Exhibit 4.11
___________________________________
INTER CREDITOR DEED
___________________________________
Dated 15 February 2002
among
BANK OF SCOTLAND
and
THE SUBORDINATED CREDITORS
and
GA DESIGN INTERNATIONAL (HOLDINGS) LIMITED
Xxxxxxx Xxxxx W.S.
Edinburgh
CLAUSES PAGE
1. Purpose of this Deed 1
2. Companies' Undertaking 1
3. Subordinated Creditors' Undertaking 2
4. Subordinated Creditors' Consents 2
5. Subordination 2
6. Set-Off 4
7. Permitted Payments 4
8. New Money 4
9. Continuing Agreement 4
10. Waiver of Defences 4
11. Contravention 5
12. Assignment and Transfer 5
13. Severability and Waivers 5
14. Authority to Release Information 5
15. Amendment 6
16. Counterparts 6
17. Perpetuity Period 6
18. Governing Law 6
Schedule 1 7
Schedule 2 8
Schedule 3 9
IMPORTANT NOTICE: We recommend that you consult your solicitor or other
independent legal adviser before executing this document.
INTER-CREDITOR DEED
This INTER-CREDITOR DEED is made the . day of February 2002 among:
(1) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND ("BoS");
(2) GA DESIGN INTERNATIONAL (HOLDINGS) LIMITED (Registered Number 3705307)
having its registered office at Lyme House Studios, 00-00 Xxxx Xxxxxx,
Xxxxxx XX0 0XX (the "Company"); and
(3) THE PERSONS listed in Schedule 1 ("the Subordinated Creditors").
Definitions are given in Schedule 3.
1. Purpose of this Deed
1.1 In consideration of BoS entering into the Loan Agreement, the
Subordinated Creditors agree to regulate their rights under their loan
documentation and security as set out in this Deed.
1.2 The Company enters into this Deed to acknowledge and agree the
arrangements between itself, BoS and the Subordinated Creditors and
none of the undertakings given in this Deed are given to or
enforceable by the Company.
2. Company's Undertakings
During the Security Period, the Company will not (and the Subordinated
Creditors will not require the Company to) unless otherwise agreed in
writing by BoS:-
2.1 secure all or part of the Subordinated Debt;
2.2 pay, prepay, redeem, purchase or otherwise discharge or release any of
the Subordinated Debt other than in respect of Permitted Payments; or
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2.3 amend any of the terms attaching to the Subordinated Debt if such
amendment would make such terms more onerous to the Company or any
member of the Group.
3. Subordinated Creditors' Undertaking
3.1 Subject to Clause 4, during the Security Period neither the
Subordinated Creditors nor any agent or trustee for them will:-
3.1.1 ask, demand, xxx, claim, take or receive from the Company, by
cash receipt, set-off or otherwise, the whole or any part of the
Subordinated Debt other than in respect of Permitted Payments;
and/or
3.1.2 appoint any administrative receiver or other receiver or
petition or apply for or vote in favour of any resolution for
the winding-up, dissolution or administration of the Company.
3.2 During the Security Period, the Subordinated Creditors will not,
unless otherwise agreed in writing by BoS:-
3.2.1 seek to secure all or any part of the Subordinated Debt; or
3.2.2 amend any of the terms attaching to the Subordinated Debt if
such amendment would make such terms more onerous to the Company
or any member of the Group.
4. Subordinated Creditors' Consents
4.1 During the Security Period if BoS has given any consent, approval or
waiver with or in connection with the Loan Agreement or the BoS
Security, the Subordinated Creditor shall be deemed to have done the
same and to have made an equivalent or equal amendment of the Notes.
4.2 The Subordinated Creditors shall do such things and execute all such
documents as BoS may reasonably require to give effect to this Clause
4.
