Getty Images Inc. Contracts
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Debenture - Getty Communications Ltd., Getty Images Ltd., Getty Communications Group Finance Ltd. and HSBC Investment Bank plc
THIS DEBENTURE is dated 25th October, 1999 and is made BETWEEN:
(1) THE COMPANIES identified in Schedule 1 (together with the Company and
each company which becomes a party hereto by executing a Deed of
Accession, each a "CHARGOR" and together the "CHARGORS"); and
(2) HSBC INVESTMENT BANK plc of Thames Exchange, 10 Queen Street Place,
London EC4R 1BL (the "SECURITY AGENT") as agent and trustee for itself
and each of the Secured Lenders (as defined below).
WHEREAS:
(A) The Banks (as defined in the Credit Agreement referred to below) have
agreed to make available to the Borrowers (as defined in the Credit
Agreement) certain revolving credit facilities (the "FACILITIES") on
and subject to the terms of the Credit Agreement.
(B) It is a condition precedent to the Banks making the Facilities
available that the Chargors enter into this Debenture.
(C) It is intended by the parties hereto that this document shall take
effect as a deed notwithstanding the fact that a party may only execute
this document under hand.
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Debenture:
"ACCOUNT BANK" means each of the banks or financial institutions with
whom the Security Accounts are maintained from time to time pursuant to
Clause 11;
"COLLATERAL ACCOUNT" means each account maintained from time to time by
a Chargor at such branch of the Account Bank as the Security Agent may
from time to time approve being, at the date hereof, those accounts
with such Account Bank identified in a letter of even date herewith
from the Company for itself and as agent for the other Chargors to the
Security Agent and countersigned by the Security Agent for the purposes
of identification;
"CREDIT AGREEMENT" means the credit agreement of even date herewith
between the Original Borrower, the Original Guarantors, the Arranger,
the Facility Agent (each as defined therein) and the Security Agent,
together with each Accession Agreement and Novation Certificate
relating thereto and any and each other agreement or instrument
supplementing or amending it;
"DEED OF ACCESSION" means a deed substantially in the form of Schedule
7 hereto executed, or to be executed, by a Chargor;
"DISCHARGE DATE" means the date on which the Facility Agent confirms in
writing to the Security Agent that all the Secured Liabilities arising
pursuant to or in respect of any of the
<PAGE> 2
Finance Documents have been unconditionally and irrevocably paid and
discharged in full and all commitments cancelled and that it is
satisfied (acting reasonably) that no further Secured Liabilities in
respect of any of the Finance Documents are likely to arise in respect
thereof;
"EXCLUDED INTELLECTUAL PROPERTY" means any trade names, trade marks and
service marks (whether registered or not and including all applications
for the same) which include the name or mark "GETTY", "GETTY
COMMUNICATIONS" or "GETTY IMAGES", or a design consisting of the letter
"G" in a circle and including any future trade names, trade marks and
service marks incorporating "GETTY" or the aforementioned design or
device;
"FACILITY AGENT" means HSBC Investment Bank plc in its capacity as
facility agent under the Credit Agreement and its permitted successors
and assigns;
"FIXTURES" means, in relation to any freehold or leasehold property
charged by or pursuant to this security, all fixtures and fittings
(including trade fixtures and fittings) and fixed plant and machinery
from time to time thereon owned by any Chargor;
"GROUP SHARES" means all shares specified in Schedule 4 or in the
Schedule to any Deed of Accession, or, when used in relation to a
particular Chargor, such of those shares as are specified against its
name in Schedule 4 or as are specified in the Schedule to a Deed of
Accession to which it is party, together in each case with (to the
extent allowed by applicable law) all other stocks, shares, debentures,
bonds, warrants, coupons or other securities and investments now or in
the future owned by any or (when used in relation to a particular
Chargor) that Chargor from time to time;
"HEDGING BANK" means any Bank in its capacity as the provider of
hedging facilities in accordance with the terms of the Credit
Agreement;
"HEDGING DOCUMENTS" means all currency swap, interest rate swap and/or
interest cap and/or other hedging agreements entered into or to be
entered into by any Obligor with the Hedging Bank in accordance with
the terms of the Credit Agreement in each case as, and including, any
instrument pursuant to which the same are novated, varied, supplemented
or amended from time to time;
"INSURANCES" means all contracts and policies of insurance (including,
for the avoidance of doubt all cover notes) of whatever nature which
are from time to time taken out by or on behalf of any Chargor or (to
the extent of such interest) in which any Chargor has an interest;
"INTELLECTUAL PROPERTY RIGHTS" means all know-how, patents, trade
marks, service marks, designs, business names, topographical or similar
rights, copyrights and other intellectual property rights and any
interests (including by way of licence) in any of the foregoing (in
each case whether registered or not and including all applications for
the same) but excluding any Excluded Intellectual Property;
"INTRA-GROUP LOAN DOCUMENTS" means all inter-company funding agreements
between any two or more members of the Group (including without
prejudice to the generality of the foregoing, all documentation
relating to facilities to be made available to any French Subsidiary of
the Parent) and any and each other agreement or instrument
supplementing or amending any of such documents;
<PAGE> 3
"MORTGAGED PROPERTY" means the property (other than the Security
Shares) hereby legally mortgaged and any other freehold or leasehold
property the subject of this security;
"ORIGINAL PROPERTIES" means each of the freehold and leasehold
properties individually identified in Schedule 2;
"PLANNING ACTS" means the Town and Country Planning Act 1990, the
Planning (Listed Building and Conservation Areas) Act 1990, the
Planning (Hazardous Substances) Act 1990, the Planning (Consequential
Provisions) Act 1990, the Planning and Compensation Act 1991, the Town
& Country Planning (Scotland) Act 1972 to 1977, the Local Government
and Planning (Scotland) Act 1972 and any Act or Acts for the time being
in force amending or re-enacting the same and any orders, regulations
or permissions made, issued or granted under or by virtue of such Acts
or any of them;
"PREMISES" means all buildings and erections for the time being
comprised within the definition of "Security Assets";
"REALISATIONS ACCOUNT" means each account maintained from time to time
by or in the name of the Chargors or any of them for the purposes of
Clause 13.2 at such branch or branches of an Account Bank as the
Security Agent may from time to time approve;
"RECEIVER" means a receiver and manager or (if the Security Agent so
specifies in the relevant appointment) a receiver;
"RELATED RIGHTS" means, in relation to the Group Shares, all dividends
and other distributions paid or payable after the date hereof on all or
any of the Group Shares and all stocks, shares, securities (and the
dividends or interest thereon), rights, money or property accruing or
offered at any time by way of redemption, bonus, preference, option
rights or otherwise to or in respect of any of the Group Shares or in
substitution or exchange for any of the Group Shares;
"RELEVANT AGREEMENTS" means each agreement or instrument assigned or
purported to be assigned pursuant to Clause 4.3 and/or any Deed of
Accession together with any and each other agreement or instrument
supplementing or amending any such agreement or contract;
"SECURED LENDER" means each of the Facility Agent, the Security Agent,
the Arranger, the Banks, any Hedging Bank and the Overdraft Bank
parties to or having an interest under the Finance Documents from time
to time (together the "SECURED LENDERS");
"SECURED LIABILITIES" means all present and future obligations and
liabilities (whether actual or contingent and whether owed jointly or
severally or in any other capacity whatsoever) of each Obligor to the
Secured Lenders (or any of them) under each or any of the Finance
Documents, in each case together with all costs, charges and expenses
incurred by any Secured Lender in connection with the protection,
preservation or enforcement of its respective rights under the Finance
Documents or any other document evidencing or securing any such
liabilities.
"SECURITY ACCOUNTS" means the Collateral Accounts and the Realisations
Accounts;
<PAGE> 4
"SECURITY ASSETS" means all assets, rights and property of the Chargors
or any of them the subject of any security created hereby or pursuant
hereto including, for the avoidance of doubt each Chargor's rights to
or interests in any chose in action and the Security Shares and
excluding, again for the avoidance of doubt, the Excluded Intellectual
Property;
"SECURITY DOCUMENTS" means this Debenture, each Deed of Accession and
every other document entered into by the Company or any Subsidiary
thereof pursuant to this Debenture and/or Clause 19.3 of the Credit
Agreement and the Existing Overdraft Facility;
"SECURITY PERIOD" means the period beginning on the date hereof and
ending on the Discharge Date;
"SECURITY SHARES" means the Group Shares and the Related Rights and, in
the case of each Chargor, means such of the Group Shares as are held by
it at the relevant time, together with all Related Rights in respect
thereof; and
"SHARE MORTGAGES" means the mortgages and charges created or purported
to be created by Clause 4.2 hereof and/or by any Deed of Accession.
1.2 INTERPRETATION
(a) Save as expressly herein defined, capitalised terms defined in the
Credit Agreement shall have the same meaning when used herein. Terms
defined in the recitals to this Debenture have the same meaning when
used in the remainder of this Debenture.
(b) The provisions of Clause 1.2 of the Credit Agreement shall also apply
hereto as if expressly set out herein (mutatis mutandis) with each
reference to the Credit Agreement being deemed to be a reference to
this Debenture.
(c) The terms of the other Finance Documents and of any side letters
between the parties hereto in relation to the Finance Documents are
incorporated herein to the extent required for any purported
disposition of the Mortgaged Property contained herein to be a valid
disposition in accordance with Section 2(1) of the Law of Property
(Miscellaneous Provisions) Act 1989.
(d) If the Security Agent (on the basis of legal advice received by it for
this purpose) considers that an amount paid by any Obligor to any
Secured Lender under any Finance Document is likely to be capable of
being avoided or otherwise set aside on the liquidation or
administration of such Obligor or otherwise, then such amount shall not
be considered to have been irrevocably paid for the purposes of this
Debenture.
1.3 CERTIFICATES
A certificate of the Security Agent setting forth the amount of any
Secured Liability due from any Obligor shall be prima facie evidence of
such amount against the Chargors and such Obligor in the absence of
manifest error.
<PAGE> 5
2. COVENANT TO PAY
2.1 COVENANT
Each Chargor hereby, as primary obligor and not merely as surety,
covenants with the Security Agent (as agent and trustee as aforesaid)
that it will pay or discharge the Secured Liabilities on the due date
therefor in the manner provided in the relevant Finance Document. Any
amount not paid hereunder when due shall bear interest (as well after
as before judgment and payable on demand) at the Default Rate from time
to time from the due date until the date such amount is unconditionally
and irrevocably paid and discharged in full, save to the extent that
interest at such rate on such amount for such period is charged
pursuant to the relevant Finance Document or any other Security
Document.
2.2 RIGHT OF APPROPRIATION
Upon the occurrence of an Event of Default and at any time thereafter
while the same is continuing and not expressly waived by the Facility
Agent the Security Agent (acting on the instructions of the Majority
Banks save where the Security Agent reasonably considers that the delay
which would be entailed in obtaining such instructions would materially
prejudice the interests of the Secured Lender under the Finance
Documents) shall be entitled to appropriate moneys and/or assets to
Secured Liabilities in such manner or order as it sees fit (subject to
Clause 15) and any such appropriation shall override any appropriation
by any Obligor. This Clause 2.2 shall not, however, override the
principle that (subject to Clause 15) the Secured Lenders are to share
in recoveries on a pro rata basis.
3. COVENANT TO MAKE FACILITIES AVAILABLE
Each Secured Lender, by the Security Agent's execution of this
Debenture, hereby covenants with each Obligor to the intent that each
such covenant shall be binding on each Secured Lender severally in
accordance with Clause 2.3 of the Credit Agreement (or the equivalent
provision of any other Finance Document) (in each case as if the same
applied to this Clause 3, mutatis mutandis) that each Secured Lender
will, upon and subject to the terms of the Credit Agreement (or such
other Finance Document), make the Facilities (or such other facilities
as are provided for in such other Finance Document) available to the
Borrowers and the other borrowers (party to such Finance Document) on
and subject to the terms of such Finance Document (including, without
limitation but subject as aforesaid, advances and further advances or
other financial accommodation to the extent (if at all) that the making
thereof by such Secured Lender is provided for in such Finance
Document).
