Exhibit 10(i)(6)
DATED APRIL 24, 2003
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▇▇▇▇▇▇▇▇, INC.
AS MORTGAGOR
AND
BANK OF AMERICA, N.A.
AS SECURITY TRUSTEE
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EQUITABLE MORTGAGE OVER
SECURITIES
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▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ TELEPHONE +44 [0] 20 7247
2277 FAX +44 [0] ▇▇ ▇▇▇▇ ▇▇▇▇
WEBSITE ▇▇▇.▇▇▇.▇▇.▇▇ DX 155 LONDON CDE
CONTENTS
CLAUSE PAGE
1 INTERPRETATION............................................................................... 1
2 CHARGING PROVISIONS.......................................................................... 3
3 PAYMENT OF THE SECURED OBLIGATIONS........................................................... 4
4 REPRESENTATIONS AND WARRANTIES............................................................... 4
5 COVENANTS.................................................................................... 5
6 ENFORCEMENT.................................................................................. 8
7 VARIATION AND EXTENSION OF STATUTORY POWERS.................................................. 9
8 CONTINUING SECURITY.......................................................................... 10
9 FURTHER ASSURANCE AND POWER OF ATTORNEY...................................................... 11
10 RELEASE OF INVESTMENTS....................................................................... 12
11 INDEMNITIES.................................................................................. 12
12 NO WAIVER.................................................................................... 12
13 PAYMENTS AND DISCHARGE....................................................................... 13
14 CURRENCY..................................................................................... 14
15 NOTICES...................................................................................... 14
16 SET-OFF...................................................................................... 14
17 TRUSTEE PROVISIONS........................................................................... 15
18 COUNTERPARTS................................................................................. 20
19 LAW AND JURISDICTION......................................................................... 20
SCHEDULE
1 THE SECURITIES............................................................................... 23
2 FORM OF NOMINEE UNDERTAKING.................................................................. 24
THIS DEED is made on April 24, 2003
BETWEEN:
(1) ▇▇▇▇▇▇▇▇, INC., a Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ (the "MORTGAGOR"); and
(2) BANK OF AMERICA, N.A. acting through its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Mail Code WA1-501-37-20 in its capacity as
security trustee for the Beneficiaries (the "SECURITY TRUSTEE").
WITNESSES as follows:
1 INTERPRETATION
1.1 DEFINITIONS
Throughout this Deed, including the Schedules, the following words and
phrases shall have the following meanings:
ACT: the Law of Property ▇▇▇ ▇▇▇▇;
AGREEMENT: the credit agreement dated on or about the date of this Deed
made between (1) the Mortgagor (2) the Administrative Agent and (3) the
other Lenders Party thereto whereby it was agreed that there should be
made available to the Mortgagor a revolving credit facility of up to
fifty-five million US dollars (US$55,000,000) upon the terms and
conditions contained in it;
BENEFICIARIES: the Administrative Agent, the Agent, the Lenders, Bank
of America and the Security Trustee and "BENEFICIARY" means any one of
them;
DERIVATIVE ASSETS: all assets deriving from any of the Securities
including all allotments, accretions, offers, rights, dividends,
interest, income, benefits and advantages whatsoever at any time
accruing, offered or arising in respect of or incidental to any of the
Securities and all stocks, shares, rights, money or property accruing
or offered at any time by way of conversion, redemption, bonus,
preference, exchange, purchase, substitution, option, interest or
otherwise in respect thereof;
EXPENSES: all banking, legal and other costs, charges, expenses
and/or liabilities (including any VAT thereon) paid or, if
earlier, incurred by or on behalf of the Security Trustee and any
other Beneficiary in each case on a full indemnity basis in
relation to any of the Investments, or in protecting, preserving,
improving, considering the enforcement or exercise of or enforcing
or exercising or attempting to enforce or exercise, any rights
arising under or pursuant to any of the Loan Documents, and/or in
procuring the payment, performance or discharge of any of the
Secured Obligations and including, without limitation, the
principal amount of any borrowings together with interest thereon
and all other expenses and/or liabilities of the Security Trustee
or any other Beneficiary incurred from time to time in relation to
the exercise of any of its rights or powers referred to in the
Loan Documents;
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INVESTMENTS: the Securities and the Derivative Assets;
NOMINEE UNDERTAKING: an undertaking substantially in the form set out
in Schedule 2;
SECURED OBLIGATIONS: all monies, obligations and liabilities
(whether present or future, actual or contingent) on the part of
the Mortgagor to any of the Beneficiaries to be paid, performed or
discharged, whether directly or indirectly, under or pursuant to
the terms of any of the Loan Documents and/or in connection with
the loan facility or other financial accommodation from time to
time granted or otherwise made available pursuant thereto,
together with all Expenses and any interest under the terms of
this Deed;
SECURITIES: all shares, stocks, debentures, debenture stock, bonds
and securities of any kind whatsoever owned by the Mortgagor
(including rights to subscribe for, convert into or otherwise
acquire the same) whether marketable or otherwise, and all other
interests (including loan capital) of the Mortgagor both present
and future in ▇▇▇▇▇▇▇▇ UK Limited, details of which appear in
Schedule 1 and any benefit, entitlement or interest to, in or in
relation to any such Securities;
TRUSTEE ACT: the Trustee ▇▇▇ ▇▇▇▇ as amended by the Trustee Investment
Act 1961 and the Trustee ▇▇▇ ▇▇▇▇; and
VAT: value added tax or any similar tax substituted therefor.
1.2 CONSTRUCTION
1.2.1 Words and phrases which are not defined or construed in this Deed
but which are defined or construed in the Agreement, the Act or
the Insolvency ▇▇▇ ▇▇▇▇ shall be construed as having the meanings
ascribed to them therein. To the extent that there is any
inconsistency between the terms of this Deed and the Agreement,
the terms of the Agreement shall prevail.
1.2.2 In construing this Deed, general words introduced by the word
"OTHER" shall not be given a restrictive meaning by reason of the
fact that they are preceded by words indicating a particular class
of acts, matters or things and general words shall not be given a
restrictive meaning by reason of the fact that they are followed
by particular examples intended to be embraced by the general
words. In addition, the words "ANY OF" shall be construed as a
reference to any one or more (including all) of the rights,
assets, liabilities or other things referred to.
1.2.3 The security constituted by, and the rights of the Security
Trustee under, this Deed shall be enforceable notwithstanding any
change in the constitution of the Security Trustee or its
absorption in or amalgamation with any other person or the
acquisition of all or part of its undertaking by any other person.
1.2.4 The headings in this Deed are inserted for convenience only and
shall not affect its construction or interpretation and references
to a clause or Schedule are (unless otherwise stated) to a clause
in, or a Schedule to, this Deed.