5. Subordination
5.1 If:-
5.1.1 any distribution, division or application (partial or complete,
voluntary or involuntary, by operation of law or otherwise), of
any part of the assets of the Company to
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creditors of the Company occurs by reason of the liquidation,
dissolution or other winding-up of the Company or its businesses
or any sale, receivership or insolvency proceeding or assignment
for the benefit of creditors; or
5.1.2 the Company goes into liquidation or becomes subject to any
insolvency or rehabilitation proceeding, administration, or
voluntary arrangement;
then:-
5.1.3 the Subordinated Debt will be postponed and subordinated to the
BoS Debt and each of the Subordinated Creditors will file any
proof or other claim necessary for the recovery of the
Subordinated Debt;
5.1.4 any payment or distribution of any kind or character and all and
any rights in respect of them, whether in cash, securities or
other property which is payable or deliverable upon or with
respect to the Subordinated Debt or any part of it by a
liquidator, administrator or receiver of the Company or its
estate ("Rights") made or paid to or received by the
Subordinated Creditors or to which any of the Subordinated
Creditors are entitled will be held in trust by those creditors
for BoS and will immediately be paid or, transferred or assigned
to BoS for application against the BoS Debt; and
5.1.5 if the trust referred to in sub-clause 5.1.4 above fails or
cannot be given effect to, the Subordinated Creditors (and any
agent or trustee on their behalf) will pay an amount equal to
the Rights to BoS for application against the BoS Debt.
5.2 The Subordinated Creditors irrevocably authorise BoS to demand, xxx
and prove for, collect and receive every payment or distribution
referred to in Clause 5.1.2 and discharge liability in respect of it
and to file claims and take such other proceedings, in BoS own name or
in the name of the Subordinated Creditors or otherwise, as BoS may
deem necessary or advisable for the enforcement of this Deed.
5.3 The Subordinated Creditors will execute and deliver to BoS such powers
of attorney, assignments or other instruments as may be requested by
BoS to enable BoS to enforce any claims upon or with respect to all or
part of the Subordinated Debt, and
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to collect and receive any payments or distributions which may be
payable or deliverable at any time upon or with respect to all or part
of the Subordinated Debt.
5.4 The liquidator or other insolvency representative or trustee of the
Company or its estate is hereby authorised by the Subordinated
Creditors to apply any assets or monies received by him in accordance
with the terms of this Deed.
6. Set-Off
If any Subordinated Debt is discharged in whole or in part by a set-off
(other than in respect of the Permitted Payments) the Subordinated
Creditors will immediately on receipt of such amount pay to BoS for
application in accordance with the terms of Clause 5.1.3 an amount equal to
the amount of the Subordinated Debt discharged by the set-off.
7. Permitted Payments
Permitted Payments may be made by the Company to the Subordinated Creditors
in accordance with the Loan Agreement in respect of the Subordinated Debt
during the Security Period.
8. New Money
8.1 The Subordinated Creditors agree that the BoS Debt may be refinanced
and that any obligations incurred by the Company in refinancing the
BoS Debt will be BoS Debt within the meaning of this Deed and will
rank ahead of the Subordinated Debt on substantially the terms set out
in this Deed.
8.2 The Subordinated Creditors agree that BoS may, at its discretion, make
further advances to the Company and each such advance will be deemed
to constitute BoS Debt for the purposes of this Deed.
9. Continuing Agreement
This Deed shall apply in respect of the BoS Debt irrespective of any
intermediate payment in whole of any of the BoS Debt and shall apply to the
ultimate balance of the BoS Debt.
10. Waiver of Defences
The subordinations effected or intended to be effected by this Deed and the
obligations of the Subordinated Creditors under it shall not be
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affected by any act, omission or circumstances which but for this provision
might operate to release any of the Subordinated Creditors from their
obligations or affect such obligations or such subordinations including
without limitation and whether or not known to the Subordinated Creditors
or any other person:-
10.1 any composition with the Company or any other person and any steps
taken to wind up or dissolve the Company;
10.2 the taking, variation, compromise, renewal or release of, or refusal
or neglect to perfect or enforce, any rights, remedies or securities
against or granted by the Company or any other person; or
10.3 any legal limitation, disability, incapacity or other circumstances
relating to the Company or any other person or, subject to the other
provisions of this Deed, any amendment to or variation of the terms of
the Loan Agreement or this Deed or any other document.
