Exhibit 10.12
UK PLEDGE AGREEMENT
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RELTEC (UK) LIMITED,
as Chargor
THE CHASE MANHATTAN BANK,
for itself and as
trustee for others
____________________________
CHARGE OVER SHARES
____________________________
in connection with obligations
of RELTEC (UK) LIMITED under
an Amended and Restated Credit Agreement
dated as of September 20, 1996
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TABLE OF CONTENTS
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1. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. The Secured Obligations . . . . . . . . . . . . . . . . . . . . . . . 3
3. Charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Dividends and Interest. . . . . . . . . . . . . . . . . . . . . . . . 4
5. Derivative Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Further Assurance . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Warranties and Undertakings . . . . . . . . . . . . . . . . . . . . . 7
8. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9. Power of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10. Rights attaching to the Pledged Securities. . . . . . . . . . . . . . 10
11. Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12. Protection of Purchasers. . . . . . . . . . . . . . . . . . . . . . . 12
13. Effectiveness of Security . . . . . . . . . . . . . . . . . . . . . . 12
14. Invalidity of Other Security. . . . . . . . . . . . . . . . . . . . . 12
15. Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(i)
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16. Dealings by the Collateral Agent and the Secured Creditors. . . . . . 13
17. Final Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18. The Collateral Agent's and the Secured Creditors' Rights. . . . . . . 14
19. Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20. Consolidation of Securities . . . . . . . . . . . . . . . . . . . . . 15
21. The Collateral Agent. . . . . . . . . . . . . . . . . . . . . . . . . 15
22. Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
23. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
24. Judgment Currency, Jurisdiction and Service of Process. . . . . . . . 17
25. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
26. Enforceability; Transfer of Rights. . . . . . . . . . . . . . . . . . 19
27. Reinstatement of Obligation . . . . . . . . . . . . . . . . . . . . . 19
28. The Collateral Agent's and the Secured Creditors' Discretion. . . . . 19
29. Separability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
30. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
31. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(ii)
THIS CHARGE OVER SHARES is made the 26th day of September, 1996
AMONG
(1) Reltec (UK) Limited, a company incorporated in England and Wales
with registered number 3230250 (the "Chargor"); and
(2) THE CHASE MANHATTAN BANK, as Collateral Agent, for itself and for
the Secured Creditors referred to below.
WHEREAS, RELTEC HOLDINGS, INC. and the Chargor (individually, each a
"Borrower" and, collectively, the "Borrowers"), the lenders from time to time
party thereto (the "Banks"), and The Chase Manhattan Bank, as Agent (the Banks,
the Agent and the Collateral Agent being herein called the "Secured Creditors")
have entered into an Amendment and Restatement dated as of September 20, 1996,
amending and restating the Credit Agreement dated as of July 31, 1995 (as
modified, supplemented or amended from time to time, the "Credit Agreement"),
providing for the making of MCRF Loans and Swingline Loans to the Chargor
(collectively the "Chargor Loans");
WHEREAS, the Pledged Securities (as defined below), other than the
Minority Shares (as defined below), are currently registered in the name of
Reltec Foreign Holdings, Inc. which has executed and delivered to the Chargor
stock transfer forms and the relative share certificates in respect of all such
shares and the Chargor is the beneficial owner of all such shares free of any
Lien, mortgage or charge and the Chargor is, subject to the relevant stock
transfer forms being duly stamped, legally entitled to be registered as owner of
all such shares;
WHEREAS, the Chargor has entered into arrangements pursuant to which
it will purchase the Minority Shares after the date of this Agreement;
WHEREAS, it is a condition to the making of the Chargor Loans under
the Credit Agreement that the Chargor shall have executed and delivered this
Charge over Shares; and
WHEREAS, the Chargor will obtain benefits as a result of the Chargor
Loans made to the Chargor under the Credit Agreement and, accordingly, desires
to execute
and deliver this Charge over Shares in order to satisfy the condition described
in the preceding paragraph.
NOW THIS DEED WITNESSETH as follows:
1. INTERPRETATION.
1.01 Terms defined in the Credit Agreement shall, except as otherwise
expressly provided herein or as the context otherwise requires, have the same
meanings in this Charge over Shares (including, without limitation, the preamble
and recitals hereto) save that the term "Collateral Agent" herein shall mean the
Collateral Agent (as defined in the Credit Agreement) in such capacity and as
trustee hereunder for the Secured Creditors.
1.02 "Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
1.03 "Governmental Authority" means any nation, state or government,
or province or other subdivision thereof, and any body, agency, ministry,
taxing, monetary, foreign exchange or other authority, court, tribunal or other
instrumentality exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any corporation or
other entity owned or controlled (through stock or capital ownership or
otherwise) by any of the foregoing exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
1.04 "Noticed Event of Default" means (a) an Event of Default with
respect to the Chargor under Section 9.05 of the Credit Agreement and (b) any
other Event of Default in respect of which the Collateral Agent has given the
Chargor notice that such Event of Default constitutes a "Noticed Event of
Default".
1.05 "Requirement of Law" means, as to any Person, the organizational
or governing documents of such Person, and any law, treaty, rule or regulation,
or determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject and, in the case of any such
determination of an arbitrator, court or Governmental Authority, which is final
after exhaustion of all rights of appeal or which if not final requires
compliance therewith during the pendency of any appeal.