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1.2.5 Any reference in this Deed to "THIS DEED" or to any other
agreement or document shall, unless the context otherwise
requires, be construed as a reference to this Deed or to such
other agreement or document as the same may from time to time be
amended, varied, supplemented, novated or replaced and shall
include any document which is supplemental to, is expressed to be
collateral with, or is entered into pursuant to or in connection
with, the terms of this Deed or of such other agreement or
document.
1.2.6 The illegality, invalidity or unenforceability of any provision of
this Deed under the law of any jurisdiction shall not affect its
validity or enforceability under the law of any other
jurisdiction.
1.2.7 This Deed shall constitute a "SECURITY AGREEMENT", as contemplated by
Section 9.203(b)(3) of the UCC.
1.2.8 Save where the context otherwise requires, the plural of any term
includes the singular and vice versa.
1.2.9 Any reference in this Deed to any statute or statutory provision
shall, unless the context otherwise requires, be construed as a
reference to such statute or statutory provision as in force at
the date of this Deed and as subsequently reenacted or
consolidated and shall also include all instruments, orders and
regulations for the time being made thereunder or deriving
validity therefrom.
1.2.10 The terms of this Deed may only be enforced by a party to it and
the operation of the Contracts (Rights of Third Parties) Act 1999
is excluded.
1.2.11 In this Deed the expressions "THE MORTGAGOR", "THE SECURITY
TRUSTEE" and "A BENEFICIARY" shall, unless the context otherwise
requires, include their respective assignees or successors in
title, whether immediate or derivative in relation to their
respective interests.
2 CHARGING PROVISIONS
2.1 CHARGE OVER INVESTMENTS
The Mortgagor with full title guarantee and as a continuing
security for the payment and discharge of the Secured Obligations
hereby charges and agrees to mortgage to the Security Trustee the
Investments, provided that:
2.1.1 in the case of any Securities issued and outstanding at any
time, the amount of such Securities which are the subject of
the security constituted by this Deed shall be 65% of any such
Securities at that time; and
2.1.2 in the case of any Derivative Assets relating to any
Securities, the amount of such Derivative Assets which are the
subject of the security constituted by this Deed shall be 65%
of any such Derivative Assets at that time.
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2.2 FURTHER ADVANCES
The security constituted by this Deed secures present and further
advances.
3 PAYMENT OF THE SECURED OBLIGATIONS
The Mortgagor hereby covenants to pay, perform and discharge to the
Security Trustee the Secured Obligations on the due date or dates for
payment, performance and discharge or, in the absence of any such date,
forthwith upon any demand made by the Security Trustee.
4 REPRESENTATIONS AND WARRANTIES
The Mortgagor represents and warrants that:
4.1 BENEFICIAL OWNER: it is the sole, absolute and beneficial
owner of the Securities and of all other Investments owned by
it as at the date of this Deed, free and clear from any Lien
other than permitted under the Agreement;
4.2 NO DISPOSALS: except in accordance with the terms of the
Agreement, it has not disposed of any interest in, or granted
any rights (whether of pre-emption or otherwise) over, any of
the Investments nor agreed to do any of the same;
4.3 NO CLAIMS: none of the Investments is the subject of any
claim, assertion, right, action or other restriction or
arrangement of whatever nature which does or may impinge upon
the ownership of the Investments by the Mortgagor and the
Investments are and will be fully paid up;
4.4 STATUS: it is a corporation duly incorporated and validly
existing under the laws of the State of Delaware, USA and has
the power and authority to own its assets and to conduct the
business and operations which it conducts or proposes to
conduct;
4.5 POWERS AND AUTHORITY: it has full power and authority to enter
into and perform this Deed and has taken all necessary
corporate or other action to authorise the execution, delivery
and performance of this Deed;
4.6 AUTHORISATIONS: all action, conditions and things required by
all applicable laws and regulations to be taken, fulfilled and
done in order to (i) enable it lawfully to enter into,
exercise its rights under and perform and comply with its
obligations under this Deed, (ii) ensure that those
obligations are valid, legally binding and enforceable and
(iii) make this Deed admissible in evidence in England and
Wales and (if different) its jurisdiction of incorporation
have been taken, fulfilled and done (or, in the case of
registrations, will be effected within any applicable required
period);
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4.7 NON-VIOLATION: the execution by it of this Deed and the
exercise by it of its rights and performance of or compliance
with its obligations under this Deed do not and will not
violate (i) any law or regulation to which it or any of its
assets is subject or (ii) any agreement to which it is a party
or which is binding on it or any of its assets; and
4.8 OBLIGATIONS BINDING: its obligations under this Deed are
valid, legally binding and enforceable.
5 COVENANTS
5.1 THE INVESTMENTS
The Mortgagor covenants with the Security Trustee that it will:
5.1.1 DEPOSIT OF DOCUMENTS OF TITLE: forthwith upon execution of
this Deed and as soon as practicable following its acquisition
of any Investment, deposit or procure the deposit with the
Security Trustee and permit the Security Trustee to hold and
retain all stock and share certificates and documents of title
relating to each of the Investments mortgaged or charged
pursuant to clause 2.1 of this Deed at such time;
5.1.2 EXECUTION OF TRANSFERS: forthwith upon execution of this Deed
(in relation to the Investments mortgaged or charged pursuant
to clause 2.1 of this Deed) and as soon as practicable
following its acquisition of any Investment and at any other
time upon request by the Security Trustee, promptly deliver to
the Security Trustee such instruments of transfer (with the
name of the transferee, the consideration and the date left
blank but otherwise duly completed and executed) and other
documents as the Security Trustee may from time to time
require for perfecting its title to any of the Investments
mortgaged or charged pursuant to clause 2.1 of this Deed (duly
executed by or signed on behalf of the registered holder) or
for vesting or enabling it to vest the same in itself or any
of its nominees or in any purchaser provided that, to the
extent that any such Investments are held by any nominee of
the Mortgagor, the provisions of this clause 5.1.2 shall be
satisfied in relation to such Investments if the Security
Trustee receives from such nominee a duly executed Nominee
Undertaking relating to such Investments together with such
instruments of transfer (with the name of the transferee, the
consideration and the date left blank, but otherwise duly
completed and executed) and other documents as the Security
Trustee may from time to time require for perfecting its title
to such Investments and provided also that, in the event of
any transfer being effected, neither the Security Trustee nor
any of its nominees shall be liable for any loss occasioned by
any exercise or non-exercise of rights attached to such
Investments or by any failure to report to the Mortgagor any
notice or other communication received in respect of such
Investments;
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5.1.3 NO RESTRICTIONS ON TRANSFER: ensure that the Investments are
at all times free from any restriction on transfer (whether
under any relevant constitutive documents or otherwise) by the
Security Trustee or its nominees to perfect or enforce the
security constituted or intended to be constituted by this
Deed and procure that the board of directors of any company in
which any of the Investments are held approves any transfer of
any of the Investments desired to be made by the Security
Trustee in the exercise of the rights, powers and remedies
conferred upon it by this Deed or by law.
