Dated 10 December 2009 VIRGIN ENTERTAINMENT INVESTMENT HOLDINGS LIMITED and DEUTSCHE BANK AG, LONDON BRANCH
Exhibit
99.17
Execution
Version
Dated
10 December 2009
VIRGIN
ENTERTAINMENT INVESTMENT HOLDINGS LIMITED
and
DEUTSCHE
BANK AG, LONDON BRANCH
|
(CUSTODIAN
RIGHTS)
|
TABLE
OF CONTENTS
|
1
|
Definitions
and Interpretation
|
1
|
|
2
|
Covenant
to Pay
|
4
|
|
3
|
Creation
of Security Interest
|
4
|
|
4
|
Discharge
|
4
|
|
5
|
Representations
and Warranties
|
4
|
|
6
|
Covenants
|
6
|
|
7
|
Lien
|
7
|
|
8
|
Authority
|
7
|
|
9
|
Events
of Default
|
8
|
|
10
|
Enforcement
by the Bank
|
8
|
|
11
|
Further
Assurance and Power of Attorney
|
9
|
|
12
|
Security
Continuing and Independent
|
10
|
|
13
|
Remedies
and Waiver
|
11
|
|
14
|
Fees,
Costs and Expenses
|
11
|
|
15
|
Suspense
Account
|
12
|
|
16
|
Illegality
|
12
|
|
17
|
Amalgamation
and Consolidation
|
12
|
|
18
|
Conversion
of Currency
|
12
|
|
19
|
Amendment
and Waiver
|
12
|
|
20
|
Assignment
|
12
|
|
21
|
Notices
|
13
|
|
22
|
Counterparts
|
13
|
|
23
|
Process
Agent
|
13
|
|
24
|
Governing
Law and Jurisdiction
|
13
|
|
SCHEDULE
1
|
15
|
|
THIS AGREEMENT is made on 10
December 2009
BETWEEN:
|
(1)
|
VIRGIN ENTERTAINMENT INVESTMENT
HOLDINGS LIMITED, a company incorporated under the laws of the
British Virgin Islands and having its registered office at Craigmuir
▇▇▇▇▇▇▇▇, PO Box 71, Road Town, Tortola, British Virgin Islands (the
“Debtor”);
and
|
|
(2)
|
DEUTSCHE BANK AG, a
corporation domiciled in Frankfurt am Main, Germany, operating in the
United Kingdom under branch registration number BR000005, acting through
its London branch at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (the “Bank”).
|
RECITALS:
|
(A)
|
The
Debtor and the Bank have entered into certain of the Finance Documents (as
defined below).
|
|
(B)
|
The
Debtor wishes to enter into this agreement for the purposes of creating
security interests under the Law over, amongst other things, the rights,
title and interest of the Debtor in a contract entered into with the
Custodian.
|
IT
IS AGREED AS FOLLOWS:
|
1
|
Definitions
and Interpretation
|
|
1.1
|
In
this agreement, words and expressions shall, except where the context
otherwise requires, have the meanings given to them in the Finance
Documents.
|
|
1.2
|
In
this agreement, the following words and expressions shall, except where
the context otherwise requires, have the following
meanings:
|
“Cash Account” means the bank
account held by the Custodian pursuant to the Custodian Agreement identified by
account number 348376 and any sub-account or any substituted
account;
“Collateral” means the Contract
Rights, together with all other present or future rights of whatever nature owed
to the Debtor by Deutsche Bank International Limited in its capacity as
custodian or nominee outside the Custodian Agreement in respect of the property
comprising the Securities and the Cash Account;
“Contract Rights” means all
rights, title and interest, present and future, of the Debtor in or pursuant to
the Custodian Agreement, including, without limitation, all and any right or
power of the Debtor to require the Custodian to deliver or redeliver, or, where
the Custody Assets are held by the agents or nominees of the Custodian, to
procure that such agents or nominees deliver or redeliver to the Debtor title to
and possession of the Custody Assets;
“CSD” means the ISDA credit
support deed dated on or about the date hereof between the Debtor and the
Bank;
“Custodian” means Deutsche Bank
International Limited in its capacity as custodian pursuant to the Custodian
Agreement and any successor custodian;
“Custodian Agreement” means a
custodian agreement dated 10 December 2009 between the Debtor and the
Custodian;
“Custody Account” means the
custody account with the Custodian in the name of the Debtor identified by
account number ▇▇▇▇▇▇▇▇ and any sub-accounts or substituted
accounts;
“Custody Assets” means any and
all property held by the Custodian or its agents or nominees in the Custody
Account for or to the order of the Debtor pursuant to the Custodian Agreement
including, without limitation:
|
|
(a)
|
the
Securities; and
|
|
|
(b)
|
all
monies standing to the credit of the Cash
Account;
|
“Encumbrance” means any
mortgage, charge, pledge, lien, assignment, hypothecation, title retention,
security interest, trust arrangement or any other agreement or arrangement which
has the effect of creating security;
“Events of Default” means any
of the events or circumstances specified in clause 9;
“Finance Documents” means the
ISDA Master Agreement, the CSD, the Forward Confirmation, this agreement, and
any related ancillary documents (including, for the avoidance of doubt, the
notice and acknowledgement given pursuant to this agreement);
“Forward Confirmation” means
the ISDA confirmation dated on or about the date hereof between the Debtor and
the Bank evidencing a forward transaction under the ISDA Master
Agreement;
“ISDA Master Agreement” means
the ISDA master agreement and the related schedule, each dated as of the date
hereof and made between the Debtor and the Bank;
“Law” means the Security
Interests (Jersey) Law 1983;
“Secured Obligations” means all
present or future obligations and liabilities (whether actual or contingent,
joint or several or as principal, surety or in any other capacity) of or due by
the Debtor to the Bank pursuant to the Finance Documents;
“Securities” means the Virgin
Media Inc. (Exchange Symbol: “VMED”) shares held in the Custody Account from
time to time; and
“Security Period” means the
period commencing on the date hereof and ending on the date upon which the Bank
has determined that all of the Secured Obligations have been irrevocably paid,
performed and/or discharged in full.
