehold property of the Company with
whatever
rights relating to other parts of it and containing whatever covenants
on
the part of the Company and generally on such terms and conditions
(including the payment of money to a lessee or tenant on a surrender)
and
whether or not at a premium as the Lender thinks
fit.
|
|
6.4
|
To
the extent that Assets constitute Financial Collateral and are subject
to
a Security Financial Collateral Arrangement created by or pursuant
to this
Debenture, the Lender shall have the right, at any time after this
Debenture becomes enforceable, to appropriate all of any part of
those
Assets in or towards the payment or discharge of the Loan. The value
of
any Assets appropriated in accordance with this clause 6.4 shall
be the
price of those Assets at the time the right of appropriation is exercised
as listed on any recognised market index, or determined by such other
method as the Lender may select (including independent valuation).
The
Company agrees that the methods of valuation provided for in this
clause
6.4 are commercially reasonable for the purpose of Regulation 18
of the
Financial Collateral Regulations. To the extent that Assets constitute
Financial Collateral, the Company agrees that such Assets shall be
held or
redesignated so as to be under the control of the Lender for all
purposes
of the Financial Collateral Regulations.
|
17
|
6.5
|
At
any time after this Debenture becomes enforceable, all voting rights
in
respect of all stock, shares and securities charged by clause 2.1.2.5
may
be exercised (without obligation to do so) by the Lender (or its
nominee)
in such a manner as it shall (in its absolute discretion) see fit
and all
dividends and other distributions payable in respect of such stock,
shares
and securities shall be paid to and retained by the Lender and may
be
applied by the Lender in accordance with clause
9.
|
|
6.6
|
Section
93 of the Law of Property Xxx 0000 (Restriction
on consolidation of mortgages) and
Section 17 of the Conveyancing Act 1881 will not apply to this
Debenture.
|
|
6.7
|
Neither
the Lender nor any Receiver shall be liable to account to the Company
as
mortgagee in possession in respect of all or any of the Assets and
shall
not be liable to the Company for any loss or damage arising from
the
exercise by the Lender or any Receiver of all or any of the powers
conferred by this Debenture or the Law of Property Xxx
0000.
|
|
6.8
|
At
any time after this Debenture becomes enforceable, the Lender may
redeem
any prior mortgage, charge or encumbrance in respect of all or any
of the
Assets or procure the transfer of them to itself and may settle the
accounts of the prior mortgagee, chargee or encumbrancer and any
accounts
so settled will be, in the absence of manifest error, conclusive
and
binding on the Company. All money paid by the Lender to the mortgagee,
chargee or encumbrancer in accordance with such accounts shall form
part
of the Loan.
|
|
7
|
Appointment
of Receiver
or Administrator
|
|
7.1
|
At
any time after the security constituted by this Debenture has become
enforceable the Lender shall be and is entitled by instrument in
writing
to appoint any one or more persons
as:-
|
| 7.1.1 |
a
Receiver of all or any of the Assets;
and/or
|
18
| 7.1.2 |
an
administrator of the Company,
|
in
each
case in accordance with and to the extent permitted by applicable laws. The
Lender may not appoint a Receiver solely as a result of the obtaining of a
moratorium or anything done with a view to obtaining a moratorium under Schedule
A1 of the Insolvency Xxx 0000 except with the leave of the court.
|
7.2
|
Where
more than one Receiver is appointed they will have power to act separately
(unless the appointment of the Lender specifies to the contrary).
|
|
7.3
|
Any
appointment over part only of the Assets charged under this Debenture
will
not preclude the Lender from making any subsequent appointment of
a
Receiver over any part of the Assets over which an appointment has
not
previously been made by it.
|
|
7.4
|
The
Lender may from time to time determine the remuneration of the Receiver
and may (subject to Section 45 of the Insolvency Act 1986) remove
the
Receiver from all or any part of the Assets of which he is the Receiver
and at any time after any Receiver has vacated office or ceased to
act,
appoint a further Receiver over all or any part of those
Assets.