5.1.4 DERIVATIVE ASSETS: upon the accrual, offer or issue of any
Derivative Assets (apart from dividends, interest payments or
other payments of money, as the case may be, forming part of
the Investments) which have not accrued or been offered or
issued to the Security Trustee or its nominees as registered
holder of the Investments to which those Derivative Assets
relate deliver or pay to the Security Trustee (or procure the
delivery or payment to the Security Trustee of) all such
Derivative Assets and any certificates and other documents of
title to or representing the same together with each of the
documents required to be duly executed, completed and
delivered under and in accordance with the terms of clause
5.1.2.
5.1.5 CALLS: duly and promptly pay or procure the payment of all
calls, instalments and other payments in respect of any of the
Investments provided that if it defaults in making or
procuring any such payment the Security Trustee may (but shall
not be obliged to) pay such amounts on behalf of the Mortgagor
and shall be reimbursed by the Mortgagor forthwith on demand;
5.1.6 COMMUNICATIONS: notify the Security Trustee of the contents of
any communication or document received by it in relation to
any of the Investments;
5.1.7 NEGATIVE PLEDGE: not create or purport to create or permit to
subsist any Lien on or over any of the Investments or any
interest in the Investments other than permitted under the
Agreement;
5.1.8 NO DISPOSALS: not sell, transfer, assign, lend or otherwise
dispose of, or grant any rights (whether of pre-emption or
otherwise) over, any of the Investments or any interest in the
Investments or attempt or agree to do so (other than to the
Security Trustee or a nominee of the Security Trustee);
5.1.9 EXERCISE OF VOTING RIGHTS BY MORTGAGOR: exercise any voting
rights attaching to the Investments in such manner as it
thinks fit, provided that such voting rights shall not be
exercised in any manner which is inconsistent with the
security constituted or intended to be constituted by this
Deed or is in breach of any of the provisions of any of the
Loan Documents and notwithstanding the
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foregoing, at any time after the Security Trustee shall have
demanded the discharge of any of the Secured Obligations,
procure that all voting and other rights in respect of the
Investments are exercised in accordance with the Security
Trustee's instructions;
5.1.10 VARIATION OF RIGHTS: not, by the exercise of any voting rights
or otherwise, permit or agree to any proposed compromise,
arrangement, capital reorganisation, conversion, exchange,
repayment or takeover offer affecting or in respect of any of
the Investments.
5.2 EXERCISE OF VOTING RIGHTS BY SECURITY TRUSTEE AND DIVIDEND ENTITLEMENT
If any of the Investments are transferred into the name of the Security
Trustee or any nominee of the Security Trustee, then (subject always to
the provisions of clause 6.1):
5.2.1 the Security Trustee shall use all reasonable endeavours to
procure that all voting rights attached to such Investments
are exercised as the Mortgagor shall direct provided that the
Security Trustee shall not be obliged to comply with the
Mortgagor's directions if, as a result, such voting rights
would be exercised in any manner which (a) is inconsistent
with the security constituted or intended to be constituted by
this Deed or (b) is in breach of any provision of any of the
Loan Documents or (c) would or might result in permission or
agreement being given to any compromise, capital
reorganisation, conversion, exchange, repayment or takeover
offer affecting or in respect of any of the Investments or to
any variation of the rights attaching to or conferred by any
of the Investments; and
5.2.2 any and all dividend and interest payments and other
distributions accruing on or deriving from the Investments
shall be paid to the Mortgagor.
5.3 OTHER COVENANTS
The Mortgagor covenants with the Security Trustee that it will:
5.3.1 OBLIGATIONS GENERALLY: comply with its obligations in the Loan
Documents and comply with every covenant (whether restrictive
or otherwise), obligation and provision on its part to be
complied with (and use its best endeavours to procure
compliance by each other party thereto with every covenant,
obligation and provision on the part of each such other party
to be complied with) contained in any document affecting the
Investments or their use and enjoyment;
5.3.2 VALUE OF THE SECURITY: not do or cause or permit to be done
anything which may in any way depreciate, jeopardise or
otherwise prejudice the value of the security constituted or
intended to be constituted by this Deed.
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5.4 INFORMATION COVENANTS
5.4.1 GENERAL: The Security Trustee may at any time seek from any person
having dealings with the Mortgagor such information about the Mortgagor
and its affairs as the Security Trustee may think fit. The Mortgagor
authorises and requests any such person to provide any such information
to the Security Trustee and agrees to provide such further authority
for this purpose as the Security Trustee may require from time to time.
5.4.2 INVESTIGATIONS: If the Security Trustee so requests at any time, the
Mortgagor shall appoint accountants nominated by the Security Trustee
to investigate the financial affairs of the Mortgagor and any
Subsidiary of the Mortgagor or company of which the Mortgagor is a
Subsidiary. For the purposes of this clause 5.4.2, the Mortgagor
authorises the Security Trustee to make such appointment on the
Mortgagor's behalf. In every case the costs, fees and expenses of such
accountants shall be paid by the Mortgagor, but the Security Trustee
may, at its sole discretion, pay such costs, fees and expenses on
behalf of the Mortgagor and, in such case, the Mortgagor agrees to
reimburse the Security Trustee forthwith on demand.
6 ENFORCEMENT
6.1 POWER OF SALE
At any time after the occurrence of an Event of Default described in
the Agreement which is continuing, the security constituted by this
Deed shall become enforceable and the Security Trustee (or its
nominee(s)) shall have an immediate and absolute power of sale or other
disposition over the Investments (including, without limitation, the
power to execute, seal, deliver or otherwise complete any transfers or
other documents required to vest any of the Investments in the Security
Trustee, any of its nominees or in any purchaser of any of the
Investments) and pending any such sale the Security Trustee (or its
nominee(s)) shall, notwithstanding any other provision of this Deed,
have the right (a) to exercise (or direct the exercise of) any and all
voting rights attaching to any of the Investments in such manner as it
shall in its sole discretion think fit and (b) to receive, retain and
give a good discharge for any and all payments falling due in respect
of dividends or other distributions of profits or capital on or arising
from any of the Investments notwithstanding that they may have accrued
in respect of a period prior to the time at which the security
constituted by this Deed shall have become enforceable.
