CONFORMED COPY
DEBENTURE
(Multiple Chargors)
Dated 13th June, 1997
BETWEEN
PACIFICORP SERVICES LIMITED
and
PACIFICORP FINANCE (UK) LIMITED
and
PACIFICORP ACQUISITIONS
as Chargors
and
CITIBANK, N.A.
as Security Agent
THIS DEBENTURE IS ENTERED INTO WITH
THE BENEFIT OF AND SUBJECT TO THE TERMS OF AN
INTERCREDITOR AGREEMENT AS REFERRED TO IN THE
FACILITY AGREEMENT REFERRED TO HEREIN
▇▇▇▇▇ & ▇▇▇▇▇
London
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INDEX
Clause Page
1. Interpretation.......................................................1
2. Covenant To Pay......................................................4
3. Charges On Shares....................................................4
4. Floating Charges.....................................................5
5. Continuing Security, Etc.............................................6
6. Representations And Warranties.......................................9
7. Undertakings........................................................10
8. Special Provisions Relating To The Security Shares..................11
9. When Security Becomes Enforceable...................................12
10. Enforcement Of Security.............................................13
11. Receiver............................................................13
12. Application Of Proceeds.............................................16
13. No Liability As Mortgagee In Possession.............................16
14. Protection Of Third Parties.........................................17
15. Taxes...............................................................17
16. Expenses............................................................17
17. Delegation By Security Agent........................................18
18. Further Assurances..................................................18
19. Redemption Of Prior Mortgages.......................................19
20. Power Of Attorney...................................................19
21. New Accounts........................................................19
22. Stamp Taxes.........................................................20
23. Assignments, Etc....................................................20
24. Waivers, Remedies Cumulative........................................20
25. Set-Off.............................................................21
26. Severability........................................................21
27. Counterparts........................................................21
28. Notices.............................................................21
29. Covenant To Release.................................................22
30. Governing Law And Jurisdiction......................................22
Schedules
1. The Chargors........................................................23
2. Group Shares........................................................25
3. Form Of Deed Of Accession...........................................26
Signatories..............................................................29
Signatories..............................................................30
THIS DEBENTURE is dated 13th June, 1997 and is made BETWEEN:
(1) PACIFICORP SERVICES LIMITED a company incorporated under the laws of
England and Wales (No. 3366016) whose registered office is at ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Company");
(2) THE COMPANIES identified in Schedule 1 (together with the Company and each
company which becomes a party hereto by executing a Deed of Accession, each
a "Chargor", together the "Chargors"); and
(3) CITIBANK, N.A., ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Security
Agent") as agent and trustee for itself and each of the Lenders (as defined
below).
WHEREAS:
(A) The Banks (as defined in the Facility Agreement referred to below) have
agreed to make available to the Borrowers (as defined in the Facility
Agreement) certain term loan and revolving credit facilities (the
"Facilities") on and subject to the terms of the Facility Agreement.
(B) It is a condition precedent to the Banks making the Facilities available
that the Chargors enter into this Debenture.
(C) It is intended by the parties hereto that this document shall take effect
as a deed notwithstanding the fact that a party may only execute this
document under hand.
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Debenture:
"Declared Default" means an Event of Default which has resulted in the
Facility Agent serving notice under any provision of Clause 24.2 of the
Facility Agreement and/or an Event of Default (as defined therein) under
the Coalco Facility Agreement which has resulted in the Paying Agent (as
defined therein) serving notice under any provision of Article VII of the
Coalco Facility Agreement;
"Deed of Accession" means a deed substantially in the form set out in
Schedule 3 hereto;
"Default Rate" means, until the Discharge Date, at any time, a rate
determined in accordance with Clause 11.3 of the Facility Agreement;
"Discharge Date" means the date on which all the Secured Liabilities
arising pursuant to or in respect of any of the Finance Documents and, the
Coalco/Bidco Loan Agreement have been unconditionally and irrevocably paid
and discharged in full and all commitments cancelled;
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"Facility Agent" means Citibank International Plc in its capacity as agent
under the Facility Agreement and its permitted successors and assigns;
"Facility Agreement" means the facility agreement of even date herewith
between the Company, Finance, Bidco, the Arrangers, the Original Banks, the
LC Bank (each as defined therein), the Facility Agent and the Security
Agent, together with each Borrower Accession Agreement, Guarantor Accession
Agreement and Substitution Certificate relating thereto and any and each
other agreement or instrument supplementing or amending it;
"Finance Documents" has the meaning given to that term in the Facility
Agreement;
"Group Shares" means all shares specified in Schedule 2, or, when used in
relation to a particular Chargor, such of those shares as are specified
against its name in Schedule 2 together in each case with all other stocks,
shares, debentures, bonds, warrants, coupons or other securities and
investments now or in the future owned by any or (when used in relation to
a particular Chargor) that Chargor from time to time excluding all Shares
now or in the future owned by any Chargor from time to time until the de-
listing on The New York Stock Exchange of the Target's American Depositary
Receipt Shares whereupon all such Shares shall become Group Shares and be
subject to the security created by this Debenture.
"Lender" means each of the Facility Agent, the ▇▇ ▇▇▇▇▇, the Hedging Banks,
the Security Agent, the Arrangers and the Banks parties to or having an
interest under the Finance Documents from time to time and prior to the
completion of the Asset Split in accordance with the Facility Agreement,
Coalco in its capacity as lender under the Coalco/Bidco Loan Agreement;
"Receiver" means a receiver and manager or (if the Security Agent so
specifies in the relevant appointment) a receiver;
"Related Rights" means, in relation to the Group Shares, all dividends and
other distributions paid or payable after the date hereof on all or any of
the Group Shares and all stocks, shares, securities (and the dividends or
interest thereon), rights, money or property accruing or offered at any
time by way of redemption, bonus, preference, option rights or otherwise to
or in respect of any of the Group Shares or in substitution or exchange for
any of the Group Shares;
"Secured Liabilities" means all present and future obligations and
liabilities (whether actual or contingent and whether owed jointly or
severally or in any other capacity whatsoever) of each Obligor to the
Lenders (or any of them) under each or any of the Finance Documents
together with all costs, charges and expenses incurred by any Lender in
connection with the protection, preservation or enforcement of its
respective rights under the Finance Documents or any other document
evidencing or securing any such liabilities and prior to the completion of
the Asset Split in accordance with the terms of the Facility Agreement and
the Structure Memorandum, all present and future obligations of Bidco to
Coalco under and in respect of the Coalco/Bidco Loan Agreement (the
"Coalco/Bidco Liabilities") PROVIDED THAT with effect from the completion
of the Asset Split as aforesaid, the Coalco/Bidco Liabilities shall cease
to be included within the definition of "Secured Liabilities" for all the
purposes of this Debenture; and PROVIDED FURTHER THAT no obligation or
liability shall be included in the definition of "Secured Liabilities" to
the extent that, if it were so included, this Debenture (or any part
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thereof) would constitute unlawful financial assistance within the meaning
of Sections 151 and 152 of the Companies ▇▇▇ ▇▇▇▇;
"Security Assets" means all assets, rights and property of the Chargors or
any of them the subject of any security created hereby or pursuant hereto
and includes, for the avoidance of doubt each Chargor's rights to or
interests in any chose in action and the Security Shares;
"Security Documents" means this Debenture and every other document entered
into by the Chargors pursuant to this Debenture;
"Security Period" means the period beginning on the date hereof and ending
on the Discharge Date;
"Security Shares" means the Group Shares and the Related Rights and in the
case of each Chargor means such of the Group Shares as are held by it at
the relevant time together with all Related Rights in respect thereof;
"Shares" has the meaning ascribed thereto in the Facility Agreement; and
"Share Mortgages" means the mortgages and charges created or purported to
be created by Clause 3 hereof.