11. Contravention
Any payments made to and/or received and/or retained by any of the
Subordinated Creditors in contravention of the terms of this Deed shall be
held on trust for BoS and shall be paid to BoS for application against BoS
Debt.
12. Assignment and Transfer
12.1 BoS shall be entitled to assign or otherwise transfer the whole or any
part of the benefit of this Deed to any person to whom all or a
corresponding part of its rights and benefits and, where applicable,
obligations under any banking document are assigned or transferred in
accordance with the provisions of them.
12.2 The Subordinated Creditors shall procure that any purchaser or
transferee of any of the Subordinated Debt shall enter into a Deed of
Accession.
13. Severability and Waivers
13.1 If at any time any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Deed hereof nor the legality,
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validity or enforceability of such provisions under the law of any
other jurisdiction shall in any way be affected or impaired.
13.2 No failure to exercise, nor delay in exercising, any right or remedy
under this Deed by BoS will operate as a waiver of such rights and
remedies, nor will any single or partial exercise of any other right
or remedy.
14. Authority to Release Information
During the Security Period BoS and the Subordinated Creditors may disclose
to each other information concerning the Company and its affairs in such
manner and to such extent as BoS and the Subordinated Creditors may wish
and the Company consents to such disclosure.
15. Amendment
This Deed shall not be varied or amended in any way except in writing
signed by the Subordinated Creditors, the Company and BoS.
16. Counterparts
This Deed may be executed in any number of counterparts and all the
counterparts when executed and taken together shall constitute one and the
same Deed.
17. 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.
18. Governing Law
This Deed shall be governed by and construed according to English law.
IN WITNESS whereof this Deed has been executed by each of the parties as a deed
on the date first above written.
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SCHEDULE 1
Subordinated Creditors
Noteholders Amount of Notes
Xxxxxx Xxxxxx (Pounds)63,322.37
Xxxxxx Xxxxxxx (Pounds)63,322.37
Xxxxxxxxxxx Xxxxxx (Pounds)700,328.95
Xxxxx Xxxxxxxx (Pounds)461,842.10
Xxxxxxxx Xxxxxx (Pounds)573,684.21
Xxxxxx Xxxxx (Pounds)573,684.21
Xxxx Xxxxxxxx (Pounds)215,131.58
Xxxxxxx Xxxxxxx (Pounds)7,171.05
Xxxxxxxx Xxxxxxxxxx (Pounds)7,171.05
Xxxxx Xxxxxx (Pounds)7,171.05
Xxxxxxxx Xxxxxxxx (Pounds)7,171.05
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SCHEDULE 2
Deed of Accession
This Deed made on the day of (Year-figure)
BY: [ ] of [ ] (the "Acceding Party") in favour
of
and is SUPPLEMENTAL to an inter creditor deed (the "Inter Creditor Deed") dated
and made between (a) GA Design International (Holdings) Limited, (b) the
Subordinated Creditors (as defined), and (c) The Governor and Company of the
Bank of Scotland.
NOW THIS DEED WITNESSES AS FOLLOWS
1. Words and expressions defined in the Inter Creditor Deed shall have the
same meaning in this deed.
2. The Acceding Party confirms it has been supplied with a copy of the Inter
Creditor Deed and that [ ] (the "Transferor") has agreed to transfer to
----------
it [the Subordinated Debt] detailed in the Schedule to this deed.
3. The Acceding Party covenants with BoS for the benefit of BoS (including its
respective assigns, transferees and successors in title) to be bound by all
the terms of the Inter Creditor Deed capable of applying to it to the
intent and effect that the Acceding Party shall be a party to the Inter
Creditor Deed as with effect from the date the Acceding Party is registered
as a holder of any part of the Subordinated Debt.
4. This Deed shall be governed by and construed according to English law.
IN WITNESS WHEREOF the Acceding Party has caused this Deed to be duly executed
the day and year first above written.