|
1.3
|
In
the interpretation of this agreement, the following provisions apply save
where the context requires
otherwise:
|
2
|
|
(a)
|
the
Bank shall be the “secured party”, the
Debtor shall be the “debtor” and the Events
of Default shall be the “events of default” for
the purposes of the Law;
|
|
|
(b)
|
where
references are made to the Bank holding title to or possession of the
Collateral or any part thereof such references shall include any person
holding title to or possession of the Collateral or any part thereof on
the Bank’s behalf other than the Debtor or some person on behalf of the
Debtor;
|
|
|
(c)
|
references
to the Bank include its successors, assignees and
transferees. References to the Custodian and to Deutsche Bank
International Limited, respectively include its successors and
assignees. References to the Debtor include its successors,
permitted assignees and permitted transferees, if
any;
|
|
|
(d)
|
words
and expressions not otherwise defined in this agreement shall be construed
in accordance with the Law;
|
|
|
(e)
|
except
where the context otherwise requires, words denoting the singular include
the plural and vice versa, words denoting a gender include every gender
and references to persons include bodies corporate and
unincorporate;
|
|
|
(f)
|
references
to recitals, clauses and schedules are, unless the context otherwise
requires, references to recitals and clauses hereof and schedules hereto
and references to sub-clauses are, unless otherwise stated, references to
the sub-clause of the clause in which the reference
appears;
|
|
|
(g)
|
the
recitals and the schedules form part of this agreement and shall have the
same force and effect as if they were expressly set out in the body of
this agreement and any reference to this agreement shall include the
recitals and the schedules;
|
|
|
(h)
|
any
reference to this agreement or to any agreement or document referred to in
this agreement (including, without limitation, the Custodian Agreement)
shall be construed as a reference to such agreement or document as
amended, varied, modified, supplemented, restated, novated or replaced
from time to time;
|
|
|
(i)
|
any
reference to any statute or statutory provision shall, unless the context
otherwise requires, be construed as a reference to such statute or
statutory provision as the same may have been or may be amended, modified,
extended, consolidated, re-enacted or replaced from time to time;
and
|
|
|
(j)
|
clause
headings and the index are inserted for convenience only and shall not
affect the construction of this
agreement.
|
3
|
2
|
Covenant
to Pay
|
The
Debtor hereby covenants with the Bank to pay and/or discharge the Secured
Obligations, in the manner and at the time provided for in the Finance
Documents.
|
3
|
Creation
of Security Interest
|
|
3.1
|
As
a continuing security for the payment, performance and discharge of the
Secured Obligations, so that the Bank shall have a first priority security
interest in the Collateral pursuant to the Law, the Debtor hereby assigns,
transfers and/or otherwise makes over to the Bank all right, title,
interest and benefit, present and future in and to the
Collateral.
|
|
3.2
|
The
Debtor hereby undertakes to the Bank that contemporaneously with the
execution of this agreement, it shall execute and deliver to the Custodian
a notice materially in the form set out in Schedule 1 and shall procure
that the Custodian executes and delivers to the Bank an acknowledgement
materially in the form set out in Schedule
1.
|
|
3.3
|
The
Bank agrees not to exercise the Contract Rights to instruct the Custodian
to sell, liquidate, transfer or otherwise withdraw any of the Custody
Assets from the arrangements contemplated by the Custodian Agreement
unless and until an Event of Default occurs, or as otherwise permitted
under the Finance Documents.
|
|
4
|
Discharge
|
Upon the
expiry of the Security Period:
|
|
(a)
|
the
Bank shall, at the request and expense of the Debtor, provide the Debtor
(with a copy provided to the Custodian) with a certificate of discharge in
compliance with the Law in such form as the Bank and the Debtor shall
determine; and
|
|
|
(b)
|
the
Bank shall, at the request and cost of the Debtor, release, reassign or
discharge (as appropriate) the Collateral from or free from the security
interests created by this agreement (with notice provided to the
Custodian).