|
|
7.5
|
The
Receiver will be the agent of the Company (which will be solely liable
for
his acts, defaults and remuneration) and will have and be entitled
to
exercise in relation to the Company all the powers set out in Schedule
1
to the Insolvency Xxx 0000 and all the powers conferred from time
to time
on receivers by statute and in particular by way of addition to but
without prejudice to those powers (and those of the Lender) the Receiver
will have power:-
|
| 7.5.1 |
to
sell, let or lease or concur in selling, letting or leasing and to
vary
the terms or determine, surrender or accept surrenders of leases
or
tenancies of or grant options and licences over all or any part of
the
Assets in such manner and generally on such terms as he shall think
fit in
his absolute and unfettered discretion and so that any such sale
may be
made for cash or for shares or securities of another company or other
valuable consideration (in each case payable in a lump sum or by
instalments);
|
19
| 7.5.2 |
to
sever any fixtures (including trade and tenant’s fixtures) from the
property of which they form part;
|
| 7.5.3 |
to
exercise all powers, rights and/or obligations under any contract
or
agreement forming part of the Assets, including, without limitation,
all
voting and other rights attaching to stocks, shares and other securities
owned by the Company;
|
| 7.5.4 |
to
make and effect all repairs and
improvements;
|
| 7.5.5 |
to
redeem any prior encumbrance and to settle and pass the accounts
of the
encumbrancer and any accounts so settled and passed will (subject
to any
manifest error) be conclusive and binding on the Company and the
money so
paid will be deemed to be an expense properly incurred by the
Receiver;
|
| 7.5.6 |
to
promote the formation of a subsidiary or subsidiaries of the Company,
including, without limitation, any such company formed for the purpose
of
purchasing, leasing, licensing or otherwise acquiring interests in
all or
any of the assets of the Company;
|
| 7.5.7 |
to
make any arrangement or compromise which the Lender or the Receiver
may
think fit;
|
| 7.5.8 |
to
make and effect all repairs, renewals, improvements, and
insurances;
|
| 7.5.9 |
to
appoint managers officers and agents for any of the purposes referred
to
in this clause 7 at such salaries as the Receiver may
determine;
|
20
| 7.5.10 |
to
do all other acts and things as may be considered by the Receiver
to be
incidental or conducive to the above or otherwise incidental or conducive
to the preservation, improvement or realisation of the
Assets.
|
|
7.6
|
No
purchaser or other person dealing with the Lender, any Receiver or
any
agent or delegate shall be obliged or concerned to enquire whether
the
right of the Lender or any Receiver to exercise any of the powers
conferred by or referred to in this Debenture has arisen or become
exercisable, whether any of the Loan remain outstanding or be concerned
with notice to the contrary or whether an event has occurred to authorise
the Lender or any Receiver to act or as to the propriety or validity
of
the exercise or purported exercise of any such
power.
|
|
8
|
Power
of Attorney
|
|
8.1
|
The
Company irrevocably and by way of security appoints the Lender (whether
or
not a Receiver or administrator has been appointed) and also (as
a
separate appointment) any Receiver severally as the attorney and
attorneys
of the Company, for the Company and in its name and on its behalf
and as
its act and deed or otherwise, to execute and deliver and otherwise
perfect any deed, assurance, agreement, instrument or act which may
be
required of the Company under this Debenture or may be required or
deemed
proper in the exercise of any rights or powers conferred on the Lender
or
any Receiver under this Debenture or otherwise for any of the purposes
of
this Debenture.
|
|
8.2
|
The
Company ratifies and confirms and agrees to ratify and confirm whatever
any attorney does or purports to do under its appointment under clause
8.1.
|
|
9
|
Application
of security proceeds
|
|
9.1
|
Any
money received under the powers conferred by this Debenture will,
subject
to the payment or repayment of any prior claims, be paid or applied
in the
following order of priority:-
|
21
| 9.1.1 |
in
or towards satisfaction of all costs, charges and expenses incurred,
and
payments made, by the Lender and/or the Receiver including the
remuneration of the Receiver;
|
| 9.1.2 |
in
or towards satisfaction of the Loan in whatever order the Lender
may
require;
|
| 9.1.3 |
as
to the surplus (if any) to the person(s) entitled to
it;
|
provided
that the Receiver may retain any money in his hands for so long as he thinks
fit, and the Lender may, without prejudice to any other rights the Lender may
have at any time and from time to time, place and keep for such time as the
Lender may think prudent any money received, recovered or realised under or
by
virtue of this Debenture to or at a separate or suspense account to the credit
either of the Company or of the Lender as the Lender thinks fit without any
immediate obligation on the part of the Lender to apply such money or any part
of such money in or towards the payment or discharge of the Loan.