6.2 PROCEEDS OF SALE
The proceeds of any sale of the Investments by the Security Trustee
shall be applied in discharging the Secured Obligations in such order
as the Security Trustee may determine in its absolute discretion and
any balance shall be paid to the Mortgagor.
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7 VARIATION AND EXTENSION OF STATUTORY POWERS
7.1 STATUTORY POWERS GENERALLY
The powers conferred on mortgagees by the Act and the Insolvency ▇▇▇
▇▇▇▇ shall apply to this Deed except insofar as they are expressly or
impliedly excluded and where there is any ambiguity or conflict between
the powers contained in the Act and/or the Insolvency ▇▇▇ ▇▇▇▇ and
those contained in this Deed the terms of this Deed shall (so far as
the law allows) prevail.
7.2 SECURITY TRUSTEE'S POWERS
The restrictions contained in sections 93 and 103 of the Act shall not
apply to the security constituted or intended to be constituted by this
Deed and the powers contained in section 101 of the Act shall be
immediately exercisable after the Security Trustee shall have demanded
the discharge of any of the Secured Obligations.
7.3 TRUSTEE POWERS
The Security Trustee and its nominees may in relation to any of the
Investments, at any time exercise all the powers given to trustees by
the Trustee Act in respect of any securities or property subject to a
trust. Any payments made by the Security Trustee under this clause
shall be paid by the Mortgagor to the Security Trustee forthwith on
demand.
7.4 NO LIABILITY
It is agreed and declared that no exercise by the Security Trustee of
any one or more of the powers contained in this Deed shall render the
Security Trustee liable for any loss or damage (including, without
limitation, loss upon realisation of any of the Investments) save where
caused by its gross negligence or wilful default.
7.5 PROTECTION FOR THIRD PARTIES
No third party dealing with the Security Trustee or its or his agents
shall, whether before, on or after any contract, disposition or
assurance in relation to any of the Investments in such third party's
favour be concerned to enquire whether any of the Secured Obligations
have become payable or whether any power which the Security Trustee
purports to exercise has become exercisable or whether any of the
Secured Obligations remain undischarged or to see to the application of
any money paid to the Security Trustee.
7.6 DELEGATION
The Security Trustee may at any time delegate by power of attorney or
in any other manner to any person or persons any of the powers
(including the power of attorney contained in clause 9.3), authorities
and discretions which are for the time being exercisable by the
Security Trustee under this Deed in relation to any of the Investments.
Any such delegation may be made upon such terms (including power to
sub-delegate) and subject to such regulations as the
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Security Trustee may think fit. The Security Trustee shall not, save
for its gross negligence or wilful default, be in any way liable or
responsible to the Mortgagor for any loss or damage arising from any
act, default, omission or misconduct on the part of any such delegate
or sub-delegate.
7.7 SUSPENSE ACCOUNTS
The Security Trustee may place and keep (for such time as it or he
shall consider prudent) any money received, recovered or realised
pursuant to this Deed in a separate suspense account (to the credit of
either the Mortgagor or the Security Trustee as the Security Trustee
shall think fit) without any obligation to apply the same or any part
thereof in or towards the discharge of the Secured Obligations.
7.8 SECURITY TRUSTEE'S POWER TO REMEDY BREACHES
If at any time the Mortgagor fails to perform any of the covenants
contained in this Deed it shall be lawful for the Security Trustee, but
the Security Trustee shall have no obligation, to take such action on
behalf of the Mortgagor (including, without limitation, the payment of
money) as may in the Security Trustee's reasonable opinion be required
to ensure that such covenants are performed. Any losses, costs, charges
and expenses incurred by the Security Trustee in taking such action
shall be reimbursed by the Mortgagor on demand.
8 CONTINUING SECURITY
8.1 SUBSEQUENT CHARGES
8.1.1 If the Security Trustee receives notice (whether actual or
constructive) of any subsequent Lien or other interest affecting any of
the Investments or any interest in any of the Investments, or of any
other matter which may cause the security created by or pursuant to the
terms of this Deed to cease to be a continuing security the Security
Trustee may open a new account or accounts for the Mortgagor.
8.1.2 If the Security Trustee does not open a new account pursuant to clause
8.1.1 then, unless the Security Trustee shall notify the Mortgagor to
the contrary, it shall nevertheless be treated as if it had done so at
the time when it received such notice and as from that time all
payments made by or on behalf of the Mortgagor to the Security Trustee
shall be credited or deemed to have been credited to the new account
and shall not operate to reduce the amount due from the Mortgagor at
the time when it received such notice.
8.2 GENERAL
The security constituted by this Deed shall be a continuing security
notwithstanding any settlement of account or other matter whatsoever
and is in addition to and shall not merge or otherwise prejudice or
affect (or be prejudiced or affected by) the security constituted by
any Lien, guarantee or other assurance now or hereafter held by the
Security Trustee or any right or
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remedy of the Security Trustee in respect of the same and shall not be
in any way prejudiced or affected by the invalidity thereof, or by the
Security Trustee now or hereafter dealing with, exchanging, releasing,
modifying or abstaining from perfecting or enforcing any of the same,
or any rights which it may now or hereafter have, or giving time for
payment or indulgence or compounding with any other person liable.
9 FURTHER ASSURANCE AND POWER OF ATTORNEY
9.1 FURTHER ASSURANCE
The Mortgagor shall execute in favour of the Security Trustee, or as
the Security Trustee may otherwise direct, such further assignments,
transfers, mortgages, charges, Lien or other documents as in each case
the Security Trustee shall stipulate (any such assignment, transfer,
mortgage, charge, Lien or document to be in such form and to contain
such provisions as the Security Trustee shall require) over the
Investments and do such other acts or things, in each case for the
purpose of more effectively providing security for the payment,
performance and discharge of the Secured Obligations, in accordance
with the terms of this Deed, or of enabling the Security Trustee to
vest any of the Investments in the Security Trustee or its nominee(s).
9.2 VESTING OF TITLE
The Mortgagor agrees that it will from time to time execute as a deed
or under hand (as applicable) and deliver all transfers, powers of
attorney and other documents which the Security Trustee may require for
perfecting its title to any of the Investments, in accordance with the
terms of this Deed, or for vesting or enabling it to vest any of the
Investments in itself or its nominees. The Mortgagor further agrees
that if at any time the Security Trustee should hold any transfer with
any detail not yet completed the Security Trustee shall have the
authority to complete and deliver such transfer.