1.2 Interpretation
(a) Save as expressly herein defined, capitalised terms defined in the Facility
Agreement shall have the same meaning when used herein. Terms defined in
the recitals to this Debenture have the same meaning when used in the
remainder of this Debenture.
(b) The provisions of Clause 1.2 of the Facility Agreement shall also apply
hereto as if expressly set out herein (mutatis mutandis) with each
reference to the Facility Agreement being deemed to be a reference to this
Debenture.
(c) For the avoidance of doubt, this Debenture (or any part thereof) shall not
constitute unlawful financial assistance for the purposes of the proviso to
the definition of "Secured Liabilities" in Clause 1.1 to the extent that it
constitutes financial assistance within the meaning of the Sections therein
cited but the provisions of Sections 155-158 of the Companies ▇▇▇ ▇▇▇▇ have
been complied with in respect of the giving of such financial assistance.
Each Chargor confirms that, if and to the extent that it is required by law
to do so, it has complied with the provisions of Sections 155-158 of the
Companies ▇▇▇ ▇▇▇▇.
(d) If the Security Agent (on the basis of legal advice received by it for this
purpose) reasonably considers that an amount paid by any Obligor to any
Lender under any Finance Document or the Coalco/Bidco Loan Agreement, is
capable of being avoided or otherwise set aside on the liquidation or
administration of such Obligor or otherwise, then such amount shall not be
considered to have been irrevocably paid for the purposes hereof.
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1.3 Certificates
A certificate of the Security Agent setting forth the amount of any Secured
Liability due from any Obligor shall in the absence of manifest error, be
prima facie evidence and shall be promptly notified to the Company, the
relevant Borrower and the Banks.
2. COVENANT TO PAY
2.1 Covenant
Each Chargor hereby, as primary obligor and not merely as surety, covenants
with the Security Agent (as agent and trustee as aforesaid) that it will
pay or discharge the Secured Liabilities on the due date therefor in the
manner provided in the relevant Finance Document or in the Coalco/Bidco
Loan Agreement. Any amount not paid hereunder in respect of or under any
Finance Document or the Coalco/Bidco Loan Agreement when due shall bear
interest (as well after 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 unconditionally and irrevocably paid and discharged in full, save to the
extent that interest at such rate on such amount for such period is charged
pursuant to the relevant Finance Document and itself constitutes a Secured
Liability.
2.2 Right of appropriation
Upon the occurrence of a Declared Default and at any time thereafter while
the same is continuing, the Security Agent shall be entitled to appropriate
moneys and/or assets to Secured Liabilities in such manner or order as it
sees fit (subject to Clause 12) and any such appropriation shall override
any appropriation by any Obligor. This Clause 2.2 shall not, however,
override the principle that (subject to Clause 12) the Lenders are to share
in recoveries on a pro rata basis.
3. CHARGES ON SHARES
Each Chargor, as sole beneficial owner and with full title guarantee,
hereby as continuing security for the payment, discharge and performance of
all the Secured Liabilities:
(a) mortgages and charges and agrees to mortgage and charge to the
Security Agent (as agent and trustee as aforesaid) all Group Shares
held now or in the future by it and/or any nominee on its behalf, the
same to be a security by way of a first mortgage; and
(b) mortgages and charges and agrees to mortgage and charge to the
Security Agent (as agent and trustee as aforesaid) all the Related
Rights accruing to all or any of the Group Shares held now or in the
future by it and/or any nominee on its behalf, the same to be a
security by way of a first mortgage or charge.
PROVIDED THAT:
(i) whilst no Declared Default exists, all dividends and other
distributions paid or payable as referred to in paragraph (b)
above may be paid directly to the relevant Chargor free from the
security created hereunder (in which case the Security Agent or
its nominee shall execute any necessary dividend mandate)
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and, if paid directly to the Security Agent, shall be paid
promptly by it to the relevant Chargor; and
(ii) subject to Clause 8.2, whilst no Declared Default exists, all
voting rights attaching to the relevant Group Shares may be
exercised by the relevant Chargor or, where the shares have been
registered in the name of the Security Agent or its nominee, as
the relevant Chargor may direct in writing, and the Security
Agent and any nominee of the Security Agent in whose name such
Group Shares are registered shall execute any form of proxy or
other document reasonably required in order for the relevant
Chargor to do so.
4. FLOATING CHARGES
4.1 Creation of floating charge
Each Chargor as beneficial owner and with full title guarantee, as security
for the payment, discharge and performance of the Secured Liabilities,
charges in favour of the Security Agent (as agent and trustee as aforesaid)
by way of a first floating charge all its undertaking and assets whatsoever
and wheresoever both present and future (including, without limitation, any
undertaking and assets situated in Scotland (whether or not the same may be
mortgaged or charged by way of standard security)), subject always to the
Share Mortgages or any other provision of this Debenture, PROVIDED THAT the
provisions of this Clause shall not apply to the Shares owned now or in the
future by Bidco until such time as such Shares shall be Group Shares, in
accordance with the terms of that definition.
4.2 Restrictions on dealing
Each Chargor undertakes to each Lender that, save as expressly permitted
under the terms of this Debenture and/or the Facility Agreement it will
not:
(a) create or permit to subsist any Encumbrance over all or any of its
assets, rights or property other than pursuant to this Debenture or
any other Security Document; or
(b) part with, lease, sell, transfer, assign or otherwise dispose of or
agree to part with, lease, sell, transfer, assign or otherwise dispose
of all or any part of its assets, rights or property or any interest
therein,
PROVIDED THAT the provisions of this Clause shall not apply to the Shares
owned now or in the future by Bidco until such time as such Shares shall be
Group Shares, in accordance with the terms of that definition.
4.3 Conversion of Floating Charge
(a) The Security Agent may by notice to any Chargor convert the floating charge
hereby created into a specific charge as regards all or any of such
Chargor's assets, rights and property:
(i) if a Declared Default has occurred; or
6
(ii) if such Chargor fails to comply, or takes or threatens to take any
action which in the reasonable opinion of the Security Agent is likely
to result in it failing to comply with its obligations under Clause
4.2.
(b) The floating charge hereby created shall (in addition to the circumstances
in which the same will occur under general law) automatically be converted
into a fixed charge over the assets, rights and property of any Chargor on
the convening of any meeting of the members of such Chargor to consider a
resolution to wind such Chargor up.
(c) The giving by the Security Agent of a notice pursuant to paragraph (a)
above in relation to any class of any Chargor's assets, rights and property
shall not be construed as a waiver or abandonment of the Security Agent's
rights to give other similar notices in respect of any other class of
assets or of any other of the rights of the Lenders (or any of them) or
under any of the other Finance Documents.