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1.06 Any reference herein to any statute or to any provisions of any
statute shall be construed as a reference to any statutory modification or
re-enactment thereof and to any regulations or orders made thereunder which have
the force of law and are from time to time in force.
1.07 Section 61 of the Law of Property ▇▇▇ ▇▇▇▇ shall apply to the
construction of this Charge over Shares.
1.08 The Clause headings shall not affect the construction hereof.
2. THE SECURED OBLIGATIONS.
2.01 This Charge over Shares is executed by the Chargor in
consideration of the Banks making the Chargor Loans pursuant to the Credit
Agreement.
2.02 The "Secured Obligations" means all of the Chargor's obligations
and liabilities of every kind or nature under the Credit Agreement and any other
Credit Document to which it is a party.
3. CHARGE. The Chargor with full title guarantee and with the
intent that the security so constituted shall rank in priority to all other
claims, liens, equities or security interests of any nature whatsoever and shall
be a continuing security in favour of the Collateral Agent for itself and as
trustee for each Secured Creditor, charges with the payment and discharge of its
Secured Obligations and with the reimbursement to the Collateral Agent and each
Secured Creditor (together with interest at the rate from time to time payable
by each of the Borrowers to the Banks under the Credit Agreement and running
from the date of the same being incurred by the Collateral Agent or such Secured
Creditor to the date of reimbursement) of all other monies for the reimbursement
of which this Charge over Shares is expressed to be a first fixed charge in
relation to the Chargor and against any such loss as is referred to below, all
the following stocks, shares and other securities, rights, monies and other
property (collectively the "Pledged Securities"), namely subject as hereinafter
provided:
(a) 23,675,289 fully paid ordinary shares of five ▇▇▇▇▇ each,
representing 99.3% of the whole of the issued share capital, of Rainford
Group plc (the "Company");
(b) with effect from the date on which it acquires any interest of
any nature whatsoever in any fully paid ordinary shares of five ▇▇▇▇▇ each
the capital
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of the Company other than those shares referred to in sub-clause (a) above
(the "Minority Shares"), all of its right title and interest of any nature
whatsoever in the Minority Shares;
(c) all stocks, shares or other securities, rights, monies, or other
property, excluding cash dividends or other cash payments, accruing,
offered or issued at any time by way of bonus, redemption, exchange,
purchase, substitution, conversion, preference, option or otherwise in
respect of any stocks, shares or other securities referred to in
sub-clauses (a) or (b) above or in respect of any stocks, shares or other
securities, rights, monies or other property previously accruing, offered
or issued as mentioned in this sub-clause (c), and any right of the Chargor
to acquire shares in each Company at or above par and for cash and any
shares so acquired;
(d) any other stocks, shares or other securities in the capital of
each Company which are allotted, issued or distributed or which shall
otherwise come into the possession or control of the Chargor (together with
the items referred to in sub-clause (c) above, "Derivative Assets"); and
(e) all dividends, interest and other income at any time hereafter
deriving from any stocks, shares or other securities, rights, monies or
other property for the time being falling within sub-clauses (a), (b), (c)
or (d) above or deriving from any investment of any such dividends,
interest or other income.
4. DIVIDENDS AND INTEREST. Upon the occurrence and during the
continuance of a Noticed Event of Default all dividends, interest and other
monies forming part of or derived from the Pledged Securities (whether of the
nature of capital or income) shall be paid to and retained by the Collateral
Agent, and any such dividends, interest and other monies which may be received
at any such time by the Chargor shall pending such payment to the Collateral
Agent be held in trust for the Collateral Agent. The Collateral Agent shall be
entitled at any time to apply such dividends, interest and other monies in
respect of the Pledged Securities pledged by the Chargor in or towards the
reduction or discharge of all or any portion of the Secured Obligations of the
Chargor. If the Collateral Agent shall receive any such amounts prior to the
occurrence of a Noticed Event of Default, it shall pay such amounts to the
Chargor.
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5. DERIVATIVE ASSETS. Until the security hereby constituted shall
have been discharged:
(a) upon the accrual, offer or issue of any Derivative Assets, the
Chargor shall, subject to Clause 4 above, deliver or pay to the Collateral
Agent (or procure the delivery or payment to the Collateral Agent of) all
such Derivative Assets or the certificates and other documents of title to
or representing the same together with:
(i) (if any such certificate or other document is not in the name or
the sole name of the Chargor) a declaration of trust in respect of the
Derivative Assets in question in favour of the Chargor (and containing a
power of attorney in favour of the Chargor and the Collateral Agent
severally to complete any partially completed transfer or assignment as is
referred to below) executed by each person other than the Chargor in whose
name such certificate or other document is; and
(ii) an instrument of transfer or assignment of the relevant
Derivative Assets (with the name of the transferee, the consideration and
the date left blank, but otherwise duly completed), executed by each person
whose name such certificate or other document of title bears;
Provided that the Collateral Agent shall not complete any such transfer or
assignment or take any other steps to register itself or any third party as
the holder of the Derivative Assets until a Noticed Event of Default shall
have occurred and provided that it is still continuing;
(b) the Chargor shall ensure that all of the Pledged Securities are
and at all times remains free from any restriction on transfer; and
(c) the Chargor shall pay all calls or other payments due in respect
of any part of the Pledged Securities, and in any case of default by the
Chargor in this respect the Collateral Agent may if it thinks fit make any
such payment on behalf of the Chargor, in which case the Chargor shall
reimburse to the Collateral Agent on demand all sums so expended by the
Collateral Agent together with interest at the rate for the time being
payable by the Chargor to the Banks under the Credit Agreement from the
date of such payment by the Collateral Agent to the date of its
reimbursement by the Chargor, and, without prejudice to the provisions of
Clauses 3 and 14 hereof, this Charge over Shares shall be a security to the
Collateral Agent for all sums so expended by the Collateral Agent and such
interest as aforesaid.