|
|
5
|
Representations
and Warranties
|
|
5.1
|
The
Debtor hereby represents and warrants to the Bank that (save as qualified
in the legal opinion and/or memorandum given to the Bank in relation to
this agreement and which is acceptable to the
Bank):
|
|
|
(a)
|
the
Debtor is a body corporate duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation and all corporate and
other action required to authorise the execution of this agreement and the
perfection of the security intended to be created pursuant to clause 3.1
has been duly taken;
|
|
|
(b)
|
the
Debtor has capacity to enter into this agreement and to exercise its
rights and perform its obligations
hereunder;
|
4
|
|
(c)
|
this
agreement constitutes the legal, valid and binding obligations of the
Debtor, enforceable against the Debtor in accordance with its terms,
subject to and in accordance with the
Law;
|
|
|
(d)
|
the
entry into this agreement by the Debtor and the performance by it of its
obligations hereunder, including, so far as the Debtor is aware, the
enforcement of the security constituted by this agreement, do not and will
not conflict with:
|
|
|
(i)
|
any
law or regulation applicable to it;
|
|
|
(ii)
|
its
constitutive documents; or
|
|
|
(iii)
|
any
agreement or instrument binding upon it or any of its
assets;
|
|
|
(e)
|
the
Debtor has obtained all governmental and other consents, authorisations or
permissions necessary for it:
|
|
|
(i)
|
to
enter into this agreement and perform its obligations hereunder;
and
|
|
|
(ii)
|
to
enable it to create the security interests pursuant to this agreement and
to ensure that such security interests have the priority and ranking that
they are expressed to have;
|
|
|
(f)
|
the
Debtor is able to pay its debts as they fall due and will not become
unable to do so as a consequence of entering into this
agreement;
|
|
|
(g)
|
the
Debtor is not insolvent or bankrupt under the laws of any jurisdiction
(including, without limitation, “bankrupt” as defined in the
Interpretation (Jersey) Law 1954) and has not, in any jurisdiction,
commenced or had commenced against it any proceedings or other actions for
or indicative of insolvency or
bankruptcy;
|
|
|
(h)
|
this
agreement shall, upon the assignment of title to the Collateral to the
Bank and the giving of notice as contemplated by clause 3.2, constitute a
valid first priority security interest in respect of the Collateral under
Article 2(6) of the Law;
|
|
|
(i)
|
no
Event of Default has occurred or will occur as a consequence of it
entering into this agreement and creating the security
hereunder;
|
|
|
(j)
|
the
Debtor is the sole legal and beneficial owner of and has good title to the
Collateral subject only to the rights granted in favour of the Bank by
this agreement;
|
|
|
(k)
|
the
Collateral is not subject to any options, warrants, pre-emption or similar
rights and is free from all Encumbrances and rights of set-off other than
those created by this agreement in favour of the Bank and all the
Securities are validly issued and fully
paid;
|
5
|
|
(l)
|
the
Debtor has not granted any power of attorney in respect of the exercise of
any rights or powers in connection with the Collateral, other than to the
Custodian and/or the Bank;
|
|
|
(m)
|
there
are no terms or conditions of the Custodian Agreement or any mandate
applicable to the Cash Account which would prevent any security interest
being taken over the Collateral in the manner contemplated by this
agreement;
|
|
|
(n)
|
the
choice of the law of Jersey as the governing law of this agreement will be
recognised and enforced in its jurisdiction of incorporation;
and
|
|
|
(o)
|
any
judgment obtained in Jersey in relation to this agreement will be
recognised and enforced in its jurisdiction of
incorporation.
|
|
5.2
|
The
representations and warranties in clause 5.1 are given on the date hereof
and repeated on each day of the Security
Period.