4. FIXED CHARGES; ASSIGNMENTS
4.1 FIXED CHARGES
Each Chargor as beneficial owner and with full title guarantee but
subject to any Encumbrances permitted pursuant to Clause 19.6 of the
Credit Agreement, as security for the payment, discharge and
performance of all the Secured Liabilities at any time owed or due to
the Secured Lenders (or any of them), charges in favour of the Security
Agent (as agent and trustee for the Secured Lenders):
(a) by way of a first legal mortgage all the property (if any) now
belonging to it and specified in Schedule 2 and/or in the
Schedule to the Deed of Accession by which it
<PAGE> 6
became party hereto (where relevant), together with all
buildings and Fixtures thereon, the proceeds of sale of all or
any part thereof and the benefit of any covenants for title
given or entered into by any predecessor in title and any
moneys paid or payable in respect of such covenants subject,
in the case of any leasehold properties, to any necessary
third party's consent to such mortgage being obtained;
(b) by way of first legal mortgage all estates or interests in any
freehold or leasehold property and any rights under any
licence or other agreement or document which gives any Chargor
a right to occupy or use property, (except any Security Assets
specified in paragraph (a) above) wheresoever situate now
belonging to it together with all buildings and Fixtures
thereon, the proceeds of sale of all or any part thereof and
the benefit of any covenants for title given or entered into
by any predecessor in title and any moneys paid or payable in
respect of such covenants subject, in the case of any
leasehold properties, to any necessary third party's consent
to such mortgage being obtained. For the avoidance of doubt on
such consent being obtained such leasehold property shall
automatically become subject to this charge and the relevant
Chargor shall promptly enter into a supplemental legal
mortgage in favour of the Security Agent, provide evidence as
to the power and authority to enter into such supplemental
legal mortgage and that it constitutes legally binding and
enforceable obligations of the relevant Chargor in each case
in such form as the Security Agent may reasonably require;
(c) by way of first fixed charge:
(i) (to the extent that the same are not the subject of a
mortgage under paragraphs (a) and/or (b) above) all
present and future estates or interests in any
freehold or leasehold property and any rights under
any licence or other agreement or document which
gives any Chargor a right to occupy or use property,
wheresoever situate now or hereafter belonging to it
together with all buildings and Fixtures thereon, the
proceeds of sale of all or any part thereof and the
benefit of any covenants for title given or entered
into by any predecessor in title and any moneys paid
or payable in respect of such covenants, subject, in
the case of any leasehold properties, to any
necessary third party's consent to such charge being
obtained;
(ii) all plant and machinery (to the extent not mortgaged
under paragraph (a) above), computers and vehicles
now or in the future owned by it and its interest in
any plant, machinery, computers or vehicles in its
possession other than any for the time being part of
such Chargor's stock in trade or work in progress;
(iii) all moneys (including interest) from time to time
standing to the credit of each of its present and
future accounts (including, without limitation, the
Security Accounts) with any bank, financial
institution or other person and the debts represented
thereby, provided that without prejudice to any other
provision of this Clause 4 any such monies paid out
of such accounts without breaching the terms of the
Finance Documents and not paid into another such
account in the name of a Chargor shall be released
from the fixed charge effected by this sub-paragraph
(iii) upon the proceeds being so paid out;
<PAGE> 7
(iv) (to the extent not effectively assigned under Clause
4.3) all benefits in respect of the Insurances and
all claims and returns of premiums in respect
thereof;
(v) all of its present and future book and other debts,
all other moneys due and owing to it or which may
become due and owing to it at any time in the future
and the benefit of all rights, securities and
guarantees of any nature whatsoever now or at any
time enjoyed or held by it in relation to any of the
foregoing including in each case the proceeds of the
same, provided that without prejudice to any other
provision of this Clause 4 (and in particular but
without limitation to sub-paragraph (iii) above) such
proceeds shall be released automatically from the
fixed charge effected by this sub-paragraph (v) upon
those proceeds being credited to any Security
Account;
(vi) (to the extent that the same do not fall within any
other sub-paragraph of this paragraph (c) and are not
effectively assigned under Clause 4.3) all of its
rights and benefits under each of the Relevant
Agreements, all bills of exchange and other
negotiable instruments held by it, and (subject to
any necessary third party's consent to such charge
being obtained) any distributorship or agreement for
the licensing of Intellectual Property Rights or
similar agreements entered into by it and any letters
of credit issued in its favour;
(vii) any beneficial interest, claim or entitlement of it
to any assets of any pension fund;
(viii) its present and future goodwill;
(ix) the benefit of all present and future licences,
permissions, consents and authorisations (statutory
or otherwise) held in connection with its business or
the use of any of the Security Assets specified in
paragraphs (a) and (b) and sub-paragraph (i) above
and the right to recover and receive all compensation
which may at any time become payable to it in respect
thereof;
(x) its present and future uncalled capital; and
(xi) all its present and future Intellectual Property
Rights (including, without limitation, those patents
and trade marks and designs, if any, specified in
Schedule 5 and/or the Schedule to the Deed of
Accession by which it became party hereto (where
relevant)) owned by it, subject to any necessary (as
at the date of this Debenture) third party's consent
to such charge being obtained. To the extent that any
such Intellectual Property Rights are not capable of
being charged (whether by reason of lack of any such
consent as aforesaid or otherwise) the charge thereof
purported to be effected by this Clause 4.1(c)(xi)
shall operate as an assignment of any and all
damages, compensation, remuneration, profit, rent or
income which any Chargor may derive therefrom or be
awarded or entitled to in respect thereof, as
continuing security for the payment, discharge and
performance of the Secured Liabilities.
<PAGE> 8
Provided that any property or assets situate in Scotland and
any property or assets the rights in and to which are governed
by the laws of Scotland shall be excluded from the mortgages
and charges created or effected by paragraphs (a) to (c)
inclusive above and provided further that the Excluded
Intellectual Property which are presently or may in the future
be owned or used by any of the Chargors shall be excluded from
the mortgages and charges created or effected by paragraphs
(a) to (c) inclusive above.
4.2 CHARGES ON SHARES
Each Chargor, as beneficial owner and with full title guarantee, hereby
as continuing security for the payment, discharge and performance of
all the Secured Liabilities at any time owed or due to the Secured
Lenders (or any of them):
(a) mortgages and charges and agrees to mortgage and charge to the
Security Agent (as agent and trustee for the Secured Lenders)
all Group Shares held now or in the future by it and/or any
nominee on its behalf, the same to be a security by way of a
first mortgage; and
(b) mortgages and charges and agrees to mortgage and charge to the
Security Agent (as agent and trustee for the Secured Lenders)
all the Related Rights accruing to all or any of the Group
Shares held now or in the future by it and/or any nominee on
its behalf, the same to be a security by way of a first
mortgage or charge.
PROVIDED THAT:
(i) whilst no Event of Default exists, all dividends and
other distributions paid or payable as referred to in
paragraph (b) above may be paid directly to the
relevant Chargor (in which case the Security Agent or
its nominee shall execute any necessary dividend
mandate) and, if paid directly to the Security Agent,
shall be paid promptly by it to the relevant Chargor;
and
(ii) subject to Clause 10.2, whilst no Event of Default
exists (including any Event of Default expressly
waived by the Facility Agent), all voting rights
attaching to the relevant Group Shares may be
exercised by the relevant Chargor or, where the
shares have been registered in the name of the
Security Agent or its nominee, as the relevant
Chargor may direct in writing, and the Security Agent
and any nominee of the Security Agent in whose name
such Group Shares are registered shall execute any
form of proxy or other document reasonably required
in order for the relevant Chargor to do so.
4.3 ASSIGNMENTS
(a) Each Chargor as beneficial owner and with full title guarantee but
subject to any Encumbrance permitted pursuant to the Credit Agreement,
as continuing security for the payment, discharge and performance of
all the Secured Liabilities at any time owed or due to the Secured
Lenders (or any of them), hereby assigns and agrees to assign to the
Security Agent (as agent and trustee for the Secured Lenders) all its
right, title and interest (if any) in and to:
<PAGE> 9
(i) the Insurances;
(ii) the Acquisition Agreements;
(iii) the Hedging Documents; and
(iv) the Intra-Group Loan Documents.
(b) Each Chargor shall forthwith give notice of each such assignment of its
right, title and interest (if any):
(i) in and to the Insurances, by sending a notice in the form of
Part I of Schedule 3 (with such amendments as the Security
Agent may agree) duly completed to each of the other parties
to the Insurances; and
(ii) in and to the other Relevant Agreements, by sending a notice
substantially in the form of Part III of Schedule 3 (with such
amendments as the parties may agree) to each of the other
parties thereto,
and the Company and each Chargor shall use its reasonable endeavours to
procure that within 14 days of the date hereof each such other party
delivers a letter of undertaking to the Security Agent in the form of
Part II of Schedule 3 (in the case of the Insurances) or in the form of
Part IV of Schedule 3 (in the case of each of the other Relevant
Agreements), in each case with such amendments as the Security Agent
may agree.
This Debenture constitutes notice in writing to each Chargor of any
charge or assignment of a debt owed by that Chargor to any other member
of the Group contained in this Debenture.
(c) To the extent that any such right, title and interest described in
paragraphs (a) and (b) of this Clause 4.3 is not assignable or capable
of assignment, the assignment thereof purported to be effected by
paragraph (a) shall operate as:
(i) in the case of the Insurances, an assignment of any and all
proceeds of the Insurances received by each Chargor; and
(ii) in the case of the other Relevant Agreements, an assignment of
any and all damages, compensation, remuneration, profit, rent
or income which any Chargor may derive therefrom or be awarded
or entitled to in respect thereof,
in each case as continuing security for the payment, discharge and
performance of all the Secured Liabilities at any time owed or due to
the Secured Lenders (or any of them).
(d) Whilst no Event of Default exists (i) the Security Agent shall permit
the relevant Chargor to exercise its rights (other than to receive
payment of money) under any Relevant Agreement to which it is party,
provided that the exercise of these rights in the manner proposed would
not result in a Default under the terms of the Finance Documents and
(ii) any payments received by the Security Agent under or in respect of
the Relevant Agreements by virtue of this Debenture shall be paid by
the Security Agent to the relevant Chargor save to the extent required
by the terms of the Credit Agreement to be applied against any of the
Secured Liabilities.
<PAGE> 10
4.4 MISCELLANEOUS
(a) The fact that no or incomplete details of properties are included or
inserted in Schedule 2 or in the Schedule to the Deed of Accession (if
any) by which any Chargor became party hereto shall not affect the
validity or enforceability of the charges created by this Debenture
(including, without limitation, the charges created by paragraphs (a),
(b) and (c)(i) of Clause 4.1 and the charge created by Clause 5.1).
(b) The omission from Schedule 5 or from the Schedule to the Deed of
Accession (if any) by which any Chargor became party hereto of details
of any Intellectual Property Rights owned or enjoyed by any Chargor
shall not affect the validity or enforceability of the security created
by this Debenture over such Intellectual Property Rights, provided, for
the avoidance of doubt, that (save as created by Clause 5) no security
is created by this Debenture over any Excluded Intellectual Property.
5. FLOATING CHARGES
5.1 CREATION OF FLOATING CHARGES
Each Chargor as beneficial owner and with full title guarantee subject
to any Encumbrance permitted under the Credit Agreement, as security
for the payment, discharge and performance of all the Secured
Liabilities, charges in favour of the Security Agent (as agent and
trustee for the Secured Lenders) by way of a first floating charge all
its undertaking and assets whatsoever and wheresoever both present and
future including, without limitation, any undertaking and assets
situated in Scotland (whether or not the same may be mortgaged or
charged by way of standard security)), subject always to all mortgages,
fixed charges and assignments created by or pursuant to Clause 4 or any
other provision of this Debenture.
5.2 RESTRICTIONS ON DEALING
Each Chargor undertakes to each Secured Lender that, save as expressly
permitted under the terms of this Debenture and the Credit Agreement,
it will not:
(a) create or permit to subsist any Encumbrance over all or any of
its assets, rights or property other than pursuant to this
Debenture or any other Security Document; or
(b) part with, lease, sell, transfer, assign or otherwise dispose
of or agree to part with, lease, sell, transfer, assign or
otherwise dispose of all or any part of its assets, rights or
property or any interest therein,
PROVIDED THAT if any Chargor gives notice to the Security Agent that
such Chargor is required to dispose of or release any Excluded
Intellectual Property Right, the Security Agent and each Secured Lender
shall forthwith, at the cost of the Chargors, execute and do all such
deeds, acts and things as may be necessary to release such Excluded
Intellectual Property Right from the security constituted hereby,
whether or not the security created hereby has become enforceable.
<PAGE> 11
5.3 CONVERSION OF FLOATING CHARGE
(a) The Security Agent may by notice to any Chargor convert the floating
charge hereby created into a specific charge as regards all or any of
such Chargor's assets, rights and property (except to the extent that
any such conversion is ineffective under Scots law in respect of any
such assets, rights and property situated in Scotland and except in
respect of the Excluded Intellectual Property) specified in the notice:
(i) if an Event of Default has occurred and is continuing and not
expressly waived by the Facility Agent; or
(ii) if the Security Agent in good faith considers such assets,
rights or property to be in reasonably forseeable danger of
being seized or sold under any form of distress, attachment,
execution or other legal process or to be otherwise in
jeopardy; or
(iii) if the Security Agent becomes aware or has reason to believe
that steps have been taken which would, in the reasonable
opinion of the Security Agent, be reasonably likely to lead to
the presentation of a petition to appoint an administrator in
relation to such Chargor (or such an administrator has been
appointed) or to wind up such Chargor or that any such
petition has been presented, which in the reasonable opinion
of the Security Agent is likely to result in the winding up of
such Chargor or the appointment of such an administrator; or
(iv) if such Chargor fails to comply, or takes or threatens to take
any action which in the reasonable opinion of the Security
Agent is likely to result in it failing to comply with its
obligations under Clause 5.2 of this Debenture.
(b) The floating charge hereby created shall (in addition to the
circumstances in which the same will occur under general law)
automatically be converted into a fixed charge over the assets, rights
and property of any Chargor (other than the Excluded Intellectual
Property) on the convening of any meeting of the members of such
Chargor to consider a resolution to wind such Chargor up (or not to
wind such Chargor up) provided that this Clause 5.3(b) shall not apply
to any Chargor's undertaking and assets situate in Scotland if, and to
the extent that, a Receiver would not be capable of exercising his
powers in Scotland pursuant to Section 72 of the Insolvency Act 1986 by
reason of such automatic conversion.
(c) The giving by the Security Agent of a notice pursuant to paragraph (a)
above in relation to any class of any Chargor's assets, rights and
property shall not be construed as a waiver or abandonment of the
Security Agent's rights to give other similar notices in respect of any
other class of assets or of any other of the rights of the Secured
Lenders (or any of them) hereunder or under any of the other Finance
Documents.
6. CONTINUING SECURITY, ETC.
6.1 CONTINUING SECURITY
The security constituted by this Debenture shall be continuing and will
extend to the ultimate balance of all sums payable by the Obligors
under the Finance Documents, regardless of any intermediate payment or
discharge in whole or in part.