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6. FURTHER ASSURANCE.
6.01 The Chargor undertakes to deliver to the Collateral Agent upon
execution of this Charge over Shares partially completed instruments of transfer
in a form acceptable to the Collateral Agent in respect of the shares referred
to in Clause 3(a) hereof together with all such other documents and instruments
as the Collateral Agent may require in order to enable the Collateral Agent or
its nominee to become registered as the owner of such shares other than share
certificates in respect of such shares which are to be delivered to the
Collateral Agent pursuant to Clause 6.02. Provided that the Collateral Agent
shall not complete any such transfer or take any steps to register itself or any
third party as the holder of such shares until after a Noticed Event of Default
shall have occurred and provided that it is still continuing.
6.02 The Chargor shall use its best endeavours to procure that the
Pledged Securities are registered in its name within six months of the date of
this Agreement and that share certificates representing the Pledged Securities
are issued in its name and to it as soon as possible thereafter. Immediately
upon the Chargor receiving such share certificates, the Chargor shall deliver
such share certificates to the Collateral Agent.
6.03 The Chargor shall use its best endeavours to purchase the
Minority Shares within six months after the date of this Agreement and to
procure that share certificates representing the Minority Shares are issued in
its name and to it as soon as possible thereafter. Immediately upon the Chargor
receiving such share certificates, it shall deliver them to the Collateral Agent
together with partially completed instruments of transfer in respect of the
Minority Shares and all such other documents and instruments as the Collateral
Agent may require in order to enable the Collateral Agent or its nominee to
become registered as the owner of such shares.
6.04 The Chargor undertakes forthwith upon notice to that effect by
the Collateral Agent to execute and sign, or procure the execution and signing,
in favor of the Collateral Agent or its nominees and to deliver to the
Collateral Agent all such transfers (or, if the Collateral Agent shall so
require, partially completed instruments of transfer with the name of the
transferee, date and consideration left blank) and assignments, and make, or
procure the making of, all such payments, as the Collateral Agent may specify in
such notice for the purpose of perfecting the title of the Collateral Agent to
all or any part of the Pledged Securities or for enabling the Collateral Agent
(as it shall be entitled at any time to do) to vest the same in the Collateral
Agent or its nominees or any purchaser. The obligations of the Chargor under
this Clause shall be in addition to and not in substitution for the covenants
for further assurance deemed to be included herein by virtue of the Law
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of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇. Provided that the Collateral
Agent shall not complete any such transfer or assignment or take any other step
to register itself or any third party as the holder of the Pledged Securities
until such time as a Noticed Event of Default shall have occurred and provided
that it shall be continuing.
6.05 The Chargor further undertakes forthwith upon notice to that
effect by the Collateral Agent to execute (and procure all other, if any,
necessary parties to execute) in favor of the Collateral Agent or its nominees
and to deliver to the Collateral Agent such legal or other mortgages of the
Pledged Securities or any part thereof as may reasonably be required for the
purpose of securing or further securing the Secured Obligations and all other
monies and liabilities hereby secured, and being in such form as the Collateral
Agent shall reasonably require.
7. WARRANTIES AND UNDERTAKINGS.
7.01 The Chargor hereby represents and warrants to the Collateral
Agent and undertakes that:
(a) LAWFUL OWNER. The Pledged Securities, other than the Minority
Shares, are registered in the name of Reltec Foreign Holdings, Inc. which
has duly executed and delivered to the Chargor stock transfer forms and the
relative share certificates in respect thereof. Subject only to such stock
transfer forms being duly stamped, the Chargor is entitled to be registered
as the owner of the Pledged Securities, other than the Minority Shares,
free of any Lien, mortgage or charge.