|
|
6
|
Covenants
|
|
6.1
|
The
Debtor covenants and undertakes to the Bank
that:
|
|
|
(a)
|
it
shall procure that (i) all of the assets forming part of the Custody
Assets shall, subject to the terms of the CSD, at all times be held in
safe custody in the Custody Account by the Custodian under the terms of
the Custodian Agreement, and (ii) such assets will not be commingled with
any other assets of the Custodian;
|
|
|
(b)
|
it
shall not, save with the prior written consent of the Bank, use or seek to
use the Custody Assets for any purpose other than as permitted by the
Finance Documents;
|
|
|
(c)
|
subject
to the provisions of the Finance Documents permitting the Debtor to
receive certain distributions, it shall procure that the proceeds of sale
of any part of the Securities and any dividend, interest or other income
or other asset derived from the Securities shall be held on trust for the
Bank and shall be deposited or transferred to the Custodian so as to form
part of the Custody Assets;
|
|
|
(d)
|
promptly
upon receipt of any report, accounts, circular, offer or notice received
by the Debtor in respect of, or which may affect, the Collateral, it shall
deliver a copy to the Bank with notice that it relates to this
agreement;
|
|
|
(e)
|
it
shall not, save with the prior written consent of the Bank or except as
permitted by the Finance Documents:
|
|
|
(i)
|
in
any way, except as set out in this agreement, sell or otherwise dispose of
or create any Encumbrance over the Collateral, the Custody Assets or any
part thereof or agree to any extent to sell, dispose of or encumber the
Collateral or any part thereof;
|
6
|
|
(ii)
|
negotiate,
settle or waive any claim for loss, damage or other compensation affecting
the Collateral, the Custody Assets or any part
thereof;
|
|
|
(iii)
|
issue
any instructions to the Custodian except as set out in this agreement in
any respect in relation to the Collateral, Custody Assets or the Custodian
Agreement; or
|
|
|
(iv)
|
terminate
or amend or agree or permit any termination or amendment of the Custodian
Agreement;
|
|
|
(f)
|
it
shall notify the Bank of any Event of Default (and the steps, if any,
being taken to remedy it) or of any other event which gives rise, or may
reasonably be expected to give rise, to a claim on or under the
Collateral, in each case, promptly
upon becoming aware of its
occurrence;
|
|
|
(g)
|
it
shall do everything in its power to prevent any person other than the Bank
from becoming entitled to claim any right over the Collateral or any part
thereof;
|
|
|
(h)
|
immediately
upon written request from the Bank, it shall deliver to the Bank, or to
its order, such other documents as the Bank shall reasonably require from
time to time to protect or maintain or as the Bank shall require from time
to time to enforce any of the security interests created
hereunder;
|
|
|
(i)
|
subject
to the Finance Documents it will not do, or cause or permit to be done or
omit to do, anything which may adversely affect or prejudice the rights
title, security or interest that the Bank has in the Collateral;
and
|
|
|
(j)
|
promptly
comply with, observe and perform all the obligations assumed by it under
the Custodian Agreement and not, without the prior written consent of the
Bank, make or agree to any amendment, waiver, release or determination of
the Custodian Agreement or permit any breach or default thereof to
exist.
|
|
6.2
|
The
covenants and undertakings given in clause 6.1 are continuing covenants
and undertakings throughout the Security
Period.
|
|
7
|
Lien
|
Without
affecting, and in addition to, the grant of security interests and other rights
hereunder, the Debtor hereby agrees that the Bank shall, for so long as any
amount remains outstanding under or in respect of the Secured Obligations, have
a lien over the Collateral.
|
8
|
Authority
|
|
8.1
|
The
Debtor shall not be authorised to, and shall not, give instructions or
exercise any rights in respect of the Collateral
unless:
|
|
|
(a)
|
the
Bank has given its prior written consent;
or
|
7
|
|
(b)
|
it
is otherwise permitted by this agreement or by the Finance Documents
(including as if references to “Posted Collateral” were to “Collateral” as
defined in this agreement) or by the terms of the notice and
acknowledgement pursuant to clause
3.2,
|
in which
event and to that extent, prior to an Event of Default or any event which with
the giving of notice or the lapse of time or both would constitute an Event of
Default, the Debtor is so expressly authorised.
|
8.2
|
Without
prejudice to the security interest created by this agreement, the
Custodian as directed by the Bank, shall pay or otherwise make over to the
Debtor such distributions as are referred to under the Finance Documents,
from such sums as are credited to the Cash
Account.
|
|
8.3
|
Without
prejudice to the security interest created by this agreement, the Bank
grants to the Debtor, until the earlier of the occurrence of an Event of
Default or any event which with the giving of notice or the lapse of time
or both would constitute an Event of Default, the right to direct the
Custodian to exercise, cause to be exercised or grant proxies to exercise,
any voting rights in respect of the
Securities.
|
|
9
|
Events
of Default
|
There
shall be an Event of Default if:
|
|
(a)
|
a
“Relevant Event” as defined in the CSD occurs, as if each such “Relevant
Event” were set out in full herein;
or
|
|
|
(b)
|
the
Debtor takes any action or any legal proceedings are started or other
steps are taken for the Debtor or its property to be adjudicated or found
en désastre, or the Debtor otherwise becomes “bankrupt” within the meaning
of Article 8 of the Interpretation (Jersey) Law 1954 or any event
analogous to any of the foregoing occurs in any
jurisdiction.
|
|
10
|
Enforcement
by the Bank
|
|
10.1
|
If
an Event of Default has occurred, the power of sale under the Law shall be
exercisable in respect of the Collateral without any requirement to obtain
any order of the Courts of Jersey immediately upon the Bank serving on the
Debtor a notice specifying the particular Event of Default complained of
provided that, if the Event of Default complained of is capable of remedy,
such power of sale shall only be exercisable if the Debtor has failed to
remedy such Event of Default within 14 days following receipt of such
notice by the Debtor (and time shall be of the essence in establishing
whether an Event of Default is capable of
remedy).
|
|
10.2
|
The
power of sale under the Law may be exercised in such manner, at such time
and intervals and for such consideration (whether payable immediately, by
instalments or otherwise deferred) as the Bank shall in its absolute
discretion determine, including by way of sale to an associate or nominee
of the Bank, but subject always to the provisions of Article 8(6) of the
Law.
|
8
|
10.3
|
For
the purposes of this agreement, references to the exercise of the “power
of sale” shall, subject to the Law, include any method or process by which
value is given, allowed or credited by the Bank for the Collateral against
the Secured Obligations.