9.3 APPOINTMENT
9.3.1 The Mortgagor, by way of security for the performance of the
Mortgagor's obligations under this Deed, irrevocably appoints the
Lender and the persons deriving title under it and separately any
Receiver jointly or severally to be its attorney or attorneys for it
and in the name and on behalf and as the act and deed or otherwise of
the Mortgagor to sign, seal, execute, deliver, perfect and do all
deeds, instruments, acts and things which may be required:
(a) for carrying out any obligations imposed on the Mortgagor by
or pursuant to this Deed;
(b) for carrying any sale, lease or other dealing whatsoever by
the Lender or Receiver into effect;
(c) for conveying or transferring any legal estate or other
interest in land or any other property whatsoever;
(d) for getting in all or any part of the Securities; and
11
(e) generally for enabling the Lender and any Receiver to exercise
the respective powers, authorities and discretions conferred
on them by or pursuant to this Deed or by law.
9.3.2 The provisions of this clause 9.3 shall take effect as and by way of
variation to the provisions of Section 109(8) of the ▇▇▇ ▇▇▇▇ which
provisions as so varied and extended shall be deemed incorporated
herein as if they related to a receiver of the Securities and not
merely a receiver of the income thereof.
10 RELEASE OF INVESTMENTS
The Mortgagor agrees that if any of the Investments charged by this
Deed are released from such charge the Security Trustee may release
securities of the same class and denomination as the Investments
concerned rather than the identical Investments deposited or
transferred under this Deed.
11 INDEMNITIES
11.1 GENERAL
The Mortgagor agrees to indemnify the Security Trustee (and its
nominees) on demand against all losses, actions, claims, expenses,
demands or liabilities whether in contract, tort or otherwise now or
hereafter incurred by any of them or by any manager, agent, officer or
employee for whose liability, act or omission any of them may be
answerable for anything done or omitted in the exercise or purported
exercise of the powers contained in this Deed or occasioned by any
breach by the Mortgagor of any of its covenants or other obligations
under this Deed or otherwise arising out of or in connection with any
of the Investments or the security constituted or intended to be
constituted by this Deed save where the same arises as a result of the
negligence, fraud, default or wilful misconduct of the Security
Trustee.
11.2 TAXES
The Mortgagor agrees to indemnify the Security Trustee on demand
against all present or future stamp or other taxes or duties and any
penalties or interest with respect thereto which may be imposed by any
competent authority in connection with the execution or enforcement of
this Deed or in consequence of any payment made pursuant hereto being
impeached or declared void for any reason whatsoever.
12 NO WAIVER
No failure or delay by the Security Trustee in exercising any right or
remedy shall operate as a waiver thereof, nor shall any single or any
partial exercise or waiver of any right or remedy preclude its further
exercise or the exercise of any other right or remedy as though no
waiver had been made and no relaxation or indulgence granted.
12
13 PAYMENTS AND DISCHARGE
13.1 PAYMENT WITHOUT DEDUCTION
All payments to be made to the Security Trustee under this Deed shall
be made free and clear of and (save as required by law) without any
deduction for or on account of any tax, withholding, charges, set-off
or counterclaim. All payments shall be made into such account or
accounts as the Security Trustee may from time to time specify for that
purpose.
13.2 GROSS-UP AND TAX RECEIPTS
If the Mortgagor is required by law to make a deduction or withholding
from any payment made under this Deed then the sum payable by the
Mortgagor in respect of which such deduction or withholding is required
to be made shall be increased to the extent necessary to ensure that,
after the making of such deduction or withholding, the Security Trustee
receives and retains (free from any liability in respect of any such
deduction or withholding) a net sum equal to the sum which it would
have received and so retained had no such deduction or withholding been
made or been required to be made. If the Mortgagor makes any payment
under this Deed in respect of which it is required by law to make any
deduction or withholding it shall pay the full amount to be deducted or
withheld to the relevant taxation or other authority within the time
allowed for such payment under applicable law and shall deliver to the
Security Trustee within thirty days after it has made such payment to
the applicable authority an original receipt or other appropriate
evidence issued by such authority evidencing the payment to such
authority of all amounts so required to be deducted or withheld from
such payment.
13.3 REINSTATEMENT
Any settlement or discharge under this Deed between the Security
Trustee and the Mortgagor shall be conditional upon no security or
payment to the Security Trustee by the Mortgagor or any other person
being avoided or set aside or ordered to be refunded or reduced by or
pursuant to any applicable law or regulation and, if such condition is
not satisfied, the Security Trustee shall be entitled to recover from
the Mortgagor on demand the value of such security or the amount of any
such payment as if such settlement or discharge had not occurred.
13.4 RELEASES
Without prejudice to any terms of any of the Loan Documents regarding
the giving of consents, releases and/or discharges to the Mortgagor
(whether to facilitate any disposition in relation to any of the
Investments or otherwise) the Security Trustee shall, at the request
and cost of the Mortgagor following the irrevocable payment and
discharge in full of the Secured Obligations (with the Security Trustee
being under no further obligation, actual or contingent, to the
Mortgagor) and provided that the security constituted by this Deed
shall not have been enforced, and the Security Trustee is satisfied
that such payment is not subject to avoidance or liable to be set
aside, refunded or reduced as
13
referred to in clause 13.3, duly execute and do all such deeds, acts
and things as may be necessary to release from the security constituted
by this Deed the assets which are then subject to it.
14 CURRENCY
Any amount received or recovered by the Security Trustee in respect of
any sum expressed to be due to it from the Mortgagor under this Deed in
a currency other than the currency (the "CONTRACTUAL CURRENCY") in
which such sum is so expressed to be due (whether as a result of, or of
the enforcement of, any judgment or order of the court or tribunal of
any jurisdiction, the winding-up of the Mortgagor or otherwise) shall
only constitute a discharge to the Mortgagor to the extent of the
amount of the contractual currency that the Security Trustee is able,
in accordance with its usual practice, to purchase with the amount of
the currency so received or recovered on the date of receipt or
recovery (or, if later, the first date on which such purchase is
practicable). If the amount of the contractual currency so purchased is
less than the amount of the contractual currency so expressed to be
due, the Mortgagor shall indemnify the Security Trustee against any
loss sustained by it as a result, including the cost of making any such
purchase.
15 NOTICES
Any demand, notice or other communication to be made on or delivered to
the Mortgagor hereunder or in respect of any of the Secured Obligations
shall be made in accordance with clause 10.02 of the Agreement.