(b) LAWFUL OWNER. With effect from the date on which the Pledged
Securities are registered in the name of the Chargor pursuant to Clause
6.02 or Clause 6.03 hereof (as the case may be) the Chargor will be and
will, at all times during the subsistence of the security hereby
constituted, remain the sole, lawful and beneficial owner of all of its
respective Pledged Securities free from any Lien, mortgage or charge (other
than this Charge over Shares and any such mortgage as is referred to in
Clause 6.05 above and the Liens created by or pursuant to the Security
Documents and Liens permitted by Section 8.03(a) of the Credit Agreement);
(c) NO SALE. Subject to the other provisions of this Charge over
Shares, the Chargor has not sold or agreed to sell or otherwise disposed of
or agreed to dispose of, and will not at any time during the subsistence of
the security hereby constituted sell or agree to sell or otherwise dispose
of or agree to dispose of, the
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benefit of all or any of its respective rights, titles and interest in and
to the Pledged Securities or any part thereof;
(d) CORPORATE EXISTENCE. The Chargor is a company duly organized and
validly existing under the laws of its jurisdiction of incorporation;
(e) CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
Chargor has the corporate power and authority and the legal right to
execute, deliver and perform this Charge over Shares and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Charge over Shares (no action by its shareholders being
required by law, by its constitutive documents or otherwise). All acts,
conditions and things have been done, fulfilled and performed (in
compliance with the laws of its jurisdiction of incorporation) which are
required by such laws to be done, fulfilled and performed, and no order,
consent, approval, license, authorisation or validation of, or filing,
recording or registration with (except as have been obtained or made and
which remain in full force and effect), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorise or is required in connection with the execution, delivery,
performance, validity or enforceability of this Charge over Shares or the
making of any payments as provided herein other than registration of any
duly completed and stamped transfer form by the Board of Directors of the
relevant Company following the enforcement of this Charge over Shares.
This Charge over Shares has been duly executed and delivered by the
Chargor. This Charge over Shares constitutes a legal, valid and binding
obligation of the Chargor, enforceable against the Chargor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and to general
principles of equity. It is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence in the Chargor's
jurisdiction of incorporation that this Charge over Shares be filed or
recorded except that registered particulars of this charge should be filed
with the Registrar of Companies pursuant to Sectin 395 of the Companies ▇▇▇
▇▇▇▇.
(f) NO LEGAL BAR. The execution, delivery and performance of this
Charge over Shares will not violate any Requirement of Law or any
Contractual Obligation of the Chargor or any of its Subsidiaries, and will
not result in, or require, the creation or imposition of any Lien on any of
its respective assets
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pursuant to any Requirement of Law or Contractual Obligation other than the
security created by this Charge over Shares.
(g) STAMP TAXES. It is not necessary in order to ensure the
legality, validity, enforceability or admissibility in evidence of this
Charge over Shares that any stamp, registration or similar duty or tax be
paid in the Chargor's jurisdiction of incorporation on or in relation to
this Charge over Shares.
(h) LITIGATION. No litigation, arbitration, investigation or
administrative proceeding of or before any Governmental Authority or other
tribunal is currently pending or, to the knowledge of the Chargor,
threatened (i) against the Chargor or any of the Companies to restrain the
execution and delivery of this Charge over Shares or the performance of or
compliance with the obligations and conditions imposed thereby or to
question the right and power of the Chargor to enter into, exercise its
rights under and perform and comply with the obligations and conditions
imposed by, or the legality, validity or enforceability of this Charge over
Shares, or (ii) against the Chargor for its dissolution, disestablishment
or liquidation or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of or for it or any of
its properties or revenues.
(i) WITHHOLDING. Under the laws of its jurisdiction of incorporation
in force at the date hereof the Chargor will not be required to make any
deduction or withholding from any payment it may make hereunder.
(j) IMMUNITY. Under the laws of its jurisdiction of incorporation,
the Chargor is not entitled to claim for itself or for its assets immunity
from suit, execution, attachment or other legal process hereunder.
7.02 The foregoing representations and warranties in this Clause 7
will be true and correct as though made on and as of the date of the Restatement
Effective Date and each Credit Event occurring thereafter.
8. NEGATIVE PLEDGE. The Chargor hereby undertakes with the
Collateral Agent that at no time during the subsistence of the security hereby
constituted will the Chargor, otherwise than:-
(a) in favour of the Collateral Agent; or
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(b) with the prior written consent of the Collateral Agent in
accordance with and subject to any conditions which the Collateral Agent
may attach to such consent,
create, grant, extend or permit to subsist any Lien, including without
limitation any mortgage or other fixed security or any floating charge on or
over the Pledged Securities or any part thereof, other than as referred to in
Clause 7.01(a) above. The foregoing prohibition shall apply not only to Liens
which rank or purport to rank in point of security in priority to the security
hereby constituted, but also to any Liens which rank or purport to rank pari
passu therewith or thereafter.
9. POWER OF SALE.
9.01 Upon and following the occurrence and during the continuance of
a Noticed Event of Default, the Collateral Agent shall have, and be entitled to
exercise, the power to sell or otherwise dispose of, for any consideration
(whether payable immediately or by installments) as the Collateral Agent shall
think fit, the whole or any part of the Pledged Securities and may (without
prejudice to any right which it may have under any law or provision hereof)
treat such part of the Pledged Securities as consists of money as if it were the
proceeds of such a sale or other disposal. The Collateral Agent shall be
entitled to apply the proceeds of such sale or other disposal of the Pledged
Securities pledged by the Chargor in paying the costs of such sale or other
disposal and (subject to the rights or claims of any person entitled in
accordance with this Charge over Shares in priority to the Collateral Agent) in
or towards the discharge of the Secured Obligations of the Chargor and the other
monies and liabilities of the Chargor hereby secured, the balance (if any) to be
paid to the Chargor or other persons entitled thereto. Such power of sale or
other disposal shall operate as a variation and extension of the statutory power
of sale under section 101 of the Law of Property ▇▇▇ ▇▇▇▇.