|
|
10.4
|
The
exercise by the Bank, pursuant to any Finance Document, of the Contract
Rights or rights relating to the Custody Account or Custody Assets shall
not of itself amount to an exercise of a power of sale for the purposes of
the Law and the parties agree that, subject to the Law, the Bank may
exercise the Contract Rights as permitted by the Finance Documents as well
as exercising the power of sale.
|
|
10.5
|
The
Bank shall be entitled to appropriate any part of the Collateral which is
money or otherwise referred to in Article 8(7) of the Law and to apply the
same towards the Secured Obligations as if they were proceeds of
sale.
|
|
10.6
|
To
the extent permitted by the laws of Jersey, the Bank shall be under no
liability to the Debtor:
|
|
|
(a)
|
to
preserve or enhance the Collateral or its
value;
|
|
|
(b)
|
for
any loss arising out of the exercise or non-exercise of the power of sale
or other realisation or appropriation of, or for any neglect or default
(not being fraud, wilful misconduct or gross negligence) in connection
with, the Collateral pursuant to this agreement;
or
|
|
|
(c)
|
for
any failure to apply and distribute the monies representing the proceeds
of sale of the Collateral in accordance with the Law if the Bank applies
and distributes such proceeds in good faith in accordance with the
information expressly known to it, without further enquiry, at the time of
such application and distribution.
|
|
10.7
|
The
exercise by the Bank of any right or power of sale under this clause shall
not constitute a waiver or release of, nor the exercise of, any other
right or power of sale held by the Bank unless expressly
stated.
|
|
11
|
Further
Assurance and Power of Attorney
|
|
11.1
|
The
Debtor agrees that it shall, at its own cost and at any time and from time
to time, upon the written request of the Bank, promptly do any and all
such acts and things and execute and deliver all such instruments and
documents (including, without limitation, any replacement or supplemental
security) as the Bank may reasonably consider necessary or desirable for
creating, perfecting or maintaining the security contemplated hereunder,
or as the Bank may consider necessary or desirable for enforcing the
security contemplated hereunder, giving full effect to this agreement or
for securing, protecting or exercising the rights of the Bank hereunder or
under the Law.
|
|
11.2
|
In
accordance with Article 5(2)(a) of the Powers of Attorney (Jersey) Law,
1995 (the “Powers of
Attorney Law”), the Debtor hereby irrevocably appoints the Bank as
the Debtor’s attorney (with full power of substitution in accordance with
Article 8 of the Powers of Attorney Law) with authority in the name of and
on behalf of the Debtor to sign, execute, seal, deliver, acknowledge,
file, register and perfect any and all
|
9
|
assurances,
documents, instruments, agreements, certificates and consents whatsoever
and to do any and all such acts and things in relation to any matters
dealt with in this agreement which the Bank may deem reasonably necessary
or desirable for creating, perfecting or maintaining the security
contemplated hereunder, or as the Bank may consider necessary or desirable
for enforcing the security contemplated hereunder, giving full effect to
this agreement or for securing, protecting or exercising the rights of the
Bank hereunder or under the Law, including without
limitation:
|
|
|
(a)
|
completing,
dating, executing and/or delivering any notices, authorisations or
instructions in respect of the
Collateral;
|
|
|
(b)
|
exercising
any rights in respect of the Collateral;
and
|
|
|
(c)
|
taking
any action which the Debtor is required to take pursuant to this
agreement.
|
|
11.3
|
The
Debtor hereby covenants with the Bank to ratify and confirm any lawful
exercise or purported exercise of the power of attorney referred to in
this clause.
|
|
12
|
Security
Continuing and Independent
|
|
12.1
|
The
security created pursuant to this agreement shall take effect as a
continuing security for the payment or performance of all or any part of
the Secured Obligations and shall be independent of and in addition to and
it shall not be prejudiced or be affected by and shall not affect or
prejudice any other security now or hereafter held by the Bank in respect
of the payment or performance of all or any part of the Secured
Obligations.
|
|
12.2
|
The
security, and the obligations and liabilities, created pursuant to this
agreement shall not be in any way discharged, impaired or otherwise
affected by:
|
|
|
(a)
|
any
partial or intermediate payment or performance of the Secured
Obligations;
|
|
|
(b)
|
any
variation, extension, discharge, compromise, dealing with, exchange or
renewal of any right or remedy which the Bank may now or hereafter have
from or against any person in respect of any obligations of the Debtor
under the Finance Documents or any other document or any other
person;
|
|
|
(c)
|
any
act or omission by the Bank in taking up, perfecting or enforcing any
security, indemnity or guarantee from or against the Debtor or any other
person;
|
|
|
(d)
|
any
defect in, termination, amendment, variation, novation or supplement of or
to any of the Finance Documents or to any document pursuant to which
obligations are due by the Debtor or any other person to the
Bank;
|
|
|
(e)
|
any
grant of time, indulgence, waiver or concession given by the Bank to the
Debtor or any other person;
|
|
|
(f)
|
any
of the insolvency, bankruptcy, liquidation, administration, winding-up,
incapacity, limitation, disability, the discharge by operation of law, and
any
|
10
| change in the constitution, name and style of any party to any of the Finance Documents or any other person; |
|
|
(g)
|
any
release, invalidity, illegality, unenforceability, irregularity or
frustration of any actual or purported obligation of the Debtor or any
other person in respect of any of the Finance Documents or any other
document;
|
|
|
(h)
|
any
claim or enforcement of payment from any of the other parties to the
Finance Documents or any other person;
or
|
|
|
(i)
|
any
act or omission which would have discharged or affected the liability of
the Debtor or by anything done or omitted by any person which but for this
provision might operate to exonerate or discharge the Debtor or otherwise
reduce or extinguish its liability under this
agreement.