16 SET-OFF
The Mortgagor authorises the Security Trustee without prior notice to
the Mortgagor to apply any credit balance (whether or not then due) to
which the Mortgagor is at any time beneficially entitled on any account
at any office of the Security Trustee in or towards satisfaction of the
Secured Obligations (and on or at any time after the Security Trustee
shall have demanded the discharge of the Secured Obligations the
Security Trustee may make such application notwithstanding any
specified maturity of any deposits standing to the credit of any
account of the Mortgagor with the Security Trustee) and for this
purpose the Security Trustee is authorised to purchase with the monies
standing to the credit of any such account such other currencies as may
be necessary to effect such application. The Security Trustee shall not
be obliged to exercise any of its rights under this clause which shall
be without prejudice to and in addition to any rights of set-off,
combination of accounts, consolidation or other rights to which it is
at any time otherwise entitled (whether by operation of law, contract
or otherwise).
14
17 TRUSTEE PROVISIONS
17.1 DECLARATION OF TRUST
The Security Trustee shall hold the security constituted by this Deed
and the benefit of all related rights in trust for the benefit of the
Beneficiaries on the terms and subject to the conditions set out in
this Deed.
17.2 PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities (if
applicable to this Deed) shall be the period of eighty years from the
date of this Deed.
17.3 SUMS RECEIVED BY THE SECURITY TRUSTEE
Pending distribution under clause 17.4, the Security Trustee shall, if
reasonably practicable, place any sum received, recovered or held by it
in respect of the Investments in an interest bearing suspense account
with a bank or financial institution in the name of or under the
control of the Security Trustee. The interest paid on such account
shall be credited to the relevant account.
17.4 APPLICATION OF SUMS RECEIVED
Subject to the other provisions of this clause 17, the Security Trustee
shall apply all amounts standing to the credit of any account referred
to in clause 17.3 and any other amounts realised pursuant to the
exercise of any rights or powers it might have pursuant to this Deed:
17.4.1 first, in the payment of any costs, charges and expenses of or
incidental to the appointment of any receiver under the Act,
the payment of his remuneration and the payment and discharge
of any other Expenses incurred by or on behalf of such
receiver;
17.4.2 secondly, in or towards payment of any debts or claims which
are by statute payable in preference to the Secured
Obligations but only to the extent to which such debts or
claims have such preference;
17.4.3 thirdly, in or towards payment and discharge pro rata of any
Secured Obligations then due, owing or incurred to the
Security Trustee, in its capacity as Security Trustee (and not
in any other capacity) for its own account;
17.4.4 fourthly, in payment to the Agent to be applied by the Agent
in or towards payment and discharge of the balance of the
Secured Obligations (if any) in accordance with the provisions
of Section 3 of the Agreement; and
17.4.5 fifthly, in payment of the surplus (if any) to the Mortgagor
or such other person entitled thereto.
15
17.5 SECURITY TRUSTEE'S SOLE RIGHT TO APPROPRIATE
The Mortgagor shall not have the right to appropriate any payment to,
or other sum received, recovered or held by, the Security Trustee in or
towards payment of any particular part of the Secured Obligations and
the Security Trustee shall have the exclusive right to appropriate any
such payment or other sum as provided in this clause 17.
17.6 TIMING OF DISTRIBUTION
Distributions by the Security Trustee shall be made at such times as
the Security Trustee in its absolute discretion determines to be as
soon as is reasonably practicable, having regard to all relevant
circumstances, and the Security Trustee shall have no liability
whatsoever for any loss or damage which any Beneficiary might sustain
as a consequence of the timing of any such distribution.
17.7 DATE FOR CALCULATION OF SECURED OBLIGATIONS
For the purpose of any distribution by the Security Trustee, the
Security Trustee may, by written notice to the Beneficiaries, fix a
date (being not earlier than the date of such notice) as at which the
amount of the Secured Obligations are to be calculated.
17.8 CERTIFICATE FROM BENEFICIARY
For the purposes of determining the amount of any payment to be made to
any Beneficiary pursuant hereto the Security Trustee shall be entitled
to call for and rely upon (and it is the intention of the parties that
the Security Trustee shall rely upon) a certificate from the relevant
Beneficiary of the amount and nature of any amount due, owing or
incurred to the relevant Beneficiary at the date fixed by the Security
Trustee for such purpose and as to such other matters as the Security
Trustee may deem necessary or desirable to enable it to make a
distribution.
17.9 MISTAKEN PAYMENTS
If the Security Trustee makes any distribution contrary to any of the
provisions of this clause 17 or any distribution made by it otherwise
transpires to have been invalid or the Security Trustee and the person
receiving such distribution agree that it should be refunded, the
recipient shall, to the extent that no charge is thereby created, hold
the proceeds of that distribution on trust to repay to the Security
Trustee forthwith on demand. If the trust imposed by this clause 17.9
cannot be given effect to for whatever reason, including the possible
creation thereby of a charge, the relevant recipient shall, if and when
so requested by the Security Trustee, pay an amount equal to the
proceeds of that distribution required to be held on trust to the
Security Trustee.
17.10 SUPPLEMENT TO TRUSTEE ACT
By way of supplement to the Trustee Act it is expressly declared as
follows:
16
17.10.1 EXPERTS: the Security Trustee may, in relation to this Deed,
act or rely upon the opinion or advice of, or any information
obtained from, any lawyer, valuer, surveyor, broker,
auctioneer, accountant or other expert commissioned by the
Security Trustee and shall not be responsible to anyone for
any loss or damage occasioned by so acting or relying. Any
such opinion, advice or information may be sent or obtained by
letter, telex, cable, facsimile transmission or otherwise and
the Security Trustee will not be liable to anyone for acting
in good faith on any opinion, advice or information purporting
to be conveyed by such means even if it contains some error or
is not authentic or validly signed;
17.10.2 CERTIFICATE OF THE MORTGAGOR: the Security Trustee may call
for and may accept as sufficient evidence a certificate of the
Mortgagor signed by any director of the Mortgagor to the
effect that any particular dealing, transaction, step or thing
is, in the opinion of the said director, suitable or expedient
or as to any other fact or matter upon which the Security
Trustee may, in the exercise of any of its rights, powers or
duties hereunder, require to be satisfied and the Security
Trustee need not call for further evidence and will not be
responsible to anyone for any loss or damage occasioned by
acting on any such certificate;
17.10.3 INTERPRETATION OF THIS DEED: the Security Trustee (as between
itself and each of the Beneficiaries) shall have full power to
determine in good faith all questions and doubts arising in
relation to any of the provisions of this Deed and every such
determination, whether made upon such a question actually
raised or implied in the acts or proceedings of the Security
Trustee, shall be conclusive and shall (save for manifest
error) bind the Security Trustee and each Beneficiary;
17.10.4 TITLE: the Security Trustee shall accept without enquiry,
requisition, objection or investigation such title as the
Mortgagor (or, as the case may be, any nominee) has to the
Investments to the intent that the Security Trustee shall not
in any way be responsible for its inability to exercise any of
its rights or powers or duties hereunder or for any loss or