|
9.2
|
Subject
to clause 9.1, any money received or realised by the Lender from
the
Company or a Receiver under this Debenture or any administrator may
be
applied by the Lender to any item of account or liability or transaction
in such order or manner as the Lender may
determine.
|
|
10
|
Indemnity
|
|
10.1
|
The
Lender, the Receiver and every attorney, manager, agent, employee
or other
person appointed by the Lender or the Receiver under or in connection
with
this Debenture shall be indemnified by the Company in respect of
all
liabilities, costs, losses and expenses incurred by it or him in
the
execution (or purported execution) of any of the powers, authorities
or
discretions vested in it or him pursuant to the terms of this Debenture
(or by any law or regulation) and against all actions, proceedings,
costs,
claims and demands in respect of any matter or thing done or omitted
in
any way in connection with or relating to all or any of the Assets
and the
Lender, the Receiver or any such other person may retain and pay
all sums
in respect of the same out of the money received under the powers
conferred by this Debenture.
|
22
|
10.2
|
The
indemnity under clause 10.1 shall not apply to the extent that any
such
liability, cost, loss and/or expense arises as a result of the wilful
default or gross negligence of the Lender or the
Receiver.
|
|
11
|
Costs
and Expenses
|
The
Company shall pay or reimburse to the Lender on demand (on a full indemnity
basis) all costs, charges and expenses (including legal fees) incurred or to
be
incurred by the Lender in the creation, registration, perfection, enforcement,
discharge and/or assignment of this Debenture (including, without limitation,
the costs of any proceedings in relation to this Debenture or the Loan), which
costs, charges and expenses shall form part of the Loan.
|
12
|
Investigations
|
|
12.1
|
If
any event of default (howsoever described) in any agreement between
the
Lender and the Company occurs then (while it is continuing unwaived)
the
Lender shall be entitled to initiate an investigation of, and/or
instruct
the preparation of a report (accounting, legal, valuation or other)
on,
the business and affairs of the Company and/or any other Group Company
which the Lender considers necessary to ascertain the financial position
of the Company, all fees and expenses incurred by the Lender in so
doing
being payable by the Company.
|
|
12.2
|
The
Company hereby consents to the provision by the Lender of all information
in relation to the Company which the Lender provides to any person
in
relation to the preparation of a report as is referred to in clause
12.1
above.
|
23
|
13
|
Notices
|
|
13.1
|
Any
communication to be made under or in connection with this Debenture
shall
be made in writing and, unless otherwise stated, may be made by fax
or
e-mail.
|
|
13.2
|
The
e-mail address of the Lender for any communication or document to
be made
or delivered under or in connection with this Debenture is
xxxxxx@xxxxxxx.xxx. The fax number of the Company for any communication
or
document to be made or delivered under or in connection with this
Debenture is x0 000-000-0000 marked for the attention of Xxxxxx X.
Press
Esq. or any substitute address or fax number as the Lender may notify
to
the Company by not less than five Business Days'
notice.
|
|
13.3
|
The
e-mail address of the Company for any communication or document under
or
in connection with this Debenture is Xxxxxxx@xxxxxxx.xxx. The fax
number
of the Company for any communication or document to be made or delivered
under or in connection with this Debenture is 00 1 540 437 1686 marked
for
the attention of the Chief Financial
Officer.
|
|
13.4
|
Subject
to clause 14.5, any communication made or document made or delivered
by
one person to another under or in connection with this Debenture
will only
be effective:-
|
|
(a)
|
if
by way of fax, when received in legible form;
or
|
|
(b)
|
if
by way of e-mail, when it has been delivered to the relevant
.