<PAGE> 12
6.2 BREAKING OF ACCOUNTS
If for any reason the security constituted hereby ceases to be a
continuing security in respect of any Obligor (other than by way of
discharge of such security), the Secured Lenders (and each or any of
them) may open a new account with or continue any existing account with
such Obligor and the liability of each Chargor in respect of the
Secured Liabilities relating to such Obligor at the date of such
cessation shall remain regardless of any payments in or out of any such
account.
6.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any
Obligor or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of each Chargor under this Debenture shall continue as if
the discharge or arrangement had not occurred.
(b) The Security Agent (acting reasonably) may (having taken appropriate
legal advice) concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.
6.4 WAIVER OF DEFENCES
(a) The liability of each Chargor hereunder will not be affected by any
act, omission, circumstance, matter or thing which but for this
provision would release or prejudice any of its obligations hereunder
or prejudice or diminish such obligations in whole or in part,
including without limitation and whether or not known to the Company,
any other Chargor, any Secured Lender or any other person whatsoever:
(i) any time, indulgence or waiver granted to, or composition
with, any Obligor or any other person; or
(ii) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect or take up or
enforce any rights or remedies against, or any security over
assets of, any Obligor or any other person or any
non-presentment or non-observance of any formality or other
requirement in respect of any instruments or any failure to
realise the full value of any other security; or
(iii) any legal limitation, disability, incapacity or lack of
powers, authority or legal personality of or dissolution or
change in the members or status of or other circumstance
relating to, any Obligor or any other person; or
(iv) any variation (however fundamental and whether or not
involving any increase in the liability of any Obligor
thereunder) or replacement of a Finance Document or the
Acquisition Agreements or any other document or security so
that references to that Finance Document or the Acquisition
Agreements or other documents or security in this Debenture
shall include each such variation or replacement; or
(v) any unenforceability, illegality, invalidity or frustration of
any obligation of any Obligor or any other person under any
Finance Document or the Acquisition Agreements or any other
document or security, or any failure of any other Obligor or
<PAGE> 13
proposed Obligor to become bound by the terms of any Finance
Document or the Acquisition Agreements, in each case whether
through any want of power or authority or otherwise; or
(vi) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Obligor under a Finance Document or the Acquisition Agreements
resulting from any insolvency, liquidation or dissolution
proceedings or from any law, regulation or order,
to the intent that each Chargor's obligations under this Debenture
shall remain in full force, and this Debenture be construed
accordingly, as if there were no such circumstance, act, variation,
limitation, omission, unenforceability, illegality, matter or thing.
No Secured Lender shall be concerned to see or investigate the powers
or authorities of any of the Chargors or their respective officers or
agents, and moneys obtained or Secured Liabilities incurred in
purported exercise of such powers or authorities or by any person
purporting to be an Obligor shall be deemed to form a part of the
Secured Liabilities, and "Secured Liabilities" shall be construed
accordingly.
(b) For the avoidance of doubt, each Chargor shall be bound by this
Debenture notwithstanding the fact that not all of the other members of
the Group may have executed this Debenture and/or any of the other
Security Documents required by the terms of the Finance Documents to be
entered into by it or that any such document which has been entered
into may be invalid, unenforceable or otherwise ineffective.
6.5 IMMEDIATE RECOURSE
Each Chargor waives any right it may have of first requiring any
Secured Lender to proceed against or enforce any other rights or
security before enforcing the security constituted hereby.
6.6 APPROPRIATIONS
Until all the Secured Liabilities have been unconditionally and
irrevocably paid and discharged in full, each Secured Lender may:
(a) refrain from applying or enforcing any other moneys, security
or rights held or received by it in respect of the Secured
Liabilities or apply and enforce the same in such manner and
order as it sees fit (whether against the Secured Liabilities
or otherwise) and no Chargor shall be entitled to the benefit
of the same; and
(b) hold in a suspense account any moneys received from any
Obligor or on account of any Obligor's liability in respect of
the Secured Liabilities. Amounts standing to the credit of any
such suspense account shall bear interest at a rate considered
by such Secured Lender (acting reasonably) to be a fair market
rate.
6.7 NON-COMPETITION
Until all the Secured Liabilities have been unconditionally and
irrevocably paid and discharged in full no Chargor shall by virtue of
any payment made, security realised or
<PAGE> 14
moneys received or recovered under any of the Finance Documents for or
on account of the liability of any other Obligor(s):
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Secured Lender or be entitled to any
right of contribution or indemnity; or
(b) claim, rank, prove or vote as a creditor of any Obligor or its
estate in competition with any Secured Lender; or
(c) unless the Security Agent directs it to do so after an Event
of Default has occurred and is continuing, receive, claim or
have the benefit of any payment, distribution or security from
or on account of any Obligor, or exercise any right of set-off
as against any Obligor.
Each Chargor will hold in trust for and forthwith pay or transfer to
the Security Agent (acting as agent and trustee as aforesaid) any
payment or distribution or benefit of security received by it contrary
to the above. If any Chargor exercises any right of set-off contrary to
the above, it will forthwith pay an amount equal to the amount set off
to the Security Agent (acting as agent and trustee as aforesaid).
6.8 ADDITIONAL SECURITY
This Debenture is in addition to and is not in any way prejudiced by
any other security now or hereafter held by any Secured Lender.
6.9 SECURITY HELD BY CHARGOR
No Chargor will without the prior written consent of the Security Agent
hold any security from any other Obligor in respect of such Chargor's
liability hereunder. Each Chargor will hold any security held by it in
breach of this provision on trust for the Security Agent (as agent and
trustee as aforesaid).
7. REPRESENTATIONS AND WARRANTIES
7.1 TO WHOM MADE
Each Chargor makes the representations and warranties set out in the
balance of this Clause 7 to each Secured Lender.
7.2 MATTERS REPRESENTED
(a) THE MORTGAGED PROPERTY
(i) the Chargor named as owner in respect of each property in
Schedule 2 or in the Schedule to the Deed of Accession (if
any) by which it became party hereto is the legal and
beneficial owner of such property;
(ii) there subsists no material breach of any Planning Acts,
bye-laws or local authority or statutory requirements or
covenant which affects or is reasonably likely materially and
adversely to affect the value, saleability or use of the
Mortgaged Property;
<PAGE> 15
(iii) all covenants (whether affecting the freehold or leasehold
titles to the Mortgaged Property) have been properly performed
and observed and no Chargor has received notice of any
outstanding breach of covenant as regards the Mortgaged
Property which is reasonably likely to have a material adverse
effect on the value or saleability of, or any Chargor's right
to use, the Mortgaged Property;
(iv) the Mortgaged Property is free from Encumbrances or third
party rights of any kind whatever other than as created in
favour of the Security Agent hereunder and other Encumbrances
permitted under the Credit Agreement;
(v) there is no covenant, restriction, burden, stipulation or
outgoing (other than usual business outgoings) affecting the
Mortgaged Property which is of an onerous or unusual nature
(either generally or in the context of the present use of such
Mortgaged Property) or which conflicts with its present use or
adversely affects the value or saleability of the Mortgaged
Property in each case to a material extent;
(vi) the Mortgaged Property identified in Schedule 2 or in the
Schedule to the Deed of Accession (if any) by which any
Chargor became party hereto is served by drainage, water, and
electricity services, all of which are connected to the mains
by media located entirely on, in or under that Mortgaged
Property or by media elsewhere in respect of the use of which
the relevant Chargor and those deriving title under it to that
Mortgaged Property have a permanent legal easement free from
onerous or unusual conditions (either generally or in the
context of the present use of such Mortgaged Property) and the
passage and provision of those services is uninterrupted and
the Company and each of the other Chargors knows of no
imminent or likely material interruption of such passage or
provision, in each case where failure to be so connected or to
have such an easement would have a Material Adverse Effect
and/or would be reasonably likely to materially and adversely
affect the value, saleability or use of the Mortgaged
Property;
(vii) the means of access to and egress from the Mortgaged Property
are either direct to roads which have been adopted by the
local authority and are maintainable at public expense or
roads in respect of the use of which the relevant Chargor and
those deriving title under it to that Mortgaged Property have
a permanent legal easement free from onerous or unusual
conditions (either generally or in the context of the present
or intended use by any Chargor of such road), which roads
connect directly to roads which have been adopted by the local
authority and are maintainable at public expense;
(viii) there are no disputes regarding boundaries, easements
covenants or other matters relating to the Mortgaged Property
or its use which if adversely determined would have a Material
Adverse Effect and/or would be reasonably likely to materially
and adversely affect the value, saleability or use of the
Mortgaged Property;
(ix) nothing has arisen or been created or is subsisting which
would be an overriding interest over the Mortgaged Property
which would materially and adversely affect the security over
the Mortgaged Property enjoyed by the Secured Lenders or the
value, saleability or use of the Mortgaged Property or which
would have a Material Adverse Effect;
<PAGE> 16
(x) no facilities necessary for the enjoyment and use of the
Mortgaged Property and/or the carrying on of the business at
the Mortgaged Property (including, without limitation, access
to and egress from the Mortgaged Property) the lack of which
would have a Material Adverse Effect and/or would be
reasonably likely to materially and adversely affect the
value, saleability or use of the Mortgaged Property are
enjoyed on terms entitling any person to terminate or curtail
its or their use (in the absence of breach by any Chargor of
any such terms) or on terms which conflict with or materially
restrict its present use;
(xi) no Chargor has received notice of any adverse claims by any
person in respect of the ownership of the Mortgaged Property
or any interest therein which if adversely determined would
have a Material Adverse Effect and/or would be reasonably
likely materially and adversely to affect the value,
saleability or use of the Mortgaged Property, nor has any
acknowledgement been given to any person in respect thereof;
and
(xii) the Mortgaged Property is free from any tenancies or licences
to occupy, in each case which would have a Material Adverse
Effect and/or which would be reasonably likely to materially
and adversely affect the value, saleability or use of such
Mortgaged Property.
(b) SECURITY SHARES
(i) It is and will (save as otherwise permitted by the Credit
Agreement) remain the sole beneficial owner of the Security
Shares and save where the Security Shares have been registered
in the name of the Security Agent or its nominee pursuant
hereto, it and/or its nominee is and will (save as otherwise
permitted by the Credit Agreement) remain the absolute legal
owner of the Security Shares.
(ii) It has not transferred, assigned, pledged or in any way
encumbered the Security Shares other than pursuant to this
Debenture.
(iii) The Share Mortgages constitute first priority security
interests over the Security Shares and the Related Rights
which are not subject to any prior or pari passu Encumbrances.
(iv) The relevant Group Shares constitute, and until payment in
full of all Secured Liabilities will continue to constitute,
all of the outstanding issued shares of the company in which
the relevant Group Shares are held.
(v) It will not take any action whereby the rights attaching to
the Security Shares are altered or diluted.
(vi) The Group Shares are fully paid and non-assessable and neither
the Group Shares nor the Related Rights are subject to any
options to purchase or similar rights of any person.
(c) SECURITY
<PAGE> 17
Subject to the Reservations, this Debenture (i) constitutes its legally
binding obligations enforceable in accordance with its terms, (ii)
creates those Encumbrances it purports to create, and (iii) is not
liable to be avoided or otherwise set aside on its liquidation or
administration or otherwise.
7.3 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 7:
(a) will survive the execution of each Finance Document and the
making of each Utilisation under the Credit Agreement; and
(b) are made on the date hereof and are deemed to be repeated on
each date during the Security Period on which any of the
representations and warranties set out in Clause 18.1 of the
Credit Agreement are repeated, with reference to the facts and
circumstances then existing.
8. UNDERTAKINGS
8.1 DURATION AND WITH WHOM MADE
The undertakings in this Clause 8:
(a) shall remain in force throughout the Security Period; and
(b) are given by each Chargor to each Secured Lender.
8.2 GENERAL UNDERTAKINGS
COVENANT TO PERFORM. Each Chargor shall at all times comply with the
terms (express or implied) of this Debenture and of all contracts
relating to the Secured Liabilities.
8.3 UNDERTAKINGS RELATING SPECIFICALLY TO THE SECURITY ASSETS
(a) BOOK DEBTS AND RECEIPTS. Each Chargor will:
(i) get in and realise such Chargor's:
(A) securities to the extent held by way of temporary
investment,
(B) book and other debts and other moneys, and
(C) royalties, fees and income of like nature in relation
to the assets specified in Clause 4.1(c)(xi),
in each case in the ordinary course of its business and hold
the proceeds of such getting in and realisation (until payment
into the Collateral Account(s) in accordance with
sub-paragraph (ii) below) upon trust for the Security Agent
(as agent and trustee as aforesaid);
<PAGE> 18
(ii) save to the extent that the Security Agent otherwise agrees in
writing, pay the proceeds of such getting in and realisation
into a Collateral Account;
(iii) save to the extent that the Security Agent otherwise consents
in writing, not withdraw all or any moneys (including
interest) standing to the credit of any Collateral Account;
and
(iv) not assign or otherwise transfer and not create or permit to
exist any Encumbrance (other than an Encumbrance created
pursuant to the Security Documents or expressly permitted by
the terms of the Credit Agreement) over any of the property or
assets referred to in (i) above or over any Collateral Account
or any interest therein.