9.02 The restriction contained in section 103 of the Law of Property
▇▇▇ ▇▇▇▇ on the exercise of the statutory power of sale shall not apply to any
exercise by the Collateral Agent of its power of sale or other disposal which
shall arise and be exercisable, as shall the statutory power under the said
section 101 of appointing a receiver of the Pledged Securities or the income
thereof, immediately on or after the occurrence of any such default or breach as
is referred to in Clause 9.01 above. In favour of a purchaser a certificate in
writing by an officer or agent of the Collateral Agent that either or both of
such powers has arisen and is exercisable shall be conclusive evidence of that
fact.
10. RIGHTS ATTACHING TO THE PLEDGED SECURITIES.
10.01 Unless otherwise agreed in writing between the Chargor and the
Collateral Agent, the Chargor shall not be entitled to, and shall not, exercise
or cause to be exercised any voting rights attached to any part of the Pledged
Securities, except that so
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long as no Noticed Event of Default has occurred and is continuing, the Chargor
may exercise or cause to be exercised the voting rights attached to any part of
its Pledged Securities.
10.02 The Chargor shall not, by exercise of any voting rights or
otherwise, permit or agree to any variation of the rights attaching to or
conferred by the Pledged Securities or any part thereof that would adversely
affect the rights or remedies of the Collateral Agent or the Secured Creditors.
10.03 The Collateral Agent and its nominees may at the Collateral
Agent's discretion (in the name of the Chargor or otherwise whether before or
after having demanded the payment or other discharge of any of the Secured
Obligations and without any consent or authority on the part of the Chargor)
exercise or cause to be exercised in respect of any stocks, shares or other
securities which form part of the Pledged Securities the following rights and
powers, namely:
(a) any voting rights;
(b) all those powers given to trustees by section 10(3) and (4) of
the Trustee Act 1925 (as amended) in respect of securities or property
subject to a trust; and
(c) the powers and rights conferred on or exercisable by the bearer
or holder thereof;
provided always that the Collateral Agent shall not, unless a Noticed Event of
Default shall have occurred and be continuing, have or exercise any of such
rights or powers in respect of any such equity securities as are referred to in
Clause 10.01 hereof.
11. POWER OF ATTORNEY. The Chargor hereby irrevocably appoints the
Collateral Agent to be its attorney and in the Chargor's name and on the
Chargor's behalf and as the act and deed of the Chargor to sign, seal, execute,
deliver, perfect and do all deeds, instruments, mortgages and things as may be,
or as the Collateral Agent may consider to be, requisite for carrying out any
obligation imposed on the Chargor under Clause 6 above and which the Chargor has
failed to carry out for more than 10 days, or for enabling the Collateral Agent
to exercise its power of sale or other disposal referred to in Clause 9 above or
for carrying any sale or other disposal made under such power into effect by
executing instruments of transfer (or completing partially completed instruments
executed by the Chargor), or exercising (but subject as therein provided with
respect to voting) any of the rights and powers referred to in Clause 10.03
above, including without limitation the appointment of any person as a proxy of
the Chargor. The Chargor hereby
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undertakes to ratify and confirm all things done and documents executed by the
Collateral Agent in the exercise of the power of attorney conferred by this
Clause.
12. PROTECTION OF PURCHASERS. No purchaser or other person dealing
with the Collateral Agent or any receiver appointed by the Collateral Agent
under its statutory power shall be bound to see or inquire whether the right of
the Collateral Agent or such receiver to exercise any of its or his powers has
arisen or has become exercisable or be concerned with notice to the contrary.
13. EFFECTIVENESS OF SECURITY.
13.01 This Charge over Shares shall be in addition to and shall be
independent of every other security which the Collateral Agent and/or any
Secured Creditor at any time hold for any of the Secured Obligations. No prior
security held by the Collateral Agent or any Secured Creditor over the whole or
any part of the Pledged Securities shall merge in the security hereby
constituted.
13.02 This Charge over Shares shall remain in full force and effect
as a continuing security unless and until the Collateral Agent discharges it.
Any release by the Collateral Agent of any part of the Pledged Securities from
the security hereby constituted in accordance with the terms of the Credit
Agreement shall not discharge or in any way affect the security hereby
constituted over that part of the Pledged Securities not so released.
13.03 Nothing contained in this Charge over Shares is intended to, or
shall operate so as to, prejudice or affect any ▇▇▇▇, note, guarantee, mortgage,
pledge, charge or other security of any kind whatsoever which the Collateral
Agent and/or any Secured Creditor may have for the Secured Obligations or any of
them or any right, remedy or privilege of the Collateral Agent and/or any
Secured Creditor thereunder.
13.04 The Chargor hereby acknowledges its intention that the charge
created pursuant to this Charge over Shares shall extend to all beneficial
interests of the Chargor in the property which is expressed to be subject to
such charge and to the proceeds of any sale or other realisation of such
property.