5. CONTINUING SECURITY, ETC.
5.1 Continuing security
The security constituted by this Debenture shall be continuing and will
extend to the ultimate balance of the Secured Liabilities, regardless of
any intermediate payment or discharge in whole or in part.
5.2 Breaking of accounts
If for any reason the security constituted hereby ceases to be a continuing
security in respect of any Obligor (other than by way of discharge of such
security), the Lenders (and each or any of them) may open a new account
with or continue any existing account with such Obligor and the liability
of each Chargor in respect of the Secured Liabilities relating to such
Obligor at the date of such cessation shall remain regardless of any
payments in or out of any such account.
5.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) is made in whole or in
part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of each Chargor
under this Debenture shall continue as if the discharge or arrangement had
not occurred.
(b) The Security Agent may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.
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5.4 Waiver of defences
(a) The liability of each Chargor hereunder will not be affected by any act,
omission, circumstance, matter or thing which but for this provision would
release or prejudice any of its obligations hereunder or prejudice or
diminish such obligations in whole or in part, including without limitation
and whether or not known to any Chargor, any Lender or any other person
whatsoever:
(i) any time, indulgence or waiver granted to, or composition with, any
Obligor or any other person; or
(ii) the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect or take up or enforce any rights or
remedies against, or any security over assets of, any Obligor or any
other person or any non-presentment or non-observance of any
formality or other requirement in respect of any instruments or any
failure to realise the full value of any other security; or
(iii) any legal limitation, disability, incapacity or lack of powers,
authority or legal personality of or dissolution or change in the
members or status of or other circumstance relating to, any Obligor
or any other person; or
(iv) any variation (however fundamental and whether or not involving any
increase in the liability of any Obligor thereunder) or replacement
of a Finance Document or the Coalco/Bidco Loan Agreement, or any
other document or security so that references to that Finance
Document or the Coalco/Bidco Loan Agreement, or other documents or
security in this Debenture shall include each such variation or
replacement; or
(v) any unenforceability, illegality, invalidity or frustration of any
obligation of any Obligor or any other person under any Finance
Document or any other document or security, or any failure of any
other Obligor or proposed Obligor to become bound by the terms of any
Finance Document, in each case whether through any want of power or
authority or otherwise; or
(vi) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Obligor under a
Finance Document or affecting any obligation of Bidco under the
Coalco/Bidco Loan Agreement resulting from any insolvency,
liquidation or dissolution proceedings or from any law, regulation or
order, this Debenture be construed as if there were no such
circumstance,
to the intent that each Chargor's obligations under this Debenture shall
remain in full force, and this Debenture be construed accordingly, as if
there were no such circumstance, act, variation, limitation, omission,
unenforceability, illegality, matter or thing.
No Lender shall be concerned to see or investigate the powers or
authorities of any of the Chargors or their respective officers or agents,
and moneys obtained or Secured Liabilities incurred in purported exercise
of such powers or authorities or by any person purporting to be an Obligor
shall be deemed to form a part of the Secured Liabilities, and "Secured
Liabilities" shall be construed accordingly.
8
(b) For the avoidance of doubt, each Chargor shall be bound by this Debenture
notwithstanding the fact that not all of the other members of the Group may
have executed this Debenture and/or any of the other Security Documents
required by the terms of the Finance Documents to be entered into by it or
that any such document which has been entered into may be invalid,
unenforceable or otherwise ineffective.
5.5 Immediate recourse
Each Chargor waives any right it may have of first requiring any Lender to
proceed against or enforce any other rights or security before enforcing
the security constituted hereby.
5.6 Appropriations
Upon and after the occurrence of a Declared Default and until all the
Secured Liabilities have been unconditionally and irrevocably paid and
discharged in full, each Lender may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by it in respect of the Secured Liabilities or
apply and enforce the same in such manner and order as it sees fit
(whether against the Secured Liabilities or otherwise) and no Chargor
shall be entitled to the benefit of the same; and
(b) hold in a suspense account any moneys received from any Obligor or on
account of any Obligor's liability in respect of the Secured
Liabilities. Amounts standing to the credit of any such suspense
account shall bear interest at a rate considered by such Lender to be
a fair market rate.
5.7 Non-competition
Until all the Secured Liabilities have been unconditionally and irrevocably
paid and discharged in full no Chargor shall by virtue of any payment made,
security realised or moneys received or recovered under any of the Finance
Documents or the Coalco/Bidco Loan Agreement for or on account of the
liability of any other Obligor(s):
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Lender or be entitled to any right of contribution
or indemnity; or
(b) claim, rank, prove or vote as a creditor of any Obligor or its estate
in competition with any Lender; or
(c) unless the Security Agent directs it to do so after a Declared Default
has occurred and is continuing, receive, claim or have the benefit of
any payment, distribution or security from or on account of any
Obligor, or exercise any right of set-off as against any Obligor.
Each Chargor will hold in trust for and forthwith pay or transfer to the
Security Agent (acting as agent and trustee as aforesaid) any payment or
distribution or benefit of security received by it contrary to the above.
If any Chargor exercises any right of set-off contrary to the above, it
will forthwith pay an amount equal to the amount set off to the Security
Agent (acting as agent and trustee as aforesaid).
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5.8 Additional security
This Debenture is in addition to and is not in any way prejudiced by any
other security now or hereafter held by any Lender.
5.9 Security held by the Chargor
No Chargor will without the prior written consent of the Security Agent
hold any security from any other Obligor in respect of such Chargor's
liability hereunder. Each Chargor will hold any security held by it in
breach of this provision on trust for the Security Agent (as agent and
trustee as aforesaid).
6. REPRESENTATIONS AND WARRANTIES
6.1 To whom made
Each Chargor makes the representations and warranties set out in the
balance of this Clause 6 to each Lender.
6.2 Matters represented
(a) Security Shares
(i) It is and will (save as otherwise permitted by the Facility
Agreement) remain the sole beneficial owner of the Security Shares
and save where the Security Shares have been registered in the name
of the Security Agent or its nominee pursuant hereto, it and/or its
nominee is and will (save as otherwise permitted by the Facility
Agreement) remain the absolute legal owner of the Security Shares.
(ii) The Share Mortgages constitute first priority security interests over
the Security Shares which are not subject to any prior or pari passu
Encumbrances.
(iii) It will not take any action whereby the rights attaching to the
Security Shares are altered or diluted.
(iv) The Group Shares are fully paid and non-assessable and neither the
Group Shares nor the Related Rights are subject to any options to
purchase or similar rights of any person.
(b) Security
Subject to the Reservations, this Debenture (i) constitutes its legally
binding obligation enforceable in accordance with its terms, (ii) creates
those Encumbrances it purports to create, and (iii) is not liable to be
avoided or otherwise set aside on its liquidation or administration or
otherwise.
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6.3 Times for making representations and warranties
The representations and warranties set out in this Clause 6:
(a) will survive the execution of each Finance Document and the making of
each Utilisation under the Facility Agreement;
(b) are made on the date hereof and are deemed to be repeated on each
date during the Security Period on which any of the representations
and warranties set out in Clause 20.1 of the Facility Agreement are
repeated, with reference to the facts and circumstances then
existing.