(b) DEPOSIT OF SECURITIES. Each Chargor shall forthwith deposit with the
Security Agent or as the Security Agent may direct all bearer
instruments, share certificates and other documents of title or
evidence of ownership in relation to such Group Shares as are owned by
it or in which it has or acquires an interest and their Related Rights
(if any) and shall execute and deliver to the Security Agent all such
share transfers and other documents as may be requested by the Security
Agent in order to enable the Security Agent or its nominees to be
registered as the owner or otherwise to obtain a legal title to the
same and, without limiting the generality of the foregoing, shall
deliver to the Security Agent on the date hereof executed (and, if
required to be stamped, pre-stamped) share transfers for all Group
Shares in favour of the Security Agent and/or its nominee(s) as
transferees or, if the Security Agent so directs, with the transferee
left blank and shall procure that all such share transfers are at the
request of the Security Agent forthwith registered by the relevant
company and that share certificates in the name of the Security Agent
and/or such nominee(s) in respect of all Group Shares are forthwith
delivered to the Security Agent. Each Chargor shall provide the
Security Agent with certified copies of all resolutions and
authorisations approving the execution of such transfer forms and
registration of such transfers as the Security Agent may reasonably
require.
(c) INTELLECTUAL PROPERTY RIGHTS. Each Chargor will promptly upon being
required to do so by the Security Agent, sign or procure the signature
of, and comply with all reasonable instructions of the Security Agent
in respect of, any document reasonably required to record the interest
of the Secured Lenders on any appropriate register.
8.4 MAINTENANCE OF PROPERTY
Each Chargor will, and will procure that each other Chargor will:
(a) REPAIR keep all material Premises in good and substantial
repair and condition and put and keep the Fixtures and all
material plant, machinery, computers, vehicles, implements and
other effects for the time being owned by it and which are in
or upon the Premises or elsewhere in a good state of repair
and in good working order and condition;
(b) INSURANCE at all times comply with its obligations as to
insurance set out in the Credit Agreement and in particular
(but without limitation) Clause 19.21 (Insurance) thereof;
<PAGE> 19
(c) COMPLIANCE WITH LEASES if due pay (if the lessee) the rents
reserved by and (in any event) perform and observe in all
material respects all the covenants, agreements and
stipulations on the part of such Chargor contained in any
lease, agreement for lease, licence or other document which
gives any Chargor a right to occupy or use any part of the
Mortgaged Property (together the "OCCUPATIONAL LEASES") and
not to do or suffer to be done any act or thing whereby any
Occupational Lease may become liable to forfeiture or
otherwise be determined prior to the expiration of its term;
(d) TAXES AND OUTGOINGS pay all Taxes, rates, duties, charges,
assessments and outgoings whatsoever (whether parliamentary,
parochial, local or of any other description) due and payable
by it within a reasonable time of the relevant due date in
accordance with the practice in the relevant jurisdiction and
prior to the accrual of any material fine or penalty or fine
for late payment (save to the extent that payment of the fine
is being contested in good faith and adequate reserves are
being maintained therefor) and save where non-payment will not
have a Material Adverse Effect;
(e) ACQUISITIONS AND LEGAL MORTGAGE notify the Security Agent in
writing forthwith upon the acquisition by such Chargor from
time to time of any freehold or leasehold property (including,
without limitation, by the exercise of such Chargor of any
option to acquire any freehold or leasehold property) or of
any agreement or option to acquire any freehold or leasehold
property or any licence or other right to occupy or use the
same and, on demand made to such Chargor by the Security Agent
and at the cost of such Chargor, execute and deliver to the
Security Agent a legal mortgage in favour of the Security
Agent (as agent and trustee as aforesaid) of any freehold and
leasehold properties which become vested in it after the date
hereof and all Fixtures thereon, the proceeds of sale of any
parts of these properties and the benefit of any covenants for
title given or entered into by a predecessor in title of the
Chargor and any moneys paid or payable in respect of those
covenants, to secure the payment or discharge of the Secured
Liabilities in such form (consistent with, and no more onerous
than, this Debenture) as the Security Agent may require. In
the case of any leasehold property in relation to which the
consent of the landlord in whom the reversion of that lease is
vested is required in order for such Chargor to perform any of
the foregoing obligations, such Chargor shall not be required
to perform that particular obligation unless and until it has
obtained the landlord's consent (which it shall use its
reasonable endeavours to do);
(f) USER use the Mortgaged Property only for such purpose or
purposes as may for the time being be authorised as the
permitted use or user thereof under or by virtue of the
Planning Acts and all title deeds relating to the Mortgaged
Property save where any failure to comply with this covenant
would not have a Material Adverse Effect;
(g) NOTICES within 14 days after the receipt by such Chargor of
any application, requirement, order or notice served or given
by any public or local or any other authority with respect to
the Security Assets (or any part thereof) which would have a
Material Adverse Effect, give written notice thereof to the
Security Agent and also (within seven days after demand)
produce the same or a copy thereof to the Security Agent and
inform it of the steps taken or proposed to be taken to comply
with, or dispute, any requirement thereby made or implicit
therein;
<PAGE> 20
(h) LEASES not without the previous consent in writing of the
Security Agent (not to be unreasonably withheld where the
Mortgaged Property is not required for its business) grant or
agree to grant (whether in exercise or independently of any
statutory power) any lease or tenancy of the Mortgaged
Property or any part thereof or accept a surrender of any
lease or tenancy or confer upon any person any contractual
licence or right to occupy the Mortgaged Property;
(i) H.M. LAND REGISTRY in respect of any freehold or leasehold
property which is hereafter acquired by such Chargor the title
to which is registered at H.M. Land Registry or the title to
which is required to be so registered, give such Registry
written notice of this Debenture and procure that notice of
these presents is duly noted in the Register to each such
title;
(j) DEPOSIT OF TITLE DEEDS deposit with (or arrange for the same
to be held by a person approved by the Security Agent to the
order of) the Security Agent all deeds and documents of title
relating to the Mortgaged Property and all Local Land Charges,
Land Charges and Land Registry Search Certificates and similar
documents received by or on behalf of such Chargor (and it is
hereby agreed that the Security Agent shall be entitled to
hold the same during the Security Period);
(k) ACCESS duly and punctually perform and observe all covenants
and stipulations restrictive or otherwise affecting all or any
part of the Mortgaged Property and all or any facilities
necessary for the enjoyment and use of the Mortgaged Property
and/or the carrying on of the business at the Mortgaged
Property, including without limitation access to and egress
from the Mortgaged Property, and indemnify the Security Agent
and each Secured Lender in respect of any breach thereof and
permit the Security Agent and any person nominated by it at
all reasonable times during normal business hours on
reasonable notice to enter upon the Mortgaged Property and
view the state of the same;
(l) INVESTIGATION OF TITLE grant the Security Agent or its lawyers
on request all such facilities within the power of such
Chargor to enable such lawyers (at the expense of such
Chargor) to carry out investigations of title to any property
(other than any of the Original Properties) which is or may be
subject to this security and enquiries into matters in
connection therewith as may be carried out by a prudent
mortgagee; and
(m) REPORT ON TITLE forthwith on demand by the Security Agent,
provide the Security Agent with a report as to the title of
such Chargor to any property which is or may be subject to
this security and related matters concerning the items which
may properly be sought to be covered by a prudent mortgagee in
a lawyer's report of this nature.
8.5 FURTHER NEGATIVE PLEDGE PROVISION
If any Chargor creates or permits to subsist any Encumbrance in breach
of the provisions of Clause 5.2(a) or Clause 8.3(a)(iv) of this
Debenture or Clause 19.6 of the Credit Agreement, then, to the extent
possible under applicable law, all the obligations of such Chargor
under each of the Finance Documents shall automatically and immediately
be secured upon the same assets equally and rateably with the other
obligations secured thereon.
<PAGE> 21
8.6 CONSENTS
Each Chargor will, and the Company will procure that each other Chargor
will, promptly after the date hereof provide the Security Agent with a
list of all those consents necessary to enable any of the property or
assets of such Chargor to be fully and effectively charged pursuant to
Clause 4.1 of this Debenture and/or the right, title and interest of
any Chargor in any of the Relevant Agreements to be assigned to the
Security Agent pursuant to Clause 4.3 of this Debenture. Each Chargor
will, and will procure that each other Chargor will, forthwith use all
reasonable endeavours to obtain any landlord's or other third party
consents (and will provide copies of any such consents to the Security
Agent) which are necessary to enable any of the property or assets of
such Chargor to be fully and effectively charged pursuant to Clause 4.1
of this Debenture or to enable any of the right, title and interest of
any Chargor in any of the Relevant Agreements to be fully and
effectively assigned to the Security Agent pursuant to Clause 4.3 of
this Debenture.
9. POWER TO REMEDY
In case of default by any Chargor in repairing or keeping in repair or
insuring the Mortgaged Property or any part thereof or in observing or
performing any of the covenants or stipulations affecting the same as
required by this Debenture, such Chargor will permit the Security Agent
or its agents and contractors to enter on the Mortgaged Property and to
comply with or object to any notice served on such Chargor in respect
of the Mortgaged Property and to effect such repairs or insurance or
generally do such things or pay all such costs, charges and expenses as
the Security Agent may (acting reasonably) consider reasonably
necessary or desirable to prevent or remedy any breach of covenant or
stipulation or to comply with or object to any notice. Each Chargor
will indemnify and keep the Security Agent indemnified against all
losses, costs, charges and expenses reasonably incurred in connection
with the exercise of the powers contained in this Clause 9.
10. SPECIAL PROVISIONS RELATING TO THE SECURITY SHARES
10.1 REGISTRATION ON TRANSFER
Each Chargor hereby authorises the Security Agent (at any time) to
arrange for the Security Shares to be delivered to any nominee for the
Security Agent or any purchaser or transferee (under the powers of
realisation herein conferred) or registered as the Security Agent may
(acting reasonably) feel appropriate to perfect the security thereover
and to transfer or cause the Security Shares to be transferred to and
registered in the name of any suitably qualified nominees of the
Security Agent (as agent and trustee, as aforesaid) and each Chargor
undertakes from time to time promptly to execute and sign all
transfers, contract notes, powers of attorney and other documents (and
promptly to register any such transfer of the Security Shares in the
shareholders' register of the company in which the Security Shares are
held) which the Security Agent may reasonably require for perfecting
its title to any of the Security Shares or for vesting the same in
itself or its nominee or in any purchasers or transferees (under the
powers of realisation herein conferred).
10.2 POWERS
The Security Agent and its nominee may at any time after an Event of
Default has occurred and has not been expressly waived by the Facility
Agent or in any other instance where the Security Agent is of the
reasonable opinion that it is necessary for the avoidance of an Event
<PAGE> 22
of Default or necessary for the protection of its material interests or
the material interests of some or all of the Secured Lenders under any
of the Finance Documents, exercise or refrain from exercising (in the
name of each Chargor, the registered holder or otherwise and without
any further consent or authority from any Chargor and irrespective of
any direction given by any Chargor) in respect of the Security Shares
any voting rights and any powers or rights under the terms thereof or
otherwise which may be exercised by the person or persons in whose name
or names the Security Shares are registered or who is the holder
thereof, including, without limitation, all the powers given to
trustees by Section 10(3) and (4) of the Trustee Act 1925 as amended by
Section 9 of the Trustee Investments Act 1961 in respect of securities
or property subject to a trust PROVIDED THAT in the absence of notice
from the Security Agent each Chargor may and shall continue to exercise
any and all voting rights with respect to the Group Shares subject
always to the terms hereof. No Chargor shall without the previous
consent in writing of the Security Agent exercise the voting rights
attached to any of the Group Shares in favour of resolutions having the
effect of changing the terms of the Group Shares (or any class of them)
or any Related Rights or prejudicing the security hereunder or
impairing the value of the Security Shares. Each Chargor hereby
irrevocably appoints the Security Agent or its nominees its proxy to
exercise all voting rights so long as the Group Shares remain
registered in the names of the Chargors.
10.3 CALLS
Each Chargor during the continuance of this security will make all
payments which may become due in respect of any of the Security Shares
and in the event of default in making any such payment the Security
Agent may if it thinks fit make such payment on behalf of each Chargor.
Any sums so paid by the Security Agent shall be repayable by the
relevant Chargor to the Security Agent on demand together with interest
at the Default Rate from the date of such payment by the Security
Agent, and pending such repayment shall constitute part of the Secured
Liabilities.
10.4 LIABILITY TO PERFORM
It is expressly agreed that, notwithstanding anything to the contrary
herein contained, each Chargor shall remain liable to observe and
perform all of the conditions and obligations assumed by it in respect
of the Security Shares and none of the Security Agent or the Secured
Lenders shall be under any obligation or liability by reason of or
arising out of the Share Mortgages. None of the Secured Lenders shall
be required in any manner to perform or fulfil any obligation of any
Chargor in respect of the Security Shares, or to make any payment, or
to receive any enquiry as to the nature or sufficiency of any payment
received by them, or to present or file any claim or take any other
action to collect or enforce the payment of any amount to which they
may have been or to which they may be entitled hereunder at any time or
times.
10.5 ENFORCEMENT
Upon the occurrence of an Event of Default and at any time thereafter
while an Event of Default is continuing, the Security Agent shall be
entitled to put into force and exercise immediately as and when it may
see fit any and every power possessed by the Security Agent by virtue
of the Share Mortgages or available to a secured creditor (so that
Sections 93 and 103 of the Law of Property Act 1925 shall not apply to
this security) and in particular (without limitation):
<PAGE> 23
(i) to sell all or any of the Security Shares in any manner
permitted by law upon such terms as the Security Agent shall
in its absolute discretion determine;
(ii) to collect, recover or compromise and give a good discharge
for any moneys payable to any Chargor in respect of the
Security Shares or in connection therewith; and
(iii) to act generally in relation to the Security Shares in such
manner as the Security Agent acting reasonably shall
determine.