14. INVALIDITY OF OTHER SECURITY. The security constituted by this
Charge over Shares shall not be affected by the total or partial invalidity or
unenforceability of, or any irregularity or defect in, any mortgage, or other
security, guarantee or indemnity which the Collateral Agent and/or any Secured
Creditor may at any time hold from the Chargor, any other Credit Party or any
other person in respect of the Secured Obligations or any of them. Without
prejudice to the provisions of Clauses 3 and 5(c) hereof, this Charge over
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Shares shall be a security to the Collateral Agent and each Secured Creditor
against any loss occasioned by or arising from any fact, matter or thing whereby
or in consequence whereof any indebtedness and liabilities owing or incurred at
any time by any Credit Party to the Collateral Agent and the Secured Creditors
under the Credit Agreement, or purporting to be so owing or incurred, or any
contract or purported contract relating thereto, may, whether wholly or in part,
be invalid or be or become unenforceable or void or liable to be avoided for any
reason whatsoever, including without limitation any legal limitation or
disability or want of capacity of or affecting any Credit Party or any person
purporting to act on behalf of any Credit Party. Such loss shall be a sum equal
to the amount which the Collateral Agent and/or the Secured Creditors would have
been able to recover from such Credit Party but for such invalidity,
unenforceability, voidness or voidability.
15. CERTIFICATE. A certificate of any officer of the Collateral
Agent as to the amount of any monies or liabilities incurred by, or owed by the
Chargor to, the Collateral Agent and/or the Secured Creditors by the Chargor
under the Credit Agreement shall, in the absence of manifest error, be prima
facie evidence of the amounts stated therein to be due.
16. DEALINGS BY THE COLLATERAL AGENT AND THE SECURED CREDITORS. The
Collateral Agent and each of the Secured Creditors may in accordance with the
terms of the Credit Documents at any time without discharging or in any way
affecting the security hereby constituted: (a) determine, increase or vary any
credit or facilities of any of the Credit Parties; (b) grant any Credit Party or
any other person time or indulgence; (c) renew any bills, notes or other
negotiable instruments; (d) deal with, exchange, modify, renew, release,
discharge or abstain from perfecting or enforcing any other securities,
guarantees or rights of any kind which it may have from any of the Credit
Parties or any other person; (e) compound with, discharge, vary or release the
liability of the Credit Parties or any other person or concur in, accept, submit
to or vary any compromise, arrangement or settlement with the Credit Parties or
any other person; (f) concur in any deed of assignment, deed of arrangement,
scheme or other thing done for the benefit or intended benefit of the creditors
of the Credit Parties or of any other person; (g) abstain from proving or
enforcing or claiming any debt or right of any kind or any dividend, share or
composition; (h) take or omit to take any security from the Credit Parties
whether contemporaneously with this Charge over Shares or not; (i) take or omit
to take any guarantee or indemnity from any other person whether
contemporaneously with this Charge over Shares or not; (j) agree with the Credit
Parties at any time as to the application of any advance made or to be made; (k)
open and continue any new account with the Credit Parties or continue any
existing such account on the footing that any monies paid into such new or
existing account shall not be appropriated towards or have the effect of
reducing any indebtedness or liability hereby secured; and (l) do or omit to do
any other thing whatsoever whereby but for this provision the security hereby
constituted might have been affected or impaired in any way.
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17. FINAL RELEASE. In the event of the whole of the Secured
Obligations being paid or discharged, all rights, title and interest in and to
the Pledged Securities shall completely revest in the Chargor and the Collateral
Agent shall, at the expense of the Chargor, execute and deliver all documents
and instruments necessary to accomplish such revesting.
18. THE COLLATERAL AGENT'S AND THE SECURED CREDITORS' RIGHTS.
18.01 The rights, powers and remedies provided by this Charge over
Shares are cumulative and are not, nor are they to be construed as, exclusive of
any rights, powers and remedies provided by law.
18.02 No failure on the part of the Collateral Agent and/or any
Secured Creditor to exercise, or delay on its part in exercising, any of the
rights, powers and remedies provided by this Charge over Shares or by law
(collectively the "Secured Creditors' Rights") shall operate as a waiver
thereof, nor shall any single or partial waiver of any of the Secured Creditors'
Rights preclude any further or other exercise of that one of the Secured
Creditors' Rights concerned or the exercise of any other of the Secured
Creditors' Rights.
19. ACCOUNTS.
19.01 If the Collateral Agent and/or any Secured Creditor shall at
any time receive notice of any subsequent Lien or other interest, matter or
event in violation of Clause 8 above affecting the whole or any part of the
Pledged Securities, the Collateral Agent shall be entitled to open a new account
or accounts for the Chargor in its books and if the Collateral Agent does not in
fact do so then (unless the Collateral Agent gives express written notification
to the Chargor that it has not done so) as from the time when the Collateral
Agent or such Secured Creditor received such notice all payments made by the
Chargor to the Collateral Agent or any Secured Creditor shall (notwithstanding
any appropriation to the contrary by the Chargor) be treated as having been
credited to such new account of the Chargor and not as having been applied in
reduction of the Secured Obligations outstanding at the time of receipt of such
notice by the Collateral Agent or such Secured Creditor.
19.02 All or any monies received, recovered or realised by the
Collateral Agent or any Secured Creditor under or pursuant to this Charge over
Shares (including the proceeds of any permitted conversion of currency) may be
credited, at the discretion of the Collateral Agent or such Secured Creditor, as
the case may be, to any suspense or impersonal account and may be held in such
account for so long as the Collateral Agent or such Secured Creditor, as the
case may be, shall think fit (with interest accruing thereon at
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such rate as the Collateral Agent or such Secured Creditor, as the case may be,
shall consider fit) pending their application at such time or times as the
Collateral Agent or such Secured Creditor, as the case may be, may decide in the
discharge of the Secured Obligations of the Chargor, the balance (if any) to be
paid to the Chargor or other persons entitled thereto.