7. UNDERTAKINGS
7.1 Duration and with whom made
The undertakings in this Clause 7:
(a) shall remain in force throughout the Security Period; and
(b) are given by each Chargor to each Lender.
7.2 General Undertakings
Covenant to perform. Each Chargor shall at all times comply with the terms
(express or implied) of this Debenture and the other Finance Documents.
7.3 Undertakings relating to Group Shares
Deposit of securities. Each Chargor shall promptly deposit with the
Security Agent or as the Security Agent may direct all bearer instruments,
share certificates and other documents of title or evidence of ownership in
relation to such Group Shares as are owned by it or in which it has or
acquires an interest and their Related Rights and shall execute and deliver
to the Security Agent all such share transfers and other documents as may
be requested by the Security Agent in order to enable the Security Agent or
its nominees to be registered as the owner or otherwise to obtain a legal
title to the same and, without limiting the generality of the foregoing,
shall deliver to the Security Agent on or before the first Utilisation Date
executed (and, if required to be stamped, pre-stamped) share transfers for
all Group Shares specified in Schedule 2 in favour of the Security Agent
and/or its nominee(s) as transferees or, if the Security Agent so directs,
with the transferee left blank and shall procure that all such share
transfers are at the request of the Security Agent promptly registered by
the relevant company and that share certificates in the name of the
Security Agent and/or such nominee(s) in respect of all Group Shares are
promptly delivered to the Security Agent. Each Chargor shall provide the
Security Agent with certified copies of all resolutions and authorisations
approving the execution of such transfer forms and registration of such
transfers as the Security Agent may reasonably require.
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8. SPECIAL PROVISIONS RELATING TO THE SECURITY SHARES
8.1 Registration on Transfer
Each Chargor hereby authorises the Security Agent (at any time) to arrange
for the Security Shares to be delivered to any nominee for the Security
Agent or any purchaser or transferee (under the powers of realisation
herein conferred) or registered as the Security Agent may feel appropriate
to perfect the security thereover and to transfer or cause the Security
Shares to be transferred to and registered in the name of any suitably
qualified nominees of the Security Agent (as agent and trustee, as
aforesaid) and each Chargor undertakes from time to time promptly to
execute and sign all transfers, contract notes, powers of attorney and
other documents (and promptly to register any such transfer of the Security
Shares in the shareholders' register of such Chargor) which the Security
Agent may reasonably require for perfecting its title to any of the
Security Shares or for vesting the same in itself or its nominee or in any
purchasers or transferees (under the powers of realisation herein
conferred).
8.2 Powers
The Security Agent and its nominee may at any time after a Declared Default
has occurred and whilst the same is continuing, exercise or refrain from
exercising (in the name of each Chargor, the registered holder or otherwise
and without any further consent or authority from each Chargor and
irrespective of any direction given by any Chargor) in respect of the
Security Shares any voting rights and any powers or rights under the terms
thereof or otherwise which may be exercised by the person or persons in
whose name or names the Security Shares are registered or who is the holder
thereof, including, without limitation, all the powers given to trustees by
Section 10(3) and (4) of the Trustee ▇▇▇ ▇▇▇▇ as amended by Section 9 of
the Trustee Investments Act 1961 in respect of securities or property
subject to a trust PROVIDED THAT in the absence of notice from the Security
Agent each Chargor may and shall continue to exercise any and all voting
rights with respect to the Group Shares subject always to the terms hereof.
No Chargor shall without the previous consent in writing of the Security
Agent, exercise the voting rights attached to any of the Group Shares in
favour of resolutions having the effect of changing the terms of the Group
Shares (or any class of them) or any Related Rights or prejudicing the
security hereunder or impairing the value of the Security Shares. Each
Chargor hereby irrevocably appoints the Security Agent or its nominees its
proxy to exercise all voting rights so long as the Group Shares remain
registered in the names of the Chargors and to the extent that the Security
Agent is entitled to exercise such voting rights in accordance with the
terms of this Debenture.
8.3 Calls
Each Chargor during the continuance of this security will make all payments
which may become due in respect of any of the Security Shares and in the
event of default in making any such payment the Security Agent may if it
thinks fit make such payment on behalf of each Chargor. Any sums so paid by
the Security Agent shall be repayable by the relevant Chargor to the
Security Agent on demand together with interest at the Default Rate from
the date of such payment by the Security Agent, and pending such repayment
shall constitute part of the Secured Liabilities.
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8.4 Liability to Perform
It is expressly agreed that, notwithstanding anything to the contrary
herein contained, each Chargor shall remain liable to observe and perform
all of the conditions and obligations assumed by it in respect of the
Security Shares and none of the Security Agent or the Lenders shall be
under any obligation or liability by reason of or arising out of the Share
Mortgages. None of the Lenders shall be required in any manner to perform
or fulfil any obligation of any Chargor in respect of the Security Shares,
or to make any payment, or to receive any enquiry as to the nature or
sufficiency of any payment received by them, or to present or file any
claim or take any other action to collect or enforce the payment of any
amount to which they may have been or to which they may be entitled
hereunder at any time or times.
8.5 Enforcement
Upon the occurrence of a Declared Default and at any time thereafter while
the same is continuing, the Security Agent shall be entitled to put into
force and exercise immediately as and when it may see fit any and every
power possessed by the Security Agent by virtue of the Share Mortgages or
available to a secured creditor (so that Sections 93 and 103 of the Law of
Property Act 1925 shall not apply to this security) and in particular
(without limitation):
(i) to sell all or any of the Security Shares in any manner permitted by
law upon such terms as the Security Agent shall in its absolute
discretion determine;
(ii) to collect, recover or compromise and give a good discharge for any
moneys payable to any Chargor in respect of the Security Shares or in
connection therewith; and
(iii) to act generally in relation to the Security Shares in such manner
as the Security Agent acting reasonably shall determine.
For the avoidance of doubt, each Chargor agrees that the enforceability of
the Share Mortgages is not dependent on the performance or non-performance
by any Lender of its respective obligations under the Facility Agreement.
9. WHEN SECURITY BECOMES ENFORCEABLE
The security constituted hereby shall become immediately enforceable upon
the occurrence of a Declared Default and at any time thereafter whilst the
same is continuing and the power of sale and other powers conferred by
Section 101 of the Law of Property Act, 1925 as varied or amended by this
Debenture shall be immediately exerciseable upon the occurrence of a
Declared Default and at any time thereafter whilst the same is continuing.
After the security constituted hereby has become enforceable, the Security
Agent may in its absolute discretion enforce all or any part of such
security in such manner as it sees fit or as the Majority Banks direct.
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10. ENFORCEMENT OF SECURITY
10.1 General
For the purposes of all powers implied by statute the Secured Liabilities
shall be deemed to have become due and payable on the date hereof and
Section 103 of the Law of Property ▇▇▇ ▇▇▇▇ (restricting the power of sale)
and Section 93 of the same Act (restricting the right of consolidation)
shall not apply to this security. The statutory powers of leasing conferred
on the Security Agent shall be extended so as to authorise the Security
Agent to lease, make agreements for leases, accept surrenders of leases and
grant options as the Security Agent shall think fit and without the need to
comply with any of the provisions of sections 99 and 100 of the Law of
Property ▇▇▇ ▇▇▇▇.