damage thereby occasioned;
17.10.5 PERFECTION OF SECURITY: the Security Trustee shall not be
liable for any failure, omission or defect in perfecting any
security created or purported to be created by or pursuant to
this Deed including (without prejudice to the generality of
the foregoing):
(a) failure to obtain any licence, consent or other
authority for the execution, delivery, validity,
legality, adequacy, performance, enforceability or
admissibility in evidence of any of this Deed or any
other document;
(b) failure to effect or procure registration of or
otherwise protect any security created or purported
to be created
17
by or pursuant to any of this Deed or any other
document by registering under any applicable
registration laws in any territory, any notice,
caution or other entry prescribed by or pursuant to
the provisions of the said laws;
(c) failure to take or require the Mortgagor to take any
steps to render the security created or purported to
be created by or pursuant to any of this Deed
effective as regards any property outside England and
Wales or to secure the creation of any ancillary
charge under the laws of any territory concerned; or
(d) failure to call for delivery of documents of title to
or require transfers, legal mortgages, charges or
other further assurances in relation to any of the
Investments;
17.10.6 ACTS AND OMISSIONS: the Security Trustee shall not in
fulfilling its duties and discharging its responsibilities as
Security Trustee be liable or responsible for any loss or
damage which may result from anything done or omitted to be
done by it in accordance with the provisions of this Deed;
17.10.7 COMPLIANCE WITH LAWS: the Security Trustee may refrain from
doing anything which would or might in its opinion be contrary
to any law of any jurisdiction or any regulation or which
would or might otherwise render it liable to any person and
may do anything which is, in its absolute discretion,
necessary to comply with any such law or regulation;
17.10.8 DEPOSIT OF SECURITY DOCUMENTS: the Security Trustee shall be
at liberty to place all title deeds and other documents
certifying, representing or constituting the title to any of
the Investments for the time being in its hands in any safe
deposit, safe or receptacle selected by the Security Trustee
or with any bankers or banking company (including the Security
Trustee or any of the other Beneficiaries) or company whose
business includes undertaking the safe custody of documents or
solicitors or firm of solicitors, may pay all reasonable sums
required to be paid on account of or in respect of such
deposit and may make any such arrangements as it thinks fit
for allowing the Mortgagor or its lawyers or auditors access
to or possession of such title deeds and other documents when
necessary or convenient and the Security Trustee shall not be
responsible for any loss incurred in connection with any such
deposit, access or possession;
17.10.9 USE OF NOMINEES: any investment of any part or all of the
Investments may, at the discretion of the Security Trustee, be
made or retained in the names of nominees;
18
17.10.10 DELEGATION: the Security Trustee may, whenever it thinks fit,
delegate by power of attorney or otherwise to any person or
persons, or fluctuating body of persons, all or any of the
rights, powers, authorities and discretions vested in it by
any of the Loan Documents and such delegation may be made upon
such terms and subject to such conditions (including the power
to sub-delegate) and subject to such regulations as it may
think fit and it shall not be bound to supervise, or to be in
any way responsible for any loss, liability, costs, charges or
expenses incurred by reason of any misconduct or default on
the part of, any such delegate or sub-delegate; and
17.10.11 INSURANCE: without prejudice to any other provision of any of
the Loan Documents, the Security Trustee shall not be under
any obligation to insure any of the Investments or to require
any other person to maintain any such insurance and shall not
be responsible for any loss or damage which may be suffered by
any person as a result of the lack of or inadequacy or
insufficiency of any such insurance.
17.11 RELATIONSHIP WITH THE BENEFICIARIES
The Security Trustee shall, for the purposes of the Loan Documents, be
entitled to deal with each of the Beneficiaries by dealing exclusively
with the Agent.
17.12 INDEMNITY PROVISIONS
The Security Trustee and every attorney, agent or other person
appointed by it under any of the Loan Documents may indemnify itself or
himself out of the Investments against all claims, demands,
liabilities, proceedings, costs, fees, charges, losses and expenses
properly incurred by any of them in relation to or arising out of the
taking or holding of the Investments, the exercise or purported
exercise of the rights, trusts, powers and discretions vested in any of
them or any other matter or thing done or omitted to be done in
connection with any of the Loan Documents or pursuant to any law or
regulation.
17.13 APPOINTMENT OF ADDITIONAL SECURITY TRUSTEES
The Security Trustee may at any time appoint any person (whether or not
a trust corporation) to act either as a separate trustee or as a
co-trustee jointly with it (i) if it considers such appointment to be
in the interests of the Beneficiaries or (ii) for the purposes of
conforming to any legal requirements, restrictions or conditions which
the Security Trustee deems relevant for the purposes hereof. Any person
so appointed shall have such powers, authorities and discretions and
such duties and obligations as shall be conferred or imposed on such
person by the instrument of appointment and shall have the same rights,
powers, discretions and benefits under the Loan Documents as the
Security Trustee. Save where the contrary is indicated or unless the
context otherwise requires any reference in the Loan Documents to the
Security Trustee shall be construed as a reference to the Security
Trustee and each such
19
separate trustee and co-trustee. The Security Trustee shall have power
in like manner to remove any person so appointed. Such remuneration as
the Security Trustee may pay to any person so appointed, and any costs,
charges and expenses incurred by such person in performing its
functions pursuant to such appointment, shall for the purposes hereof
be treated as costs, charges and expenses incurred by the Security
Trustee in performing its function as trustee hereunder.
17.14 RESIGNATION
The Security Trustee may, following consultation with the
Beneficiaries, resign at any time by giving not less than 30 days
notice in writing to that effect to each of the Beneficiaries provided
that such resignation shall not become effective until a successor to
the Security Trustee has been appointed and accepted its appointment
and all necessary documents have been entered into to ensure that the
benefit of this Debenture is held by such successor.
18 COUNTERPARTS
This Deed may be executed in any number of counterparts and by
facsimile transmission and by different parties on separate
counterparts each of which will constitute an original and all the
counterparts together will constitute the same instrument.
19 LAW AND JURISDICTION
19.1 LAW
This Deed and the rights and obligations of the parties hereto shall be
governed by and construed in accordance with English law.
19.2 JURISDICTION
19.2.1 SUBMISSION: Each of the parties to this Deed (other than the Security
Trustee) agrees for the benefit of the Security Trustee that the courts
of England shall have jurisdiction to hear and determine, any suit,
action or proceeding, and to settle any dispute, which may arise out of
or in connection with this Deed and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
19.2.2 FORUM: The Mortgagor irrevocably waives any objection which it might
now or hereafter have to the courts referred to in clause 19.2.1 being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any dispute, which may arise out of or in
connection with this Deed and agrees not to claim that any such court
is not a convenient or appropriate forum.