|
|
13.5
|
Any
communication or document to be made or delivered to the Lender will
be
effective only when actually received by the Lender.
|
|
14
|
Miscellaneous
|
|
14.1
|
If
at any time any provision of this Debenture is or becomes illegal,
invalid
or unenforceable in any respect under any law of any jurisdiction,
neither
the legality, validity or enforceability of the remaining provisions
nor
the legality, validity or enforceability of such provision under
the law
of any other jurisdiction will be in any way affected or
impaired.
|
24
|
14.2
|
No
failure or delay by the Lender in exercising any right or remedy
under
this Debenture shall operate as a waiver, and no single or partial
exercise shall prevent further exercise of any right or
remedy.
|
|
14.3
|
The
Lender will be entitled to disclose to any member of the the Lender
Group,
its auditors, advisers or applicable regulatory authority or any
other
person that enters or proposes to enter into any trust or contractual
arrangements with the Lender in relation to the Loan confidential
information concerning this Debenture or any arrangement made in
connection with this Debenture.
|
|
14.4
|
A
certificate by any duly authorised officer of the Lender as to the
amount
of the Loan or any part of them shall, in the absence of manifest
error,
be conclusive and binding on the
Company.
|
|
14.5
|
The
Lender may at any time (without notice or consent) assign the benefit
of
this Debenture (or all or any of its rights under this Debenture)
to any
person. The Company may not assign or transfer the benefit or burden
of
this Debenture or all or any of its rights under this Debenture without
the prior written consent of the
Lender.
|
|
15
|
Definitions
|
|
15.1
|
In
the interpretation of this
Debenture:-
|
"Assets"
means
the whole of the property (including uncalled capital) which is or may be from
time to time comprised in the property and undertaking of the
Company;
"Business
Day"
means a
day (other than a Saturday or Sunday) when the branch of the Lender at which
the
Company's account is located is open for business;
25
“Companies
Act”
means
the Companies Acts of the Republic of Ireland from 1963 to 2006;
"Convertible
Loan Agreement"
means a
convertible loan agreement dated on or about the date of this
Agreement;
“Conveyancing
Acts” means
the
Conveyancing Acts of the Republic of Ireland from 1881 to 1911;
"Default
Rate"
means
the rate of interest payable in accordance with clause 4.2 of the Convertible
Loan Agreement;
"Financial
Collateral"
shall
have the meaning given to that expression in the Financial Collateral
Regulations.
"Financial
Collateral Regulations" means
the
Financial Collateral Arrangements (No. 2) Regulations 2003 (S.I. 2003 No.
3226);
"Fixed
Charge Asset"
means an
Asset for the time being comprised within a mortgage, fixed charge or assignment
by way of security created by clause 2.1, 2.2, 2.3 or (with effect from the
date
of its creation) any security created pursuant to clause 2.11;
"Group"
means
the Company and its Subsidiaries and "Group
Company"
shall be
construed accordingly;
"Loan"
means
the amount of up to €1,300,000
advanced to the Company pursuant to the terms and conditions of the Convertible
Loan Agreement or the principle amount outstanding for the time being of that
loan (including any compounded interest);
"Permitted
Disposal" means:
(a)
the
disposal of stock subject only to the floating charge created by clause 2.1.3
on
an arm's length basis in the ordinary course of trading;
(b)
disposals of obsolete or redundant assets (other than Fixed Charge Assets,
other
Assets subject to a fixed charge or security in favour of the Lender) which
are
no longer required for the business of any Group Company;
26
(c)
disposals of assets (other than Fixed Charge Assets, other Assets subject to
a
fixed charge or security in favour of the Lender) in exchange for replacement
assets comparable or superior as to type, value and quality;
"Properties"
means at
any time the freehold and leasehold properties of the Company at that time
or
any of them as the context requires;
“Receivables”
means
all
sums of money now or in the future receivable by the Company which consist
of or
are derived from any Asset referred to in clauses 2.1.1, 2.1.2, 2.2 or 2.3
or
(with effect from the date of the creation of any such security) any Assets