10.2 Contingencies
(a) If the Security Agent enforces the security constituted by this Debenture
(whether by the appointment of a Receiver or otherwise) at a time when no
amounts are due under the Finance Documents or the Coalco/Bidco Loan
Agreement (but at a time when amounts may become so due), the Security
Agent (or such Receiver) may pay the proceeds of any recoveries effected by
it into such number of interest bearing realisations accounts as it
considers appropriate.
(b) The Security Agent (or such Receiver) may (subject to the payment of any
claims having priority to this security) withdraw amounts standing to the
credit of such realisation accounts to:
(i) meet all costs, charges and expenses incurred and payments made by
the Security Agent (or such Receiver) in the course of such
enforcement;
(ii) pay remuneration to the Receiver as and when the same becomes due and
payable; and
(iii) meet amounts due and payable under the Finance Documents and the
Coalco/Bidco Loan Agreement;
in each case, together with interest thereon (as well after as before
judgment and payable on demand) at the Default Rate from the date the same
become due and payable until the date the same are unconditionally and
irrevocably paid and discharged in full (provided that like interest
payable under any of the Finance Documents should not be double counted).
(c) No Chargor will be entitled to withdraw all or any moneys (including
interest) standing to the credit of any such realisation account until the
expiry of the Security Period.
11. RECEIVER
11.1 Appointment of Receiver
(a) At any time after this security becomes enforceable or if any Chargor so
requests the Security Agent in writing at any time, the Security Agent may
without further notice appoint under seal or in writing under its hand any
one or more qualified persons to be a Receiver of all or any
14
part of the Security Assets in like manner in every respect as if the
Security Agent had become entitled under the Law of Property ▇▇▇ ▇▇▇▇ to
exercise the power of sale thereby conferred.
(b) In this Clause "qualified person" means a person who, under the Insolvency
▇▇▇ ▇▇▇▇, is qualified to act as a receiver of the property of any company
with respect to which he is appointed or (as the case may require) an
administrative receiver of any such company.
11.2 Powers of Receiver
(a) Every Receiver appointed in accordance with Clause 11.1 shall have and be
entitled to exercise all of the powers set out in paragraph (b) below in
addition to those conferred by the Law of Property ▇▇▇ ▇▇▇▇ on any receiver
appointed thereunder. A Receiver who is an administrative receiver of any
Chargor shall have all the powers of an administrative receiver under the
Insolvency ▇▇▇ ▇▇▇▇. If at any time there is more than one Receiver of all
or any part of the Security Assets, each such Receiver may (unless
otherwise stated in any document appointing him) exercise all of the powers
conferred on a Receiver under this Debenture individually and to the
exclusion of each other Receiver.
(b) The powers referred to in the first sentence of paragraph (a) above are:
(i) Take possession to take immediate possession of, get in and collect
the Security Assets or any part thereof;
(ii) Carry on business to carry on the business of such Chargor as he may
think fit;
(iii) Protection of assets to make and effect all repairs and insurances
and do all other acts which such Chargor might do in the ordinary
conduct of its business as well for the protection as for the
improvement of the Security Assets;
(iv) Employees to appoint and discharge managers, officers, agents,
accountants, servants, workmen and others for the purposes hereof
upon such terms as to remuneration or otherwise as he may think
proper and to discharge any such persons appointed by any such
Chargor;
(v) Borrow Money for the purpose of exercising any of the powers,
authorities and discretions conferred on him by or pursuant to this
Debenture and/or of defraying any costs, charges, losses or expenses
(including his remuneration) which shall be incurred by him in the
exercise thereof or for any other purpose, to raise and borrow money
either unsecured or on the security of the Security Assets or any
part thereof either in priority to the security constituted by this
Debenture or otherwise and generally on such terms and conditions as
he may think fit and no person lending such money shall be concerned
to enquire as to the propriety or purpose of the exercise of such
power or to see to the application of any money so raised or
borrowed;
(vi) Sell assets to sell, exchange, convert into money and realise all or
any part of the Security Assets by public auction or private contract
and generally in such manner and on such terms as he shall think
proper. Without prejudice to the generality of the foregoing he may
do any of these things for a consideration consisting of cash,
debentures or other obligations, shares, stock or other valuable
consideration and any
15
such consideration may be payable in a lump sum or by instalments
spread over such period as he may think fit. All fixtures and
fittings (including trade fixtures and fittings) and fixed plant and
machinery, other than landlords' fixtures, may be severed and sold
separately from the property containing them without the consent of
such Chargor;
(vii) Leases to let all or any part of the Security Assets for such term
and at such rent (with or without a premium) as he may think proper
and to accept a surrender of any lease or tenancy thereof on such
terms as he may think fit (including the payment of money to a
lessee or tenant on a surrender);
(viii) Compromise to settle, adjust, refer to arbitration, compromise and
arrange any claims, accounts, disputes, questions and demands with
or by any person who is or claims to be a creditor of such Chargor
or relating in any way to the Security Assets or any part thereof;
(ix) Legal Actions to bring, prosecute, enforce, defend and abandon all
such actions, suits and proceedings in relation to the Security
Assets or any part thereof as may seem to him to be expedient;
(x) Receipts to give valid receipts for all moneys and execute all
assurances and things which may be proper or desirable for realising
the Security Assets;
(xi) Subsidiaries to form a subsidiary or subsidiaries of such Chargor
and transfer to any such subsidiary all or any part of the Security
Assets; and
(xii) General powers to do all such other acts and things as he may
consider desirable or necessary for realising the Security Assets or
any part thereof or incidental or conducive to any of the matters,
powers or authorities conferred on a Receiver under or by virtue of
this Debenture, to exercise in relation to the Security Assets or
any part thereof all such powers, authorities and things as he would
be capable of exercising if he were the absolute beneficial owner of
the same and to use the name of such Chargor for all or any of such
purposes.
11.3 Removal and remuneration
The Security Agent may from time to time by writing under its hand (subject
to any requirement for an order of the court in the case of an
administrative receiver) remove any Receiver appointed by it and may,
whenever it may deem it expedient, appoint a new Receiver in the place of
any Receiver whose appointment may for any reason have terminated and may
from time to time fix the remuneration of any Receiver appointed by it.
11.4 Security Agent may exercise
To the fullest extent permitted by law, all or any of the powers,
authorities and discretions which are conferred by this Debenture (either
expressly or impliedly) upon a Receiver of the Security Assets may be
exercised after the security hereby created becomes enforceable by the
Security Agent in relation to the whole of such Security Assets or any part
thereof without first
16
appointing a Receiver of such property or any part thereof or
notwithstanding the appointment of a Receiver of such property or any part
thereof.