For the avoidance of doubt, each Chargor agrees that the enforceability
of the Share Mortgages is not dependent on the performance or
non-performance by any Secured Lender of its respective obligations
under the Credit Agreement.
11. THE ACCOUNT BANKS
11.1 IDENTITY
(a) The Account Bank for each Chargor shall be HSBC Bank plc.
(b) The Account Bank for any Chargor may be changed to any other bank or
financial institution at any time with the agreement of the Company and
the Security Agent but, in each case, such change shall only become
effective upon the proposed new Account Bank agreeing with the Security
Agent and the Company, in a manner reasonably satisfactory to the
Security Agent, to fulfil the role of Account Bank hereunder.
11.2 NOTICE
(a) The Parent on behalf of all the Chargors will forthwith give notice to
the Account Bank for each Chargor (and forthwith on any change in the
identity of the Account Bank for any Chargor give notice to the new
Account Bank) of this Debenture in the form of Schedule 6 Part I and
use its reasonable endeavours to procure that the Account Bank or new
Account Bank (as the case may be) acknowledges such notice to the
Security Agent in the form of Schedule 6 Part II (provided that, by its
execution of this Debenture, each Chargor and HSBC Investment Bank plc
shall be deemed to have given such notice or acknowledgement, as the
case may be).
(b) Promptly upon confirmation that the notice referred to in 11.2(a) above
has been given, the Security Agent will deliver to the Account Bank a
notice substantially in the form set out in Schedule 6 Part III. The
Security Agent agrees that it will not send a further notice to the
Account Bank of the type referred to in Schedule 6 Part III until this
Debenture has become enforceable in accordance with Clause 10.5.
11.3 TRANSFER OF BALANCES
The amount (if any) standing to the credit of the Security Accounts
maintained with an old Account Bank shall be transferred to the
corresponding Security Accounts maintained with a new Account Bank
appointed pursuant to Clause 11.1 forthwith upon such appointment
taking effect. Each Chargor hereby irrevocably gives all authorisations
and instructions necessary for any such transfer to be made.
<PAGE> 24
11.4 FURTHER PERFECTION
Each Chargor shall do all such things as the Security Agent may
reasonably request in order to facilitate any change of Account Bank
pursuant to Clause 11.1 or any transfer of credit balances pursuant to
Clause 11.3 (including, without limitation, the execution of bank
mandate forms) and the Security Agent is hereby irrevocably constituted
the Company's and each other Chargor's attorney to do any such things
should the Company or such other Chargor fail to do so.
12. WHEN SECURITY BECOMES ENFORCEABLE
The security constituted hereby shall become immediately enforceable
upon the occurrence of an Event of Default and at any time thereafter
whilst the same is continuing and the power of sale and other powers
conferred by Section 101 of the Law of Property Act, 1925 as varied or
amended by this Debenture shall be immediately exerciseable upon the
occurrence of an Event of Default and at any time thereafter whilst the
same is continuing. After the security constituted hereby has become
enforceable, the Security Agent may in its absolute discretion enforce
all or any part of such security in such manner as it sees fit or as
the Majority Banks direct.
13. ENFORCEMENT OF SECURITY
13.1 GENERAL
For the purposes of all powers implied by statute the Secured
Liabilities shall be deemed to have become due and payable on the date
hereof and Section 103 of the Law of Property Act 1925 (restricting the
power of sale) and Section 93 of the same Act (restricting the right of
consolidation) shall not apply to this security. The statutory powers
of leasing conferred on the Security Agent shall be extended so as to
authorise the Security Agent to lease, make agreements for leases,
accept surrenders of leases and grant options as the Security Agent
shall think fit and without the need to comply with any of the
provisions of sections 99 and 100 of the Law of Property Act 1925.
13.2 CONTINGENCIES
(a) If the Security Agent enforces the security constituted by this
Debenture in accordance with the terms of this Debenture (whether by
the appointment of a Receiver or otherwise) at a time when no amounts
are due under the Finance Documents (but at a time when amounts may
become so due), the Security Agent (or such Receiver) may pay the
proceeds of any recoveries effected by it into such number of interest
bearing Realisations Accounts as it considers appropriate.
(b) The Security Agent (or such Receiver) may (subject to the payment of
any claims having priority to this security) withdraw amounts standing
to the credit of the Realisations Accounts to:
(i) meet all costs, charges and expenses incurred and payments
made by the Security Agent (or such Receiver) in the course of
such enforcement;
(ii) pay remuneration to the Receiver as and when the same becomes
due and payable; and
<PAGE> 25
(iii) meet amounts due and payable under the Finance Documents as
and when the same become due and payable;
in each case, together with interest thereon (as well after as before
judgment and payable on demand) at the Default Rate from the date the
same become due and payable until the date the same are unconditionally
and irrevocably paid and discharged in full (provided that like
interest payable under any of the Finance Documents should not be
double counted).
(c) No Chargor will be entitled to withdraw all or any moneys (including
interest) standing to the credit of any Realisations Account until the
expiry of the Security Period.
14. RECEIVER
14.1 APPOINTMENT OF RECEIVER
(a) At any time after this security becomes enforceable in accordance with
Clause 12 or if any Chargor so requests the Security Agent in writing
at any time, the Security Agent may without further notice appoint
under seal or in writing under its hand any one or more qualified
persons to be a Receiver of all or any part of the Security Assets in
like manner in every respect as if the Security Agent had become
entitled under the Law of Property Act 1925 to exercise the power of
sale thereby conferred.
(b) In this Clause "QUALIFIED PERSON" means a person who, under the
Insolvency Act 1986, is qualified to act as a receiver of the property
of any company with respect to which he is appointed or (as the case
may require) an administrative receiver of any such company.
14.2 POWERS OF RECEIVER
(a) Every Receiver appointed in accordance with Clause 14.1 shall have and
be entitled to exercise all of the powers set out in paragraph (b)
below in addition to those conferred by the Law of Property Act 1925 on
any receiver appointed thereunder. A Receiver who is an administrative
receiver of any Chargor shall have all the powers of an administrative
receiver under the Insolvency Act 1986. If at any time there is more
than one Receiver of all or any part of the Security Assets, each such
Receiver may (unless otherwise stated in any document appointing him)
exercise all of the powers conferred on a Receiver under this Debenture
individually and to the exclusion of each other Receiver.
(b) The powers referred to in the first sentence of paragraph (a) above
are:
(i) TAKE POSSESSION to take immediate possession of, get in and
collect the Security Assets or any part thereof;
(ii) CARRY ON BUSINESS to carry on the business of such Chargor as
he may think fit;
(iii) PROTECTION OF ASSETS to make and effect all repairs and
insurances and do all other acts which such Chargor might do
in the ordinary conduct of its business as well for the
protection as for the improvement of the Security Assets and
to commence and/or complete any building operations on the
Mortgaged Property and to apply for and maintain any planning
permissions, building regulation approvals and any other
<PAGE> 26
permissions, consents or licences, in each case as he may in
his absolute discretion think fit;
(iv) EMPLOYEES to appoint and discharge managers, officers, agents,
accountants, servants, workmen and others for the purposes
hereof upon such terms as to remuneration or otherwise as he
may think proper and to discharge any such persons appointed
by any such Chargor;
(v) BORROW MONEY for the purpose of exercising any of the powers,
authorities and discretions conferred on him by or pursuant to
this Debenture and/or of defraying any costs, charges, losses
or expenses (including his remuneration) which shall be
incurred by him in the exercise thereof or for any other
purpose, to raise and borrow money either unsecured or on the
security of the Security Assets or any part thereof either in
priority to the security constituted by this Debenture or
otherwise and generally on such terms and conditions as he may
think fit and no person lending such money shall be concerned
to enquire as to the propriety or purpose of the exercise of
such power or to see to the application of any money so raised
or borrowed;
(vi) SELL ASSETS to sell, exchange, convert into money and realise
all or any part of the Security Assets (including, without
limitation, to sell any of the Mortgaged Property) by public
auction or private contract and generally in such manner and
on such terms as he shall think proper. Without prejudice to
the generality of the foregoing he may do any of these things
for a consideration consisting of cash, debentures or other
obligations, shares, stock or other valuable consideration and
any such consideration may be payable in a lump sum or by
instalments spread over such period as he may think fit.
Fixtures, other than landlords' fixtures, may be severed and
sold separately from the property containing them without the
consent of such Chargor;
(vii) LEASES to let all or any part of the Security Assets for such
term and at such rent (with or without a premium) as he may
think proper and to accept a surrender of any lease or tenancy
thereof on such terms as he may think fit (including the
payment of money to a lessee or tenant on a surrender);
(viii) COMPROMISE to settle, adjust, refer to arbitration, compromise
and arrange any claims, accounts, disputes, questions and
demands with or by any person who is or claims to be a
creditor of such Chargor or relating in any way to the
Security Assets or any part thereof;
(ix) LEGAL ACTIONS to bring, prosecute, enforce, defend and abandon
all such actions, suits and proceedings in relation to the
Security Assets or any part thereof as may seem to him to be
expedient;
(x) RECEIPTS to give valid receipts for all moneys and execute all
assurances and things which may be proper or desirable for
realising the Security Assets;
(xi) SUBSIDIARIES to form a subsidiary or subsidiaries of such
Chargor and transfer to any such subsidiary all or any part of
the Security Assets; and
<PAGE> 27
(xii) GENERAL POWERS to do all such other acts and things as he may
consider desirable or necessary for realising the Security
Assets or any part thereof or incidental or conducive to any
of the matters, powers or authorities conferred on a Receiver
under or by virtue of this Debenture, to exercise in relation
to the Security Assets or any part thereof all such powers,
authorities and things as he would be capable of exercising if
he were the absolute beneficial owner of the same and to use
the name of such Chargor for all or any of such purposes.
14.3 REMOVAL AND REMUNERATION
The Security Agent may from time to time by writing under its hand
(subject to any requirement for an order of the court in the case of an
administrative receiver) remove any Receiver appointed by it and may,
whenever it may deem it expedient, appoint a new Receiver in the place
of any Receiver whose appointment may for any reason have terminated
and may from time to time fix the remuneration of any Receiver
appointed by it.
14.4 SECURITY AGENT MAY EXERCISE
To the fullest extent permitted by law, all or any of the powers,
authorities and discretions which are conferred by this Debenture
(either expressly or impliedly) upon a Receiver of the Security Assets
may be exercised after the security hereby created becomes enforceable
in accordance with Clause 12 by the Security Agent in relation to the
whole of such Security Assets or any part thereof without first
appointing a Receiver of such property or any part thereof or
notwithstanding the appointment of a Receiver of such property or any
part thereof.
15. APPLICATION OF PROCEEDS
Any moneys received by the Security Agent or by any Receiver appointed
by it pursuant to this Debenture and/or under the powers hereby
conferred shall, after the security hereby constituted shall have
become enforceable in accordance with Clause 12 but subject to the
payment of any claims having priority to this security and to the
Security Agent's and such Receiver's rights under Clauses 13.2 and
14.2, be applied by the Security Agent for the following purposes and,
unless otherwise determined by the Security Agent or such Receiver, in
the following order or priority (but without prejudice to the right of
the Security Agent or any Secured Lender to recover any shortfall from
any Chargor):
(a) in satisfaction of or provision for all costs, charges and
expenses incurred and payments made by the Security Agent or
any Receiver appointed hereunder and of all remuneration due
hereunder together with interest on the foregoing (as well
after as before judgment and payable on demand) at the Default
Rate from time to time from the date the same become due and
payable until the date the same are unconditionally and
irrevocably paid and discharged in full;
(b) in or towards payment of the Secured Liabilities or such part
of them as is then due and payable; and
(c) in payment of the surplus (if any) to any Chargor or other
person entitled thereto.
<PAGE> 28
16. NO LIABILITY AS MORTGAGEE IN POSSESSION
The Security Agent shall not nor shall any Receiver appointed as
aforesaid by reason of it or the Receiver entering into possession of
the Security Assets or any part thereof be liable to account as
mortgagee in possession or be liable for any loss on realisation or for
any default or omission for which a mortgagee in possession might be
liable. Every Receiver duly appointed by the Security Agent under the
powers in that behalf herein contained shall be deemed to be the agent
of the relevant Chargor for all purposes and shall as such agent for
all purposes be deemed to be in the same position as a Receiver duly
appointed by a mortgagee under the Law of Property Act 1925. The
relevant Chargor alone shall be responsible for his contracts,
engagements, acts, omissions, defaults and losses and for liabilities
incurred by him and neither the Security Agent nor any Secured Lender
shall incur any liability therefor (whether to the Company, any other
Chargor or to any other person whatsoever) by reason of the Security
Agent's making his appointment as such Receiver other than in the case
of wilful neglect or negligence on the part of a Receiver or the
Security Agent. Every such Receiver and the Security Agent shall be
entitled to all the rights, powers, privileges and immunities by the
Law of Property Act 1925 conferred on mortgagees and receivers when
such receivers have been duly appointed under the said Act but so that
Section 103 of the Law of Property Act 1925 shall not apply.
17. PROTECTION OF THIRD PARTIES
No purchaser, mortgagee or other person or company dealing with the
Security Agent or the Receiver or its or his agents shall be concerned
to enquire whether the Secured Liabilities have become payable or
whether any power which the Receiver is purporting to exercise has
become exercisable or whether any money remains due under this
Debenture or the Finance Documents or to see to the application of any
money paid to the Security Agent or to such Receiver.