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SCHEDULE 3
Definitions
Definitions
In the interpretation of this Deed:-
1. "BoS Debt" means all or any monies and liabilities which shall from time to
time (and whether on or at any time after demand) be due, owing or incurred
in whatsoever manner to BoS by the Company, whether actually or
contingently, solely or jointly and whether as principal or surety and
whether or not BoS shall have been an original party to the relevant
transaction, and including interest, discount, commission and other lawful
charges or expenses which BoS may in the course of its business charge or
incur in respect of any of those matters or for keeping the Company's
accounts, and so that interest shall be computed and compounded according
to the usual BoS rates and practice as well after as before any demand made
or decree obtained;
2. "BoS Security" means all fixed and floating charges and other security and
all collateral or substituted securities for the time being held by BoS and
given by the Company as security for the payment and/or discharge of the
BoS Debt;
3. "Deed of Accession" means a deed of accession in favour of BoS
substantially in the form set out in Schedule 2 (or in such other form as
BoS shall approve in writing);
4. "Group" means the Company and its Subsidiaries;
5. "Loan Agreement" means the term loan facility letter of today's date
addressed to the Company by BoS;
6. "Notes" means the(Pounds)2,680,000 subordinated promissory notes issued to
the Subordinated Creditors in the amounts specified in Schedule 1 pursuant
to the Stock Purchase Agreement;
7. "Permitted Payments" means the payments in respect of the Subordinated Debt
which may be paid by the Company in accordance with the Loan Agreement and
the Notes;
8. "Security Period" means the period from the date of this Deed to the date
on which the BoS Security is discharged in full;
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9. "Stock Purchase Agreement" means the stock purchase agreement dated on or
around the date hereof between the Company, HLM Architects Limited, HLM
Design Limited and the Sellers (as defined therein).
10. "Subordinated Debt" means all present and future sums, liabilities and
obligations (whether actual and contingent, present or future) payable or
owing by the Company to the Subordinated Creditors or any of them pursuant
to the Notes;
11. References to:-
11.1 statutes, statutory provisions and other legislation shall include
all amendments, substitutions, modifications and re-enactments for
the time being in force;
11.2 "control" of any company shall be interpreted in accordance with
Section 840 of the Income and Corporation Taxes Xxx 0000;
11.3 "including" shall not be construed as limiting the generality of the
words preceding it;
11.4 this Deed shall include the Schedules;
11.5 any term or phrase defined in the Companies Xxx 0000 (as amended from
time to time) shall bear the same meaning in this Deed;
11.6 words importing the singular shall include the plural and vice versa
and words denoting any gender shall include all genders;
11.7 this Deed and to any provisions of it or to any other document
referred to in this Deed 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;
11.8 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;
11.9 any person are to be construed to include that person's assignees or
transferees or successors in title, whether direct or indirect;
11.10 clause headings are for ease of reference only and are not to affect
the interpretation of this Deed.
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12. For the avoidance of doubt, this Deed supersedes any previous agreement,
whether written or oral, express or implied, between the parties to it (or
any of them) in relation to the subject matter of this Deed.