12. APPLICATION OF PROCEEDS
Any moneys received by the Security Agent or by any Receiver appointed by
it pursuant to this Debenture and/or under the powers hereby conferred
shall, after the security hereby constituted shall have become enforceable
but subject to the payment of any claims having priority to this security
and to the Security Agent's and such Receiver's rights under Clauses 10.2
and 11.2, be applied by the Security Agent for the following purposes and,
unless otherwise determined by the Security Agent or such Receiver, in the
following order or priority (but without prejudice to the right of the
Security Agent or any Lender to recover any shortfall from any Chargor):
(a) in satisfaction of or provision for all costs, charges and expenses
incurred and payments made by the Security Agent or any Receiver
appointed hereunder and of all remuneration due hereunder together
with interest on the foregoing (as well after as before judgment and
payable on demand) at the Default Rate from time to time from the date
the same become due and payable until the date the same are
unconditionally and irrevocably paid and discharged in full;
(b) in or towards repayment to the Security Agent of all amounts repayable
by the Chargors pursuant to Clause 8.3;
(c) in or towards payment of the Secured Liabilities or such part of them
as is then due and payable in accordance with the terms of the
Intercreditor Agreement; and
(d) in payment of the surplus (if any) to any Chargor or other person
entitled thereto.
13. NO LIABILITY AS MORTGAGEE IN POSSESSION
The Security Agent shall not nor shall any Receiver appointed as aforesaid
by reason of it or the Receiver entering into possession of the Security
Assets or any part thereof be liable to account as mortgagee in possession
or be liable for any loss on realisation or for any default or omission for
which a mortgagee in possession might be liable. Every Receiver duly
appointed by the Security Agent under the powers in that behalf herein
contained shall be deemed to be the agent of the relevant Chargor for all
purposes and shall as such agent for all purposes be deemed to be in the
same position as a Receiver duly appointed by a mortgagee under the Law of
Property ▇▇▇ ▇▇▇▇. The relevant Chargor alone shall be responsible for his
contracts, engagements, acts, omissions, defaults and losses and for
liabilities incurred by him and neither the Security Agent nor any Lender
shall incur any liability therefor (either to the Company, any other
Chargor or to any other person whatsoever) by reason of the Security
Agent's making his appointment as such Receiver or for any other reason
whatsoever. Every such Receiver and the Security Agent shall be entitled to
all the rights, powers, privileges and immunities by the Law of Property
▇▇▇ ▇▇▇▇ conferred on mortgagees and receivers when such receivers have
been duly appointed under the said Act but so that Section 103 of the Law
of Property ▇▇▇ ▇▇▇▇ shall not apply.
17
14. PROTECTION OF THIRD PARTIES
No purchaser, mortgagee or other person or company dealing with the
Security Agent or the Receiver or its or his agents shall be concerned to
enquire whether the Secured Liabilities have become payable or whether any
power which the Receiver is purporting to exercise has become exercisable
or whether any money remains due under this Debenture, the Finance
Documents or the Coalco/Bidco Loan Agreement or to see to the application
of any money paid to the Security Agent or to such Receiver.
15. TAXES
All payments by any Chargor under this Debenture to or for the account of
any Lender shall be made without any set off, counterclaim or other
deductions and free and clear of and without deduction for or on account
of any Applicable Taxes (as provided for and subject to the qualifications
and exceptions in Clause 13.1 of the Facility Agreement). If any
Applicable Tax or amounts in respect thereof must be deducted, or any
other deductions must be made, from any amounts payable or paid by such
Chargor, or paid or payable by the Security Agent to another Lender, under
this Debenture, or any such payment shall otherwise be required to be made
subject to any Applicable Tax, such Chargor shall pay such additional
amounts as may be necessary to ensure that the relevant Lender receives a
net amount equal to the full amount which it would have received had
payment not been made subject to the Applicable Tax.
16. EXPENSES
16.1 Undertaking to pay
All reasonable costs, charges and expenses incurred and all payments made
by the Security Agent or any Receiver appointed hereunder in the lawful
exercise of the powers hereby conferred whether or not occasioned by any
act, neglect or default of any Chargor shall carry interest (as well after
as before judgment) at the Default Rate from time to time from the date on
which demand is made on any Chargor for reimbursement until the date the
same are unconditionally and irrevocably paid and discharged in full. The
amount of all such costs, charges, expenses and payments and all such
interest thereon and all remuneration payable hereunder shall be payable
by the Chargors on demand. All such costs, charges, expenses and payments
shall be paid and charged as between the Security Agent and the Chargors
on the basis of a full indemnity and not on the basis of party and party
or any other kind of taxation.
16.2 Indemnity
The Lenders and every Receiver, attorney, manager, agent or other person
appointed by the Security Agent hereunder shall be entitled to be
indemnified out of the Security Assets in respect of all liabilities and
expenses properly incurred by them in the execution or purported execution
of any of the powers, authorities or discretions vested in them pursuant
hereto and against all actions, proceedings, costs, claims and demands in
respect of any matter or thing done or omitted in any way relating to the
Security Assets and the Lenders and any such Receiver may retain and pay
all sums in respect of the same out of any moneys received under the
powers hereby conferred. Notwithstanding the foregoing no Lender or
Receiver and no person appointed by the Security Agent as aforesaid shall
be entitled to be indemnified in
18
respect of any part of the foregoing which results from such party's gross
negligence or wilful misconduct.
17. DELEGATION BY SECURITY AGENT
The Security Agent or any Receiver appointed hereunder may at any time and
from time to time delegate by power of attorney or in any other manner to
any properly qualified person or persons all or any of the powers,
authorities and discretions which are for the time being exercisable by
the Security Agent or such Receiver under this Debenture in relation to
the Security Assets or any part thereof. Any such delegation may be made
upon such terms (including power to sub-delegate) and subject to such
regulations as the Security Agent or such Receiver may think fit. The
Security Agent or such Receiver shall not be in any way be liable or
responsible to any Chargor for any loss or damage arising from any act,
default, omission or misconduct on the part of any such delegate or sub-
delegate.
18. FURTHER ASSURANCES
18.1 General
Each Chargor shall at its own expense execute and do all such assurances,
acts and things as the Security Agent may reasonably require for
perfecting or protecting the security intended to be created hereby over
the Security Assets or any part thereof or for facilitating (if and when
this security becomes enforceable) the realisation of the Security Assets
or any part thereof and in the exercise of all powers, authorities and
discretions vested in the Security Agent or any Receiver of the Security
Assets or any part thereof or in any such delegate or sub-delegate as
aforesaid. To that intent, each Chargor shall in particular execute all
transfers, conveyances, assignments and assurances of such property
whether to the Security Agent or to its nominees and give all notices,
orders and directions and make all registrations which the Security Agent
may reasonably think expedient.
18.2 Further subsidiaries
(a) Each Chargor hereby undertakes to ensure that each company incorporated in
the United Kingdom which becomes a Subsidiary (whether direct or indirect)
of any Chargor after the date hereof shall, forthwith upon being required
to grant security pursuant to Clause 19.3 of the Facility Agreement,
execute a Deed of Accession substantially in the form set out in Schedule
3 and such company shall on the date on which such Deed of Accession is
executed by it become a party to this Debenture in the capacity of a
Chargor and this Debenture shall be read and construed for all purposes as
if such company had been an original party hereto as a Chargor (but for
the avoidance of doubt the security created by such company shall be
created on the date of the Deed of Accession). The Security Agent is
authorised to agree any amendments or change to the form or manner in
which any such member of the Group gives such a guarantee and security
(including acceptance of a limit on the liability of such member of the
Group) which is in the opinion of the Security Agent necessary in order
that such guarantee or security may lawfully be given.