18. TAXES
All payments by any Chargor under this Debenture to or for the account
of any Secured Lender shall be made without any set off, counterclaim,
withholding or other deductions and free and clear of and without
deduction or withholding for or on account of any Taxes (subject to the
exceptions in Clause 11 of the Credit Agreement). If any Tax or amounts
in respect of Tax must be deducted, or any other deductions must be
made, from any amounts payable or paid by such Chargor, or paid or
payable by the Security Agent to another Secured Lender, under this
Debenture, or any such payment shall otherwise be required to be made
subject to any Tax, such Chargor shall pay such additional amounts as
may be necessary to ensure that the relevant Secured Lender receives a
net amount equal to the full amount which it would have received had
payment not been made subject to Tax.
19. EXPENSES
19.1 UNDERTAKING TO PAY
All reasonable costs, charges and expenses incurred and all payments
made by the Security Agent or any Receiver appointed hereunder in the
lawful exercise of the powers hereby conferred whether or not
occasioned by any act, neglect or default of any Chargor shall carry
interest (as well after as before judgment) at the Default Rate from
time to time from the later of the date the same are incurred or become
payable until the date the same are
<PAGE> 29
unconditionally and irrevocably paid and discharged in full. The amount
of all such costs, charges, expenses and payments and all such interest
thereon and all remuneration payable hereunder shall be payable by the
Chargors on demand. All such costs, charges, expenses and payments
shall be paid and charged as between the Security Agent and the
Chargors or any of them on the basis of a full indemnity and not on the
basis of party and party or any other kind of taxation.
19.2 INDEMNITY
The Secured Lenders and every Receiver, attorney, manager, agent or
other person appointed by the Security Agent hereunder shall be
entitled to be indemnified out of the Security Assets in respect of all
liabilities and expenses properly incurred by them in the execution or
purported execution of any of the powers, authorities or discretions
vested in them pursuant hereto and against all actions, proceedings,
costs, claims and demands in respect of any matter or thing done or
omitted in any way relating to the Security Assets and the Secured
Lenders and any such Receiver may retain and pay all sums in respect of
the same out of any moneys received under the powers hereby conferred.
Notwithstanding the foregoing no Secured Lender or Receiver and no
person appointed by the Security Agent as aforesaid shall be entitled
to be indemnified in respect of any part of the foregoing which results
from such party's negligence or wilful misconduct.
20. DELEGATION BY SECURITY AGENT
The Security Agent or any Receiver appointed hereunder may at any time
and from time to time delegate by power of attorney or in any other
manner to any properly qualified person or persons all or any of the
powers, authorities and discretions which are for the time being
exercisable by the Security Agent or such Receiver under this Debenture
in relation to the Security Assets or any part thereof. Any such
delegation may be made upon such terms (including power to
sub-delegate) and subject to such regulations as the Security Agent or
such Receiver may think fit.
21. FURTHER ASSURANCES
21.1 GENERAL
Each Chargor shall at its own expense execute and do all such
assurances, acts and things as the Security Agent may reasonably
require for perfecting or protecting the security intended to be
created hereby over the Security Assets or any part thereof or for
facilitating (if and when this security becomes enforceable) the
realisation of the Security Assets or any part thereof and in the
exercise of all powers, authorities and discretions vested in the
Security Agent or any Receiver of the Security Assets or any part
thereof or in any such delegate or sub-delegate as aforesaid. To that
intent, each Chargor shall in particular execute all transfers,
conveyances, assignments and releases of such property whether to the
Security Agent or to its nominees and give all notices, orders and
directions and make all registrations which the Security Agent may
reasonably think expedient.
21.2 LEGAL CHARGE
Without prejudice to the generality of Clause 21.1, each Chargor will
forthwith at the request of the Security Agent execute a legal
mortgage, charge or assignment over all or any of the Security Assets
subject to or intended to be subject to any fixed security hereby
created in
<PAGE> 30
favour of the Security Agent (as agent and trustee as aforesaid) in
such form as the Security Agent may reasonably require but containing
terms no more onerous than those in this Debenture.
21.3 FURTHER SUBSIDIARIES
(a) Each Chargor hereby undertakes to ensure that each company which
becomes a Subsidiary (whether direct or indirect) of any Chargor after
the date hereof shall, forthwith upon being required to grant security
pursuant to Clause 17.3(a) of the Credit Agreement, execute a Deed of
Accession substantially in the form set out in Schedule 7 and such
company shall on the date on which such Deed of Accession is executed
by it become a party to this Debenture in the capacity of a Chargor and
this Debenture shall be read and construed for all purposes as if such
company had been an original party hereto as a Chargor (but for the
avoidance of doubt the security created by such company shall be
created on the date of the Deed of Accession). The Security Agent is
authorised to agree any amendments or change to the form or manner in
which any such member of the Group gives such a guarantee and security
(including acceptance of a limit on the liability of such member of the
Group) which is in the reasonable opinion of the Security Agent
necessary in order that such guarantee or security may lawfully be
given.
(b) The Company shall procure that all registrations or other steps
necessary to perfect or protect any security created pursuant to any
Deed of Accession is completed as soon as practicable after the date
thereof and in any event within any applicable time limit.
22. REDEMPTION OF PRIOR MORTGAGES
The Security Agent may, at any time after the security hereby
constituted has become enforceable, redeem any prior Encumbrance over
or against the Security Assets or any part thereof or procure the
transfer thereof to itself and may settle and pass the accounts of the
prior mortgagee, chargee or encumbrancer. Any accounts so settled and
passed shall be conclusive and binding on each Chargor. All principal
moneys, interest, costs, charges and expenses of and incidental to such
redemption and transfer shall be paid by the Chargors to the Security
Agent on demand.
23. POWER OF ATTORNEY
23.1 APPOINTMENT
Each Chargor hereby by way of security and in order more fully to
secure the performance of its obligations hereunder irrevocably
appoints the Security Agent and every Receiver of the Security Assets
or any part thereof appointed hereunder and every such delegate or
sub-delegate as aforesaid to be its attorney acting severally, and on
its behalf and in its name or otherwise, after the occurrence of an
Event of Default which is continuing and has not been expressly waived
by the Facility Agent, to execute and do all such assurances, acts and
things which such Chargor is required to do and fails to do under the
covenants and provisions contained in this Debenture (including,
without limitation, to make any demand upon or to give any notice or
receipt to any person owing moneys to such Chargor and to execute and
deliver any charges, legal mortgages, assignments or other security and
any transfers of securities) and generally in its name and on its
behalf to exercise all or any of the powers, authorities and
discretions conferred by or pursuant to this Debenture or by statute on
the Security Agent or any such Receiver, delegate or sub-delegate and
(without prejudice to the
<PAGE> 31
generality of the foregoing) to seal and deliver and otherwise perfect
any deed, assurance, agreement, instrument or act which it or he may
reasonably deem proper in or for the purpose of exercising any of such
powers, authorities and discretions.
23.2 RATIFICATION
Each Chargor hereby ratifies and confirms and agrees to ratify and
confirm whatever any such attorney as is mentioned in Clause 23.1 shall
do or purport to do in the exercise or purported exercise of all or any
of the powers, authorities and discretions referred to in such Clause.
24. NEW ACCOUNTS
If the Security Agent or any Secured Lender receives or is deemed to be
affected by notice whether actual or constructive of any subsequent
charge or other interest affecting any part of the Security Assets
and/or the proceeds of sale thereof, the Security Agent or such Secured
Lender (as the case may be) may open a new account or accounts with any
Obligor. If the Security Agent or such Secured Lender (as the case may
be) does not open a new account it shall nevertheless be treated as if
it had done so at the time when it received or was deemed to have
received notice and as from that time all payments made to the Security
Agent or such Secured Lender (as the case may be) shall be credited or
be treated as having been credited to the new account and shall not
operate to reduce the amount for which this Debenture is security.
25. STAMP TAXES
Each Chargor shall pay and, forthwith on demand, indemnify the Security
Agent and each Secured Lender against any liability it incurs in
respect of any stamp, registration and similar Tax which is or becomes
payable in connection with the entry into, performance or enforcement
of this Debenture.
26. ASSIGNMENTS, ETC.
26.1 THE SECURITY AGENT
The Security Agent may assign and transfer all of its respective rights
and obligations hereunder to a replacement Security Agent appointed in
accordance with the terms of the Credit Agreement. Upon such assignment
and transfer taking effect, the replacement Security Agent shall be and
be deemed to be acting as agent and trustee for each of the Secured
Lenders for the purposes of this Debenture in place of the old Security
Agent.
26.2 AGENCY PROVISIONS; CURRENCY INDEMNITY; PRO RATA SHARING
Each Chargor shall be bound by the terms of Clauses 24 (The Agents, and
the Arranger), 25.1 (Currency Indemnity) and 31.1 (Redistribution) of
the Credit Agreement.
26.3 ASSIGNMENTS AND TRANSFERS
Each Chargor shall be bound by the terms of Clause 28 (Changes to the
Parties) of the Credit Agreement and, accordingly, each Chargor, for
the purposes of any transfer pursuant to such Clause, hereby
irrevocably authorises the Security Agent to execute on its behalf (i)
<PAGE> 32
Novation Certificates (without any need for the prior consent of such
Chargor) in accordance with the provisions of the Credit Agreement, and
(ii) any other document required to perfect the security granted to the
Secured Lenders pursuant to the Finance Documents.
27. WAIVERS, REMEDIES CUMULATIVE
(a) The rights of the Security Agent and each Secured Lender under this
Debenture:
(i) may be exercised as often as necessary;
(ii) are cumulative and not exclusive of its rights under general
law; and
(iii) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
(b) The Security Agent may waive any breach by any Chargor of any of such
Chargor's obligations hereunder if so instructed by the Majority Banks.
28. SET-OFF
28.1 GENERAL
The Security Agent and each Secured Lender, after the occurrence of an
Event of Default which is continuing and has not been expressly waived
by the Facility Agent, may (but shall not be obliged to) set off any
obligation which is due and payable by any Chargor and unpaid (whether
under the Finance Documents or which has been assigned to the Security
Agent by any other Chargor hereunder) against any obligation (whether
or not matured) owed by the Security Agent or such Secured Lender (as
the case may be) to such Chargor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are
in different currencies, the Security Agent or such Secured Lender (as
the case may be) may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the
set-off.
28.2 TIME DEPOSITS
Without prejudice to Clause 28.1, if any time deposit matures on any
account which any Chargor has with the Security Agent or any Secured
Lender at a time within the Security Period when:
(i) this security has become enforceable; and
(ii) no amount of the Secured Liabilities is due and payable,
such time deposit shall automatically be renewed for such further
maturity as the Security Agent or such Secured Lender in its absolute
discretion considers appropriate unless the Security Agent or such
Secured Lender otherwise agrees in writing.
<PAGE> 33
29. SEVERABILITY
29.1 GENERAL
If a provision of this Debenture is or becomes illegal, invalid or
unenforceable in any jurisdiction in respect of any Chargor, that shall
not affect:
(a) in respect of such Chargor the validity or enforceability in
that jurisdiction of any other provision of this Debenture;
(b) in respect of any other Chargor the validity or enforceability
in that jurisdiction of that or any other provision of this
Debenture; or
(c) in respect of any Chargor the validity or enforceability in
other jurisdictions of that or any other provision of this
Debenture.
29.2 DEEMED SEPARATE CHARGES
This Debenture shall, in relation to each Chargor, be read and
construed as if it were a separate Debenture relating to such Chargor
to the intent that if any Encumbrance created by any other Chargor in
this Debenture shall be invalid or liable to be set aside for any
reason, this shall not affect any Encumbrance created hereunder by such
first Chargor.
30. COUNTERPARTS
This Debenture may be executed in any number of counterparts and this
will have the same effect as if the signatures on the counterparts were
on a single copy of this Debenture.
31. NOTICES
31.1 GIVING OF NOTICES
All notices under, or in connection with, this Debenture shall be given
in writing or by fax. Any such notice is deemed to be given as follows:
(a) if in writing when delivered; and
(b) if by fax when received.
However, a notice given to a Chargor in accordance with the above but
received on a non-working day or after business hours in the place of
receipt is deemed to be given on the next working day in that place.
31.2 ADDRESSES FOR NOTICES
The address and facsimile number of the Chargors and the Security Agent
for all notices under, or in connection with, this Debenture are, in
the case of the Chargors, as set out in Schedule 1 (or the Deed of
Accession (if any) by which the relevant Chargor became party hereto)
and, in the case of the Security Agent, as set out in the Credit
Agreement.
<PAGE> 34
32. NOTICE OF ASSIGNMENT
GENERAL
To the extent that the Company or any other Chargor owes any obligation
to any other member of the Group and such obligation or the debt
constituted thereby is charged or assigned to the Security Agent and
the Secured Lenders pursuant to any other Security Document, this
Debenture constitutes notice in writing to the Company or such other
Chargor of such charge or assignment and its agreement not to exercise
any right of set-off or counterclaim in relation thereto.
33. REGISTRATION
33.1 H.M. LAND REGISTRY
In respect of the Mortgaged Property specified in Schedule 2 opposite
the name of any Chargor the title to which is registered at H.M. Land
Registry and in respect of any other registered title(s) against which
this Debenture may be noted:
(a) such Chargor hereby applies to the Chief Land Registrar for
restrictions in the following terms to be entered on the
Register of Title relating thereto:
(i) "Except under an order of the Registrar, no
disposition or dealing by the proprietor of the land
is to be registered without the consent of the
proprietor for the time being of the debenture dated
[ ] October, 1999 (the "Debenture") between amongst
others Getty Communications Limited, [the relevant
Chargor] and HSBC Investment Bank plc as agent and
trustee for itself and each of the Secured Lenders
each as defined therein; and
(ii) "The Banks under a credit agreement dated [ ]
October, 1999 between the Parent, the Original
Borrowers, the Original Guarantors, the Arranger, the
Original Bank, the Hedging Bank (each as defined
therein), HSBC Investment Bank plc as Facility Agent
and HSBC Investment Bank plc as Security Agent are
under an obligation (subject to the terms thereof) to
the Chargor to make further advances and the
Debenture secures those further advances"; and
(b) it is hereby certified that the security created hereby does
not contravene any of the provisions of the Memorandum or
Articles of Association of such Chargor.