|
|
12.3
|
The
Bank is not obliged, before exercising any of the rights, powers or
remedies it may have pursuant to this agreement or by law, to make any
demand of, or take action or file any claim or proof in respect of, any
person other than the Debtor or to enforce any other security in respect
of the Finance Documents.
|
|
12.4
|
If
the Collateral or any part hereof is released from the security interests
created hereunder in reliance upon a payment or other performance or
discharge which is subsequently avoided, set aside or restored for any
reason whatsoever (including, without limitation, in connection with the
subsequent insolvency or bankruptcy of the Debtor), the obligations and
liabilities of the Debtor under this agreement shall continue as if such
release had not occurred.
|
|
13
|
Remedies
and Waiver
|
|
13.1
|
No
failure by the Bank to exercise, nor any delay by the Bank in exercising,
any right or remedy hereunder shall operate as a waiver hereof nor shall
any single or partial exercise prevent any further or other exercise
thereof or the exercise of any other right or
remedy.
|
|
13.2
|
The
rights and remedies under or pursuant to this agreement, the security
interests created hereunder, and any rights or other remedies provided by
law (including the Law as it applies to the security created hereunder)
are cumulative and not mutually exclusive and any of such rights and
remedies may be, but need not be, exercised at the Bank’s
discretion.
|
|
14
|
Fees,
Costs and Expenses
|
|
14.1
|
The
Debtor agrees to reimburse the Bank on demand for all reasonable fees
(including legal fees), costs and expenses incurred by the Bank and/or its
nominees in connection with or relating to the preservation of any of the
Bank’s rights under this agreement or the exercise or purported exercise
of any of the powers arising pursuant to this
agreement.
|
|
14.2
|
The
Debtor agrees to reimburse the Bank on demand for all fees (including
legal fees), costs and expenses incurred by the Bank and/or its nominees
in connection with or relating to the enforcement of any of the Bank’s
rights under this agreement or the exercise or purported exercise of any
of the powers arising pursuant to this
agreement.
|
11
|
14.3
|
All
such fees, costs and expenses shall be reimbursed by the Debtor on a full
indemnity basis with interest thereon at a rate of 3% per annum above the
Bank’s base rate from time to time, payable from the date that the Bank
and/or its nominees incurred such fees, costs and expenses to the date of
reimbursement by the Debtor pursuant to this
clause.
|
|
15
|
Suspense
Account
|
Subject
to the Law, monies received, recovered or realised by the Bank under this
agreement may, at the discretion of the Bank, be credited to a separate or
suspense account for so long as the Bank may think fit without any intermediate
obligation on the part of the Bank to apply the same in or towards payment and
discharge of the Secured Obligations.
|
16
|
Illegality
|
If at any
time one or more of the provisions of this agreement becomes invalid, illegal or
unenforceable in any respect, that provision shall be severed from the remainder
and the validity, legality and enforceability of the remaining provisions of
this agreement shall not be affected or impaired in any way.
|
17
|
Amalgamation
and Consolidation
|
The
rights and benefits of the Bank under this agreement shall remain valid and
binding for all purposes notwithstanding any change, amalgamation, consolidation
or otherwise which may be made in the constitution of the Bank and shall be
available to such entity as shall carry on the business of the Bank for the time
being.
|
18
|
Conversion
of Currency
|
All
monies received or held by the Bank subject to this agreement may at any time,
before as well as after the occurrence of an Event of Default, be converted into
such other currency as the Bank considers necessary or desirable to satisfy the
Secured Obligations in that other currency at the then prevailing spot rate of
exchange of the Bank (as conclusively determined by the Bank) for purchasing
that other currency with the original currency.
|
19
|
Amendment
and Waiver
|
No
variation, amendment or waiver of this agreement shall be valid unless in
writing and signed by or on behalf of the parties hereto.
|
20
|
Assignment
|
|
20.1
|
The
Bank may grant a participation in or make an assignment or transfer or
otherwise dispose of, the whole or any part of its rights and benefits
under this agreement all as permitted under the Finance
Documents. For the purpose of any such participation,
assignment, transfer or disposal, the Bank may disclose information about
the Debtor and the financial condition of the Debtor as may have been made
available to the Bank by the Debtor or which is otherwise publicly
available. Provided that no such participation, assignment,
transfer or disposition shall result in the obligations of the
|
12
| Debtor being greater than they would have been in the absence of such participation, assignment, transfer or disposition. |
|
20.2
|
The
Debtor shall not assign or transfer all or any part of its rights,
benefits and/or obligations under this
agreement.