(b) The Company shall procure that all registrations or other steps necessary
to perfect or protect any security created pursuant to any Deed of
Accession is completed as soon as practicable after the date thereof and
in any event within any applicable time limit.
19
(c) Any company which becomes a party hereto as a Chargor pursuant to any Deed
of Accession shall also become party to and be bound by the terms of the
Intercreditor Agreement as an Obligor, in accordance with the terms of the
Intercreditor Agreement.
19. REDEMPTION OF PRIOR MORTGAGES
The Security Agent may, at any time after the security hereby constituted
has become enforceable, redeem any prior Encumbrance over or against the
Security Assets or any part thereof or procure the transfer thereof to
itself and may settle and pass the accounts of the prior mortgagee,
chargee or encumbrancer. Any accounts so settled and passed shall be
conclusive and binding on each Chargor. All principal moneys, interest,
costs, charges and expenses of and incidental to such redemption and
transfer shall be paid by the Chargor to the Security Agent on demand.
20. POWER OF ATTORNEY
20.1 Appointment
Each Chargor hereby by way of security and in order more fully to secure
the performance of its obligations hereunder irrevocably appoints the
Security Agent and every Receiver of the Security Assets or any part
thereof appointed hereunder and every such delegate or sub-delegate as
aforesaid to be its attorney acting severally, and on its behalf and in
its name or otherwise, after the occurrence of a Default, to execute and
do all such assurances, acts and things which such Chargor is required to
do and fails to do under the covenants and provisions contained in this
Debenture (including, without limitation, to make any demand upon or to
give any notice or receipt to any person owing moneys to such Chargor and
to execute and deliver any charges, legal mortgages, assignments or other
security and any transfers of securities) and generally in its name and on
its behalf to exercise all or any of the powers, authorities and
discretions conferred by or pursuant to this Debenture or by statute on
the Security Agent or any such Receiver, delegate or sub-delegate and
(without prejudice to the generality of the foregoing) to seal and deliver
and otherwise perfect any deed, assurance, agreement, instrument or act
which it or he may reasonably deem proper in or for the purpose of
exercising any of such powers, authorities and discretions.
20.2 Ratification
Each Chargor hereby ratifies and confirms and agrees to ratify and confirm
whatever any such attorney as is mentioned in Clause 21.1 shall do or
purport to do in the exercise or purported exercise of all or any of the
powers, authorities and discretions referred to in such Clause.
21. NEW ACCOUNTS
If the Security Agent or any Lender receives or is deemed to be affected
by notice whether actual or constructive of any subsequent charge or other
interest affecting any part of the Security Assets and/or the proceeds of
sale thereof, the Security Agent or such Lender (as the case may be) may
open a new account or accounts with any Obligor. If the Security Agent or
such Lender (as the case may be) does not open a new account it shall
nevertheless be treated as if it had done so at the time when it received
or was deemed to have received notice and as
20
from that time all payments made to the Security Agent or such Lender (as
the case may be) shall be credited or be treated as having been credited
to the new account and shall not operate to reduce the amount for which
this Debenture is security.
22. STAMP TAXES
Each Chargor shall pay and, promptly on demand, indemnify the Security
Agent and each Lender against any liability it incurs in respect of any
stamp, registration and similar Tax which is or becomes payable in
connection with the entry into, performance or enforcement of this
Debenture.
23. ASSIGNMENTS, ETC.
23.1 The Security Agent
The Security Agent may assign and transfer all of its respective rights
and obligations hereunder to a replacement Security Agent appointed in
accordance with the terms of the Facility Agreement. Upon such assignment
and transfer taking effect, the replacement Security Agent shall be and be
deemed to be acting as agent and trustee for each of the Lenders for the
purposes of this Debenture in place of the old Security Agent.
23.2 Assignments and Transfers
Each Chargor shall be bound by the terms of Clause 30 (Assignments,
Transfers and Substitutions) of the Facility Agreement and, accordingly,
each Chargor, for the purposes of any transfer pursuant to any of such
Clauses, hereby irrevocably authorises the Security Agent to execute on
its behalf (i) Substitution Certificates (without any need for the prior
consent of such Chargor) in accordance with the provisions of the Facility
Agreement, and (ii) any other document required to perfect the security
granted to the Lenders pursuant to the Finance Documents.
24. WAIVERS, REMEDIES CUMULATIVE
(a) The rights of the Security Agent and each Lender under this Debenture:
(i) may be exercised as often as necessary;
(ii) are cumulative and not exclusive of its rights under general law; and
(iii) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
(b) The Security Agent may waive any breach by any Chargor of any of such
Chargor's obligations hereunder if so instructed by the Majority Banks.
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25. SET-OFF
The Security Agent and each Lender, whilst any Default shall be
continuing, may (but shall not be obliged to) set off any obligation which
is due and payable by any Chargor and unpaid (whether under the Finance
Documents or which has been assigned to the Security Agent by any other
Chargor hereunder) against any obligation (whether or not matured) owed by
the Security Agent or such Lender (as the case may be) to such Chargor,
regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Security
Agent or such Lender (as the case may be) may convert either obligation at
a market rate of exchange in its usual course of business for the purpose
of the set-off. The Security Agent or such Lender (as the case may be)
shall notify the relevant Chargor promptly after taking any such action.
26. SEVERABILITY
26.1 General
If a provision of this Debenture is or becomes illegal, invalid or
unenforceable in any jurisdiction in respect of any Chargor, that shall
not affect:
(a) in respect of such Chargor, the validity or enforceability in that
jurisdiction of any other provision of this Debenture; or
(b) in respect of such Chargor, the validity or enforceability in other
jurisdictions of that or any other provision of this Debenture.
26.2 Deemed separate charges
This Debenture shall, in relation to each Chargor, be read and construed
as if it were a separate Debenture relating to such Chargor to the intent
that if any Encumbrance created by any other Chargor in this Debenture
shall be invalid or liable to be set aside for any reason, this shall not
affect any Encumbrance created hereunder by such first Chargor.
27. COUNTERPARTS
This Debenture may be executed in any number of counterparts and this will
have the same effect as if the signatures on the counterparts were on a
single copy of this Debenture.
28. NOTICES
28.1 Giving of Notices
All notices under, or in connection with, this Debenture shall be given in
writing or by telex or fax (and, in the case of notices to any Chargor,
shall be copied to ▇▇▇▇▇▇▇ by facsimile transmission at such facsimile
number, and for such attention, as shall be notified in writing to the
Security Agent by ▇▇▇▇▇▇▇ from time to time). Any such notice is deemed to
be given as follows:
(a) if in writing when delivered;
22
(b) if by telex when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the
end of the sender's copy of the notice; and
(c) if by fax when received.
However, a notice given to a Chargor in accordance with the above but
received on a non-working day or after business hours in the place of
receipt is deemed to be given on the next working day in that place.