34. COVENANT TO RELEASE
Upon the expiry of the Security Period (but not otherwise save as
provided for in Clause 17 (Additional Borrowers, Guarantors and
Security) of the Credit Agreement, the Security Agent and each Secured
Lender shall, at the request and cost of the Chargors, execute and do
all such deeds, acts and things as may be necessary to release the
Security Assets from the security constituted hereby.
<PAGE> 35
35. GOVERNING LAW AND JURISDICTION
35.1 GOVERNING LAW
This Debenture shall be governed by and construed in accordance with
English law.
35.2 JURISDICTION
For the benefit of the Security Agent and the Secured Lenders, each
Chargor agrees that the courts of England have jurisdiction to settle
any disputes in connection with this Debenture and accordingly submits
to the jurisdiction of the English courts. Nothing in this Clause 35.2
limits the right of the Security Agent or any Secured Lender to bring
proceedings against any Chargor in connection with this Debenture in
any other court of competent jurisdiction or concurrently in more than
one jurisdiction.
IN WITNESS whereof this Debenture has been duly executed as a deed and is
delivered on the date first above written.
<PAGE> 36
SCHEDULE 1
THE CHARGORS
Getty Communications Limited (company number 3005770)
Place of Incorporation: England
Registered Office: 101 Bayham Street
Camden Town
London NW1 0AG
Address for Notices: 101 Bayham Street
Camden Town
London NW1 0AG
Attention: Cameron Anderson
Fax: 0171 267 6540
Getty Images Limited (company number 948785 )
Place of Incorporation: England
Registered Office: 101 Bayham Street
Camden Town
London
NW1 0AG
Address for Notices: 101 Bayham Street
Camden Town
London
NW1 0AG
Attention: Cameron Anderson
Fax: 0171 267 6540
Getty Communications Group Finance Limited (company number 3162899)
Place of Incorporation: England
Registered Office: 101 Bayham Street
Camden Town
London
NW1 0AG
Address for Notices: 101 Bayham Street
Camden Town
London
NW1 0AG
Attention: Cameron Anderson
<PAGE> 37
Fax: 0171 267 6540
<PAGE> 38
SCHEDULE 2
REAL PROPERTY
PART I
FREEHOLD PROPERTY
None listed at the date hereof.
<PAGE> 39
SCHEDULE 2
REAL PROPERTY
PART II
LEASEHOLD PROPERTY
All that leasehold premises known as 101 Bayham Street, Camden, London, NW1
demised by the lease dated 18th October, 1995 made between Allied Dunbar
Assurance Plc to Tony Stone Associates Limited (now called Getty Images
Limited).
<PAGE> 40
SCHEDULE 3
PART I
NOTICE OF ASSIGNMENT
(FOR ATTACHMENT BY WAY OF ENDORSEMENT
TO THE INSURANCE POLICIES)
To: [Insurer]
We, Getty Communications Limited and the other Chargors, hereby give notice that
by a first priority Debenture dated [ ] October, 1999 (the "DEBENTURE") and made
by, inter alia, [ ] in favour of HSBC Investment Bank plc (the "SECURITY AGENT")
as agent and trustee for itself and the Secured Lenders referred to in the
Debenture there has been assigned by us to the Security Agent as first mortgagee
and assignee this policy and all our interest (including the benefit of all
money owing or to become owing to us and all interest thereon) under and in
respect of this policy.
We, Getty Communications Limited and the other Chargors, hereby authorise you to
issue a letter of undertaking, in the form attached, to the Security Agent and
to act on the instructions of the Security Agent in the manner provided in that
letter without any further reference to or authorisation from us.
For and on behalf of
Getty Communications Limited
By:
For itself and on behalf of the
other Chargor(s) set out below:
Getty Images Limited
Getty Communications Group Finance Limited
DATED this day of , 19
<PAGE> 41
PART II
[LETTER OF UNDERTAKING]
To: HSBC Investment Bank plc
as Security Agent for the Secured Lenders
(as defined in the Debenture
granted to it by, inter alias,
Getty Communications Limited and other Chargors
dated [ ] October, 1999
Dear Sirs,
LETTER OF UNDERTAKING
In accordance with an assignment made Getty Communications Limited, Getty Images
Limited, Getty Communications Group Finance Limited and (the "COMPANIES") and in
consideration of your agreeing to the Companies or any of them continuing the
insurance (the "INSURANCE") referred to in the Schedule to this letter we
undertake:
1. to note your interest as first priority mortgagee on the policies of
Insurance referred to in the Schedule;
2. to disclose to you without any reference to or further authority from
any of the Companies such information relating to the Insurance as you
may at any time reasonably request;
3. not to release any of the Insurance on request by any of the Companies
without your prior written consent;
4. to pay all claims payable under the policies of Insurance to you unless
you otherwise agree in writing.
This letter shall be governed by English law.
SCHEDULE
Yours faithfully,
--------------------
for and on behalf of
[Insurer]
<PAGE> 42
PART III
FORM OF NOTICE IN RESPECT OF RELEVANT AGREEMENTS
To: [Relevant party]
[Date]
Dear Sirs,
We hereby give you notice that, by a first priority Debenture dated [ ] October,
1999 (the "DEBENTURE"), made by, amongst others, the companies listed below (the
"CHARGORS") in favour of HSBC Investment Bank plc (the "SECURITY AGENT") as
agent and trustee for itself and the Secured Lenders referred to in the
Debenture there has been assigned by the Chargors to the Security Agent as first
and subsequent priority mortgagee and assignee all the Chargors' rights, title
and interest in and to [insert details of Relevant Agreement] (the "AGREEMENT").
On behalf of the Chargors, we hereby irrevocably instruct and authorise you:
(a) to disclose to the Security Agent without any reference to or further
authority from the Chargors and without any enquiry by you as to the
justification for such disclosure, such information relating to the
Agreement as the Security Agent may at any time and from time to time
reasonably request;
(b) to hold all sums from time to time due and payable by you to us under
the Agreement to the order of the Security Agent;
(c) to pay or release all or any part of the sums from time to time due and
payable by you to the Chargors or any of them under the Agreement in
accordance with the written instructions given to you by the Security
Agent from time to time;
(d) to comply with the terms of any written notice or instructions in any
way relating to, or purporting to relate to, the Debenture, the sums
payable to the Chargors or any of them from time to time under the
Agreement or the debts represented thereby which you receive at any
time from the Security Agent without any reference to or further
authority from the Chargors or any of them and without any enquiry by
you as to the justification for or validity of such notice or
instruction; and
(e) to send copies of all notices and other information under the Agreement
to the Security Agent.
Please note that the Chargors are not permitted to receive from you, otherwise
than through the Security Agent, any amount in respect of or on account of the
sums payable to the Chargors from time to time under the Agreement without the
prior written consent of the Security Agent.
Please also note that these instructions are not to be revoked or amended
without the prior written consent of the Security Agent.
<PAGE> 43
This letter shall be governed by and construed in accordance with English law.
Please confirm your agreement to the above by sending the attached
acknowledgement to the Security Agent with a copy to ourselves thereby giving to
the Security Agent for the Secured Lenders the further undertakings therein set
out.
Yours faithfully,
............................................
For and on behalf of
[ ]
for itself and on behalf of
the following Chargors:
Getty Communications Limited
Getty Images Limited
Getty Communications Group Finance Limited
Enc.
c.c. HSBC Investment Bank plc
<PAGE> 44
PART IV
FORM OF ACKNOWLEDGEMENT OF [RELEVANT PARTY] TO THE SECURITY AGENT
To: HSBC Investment Bank plc
as Security Agent
Dear Sirs,
We confirm receipt from [ ] on behalf of certain Chargors (the "CHARGORS") of a
notice dated [ ] of a charge upon the terms of a Debenture dated [ ] October,
1999 over all of the Company's rights, title and interest in and to [insert
details of the Relevant Agreement] (the "AGREEMENT").
We confirm that:
(i) we accept the instructions and authorisations contained in that notice
and we undertake to act in accordance with and comply with the terms of
that notice;
(ii) we have not received notice of the interest of any third party in or to
the Agreement;
(iii) we shall not permit any sums to be paid to the Chargors or any of them
or any other persons under or pursuant to the Agreement without your
prior consent.
This letter shall be governed by and construed in accordance with English law.
Yours faithfully,
..................................
On behalf of
[Relevant party]
c.c. [relevant Chargor]
<PAGE> 45
SCHEDULE 4
GROUP SHARES
<TABLE>
<CAPTION>
CHARGOR NAME OF COMPANY IN WHICH SHARES NAME OF NOMINEE (IF ANY) BY WHOM
ARE HELD SHARES ARE HELD
<S> <C> <C>
Getty Communications Limited Getty Images Limited n/a
n/a
Getty Communications Limited Getty Communications Group n/a
Finance Limited
Getty Communications Limited Allsport Photographic Limited n/a
Getty Images Limited Hulton Getty Holdings Limited n/a
n/a
</TABLE>
<TABLE>
<CAPTION>
CHARGOR CLASS OF SHARES HELD NUMBER OF SHARES HELD
<S> <C> <C>
Getty Communications Limited Ordinary Shares of(pound)1 each 125,360
Getty Communications Limited "A" Ordinary Shares of(pound)1 each 30,000
Ordinary Shares of(pound)1 each 23,100,001
Getty Communications Limited Ordinary Shares of(pound)1 each 45,769
Ordinary Shares of(pound)0.01 each 1,930,643
Getty Images Limited Preferred Ordinary Shares of(pound)0.01 703,056
each
</TABLE>
<PAGE> 46
SCHEDULE 5
PART I
INTELLECTUAL PROPERTY RIGHTS
Mark: Allsport
Application No: 2154968
Status: [Pending]
Classes: 9, 16 & 41
Filing Date: 5th January, 1998
Proprietor: Getty Communications Limited
Mark: Energy Film Library
Application No: 2164695
Status: Registered
Classes: 9, 16 & 41
Registration Date: 8th January, 1999
Proprietor: Getty Communications Limited
Mark: Body Frame Device
Registration No: 1529597
Status: Registered
Classes: 41
Registration Date: 14th January, 1994
Proprietor: Getty Images Limited
Mark: Tony Stone
Registration No: 1529284
Status: Registered
Classes: 41
Registration Date: 23rd September, 1994
Proprietor: Getty Images Limited
Mark: Body Frame Device
Application No: EM256099
Status: [Pending]
Classes: 9, 16, 38 & 41
Filing Date: 9th May, 1996
Proprietor: Getty Images Limited
<PAGE> 47
Mark: Tony Stone
Application No: EM256131
Status: Registered
Classes: 9, 16, 38 & 41
Registration Date: 29th March, 1999
Proprietor: Getty Images Limited
Mark: Energy Film. Library
Application No: 2164759
Status: Registered
Classes: 9, 16 & 41
Registration Date: 27th November, 1998
Proprietor: Getty Communications Limited
Mark: Hulton
Application No: EM260323
Status: Registered
Classes: 9, 16, 38 & 41
Filing Date: 23rd October, 1998
Proprietor: Getty Communications Limited
Mark: Allsport
Application No: EM715193
Status: Advertised
Classes: 9, 16 & 41
Registration Date: 12th July, 1999
Proprietor: Getty Communications Limited
Mark: Energy Film-Library
Application No: EM811554
Status: Advertised
Classes: 9, 16 & 41
Publication Date: 15th March, 1999
Proprietor: Getty Communications Limited
Mark: Energy Film-Library
Application No: EM811547
Status: Advertised
Classes: 9, 16 & 41
Publication Date: 19th April, 1999
Proprietor: Getty Communications Limited
<PAGE> 48
SCHEDULE 5
PART II
SCHEDULE OF LICENCE AGREEMENTS
None listed at the date hereof.
<PAGE> 49
SCHEDULE 6
PART I
BANK ACCOUNT SET-OFF LETTER AND ACKNOWLEDGEMENT
To: [Account Bank]
Date: [ ]
Dear Sirs,
We hereby give you notice that by a first priority Debenture dated [ ] October,
1999 (the "DEBENTURE") made by us (the "COMPANY") and certain of our
subsidiaries listed at the end of this notice (together the "CHARGORS") in
favour of HSBC Investment Bank plc (the "AGENT") as agent and trustee for itself
and the Secured Lenders referred to in the Debenture there has been charged by
each Chargor to the Agent as first and subsequent priority chargee all the
Chargor's rights, title and interest in and to all sums of money which may now
or in the future be held with you for the account of such Chargor in any
accounts at any of your branches (the "ACCOUNTS"), together with all interest
from time to time earned thereon and the debts represented by such sums and
interest, as well as all book and other debts owed to such Chargor.
On behalf of ourselves and each of the other Chargors, we hereby irrevocably
authorise and instruct you:
(a) to disclose to the Agent without any reference to or further authority
from the Company or the relevant Chargor and without any enquiry by you
as to the justification of such disclosure, such information relating
to the Accounts and the sums therein as the Agent may at any time and
from time to time request;
(b) to hold all sums from time to time standing to the credit of the
Accounts to the order of the Agent;
(c) to pay or release all or any part of the sums from time to time
standing to the credit of the Accounts in accordance with the written
instructions of the Agent at any time or times;
(d) to comply with the terms of any written notice or instructions in any
way relating to, or purporting to relate to, the Debenture, the sums
standing to the credit of the Accounts from time to time or the debts
represented thereby which you receive at any time from the Agent
without any reference to or further authority from the Company or the
relevant Chargor and without any enquiry by you as to the justification
for or validity of such notice or instruction; and
(e) to pay all monies received by you for the account of any Chargor to
(and only to) the credit of the Account of such Chargor with you.