comprised in any security created pursuant to clause 2.11;
"Receiver"
means an
administrative receiver, receiver and manager or other receiver appointed
pursuant to this Debenture in respect of the Company or over all or any of
the
Assets charged by or pursuant to this Debenture;
“Security
Financial Collateral Arrangements” shall
have the meaning given to that expression in the Financial Collateral
Regulations;
"Subsidiary"
means,
in respect of any company, person or entity, any company, person or entity
directly or indirectly controlled by such company, person or entity (including
any Subsidiary acquired after the date of this Debenture) and "Subsidiaries"
shall
mean all or any of them , as appropriate
|
16.2
|
References
to:-
|
|
16.2.1
|
statutes,
statutory provisions and other national or EC legislation shall include
all amendments, substitutions, modifications and re-enactments for
the
time being in force and shall include any orders, regulations, instruments
or other subordinate legislation made under the relevant
legislation;
|
|
16.2.2
|
"control"
of
any company shall be interpreted in accordance with Section 995 of
the
Income Tax Xxx 0000;
|
27
|
16.2.3
|
"including"
shall
not be construed as limiting the generality of the words preceding
it;
|
|
16.2.4
|
“property”
shall
include any interest (legal or equitable) in real or personal property
and
any thing in action;
|
|
16.2.4
|
this
Debenture shall include the
Schedule;
|
|
16.2.5
|
any
term or phrase defined in the Companies Xxx 0000 (as amended from
time to
time) shall bear the same meaning in this
Debenture;
|
|
16.2.6
|
words
importing the singular shall include the plural and vice versa and
words
denoting any gender shall include all
genders;
|
|
16.2.7
|
this
Debenture and to any provisions of it or to any other document referred
to
in this Debenture shall be construed as references to it in force
for the
time being as amended, varied, supplemented, restated, substituted
or
novated from time to time;
|
|
16.2.8
|
any
person are to be construed to include references to a corporation,
firm,
company, partnership, joint venture, unincorporated body of persons,
individual or any state or agency of a state, whether or not a separate
legal entity;
|
|
16.2.9
|
any
person are to be construed to include that person’s assignees or
transferees or successors in title, whether direct or
indirect;
|
| 16.2.10 |
clause
headings are for ease of reference only and are not to affect the
interpretation of this Debenture.
|
|
15.3
|
If
applicable, the terms of the documents under which the Loan arise
and of
any side letters between the Company and the Lender in relation to
them
are incorporated herein to the extent required for any purported
disposition of the Assets (or any of them) contained in this Debenture
to
be a valid disposition in accordance with section 2(1) of the Law
of
Property (Miscellaneous Provisions) Xxx
0000.
|
|
15.4
|
The
parties intend that this document shall take effect as a
deed.
|
28
|
15.5
|
The
use of bold type shall be ignored in the construction of this
Debenture.
|
|
16
|
Release
|
If
the
Lender is satisfied that the Loan have been unconditionally and irrevocably
paid
or discharged in full, the Lender will at the request and cost of the Company
take whatever action is required in order to release the Assets from the
security constituted by this Debenture.
|
17.
|
Governing
Law
|
This
Debenture will be governed by and construed according to Irish law and the
courts of the Republic of Ireland have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Deed (including a dispute
regarding the existence, validity or termination of this Deed).
IN
WITNESS
whereof
this Debenture has been executed by the Company as a deed and signed by the
Lender and shall take effect on the day and year stated at the beginning of
this
document.
29
The
Schedule
Freehold
and leasehold property
|
Address
or Description
|
Title
No.(s) (if registered
land)
|
Freehold/leasehold
|
||
|
None
|
-
|
-
|
30
|
SIGNED
as
a deed by
|
)
|
|
NEW
MEDIA LOTTERY SERVICES
PLC
and
|
)
)
|
|
Director
|
|
|
|
|
|
Director/Secretary
|
|
|
SIGNED
as
a deed on behalf of
|
)
|
|
TRAFALGAR
CAPITAL SPECIALIZED
|
)
|
|
INVESTMENT
FUND acting
by
its general
|
)
|
|
partner
TRAFALGAR
CAPITAL SARL
|
)
|
31