28.2 Addresses for notices
The address, telex number and facsimile number of the Chargors and the
Security Agent for all notices under, or in connection with, this
Debenture are, in the case of the Chargors, as set out in Schedule 1 and,
in the case of the Security Agent, as set out in the Facility Agreement.
29. COVENANT TO RELEASE
Upon the expiry of the Security Period (but not otherwise), the Security
Agent and each Lender shall, at the request and cost of the Chargors,
execute and do all such deeds, acts and things as may be necessary to
release the Security Assets from the security constituted hereby.
30. GOVERNING LAW AND JURISDICTION
30.1 Governing Law
This Debenture shall be governed by and construed in accordance with
English law.
30.2 Courts of England
(a) For the benefit of each of the Lenders, each Chargor agrees that the High
Courts of Justice in London and all appellate courts therefrom have
jurisdiction to settle any disputes which may arise out of or in
connection with this Debenture and that any suit, action or proceedings
(together the "Proceedings") in connection with this Debenture may be
brought in High Courts of Justice in London and all appellate courts
therefrom and accordingly submits to the jurisdiction of the High Courts
of Justice in London and all appellate courts therefrom.
(b) The Chargors hereby irrevocably and unconditionally agree that nothing in
this Debenture shall affect the right to serve process in any manner
permitted by law.
IN WITNESS whereof this Debenture has been duly executed as a deed on the date
first above written.
23
SCHEDULE 1
The Chargors:
PACIFICORP SERVICES LIMITED
State of Incorporation: England and Wales
Registered Office: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Address for Notices: ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
PACIFICORP FINANCE (UK) LIMITED
State of Incorporation: England and Wales
Registered Office: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Address for Notices: ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
PACIFICORP ACQUISITIONS
State of Incorporation: England and Wales
Registered Office: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Address for Notices: ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
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SCHEDULE 2
Group Shares
The Chargor Name of Company in Name of Nominee (if Class of Shares held Number of Shares
which Shares are held any) by whom Shares held
are held
Pacificorp Services Limited Pacificorp Finance (UK) None Ordinary One
Limited
Pacificorp Finance (UK) Pacificorp Acquisitions ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ Ordinary Two
Limited
26
SCHEDULE 3
Form of Deed of Accession
THIS DEED OF ACCESSION dated [ ], 19[ ] is made BETWEEN:
(1) [ ] (the "Subsidiary"), a company incorporated in England or
Wales whose registered office is situate at [ ];
(2) [ ] (the "Company") for itself and as agent for and on behalf
of each of the other Chargors named in the Debenture referred to below; and
(3) CITIBANK, N.A. as the Security Agent.
WHEREAS
(A) The Subsidiary is a [wholly-owned] Subsidiary of the Company.
(B) The Company has entered into a debenture dated [ ] June, 1997 (as
supplemented and amended by Deeds of Accession or otherwise from time to
time, the "Debenture") between the Company, each of the companies named
therein as Chargors, and Citibank, N.A. as agent and trustee for certain
Lenders identified therein.
(C) The Subsidiary has at the request of the Company and in consideration of
the Lenders making or continuing to make facilities available to Bidco or
any other member of the Bidco Group and after giving due consideration to
the terms and conditions of the Finance Documents, the Coalco/Bidco Loan
Agreement and the Debenture and satisfying itself that there are reasonable
grounds for believing that the entry into this Deed by it will be of
benefit to it, decided in good faith and for the purpose of carrying on its
business to enter into this Deed and thereby become a Chargor under the
Debenture. The Subsidiary will also, by execution of a separate
instrument, become a party to the Intercreditor Agreement as an Obligor.
NOW THIS DEED WITNESSES as follows:
1. Terms defined in the Debenture shall have the same meaning in this Deed.
2. The Subsidiary hereby agrees to become a party to and to be bound by the
terms of the Debenture as a Chargor with immediate effect and so that the
Debenture shall be read and construed for all purposes as if the Subsidiary
had been an original party thereto in the capacity of Chargor (but so that
the security created consequent on such accession shall be created on the
date hereof). The Subsidiary hereby undertakes to be bound by all the
covenants and agreements in the Debenture which are expressed to be binding
on a Chargor. In accordance with the foregoing, the Subsidiary now grants
to the Security Agent as agent and trustee for the Lenders the assignments,
charges, mortgages and other security described in the Debenture as being
granted, created or made by Chargors thereunder, to the intent that its
assignments, charges, mortgages and other security shall be effective and
binding upon it and its property and assets and shall not in any way be
avoided, discharged or released or otherwise adversely affected by any
ineffectiveness or invalidity of the Debenture or of any other party's
execution
27
thereof or any other Deed of Accession, or by any avoidance, invalidity,
discharge or release of any guarantee, assignment or charge contained in
the Debenture or in any other Deed of Accession. The Debenture and this
Deed shall be read as one to this extent and so that references in the
Debenture to "this Debenture", "herein", and similar phrases shall be
deemed to include this Deed and all references in the Debenture to
"Schedule 2" (or any part thereof) shall be deemed to include a reference
to the Schedule to this Deed (or relevant part thereof).
3. The Company, for itself and as agent for and on behalf of all other
Chargors under the Debenture, hereby agrees to all matters provided for
herein.
4. Without limiting the generality of the other provisions of this Deed and
the Debenture, pursuant to the terms hereof and of the Debenture, the
Subsidiary as beneficial owner and with full title guarantee, as security
for the payment, discharge and performance of all Secured Liabilities,
hereby and by the Debenture in favour of the Security Agent (as agent and
trustee for itself and each of the Lenders) hereby agrees that the
Subsidiary's estates and other interests in certain Group Shares for the
purposes of Clause 3 of the Debenture, as such provisions apply in relation
to the Subsidiary, are specified in the Schedule to this Deed and (together
with all Related Rights) are hereby mortgaged or charged as provided in
such provisions and the other provisions of the Debenture.
5. This Deed shall be governed by and construed in accordance with English
law.
28
SCHEDULE
Insert details of Group Shares in which the Subsidiary has an interest.
29
SIGNATORIES
(to Accession Agreement)
The Subsidiary
(For a Company incorporated in the United Kingdom)
Executed as a deed by ) ------------------------
[ ] ) Director
acting by [ ] )
and [ ] ) ------------------------
Director
The Company
[ ] )
(for itself and as )
agent for the )
other Chargors party to the )
Debenture herein referred to )
Executed as a deed by )
[ ] ) ------------------------
acting by ) Director
[ ] and )
[ ] ) ------------------------
Director
The Security Agent
CITIBANK, N.A.
By:
30
SIGNATORIES
The Company
Executed as a deed by ) ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
PACIFICORP SERVICES LIMITED ) Director
)
acting by ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ )
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ )
) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Director
The Other Chargors
Executed as a deed by ) ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
PACIFICORP FINANCE (UK) ) Director
LIMITED )
)
acting by ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ )
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ )
) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Director
Executed as a deed by ) ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
PACIFICORP ACQUISITIONS ) Director
)
acting by ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ )
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ )
) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Director
The Security Agent
CITIBANK, N.A.
By: ▇▇▇▇▇ ▇. ▇▇▇▇