Please note that neither the Company nor any other Chargor is permitted to
withdraw any amount from any of the Accounts without the prior written consent
of the Agent.
<PAGE> 50
Please also note that these instructions are not to be revoked or varied without
the prior written consent of the Agent.
This letter is governed by English law.
Please confirm your agreement to the above by sending the attached
acknowledgement to the Agent with a copy to us, thereby giving to the Agent for
the Secured Lenders the further undertakings therein set out.
Yours faithfully,
.......................
On behalf of Getty Communications Limited
for itself and as agent for each of
the Chargors named below.
CHARGORS
Getty Images Limited
Getty Communications Group Finance Limited
cc: HSBC Investment Bank plc
<PAGE> 51
PART II
FORM OF ACKNOWLEDGEMENT
To: HSBC Investment Bank plc
Date: [ ]
Dear Sirs,
We confirm receipt from Getty Communications Limited (the "COMPANY") for itself
and on behalf of the Chargors named therein (together with the Company, the
"CHARGORS") of a notice dated [ ] October, 1999 relating to certain accounts
(the "ACCOUNTS") of the Company and the other Chargors with the Bank .
We confirm that:-
(a) we accept the instructions and authorisations contained in that notice
and we undertake to act in accordance with the terms of that notice;
(b) we have not received notice of the interest of any third party in the
Accounts;
(c) we have neither claimed or exercised nor will claim or exercise any
security interest, set-off, counter-claim or other rights in respect of
the Accounts, the sums therein or the debts represented thereby without
your prior written consent;
(d) we shall pay all monies received by us for the account of any Chargor
to (and only to) the credit of the Account in the name of that Chargor
specified in that notice unless otherwise consented to by you; and
(e) we shall not permit any amount to be withdrawn from any of the Accounts
without your prior written consent.
This letter is governed by English Law.
Yours faithfully,
..................
On behalf of [Bank]
cc: Getty Communications Limited
<PAGE> 52
PART III
FORM OF LETTER FOR OPERATION OF BANK ACCOUNTS
To: [Bank]
Date: [ ]
Dear Sirs,
We refer to:
(i) the Debenture dated [ ] October, 1999 given by Getty Communications
Limited (the "COMPANY") and the subsidiaries of the Company named
therein as Chargors (together with the Company, the "Chargors") in
favour of HSBC Investment Bank plc as agent and trustee for itself and
others;
(ii) the notice to you (the "NOTICE") from the Company concerning any and
all accounts (the "ACCOUNTS") of the Company and the other Chargors
with you at any of your branches outside Scotland; and
(iii) the acknowledgement issued by you in response to the Notice (the
"ACKNOWLEDGEMENT").
We confirm, as agent and trustee as aforesaid, that subject to our right to
withdraw such consent in whole or in part as indicated below, we consent in
relation to the Accounts to the following transactions being undertaken in
accordance with the terms of your mandate as far as those terms are not
inconsistent with this letter:
(a) you may make payments on the instructions of each Chargor and debit the
amounts involved to the Account(s) of that Chargor;
(b) you may debit to any Account(s) of any Chargor amounts due to you from
that Chargor; and
(c) in order to enable you to make available net overdraft facilities to
the Chargors you may set-off credit balances on any of the Accounts of
the Chargors against debit balances on any other Accounts of the
Chargors provided that all such Accounts are included in group netting
arrangements operated by you for the Chargors.
The above consents will remain in effect until you receive notice from us by
facsimile transmission or letter withdrawing the same (which we may do wholly or
in part), whereupon consent to the above mentioned transactions shall be
withdrawn to the extent stated in such notice. In the event that the consent
referred to at (c) above shall be withdrawn, you shall nevertheless be entitled
immediately to set-off debit balances and credit balances on the relevant
Accounts as described in (c) above as and to the extent existing immediately
prior to the receipt by you of notice from us withdrawing such consent.
<PAGE> 53
This letter shall be governed by English law.
Yours faithfully,
.....................
For and on behalf of
HSBC Investment Bank plc
cc: Getty Communications Limited
<PAGE> 54
SCHEDULE 7
FORM OF DEED OF ACCESSION
THIS DEED OF ACCESSION dated [ ], 199[ ] is made BETWEEN:
(1) [ ] (the "NEW CHARGOR"), a company incorporated in
England or Wales whose registered office is at
[ ];
(2) GETTY COMMUNICATIONS LIMITED (the "COMPANY") for itself and as
agent for and on behalf of each of the other Chargors named in the
Debenture referred to below; and
(3) HSBC INVESTMENT BANK PLC as the Security Agent.
WHEREAS
(A) The New Chargor is or will on the date hereof become a wholly-owned
Subsidiary of the Company.
(B) The Company has entered into a debenture dated [ ], 1999 (as
supplemented and amended by Deeds of Accession or otherwise from time
to time, the "DEBENTURE") between the Company, each of the companies
named therein as Chargors, and HSBC Investment Bank plc as agent and
trustee for certain Secured Lenders as identified therein.
(C) The New Chargor at the request of the Company and in consideration of
the Secured Lenders making or continuing to make facilities available
to the Company or any other member of the Group and after giving due
consideration to the terms and conditions of the Finance Documents and
the Debenture and satisfying itself that there are reasonable grounds
for believing that the entry into this Deed by it will be of benefit to
it, has decided in good faith and for the purpose of carrying on its
business to enter into this Deed and thereby become a Chargor under the
Debenture.
NOW THIS DEED WITNESSES as follows:
1. Terms defined in the Debenture shall have the same meaning in this
Deed.
2. The New Chargor hereby agrees:
(a) to become a party to and to be bound by the terms of the
Debenture as a Chargor with immediate effect and so that the
Debenture shall be read and construed for all purposes as if
such New Chargor had been an original party thereto in the
capacity of Chargor (but so that the security created
consequent on such accession shall be created on the date
hereof); and
(b) to be bound by all the covenants and agreements in the
Debenture which are expressed to be binding on a Chargor.
3. (a) In accordance with the foregoing, the New Chargor as
beneficial owner and with full title guarantee subject to the
Encumbrances permitted pursuant to the Credit
<PAGE> 55
Agreement now grants to the Security Agent as agent and
trustee for the Secured Lenders the assignments, charges,
mortgages and other security described in the Debenture as
being granted, created or made by Chargors thereunder in
favour of the Security Agent as agent and trustee for the
Secured Lenders and grants to the Security Agent as agent and
trustee for the Secured Lenders the floating charge as
described in Clause 5.1 of the Debenture, to the intent that
its assignments, charges, mortgages and other security shall
be effective and binding upon it and its property and assets
and shall not in any way be avoided, discharged or released or
otherwise adversely affected by any ineffectiveness or
invalidity of the Debenture or of any other party's execution
thereof or any other Deed of Accession, or by any avoidance,
invalidity, discharge or release of any assignment, charge or
mortgage contained in the Debenture or in any other Deed of
Accession.
(b) Without limiting the generality of the other provisions of
this Deed and the Debenture, pursuant to the terms hereof and
of the Debenture, the New Chargor as beneficial owner and with
full title guarantee subject to any Encumbrance permitted
pursuant to the Credit Agreement, as security for the payment,
discharge and performance of all Secured Liabilities, hereby
and by the Debenture in favour of the Security Agent (as agent
and trustee for itself and each of the Secured Lenders):
(i) charges by way of first legal mortgage all the
property (if any) now belonging to it brief
descriptions of which are specified in Schedule 2 of
the Debenture and/or the Schedule to this Deed;
(ii) subject to any necessary third party consents being
obtained, assigns and agrees to assign all of its
right, title and interest (if any) in and to each of
the contracts and agreements specified in Clause
4.3(a) of the Debenture and/or the Schedule to this
Deed; and
(iii) agrees that the New Chargor's estates and other
interests in certain specific Intellectual Property
Rights for the purposes of Clause 4.1(c)(xi) of the
Debenture and certain Group Shares for the purposes
of Clause 4.2 thereof, as such provisions apply in
relation to the New Chargor, as are specified in the
Schedule to this Deed and (in the case of Group
Shares, together with all Related Rights) are hereby
mortgaged or charged as provided in such provisions
and the other provisions of the Debenture.
4. The Company, for itself and as agent for and on behalf of all other
Chargors under the Debenture, hereby agrees to all matters provided for
herein.
5. The Debenture and this Deed shall be read as one to this extent and so
that references in the Debenture to "this Debenture", "herein", and
similar phrases shall be deemed to include this Deed and all references
in the Debenture to "Schedule 2", "Schedule 4" or "Schedule 5" (or any
part thereof) shall be deemed to include a reference to the Schedule to
this Deed (or relevant part thereof).
6. This Deed shall be governed by and construed in accordance with English
law.
IN WITNESS whereof this Deed of Accession has been executed as a deed on the
date first above written.
<PAGE> 56
SCHEDULE
Insert details of:
(1) Freehold and Leasehold property in which the New Chargor has an
interest;
(2) additional contracts etc., to which the New Chargor is a party and
which are to become Relevant Agreements;
(3) Intellectual Property Rights in which the New Chargor has an interest
but excluding any Excluded Intellectual Property (as defined in the
Debenture);
(4) Group Shares in which the New Chargor has an interest.
<PAGE> 57
SIGNATORIES
(to Deed of Accession)
THE NEW CHARGOR
(for a Company incorporated
in the United Kingdom)
Executed as a deed by )
)
) ........................................
acting by ) Director
and )
)
)
........................................
Director
THE COMPANY
(for itself and as agent for the
other Chargors party to the
Debenture herein referred to )
)
Executed as a deed by )
) .........................................
GETTY COMMUNICATIONS ) Director
LIMITED )
acting by )
and )
........................................
Director
THE SECURITY AGENT
HSBC INVESTMENT BANK PLC
By:
<PAGE> 58
SIGNATORIES
(to Debenture)
Executed as a deed by )
GETTY )
COMMUNICATIONS )
LIMITED )
acting by ) Mark Getty
and ) Jonathan Klien
Executed as a deed by )
GETTY IMAGES LIMITED )
acting by ) Mark Getty
and ) Jonathan Klien
Executed as a deed by )
GETTY COMMUNICATIONS )
GROUP FINANCE LIMITED )
acting by ) Mark Getty
and ) Jonathan Klien
THE SECURITY AGENT
HSBC INVESTMENT BANK plc
By: M. T. Nickell
<PAGE> 59
CONFORMED COPY
DEBENTURE
Dated 25th October, 1999
BETWEEN
THE CHARGORS
named herein
and
HSBC INVESTMENT BANK plc
as Security Agent
ALLEN & OVERY
London
<PAGE> 60
BK:680544.5
<PAGE> 61
INDEX
<TABLE>
<CAPTION>
CLAUSE PAGE
<C> <C>
1. Interpretation.......................................................................................1
2. CovenanttoPay........................................................................................5
3. Covenant to Make Facilities Available................................................................5
4. Fixed Charges; Assignments...........................................................................5
5. Floating Charges....................................................................................10
6. Continuing Security, etc............................................................................11
7. Representations and Warranties......................................................................14
8. Undertakings........................................................................................17
9. Power to Remedy.....................................................................................21
10. Special Provisions relating to the Security Shares..................................................21
11. The Account Banks...................................................................................23
12. When Security becomes Enforceable...................................................................24
13. Enforcement of Security.............................................................................24
14. Receiver............................................................................................25
15. Application of Proceeds.............................................................................27
16. No Liability as Mortgagee in Possession.............................................................28
17. Protection of Third Parties.........................................................................28
18. Taxes...............................................................................................28
19. Expenses............................................................................................28
20. Delegation by Security Agent........................................................................29
21. Further Assurances..................................................................................29
22. Redemption of Prior Mortgages.......................................................................30
23. Power of Attorney...................................................................................30
24. New Accounts........................................................................................31
25. Stamp Taxes.........................................................................................31
26. Assignments, etc....................................................................................31
27. Waivers, Remedies Cumulative........................................................................32
28. Set-off.............................................................................................32
29. Severability........................................................................................33
30. Counterparts........................................................................................33
31. Notices.............................................................................................33
32. Notice of Assignment................................................................................34
33. Registration........................................................................................34
34. Covenant to Release.................................................................................34
35. Governing Law and Jurisdiction......................................................................35
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<PAGE> 62
<TABLE>
<CAPTION>
SCHEDULES
<C> <C>
1. The Chargors........................................................................................36
2. Part I - Freehold Property..........................................................................38
Part II - Leasehold Property........................................................................39
3. Part I - Notice of Assignment.......................................................................40
Part II - Letter of Undertaking.....................................................................41
Part III - Form of Notice in respect of Relevant Agreements.........................................42
Part IV - Form of Acknowledgement...................................................................44
4. Group Shares........................................................................................45
5. Part I - Intellectual Property Rights...............................................................46
Part II - Schedule of Licence Agreements............................................................48
6. Part I - Bank Account Set-off Letter and Acknowledgement............................................49
Part II - Form of Acknowledgement...................................................................51
Part III - Form of Letter for Operation of Bank Accounts............................................52
7. Form of Deed of Accession...........................................................................54
Signatories to Deed of Accession.............................................................................57
Signatories to Debenture.....................................................................................58
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