19.2.3 SERVICE OF PROCESS: The Mortgagor agrees that the process by which any
suit, action or proceeding is begun may be served on it by being
delivered to ▇▇▇▇▇▇▇▇, Inc., c/▇ ▇▇▇▇▇▇▇▇ UK Limited, ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
19.2.4 OTHER COMPETENT JURISDICTIONS: The submission to the jurisdiction of
the courts referred to in clause 19.2.1 shall not (and shall not be
construed so as
20
to) limit the right of the Security Trustee to take proceedings against
the Mortgagor in any other court of competent jurisdiction nor shall
the taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction, whether concurrently
or not.
19.2.5 CONSENT TO ENFORCEMENT: The Mortgagor hereby consents generally in
respect of any legal action or proceeding arising out of or in
connection with this Deed to the giving of any relief or the issue of
any process in connection with such action or proceeding including,
without limitation, the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such action or
proceeding.
21
IN WITNESS whereof the Mortgagor has duly executed this Deed as a deed and
intends to deliver and hereby delivers the same on the date first above written
and, prior to such delivery, this Deed has been duly signed on behalf of the
Security Trustee, in the manner appearing below.
THE MORTGAGOR
EXECUTED as a DEED by
▇▇▇▇▇▇▇▇, INC.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, Chief
Operating Officer, Chief Financial
Officer, Chief Accounting Officer
and Treasurer of ▇▇▇▇▇▇▇▇, Inc.
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE SECURITY TRUSTEE
SIGNED for and on behalf of
BANK OF AMERICA, N.A. as
Security Trustee by:
/s/▇▇▇ ▇▇▇▇
Name: ▇▇▇ ▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Code : WA1-501-37-20
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
22
SCHEDULE 1
THE SECURITIES
ISSUED SHARE DESCRIPTION AND SHARE CERTIFICATE
NAME OF COMPANY CAPITAL NUMBER OF SHARES NUMBER(s)
----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ U.K., L205,000 205,000 Ordinary 1, 2, 3, 4
Limited (Company Shares of L1 each
No: 02862712)
23
SCHEDULE 2
FORM OF NOMINEE UNDERTAKING
To: Bank of America, N.A.
[ ]
From: [ ]
[Date]
Dear Sirs,
1 I/We refer to the Equitable Mortgage over Securities dated [ ]
(such Mortgage, as the same may have been or may from time to time be
amended, varied, supplemented, novated or replaced being referred to as
"THE DEED") and made between [ ] ("THE MORTGAGOR") and
yourselves as Security Trustee. Terms defined in the Deed shall (unless
otherwise defined in this Undertaking or the context otherwise
requires) bear the same meanings in this Undertaking.
2 I/We declare that I/we hold the securities listed in the Appendix ("THE
NOMINEE SECURITIES") to your order subject to the terms and conditions
of the Deed.
3 I/We declare that I/we am/are not and shall never be entitled to any
interest, claim or lien in or over the Nominee Securities.
4 I/We will following notice from you to me/us [of the happening of any
event or circumstance which entitles you to take any action by way of
enforcement of your rights under the Deed] (such notice to be deemed
conclusive and binding on me/us for all purposes) forthwith pay to you
any dividends or other payments of money received by me/us in respect
of the Nominee Securities and I/we hereby declare myself/ourselves as
trustee of such dividends or other payments of money to hold the same,
pending such payment, upon trust to pay the same to you in the manner
aforesaid.
5 I/We will forthwith notify you of the contents of any communication or
document received by me/us as holder of the Nominee Securities.
6 [I/We will following notice from you to me/us [of the happening of any
event or circumstance which entitles you to take any action by way of
enforcement of your rights under the Deed] (such notice to be deemed
conclusive and binding on me/us for all purposes) exercise, or refrain
from exercising, all of my/our voting rights in respect of the Nominee
Securities in accordance with your instructions provided that prior to
the receipt of any such notice as aforesaid, I/we will not exercise
such voting rights or any other rights forming part of the Nominee
Securities other than in accordance with the terms of the Deed.]
24
7 I/We will, forthwith upon receipt by me/us of any Derivative Assets in
respect of the Nominee Securities, deliver to you all certificates and
other documents constituting or evidencing title to such Derivative
Assets and each part thereof together with instruments of transfer
relating to the same complying with the provisions of clause 5.1.4 of
the Deed and otherwise in such manner as you may require.
8 I/We hereby irrevocably appoint you, and each and every person to whom
you shall from time to time have delegated the exercise of the power of
attorney conferred by this paragraph 8 to be my/our attorney or
attorneys and in my/our name and otherwise on my/our behalf and as
my/our act and deed to sign, seal, execute, deliver and perfect and do
all other deeds, instruments, acts and things which may be required (or
which you shall consider requisite) for carrying out any obligation
imposed on me/us by or pursuant to this Undertaking (including, any
covenants for further assurance implied by section 1(2) of the Law of
Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇, which shall be deemed to
be within this power as if I/we had legally mortgaged the Nominee
Securities to you with full title guarantee) for carrying any sales or
other dealing by you into effect, for conveying or transferring any
legal estate, entitlement or other interest in the Nominee Securities
or otherwise howsoever and generally for enabling you to exercise the
respective powers conferred on you by or pursuant to this Undertaking
or the Deed, as the case may be, or by law. You shall have full power
to delegate the power conferred on you by this paragraph 8, but no such
delegation shall include the subsequent exercise of such power by you
or preclude you from making a subsequent delegation of such power to
some other person. Any such delegation may be revoked by you at any
time.
9 I/We shall ratify and confirm all transactions entered into by you or
any delegate of yours in the exercise or purported exercise of the
respective powers of any such person and all transactions entered into,
documents executed and things done by you or any delegate by virtue of
the power of attorney given by paragraph 8 above.
10 The power of attorney granted by this Undertaking is granted
irrevocably and for value as part of the security constituted by this
Undertaking and the Deed to secure the proprietary interest of, and the
performance of obligations owed to, to respective donee(s) within the
meaning of the Powers of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
11 This Undertaking shall be governed by and construed in accordance with
English law.
IN WITNESS whereof I/we have caused this Undertaking to be executed as a deed
the day and the year first before written.
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SIGNED and DELIVERED )
by [NAME OF NOMINEE] )
in the presence of: )
Witness' Signature ...................
Name in block capitals ...................
Address ...................
...................
...................
...................
Occupation ...................
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THE APPENDIX
THE NOMINEE SECURITIES
ISSUED SHARE DESCRIPTION AND SHARE CERTIFICATE
NAME OF COMPANY CAPITAL NUMBER OF SHARES NUMBER(s)
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