|
|
21
|
Notices
|
|
21.1
|
All
notices with respect to this agreement shall be delivered by hand or sent
by first class post to the address of the addressee as set out in this
agreement or to such other address as the addressee may from time to time
have notified for the purpose of this clause or to any other “proper address” as
defined in the Law, or sent by facsimile transmission (“fax”) to the following
numbers to the following addresses:
|
|
|
(a)
|
in
the case of the Debtor, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
and
|
|
|
(b)
|
in
the case of the Bank, ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇.
|
|
21.2
|
Such
notices shall be deemed to have been
received:
|
|
|
(a)
|
if
sent by first class prepaid post, two business days after
posting;
|
|
|
(b)
|
if
delivered by hand, on the day of delivery;
and
|
|
|
(c)
|
if
sent by fax, at the time of transmission provided that the sender shall
receive a successful transmission
report.
|
|
22
|
Counterparts
|
This
agreement may be executed in any number of counterparts each of which shall be
an original but which shall together constitute one and the same
instrument.
|
23
|
Process
Agent
|
The
Debtor irrevocably appoints RBC Secretaries (CI) Limited of La Motte ▇▇▇▇▇▇▇▇,
La ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as its agent to accept service of
process in Jersey of any legal action or Proceedings (as defined below), service
upon who shall be deemed completed whether or not forwarded to or received by
the Debtor. If such process agent ceases to be able to act as such or
to have an address in Jersey, the Debtor irrevocably agrees to appoint a new
process agent in Jersey acceptable to the Bank and to deliver to the Bank within
14 days a copy of a written acceptance of appointment by the process
agent. Nothing in this agreement shall affect the right to serve
process in any other manner permitted by law.
|
24
|
Governing
Law and Jurisdiction
|
|
24.1
|
This
agreement shall be governed by and construed in accordance with the laws
of Jersey and the parties hereby irrevocably agree that the courts of
Jersey are to have jurisdiction to settle any disputes which arise out of
or in connection with this agreement and that accordingly any suit, action
or proceeding arising out of or in connection with this agreement (in this
clause referred to as “Proceedings”) may be
brought in such court.
|
13
|
24.2
|
Nothing
contained in this clause shall limit the right of the Bank to take
Proceedings against the Debtor in any other court of competent
jurisdiction nor shall the taking of Proceedings in one or more
jurisdiction preclude the taking of Proceedings in any other jurisdiction,
whether concurrently or not.
|
|
24.3
|
The
Debtor irrevocably waives (and irrevocably agrees not to raise) any
objection which it may have now or hereafter to the taking of any
Proceedings in any such court as referred to in this clause and any claim
that any such Proceedings have been brought in an inconvenient forum and
further irrevocably agrees that a judgment in any Proceedings brought in
any such court as is referred to in this clause shall be conclusive and
binding upon the Debtor and may be enforced in the court of any other
jurisdiction.
|
THE PARTIES have duly executed
this agreement on the date set out at the beginning of this
agreement.
14
SCHEDULE
1
Notice
and acknowledgement
NOTICE
AND ACKNOWLEDGEMENT
|
To:
|
Deutsche
Bank International Limited (the “Custodian”)
St
Paul’s ▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
|
|
From:
|
Virgin
Entertainment Investment Holdings Limited (the “Debtor”)
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
British
Virgin Islands
|
|
And:
|
Deutsche
Bank AG, acting through its London branch (the “Bank”)
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
|
Date: [
]
|
1
|
In
this document, capitalised words and expressions shall have the same
respective meanings given to them in the security interest agreement dated
10 December 2009 made between the Debtor and the Bank a copy of which is
set out in the Annex, attached hereto (the “Security Interest
Agreement”), except where the context otherwise requires or as
defined below.
|
|
2
|
The
Bank and the Debtor hereby give the Custodian notice that, pursuant to the
Security Interest Agreement, the Debtor has assigned, transferred and/or
otherwise made over to the Bank all right, title, interest and benefit,
present and future in and to the Collateral, and the Custodian hereby
acknowledges such notice.
|
|
3
|
Accordingly
pursuant to the Security Interest Agreement, notwithstanding any provision
of the Custodian Agreement or any other agreement between the Custodian
and the Debtor, unless notified by the Bank to the contrary or as
expressly permitted by the terms of the Security Interest Agreement, the
Custodian acknowledges that all Contract Rights shall hence forth be
solely exercised by, or at the direction of the
Bank.