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SIGNATORIES
SIGNED AND DELIVERED
as a DEED for and on behalf of
GA DESIGN INTERNATIONAL
(HOLDINGS) LIMITED
/s/ Xxxxxx Xxxxxxxxx Director
/s/ Xxxxxx X Xxxxxxx Director/Secretary
SIGNED AND DELIVERED
as a DEED for and on behalf of
THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND by an authorised /s/ Xxxxxx Xxxxxxxxx
signatory in the presence of:- Authorised Signatory
/s/ Xxxxxxxxxxx Xxxxxx Witness
Xxxxxxxxxxx Xxxxxx Full Name
Bank of Scotland Corporate Banking Address
New Uberior House
00 Xxxx Xxxx Xxxxxx, Xxxxxxxxx
Corporate Banking Manager Occupation
SIGNED AND DELIVERED
as a DEED by XXXXXX XXXXXX /s/ Xxxxxx Xxxxxx
as a Subordinated Creditor _____________________
in the presence of:- Xxxxxx Xxxxxx
/s/ Xxxxxx X XxXxxx Witness
Xxxxxx X XxXxxx Full Name
000 X Xxxxx Xxxxxx #0000 Xxxxxxx
Xxxxxxxxx XX 00000
Administrative Assistant Occupation
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SIGNED AND DELIVERED
as a DEED by XXXXXX XXXXXXX /s/ Xxxxxx X Xxxxxxx
as a Subordinated Creditor _____________________
in the presence of:- Xxxxxx Xxxxxxx
/s/ Xxxx Xxxxxx Witness
Xxxx Xxxxxx Full Name
0 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxx XX0X 0XX
Solicitor Occupation
SIGNED AND DELIVERED
as a DEED by XXXXXXXXXXX XXXXXX /s/ Xxxxxxxxxxx Xxxxxx
as a Subordinated Creditor _____________________
in the presence of:- Xxxxxxxxxxx Xxxxxx
/s/ H Xxxxxxxx Witness
Xxxxx Xxxxxxxx Full Name
00 Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx X0 0XX
PA Occupation
SIGNED AND DELIVERED
as a DEED by XXXXX XXXXXXXX /s/ Xxxxx Xxxxxxxx
as a Subordinated Creditor _____________________
in the presence of:- Xxxxx Xxxxxxxx
/s/ Xxx Xxxxx Witness
Xxxxx Xxxxx Xxxxx Full Name
000 Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxx XX0
P A Occupation
13
SIGNED AND DELIVERED
as a DEED by XXXXXXXX XXXXXX /s/ R Fraser
as a Subordinated Creditor ----------------------
in the presence of:- Xxxxxxxx Xxxxxx
/s/ Xxx Xxxxx Witness
Xxxxx Xxxxx Xxxxx Full Name
000 Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx
XX Occupation
SIGNED AND DELIVERED
as a DEED by XXXXXX XXXXX /s/ Xxxxxx Xxxxxx Xxxxx
as a Subordinated Creditor ----------------------
in the presence of:- Xxxxxx Xxxxx
/s/ Xxx Xxxxx Witness
Xxxxx Xxxxx Xxxxx Full Name
000 Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxx, XX0
XX Occupation
SIGNED AND DELIVERED
as a DEED by XXXX XXXXXXXX /s/ Xxxx Xxxxxxxx
as a Subordinated Creditor ----------------------
in the presence of:- Xxxx Xxxxxxxx
/s/ H Xxxxxxxx Witness
Xxxxx Xxxxxxxx Full Name
00 Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx X0 0XX
PA Occupation
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SIGNED AND DELIVERED
as a DEED by XXXXXXX XXXXXXX /s/ R Xxxxxxx
as a Subordinated Creditor ----------------------
in the presence of:- Xxxxxxx Xxxxxxx
/s/ Xxx Xxxxx Witness
Xxxxx Xxxxx Xxxxx Full Name
000 Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxx, XX0
XX Occupation
SIGNED AND DELIVERED
as a DEED by XXXXXXXX XXXXXXXXXX /s/ X X Xxxxxxxxxx
as a Subordinated Creditor ----------------------
in the presence of:- Xxxxxxxx Xxxxxxxxxx
/s/ H Xxxxxxxx Witness
Xxxxx Xxxxxxxx Full Name
00 Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx X0 0XX
PA Occupation
SIGNED AND DELIVERED
as a DEED by XXXXX XXXXXX /s/ K S Xxxxxx
as a Subordinated Creditor ----------------------
in the presence of:- Xxxxx Xxxxxx
/s/ H Xxxxxxxx Witness
Xxxxx Xxxxxxxx Full Name
00 Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx X0 0XX
PA Occupation
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SIGNED AND DELIVERED
as a DEED by XXXXXXXX XXXXXXXX /s/ N Xxxxxxxx
as a Subordinated Creditor ---------------------
in the presence of:- Xxxxxxxx Xxxxxxxx
/s/ H Xxxxxxxx Witness
Xxxxx Xxxxxxxx Full Name
00 Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx X0 0XX
PA Occupation
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