20. CONSOLIDATION OF SECURITIES. Sub-section (1) of section 93 of
the Law of Property Act 1925 shall not apply to this Charge over Shares.
21. THE COLLATERAL AGENT.
21.01 The Collateral Agent may:
(a) perform any of its duties, obligations and responsibilities under
this Charge over Shares by or through its personnel or its agents;
(b) refrain from exercising any right, power or discretion vested in
it which would or might in its reasonable opinion be contrary to any law of
any jurisdiction or any directive or otherwise render it liable to any
person and may do anything which is in its reasonable opinion necessary to
comply with any such law or directive;
(c) refrain from taking any action not specifically provided for
under this Charge over Shares until it has been indemnified and/or secured
to its reasonable satisfaction against any reasonable costs, losses,
expenses or liabilities (including legal fees) which it would or might
sustain or incur as a result;
(d) rely on any communication or document reasonably believed by it
to be genuine;
(e) rely as to any matter of fact which might reasonably be expected
to be within the knowledge of the Chargor or on a statement made by or on
behalf of the Chargor in connection with this Charge over Shares, and
assume that no Default or Event of Default has occurred unless it has
actual knowledge to the contrary;
(f) obtain and pay for such legal or other expert advice or services
as may to it reasonably seem necessary or desirable and rely on any such
advice;
(g) retain for its own benefit, and without liability to account for,
any fee or other sum receivable by it under the Credit Documents for its
own account; and
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(h) accept deposits from, lend money to, provide any advisory or
other services to or engage in any kind of banking or other business with
any party (including any Affiliate thereof) to this Charge over Shares.
21.02 Neither the Collateral Agent nor any of its respective
personnel or agents shall be:
(a) responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information contained or made in
this Charge over Shares or any notice or other document delivered under or
in connection with this Charge over Shares;
(b) responsible for the validity, legality, adequacy, enforceability
or admissibility in evidence of this Charge over Shares; or
(c) liable for anything done or not done by it or any of them under
or in connection with this Charge over Shares except in the case of its or
their own gross negligence or wilful misconduct.
22. PAYMENTS. Unless otherwise provided by this Charge over Shares,
all payments of any amounts due from the Chargor under this Charge over Shares
shall be made by the Chargor in such currency in which such amounts are
invoiced, in same day funds, on the relevant due date, by transfer to such
account of the Collateral Agent with such bank and at such time as the
Collateral Agent shall have notified to the Chargor.
23. NOTICES. All notices, requests demands or other communications
pursuant hereto shall be deemed to have been duly given or made when delivered
to the person to which such notice, request, demand or other communication is
required or permitted to be given or made under this Charge over Shares,
addressed to such party at (i) in the case of any Secured Creditor, as provided
in the Credit Agreement, (ii) in the case of the Chargor, as provided in the
Credit Agreement and (iii) in the case of the Collateral Agent, as provided in
the Credit Agreement, or in any case at such other address as any of the persons
listed above may hereafter notify the others in writing.
24. JUDGMENT CURRENCY, JURISDICTION AND SERVICE OF PROCESS.
24.01 Any amount received or recovered by the Collateral Agent or any
Secured Creditor in respect of any sum expressed to be due to it from the
Chargor under this Charge over Shares in a currency (the "other currency") other
than that in which the relevant obligation is expressed to be payable, whether
as a result of, or enforcement of, a judgment or order of a court or tribunal of
any jurisdiction, in the dissolution of the Chargor
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or otherwise, shall only constitute a discharge of the Chargor to the extent of
the amount in the currency in which the relevant obligation is expressed to be
payable which the Collateral Agent or such Secured Creditor would be able to
purchase with the amount so received or recovered in the other currency on the
date of that receipt or recovery (or, if it would not be practicable to make
that purchase on that date, on the first date on which it is practicable to do
so). If that amount in the other currency is less than the amount in the
currency in which the relevant obligation is expressed to be payable to the
Collateral Agent or such Secured Creditor, the Chargor shall indemnify it
against any loss sustained by it as a result. In such event, the Chargor shall
also indemnify the Collateral Agent or such Secured Creditor against the cost of
making any such purchase. These indemnities constitute a separate and
independent obligation from the other obligations in this Charge over Shares,
shall give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Collateral Agent or any Secured
Creditor and shall continue in full force and effect despite any judgment,
order, claim or proof for a liquidated amount in respect of any sum due under
this Charge over Shares or any judgment or order. No proof or evidence of any
actual loss may be required other than proof of the actual amount in the
currency in which the relevant obligation is expressed to be payable purchased
by the Collateral Agent or such Secured Creditor as mentioned above and the date
upon which such purchase was effected.
24.02 In relation to any legal action or proceedings arising out of
or in connection with this Charge over Shares ("Proceedings"), the Chargor
irrevocably submits for the benefit of the Collateral Agent and the Secured
Creditors to the jurisdiction of the High Court of Justice in England. The
Chargor irrevocably waives any objection to Proceedings in any such court on the
grounds of venue or on the grounds that the Proceedings have been brought in an
inconvenient forum. The submission contained in this Clause, and the taking of
Proceedings in England, shall not preclude any party from taking Proceedings in
any other jurisdiction, whether concurrently or not, in which Proceedings may be
commenced against the Chargor.