|
|
4
|
Without
prejudice to the generality to the foregoing, it is expressly agreed and
acknowledged that upon receipt by the Custodian of a notice from the Bank
requesting a transfer of a certain number of the Securities to a
securities account of the Bank pursuant to its Right of Use (as defined in
the Credit Support Deed
|
15
| (“CSD”)), the Custodian shall: (i) deliver the requested number of Securities from the Custody Account to the securities account specified by the Bank, and (ii) notify the Debtor of such delivery. |
|
5
|
Without
prejudice to the assignment of the Collateral and the security interest
created thereby until receipt by the Custodian of a notice from the Bank
that either an Event of Default has occurred or there is any event which
the giving of notice or the lapse of time or both would constitute an
Event of Default:
|
|
|
(a)
|
the
Custodian shall be authorised to exercise, cause to be exercised or shall
grant proxies to exercise the voting rights in respect of the Securities,
as may be directed by the Debtor provided always that the Custodian shall
notify the Bank of any circumstances when such votes may be exercised and
shall forward to the Bank any notices issued in respect of the Securities;
and
|
|
|
(b)
|
the
Custodian as directed by the Bank is authorised to pay or otherwise make
over to the Debtor such distributions as referred to under the Finance
Documents, from such sums as are credited to the Cash
Account.
|
|
6
|
Without
prejudice to the assignment of the Collateral and the security interest
created thereby, it is expressly agreed and acknowledged that, where
securities equivalent to the Securities borrowed by the Bank pursuant to
its Right of Use are re-delivered by the Bank to the Custodian pursuant to
the CSD, the Custodian shall transfer those returned securities to the
Custody Account provided the Bank has previously confirmed to the
Custodian, the account number of the Custody Account. For the
avoidance of doubt, upon their transfer to the Custody Account, such
returned securities shall comprise of the Securities which are Custody
Assets for the purposes of the Security Interest
Agreement.
|
|
7
|
The
Bank and the Debtor irrevocably and unconditionally authorise and instruct
the Custodian (notwithstanding any previous instructions of any kind which
the Debtor may have given to the Custodian) and the Custodian agrees to
disclose to the Bank and, so far as such disclosure relates to the
re-delivery of the Securities under paragraph 6 above to the Debtor, such
information relating to the Custodian Agreement and/or the Custody Assets
as the Bank or the Debtor (as the case may be) may from time to time
require.
|
|
8
|
The
Custodian hereby represents and irrevocably undertakes and agrees with the
Bank as follows:
|
|
|
(a)
|
to
send: (i) duplicate copies of any and all statements and other
confirmations concerning the Collateral; and (ii) any other appropriate
correspondence relating to the Collateral, directly to the Bank;
and
|
|
|
(b)
|
that
it will neither claim nor exercise any Encumbrance, lien, any rights of
counter-claim, rights of set-off or any other equities which it may have
against the Debtor and/or the
Collateral.
|
|
9
|
The
Custodian shall be entitled to rely
upon:
|
16
|
|
(a)
|
any
notice from the Bank (the “Notice”) which is
received in accordance with this notice and shall have no duty or
obligation to investigate or determine whether the Notice was validly
issued; and
|
|
|
(b)
|
any
instruction or request from the Bank in relation to the operation of the
Custody Account or the Cash Account by the exercise of the Contract Rights
pursuant to the Finance Documents or pursuant to this notice or the
Security Interest Agreement, that the Custodian reasonably believes to be
from the Bank and shall have no duty or obligation to investigate or
determine whether the instruction or request was validly
given.
|
|
10
|
To
the extent that there are any terms or conditions of the Custodian
Agreement which would prevent the security interests contemplated by the
Security Interest Agreement taking effect over the Collateral, the
Custodian hereby waives and disapplies such terms and
conditions.
|
|
11
|
If
there is any conflict between the terms of the Custodian Agreement and the
terms of this notice, the terms of this notice shall
prevail.
|
|
12
|
If
the Bank incurs any liability in connection with the Custodian Agreement
(including, without limitation, a liability to the Custodian for non
payment) the Custodian agrees that it shall not pursue or take action
against the Bank in relation thereto and the Debtor shall be solely liable
therefor.
|
|
13
|
This
notice may not be varied or revoked without the Bank’s prior written
consent.
|
|
14
|
This
notice may be executed in any number of counterparts and by each party on
a separate counterpart each of which counterparts when so executed and
delivered shall be an original but all such counterparts shall together
constitute one and the same
instrument.
|
|
15
|
This
notice shall be governed by and construed in accordance with the laws of
Jersey.
|
Please
sign and forward to the Bank at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ the enclosed form of acknowledgement (for the attention of ▇▇▇▇
▇▇▇▇▇).
For and
on behalf of
VIRGIN
ENTERTAINMENT INVESTMENT HOLDINGS LIMITED
For and
on behalf of
DEUTSCHE
BANK AG, ACTING THROUGH ITS LONDON BRANCH
Agreed
and acknowledged
DEUTSCHE
BANK INTERNATIONAL LIMITED
17
ANNEX
Security
Interest Agreement (Custodian Rights)
SIGNATORIES
Debtor
|
SIGNED for and on behalf
of
|
|||
|
VIRGIN ENTERTAINMENT INVESTMENT
HOLDINGS LIMITED by:
|
|||
|
Name:
|
|
||
|
Title:
|
|
Bank
|
SIGNED for and on behalf
of
|
|||
|
DEUTSCHE BANK AG, ACTING
THROUGH ITS LONDON BRANCH by:
|
|||
|
Name:
|
|
||
|
Title:
|
|