24.03 So long as the Maturity Date has not occurred, the Chargor
shall maintain a place of business or an agent in London, England, at or upon
which process may be served in any Proceedings in England. Upon any agent's
acceptance of appointment, the Chargor shall notify the Collateral Agent of the
name and address of such agent and provide the Collateral Agent with a letter
from such agent (which shall be in form and substance satisfactory to the
Collateral Agent) accepting its appointment. The Chargor further agrees to take
any and all actions, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue any such designation
and appointment in full force and effect so long as the Maturity Date has not
occurred. In addition to the foregoing, and not by way of limitation, the
Chargor irrevocably consents to any process in any Proceedings anywhere being
served by mailing a copy by registered
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or certified prepaid airmail post to it in accordance with Clause 23 above.
Such service shall become effective 30 days after mailing. Nothing shall affect
the right of the Collateral Agent or any Secured Creditor to serve process in
any other manner permitted by law.
24.04 To the extent that the Chargor may now or hereafter be
entitled, in any jurisdiction in which Proceedings may at any time be commenced
with respect to any of the Credit Documents, to claim for itself or its
properties, assets or revenues any immunity from suit, jurisdiction of any
court, attachment prior to judgment, attachment in aid of execution of a
judgment, execution of a judgment or from set-off, banker's lien, counterclaim
or any other legal process or remedy with respect to its obligations under any
of the Credit Documents and/or to the extent that in any such jurisdiction there
may be attributed to the Chargor any such immunity (whether or not claimed), the
Chargor hereby to the fullest extent permitted by applicable law irrevocably
agrees not to claim, and hereby to the fullest extent permitted by applicable
law waives, any such immunity, including, without limitation, a complete waiver
of immunity pursuant to the U.S. Foreign Sovereign Immunities Act of 1976, as
amended. The Chargor irrevocably and generally consents in respect of any
Proceedings anywhere to the giving of any relief or the issue of any process in
connection with those Proceedings including, without limitation, the making,
enforcement or execution against any property, assets or revenues whatsoever
(irrespective of their use or intended use) of any order or judgment which may
be made or given in those Proceedings.
25. INDEMNITY. In addition to and not in limitation of its other
obligations hereunder, the Chargor agrees on demand to indemnify the Collateral
Agent and each Secured Creditor against any reasonable cost, losses or expenses,
including legal expenses, suffered or incurred without gross negligence or
wilful misconduct as a result of (a) any enforcement of any of the rights of the
Collateral Agent and/or the Secured Creditors under this Charge over Shares
(whether against all or part of the Pledged Securities charged by the Chargor)
and (b) the need to pay any stamp, registration or similar duties to which this
Charge over Shares may be subject in any jurisdiction at any time (including in
connection with the enforcement of, or any action brought in relation to, any of
the Credit Documents).
26. ENFORCEABILITY; TRANSFER OF RIGHTS. The Collateral Agent may
exercise any of the rights, powers or remedies conferred on it under this Charge
over Shares on behalf of the Secured Creditors without the need to join with or
be joined by any other such party. Any Secured Creditor's rights, powers and
benefits under this Charge over Shares shall be deemed to be transferred by such
Secured Creditor to any Eligible Transferee in accordance with Section 13.04 of
the Credit Agreement and any such Eligible Transferee shall have all of the
rights, powers and benefits of such transferor Secured Creditor in
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relation to rights and obligations assigned to and/or assumed by it under that
Section. The Chargor agrees to be bound by the provisions of Section 13.04 of
the Credit Agreement.
27. REINSTATEMENT OF OBLIGATION. In the event that any Bank has
purchased an interest in Obligations corresponding to Secured Obligations of the
Chargor pursuant to Section 13.06(b) of the Credit Agreement, between the
Chargor and such Bank the relevant excess sum shall be treated as not having
been received by such Bank; provided that if all or any portion of such excess
has thereafter to be refunded by any Bank, and any Bank to which any
corresponding amount has been paid as specified in Section 13.06(b) thereof, the
obligation of the Chargor in respect of such amount shall be deemed reinstated
hereunder.
28. THE COLLATERAL AGENT'S AND THE SECURED CREDITORS' DISCRETION.
Any liberty or power which may be exercised or any determination which may be
made hereunder by the Collateral Agent or any Secured Creditor may be exercised
or made in the absolute and unfettered discretion of such party which shall not
be under any obligation to give reasons therefor.
29. SEPARABILITY. In case any one or more of the provisions
contained in this Charge over Shares shall be invalid, illegal or unenforceable
in any respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
30. APPLICABLE LAW. This Charge over Shares shall be governed by and
construed in accordance with the laws of England.
31. COUNTERPARTS. This Charge over Shares may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF this Deed has been executed by the parties hereto
and is intended to be and is hereby delivered by the Chargor as a deed on the
date first above written.
THE CHARGING COMPANIES
Executed as a deed )
by RELTEC (UK) LIMITED )
acting )
by a director and its
secretary or by two directors:
Director:
-----------------------------------
Director/Secretary:
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THE CHASE MANHATTAN BANK
By
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Title: