Exhibit 10.54
CONFORMED COPY
THIS FIXED AND FLOATING CHARGE is made as a deed on 22 March 2007
BETWEEN:
(1) H3C HOLDINGS LIMITED, a company incorporated under the laws of the Cayman
Islands (registered number 180539) whose registered office is at XX Xxx 000
XX, Xxxxxx House, South Church Street, Xxxxxx Town, Grand Cayman, Cayman
Islands (the "CHARGOR"); and
(2) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED a limited liability
company incorporated under the laws of Hong Kong whose registered office
located at 33rd Floor, ICBC Tower, 3 Garden Road, Central, Hong Kong (in
its capacity as collateral agent, the "COLLATERAL AGENT", which expression
shall, wherever the context so admits, include such entity and all other
persons from time to time acting in such capacity).
WHEREAS:
(A) By the Facility Agreement, the Lenders have agreed to make Term Loans to
the Borrower upon the terms and subject to the conditions contained
therein.
(B) As security for the Chargor's obligations under the Facility Agreement, the
Chargor has agreed to enter into this Fixed and Floating Charge,
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION AND DEFINITIONS
1.1 INTERPRETATION
In this Fixed and Floating Charge (including the recitals) words and
expressions defined and the rules of construction and interpretation set
out in the Facility Agreement shall, unless otherwise provided herein or
the context otherwise requires, have the same meaning herein save that, in
the event that there is a conflict between a definition in the Facility
Agreement and in this Fixed and Floating Charge, the definition in this
Fixed and Floating Charge shall prevail.
1.2 DEFINITIONS
In this Fixed and Floating Charge, unless the context otherwise requires:
"ACCOUNT BANK" means Industrial and Commercial Bank of China (Asia) Limited
at 33rd Floor, ICBC Tower, 0 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx;
"BORROWER DEBT SERVICE ACCOUNT" means the US dollar denominated current
account opened in the name of the Chargor with the Account Bank and having
the account number [PERSONAL INFORMATION OMITTED FOR SECURITY PURPOSES] and
includes any renewal or re-designation thereof;
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"BORROWER DEBT SERVICE RESERVE ACCOUNT" means the US dollar denominated
current account opened in the name of the Chargor with the Account Bank and
having the account number [PERSONAL INFORMATION OMITTED FOR SECURITY
PURPOSES] and includes any renewal or re-designation thereof;
"CHARGED PROPERTY" means any or all of the property, assets and undertaking
of the Chargor for the time being whatsoever and wheresoever situated,
present and future in each case expressed to be subject to the security
created under clause 3 (Security) of this Fixed and Floating Charge;
"ENFORCEMENT DATE" means the date upon which an Enforcement Notice is
served by the Collateral Agent on the Chargor;
"ENFORCEMENT NOTICE" means a notice served by the Collateral Agent pursuant
to and in accordance with clause 8 (Default Procedure);
"FACILITY AGREEMENT" means the senior secured credit facility agreement
dated 22 March 2007 and signed by or on behalf of, amongst others, the
Borrower, the Chargor and the Collateral Agent as amended, supplemented
and/or restated from time to time in any manner whatsoever;
"RECEIVABLES" means all books and other debts of any nature whatsoever,
other than those represented by the Borrower Debt Service Account and the
Borrower Debt Service Reserve Account;
"RECEIVER" means a receiver or manager appointed by or on behalf of the
Collateral Agent under this Fixed and Floating Charge or pursuant to the
Collateral Agent's statutory powers, and includes more than one such
receiver and substituted receiver;
"SECURED INDEBTEDNESS" means the moneys, liabilities and obligations
(whether actual or contingent and whether owed jointly and severally or in
any other capacity whatsoever) of the Chargor which are, or are expressed
to be, or may at any time in the future be due and owing to the Collateral
Agent (whether for its own account or as agent or trustee for the Secured
Parties) or to any of the Secured Parties under or in connection with the
Facility Agreement together with all costs, charges and expenses incurred
by the Collateral Agent or any Secured Party which are, or are expressed to
be, or may become due and owing by the Chargor under or in connection with
the Facility Agreement;
"SECURITY" means the security from time to time constituted by or pursuant
to this Fixed and Floating Charge (or intended to be constituted by or
pursuant to this Fixed and Floating Charge) or any part thereof;
2. COVENANT TO PAY AND NATURE OF SECURED INDEBTEDNESS
2.1 COVENANT TO PAY
The Chargor hereby covenants with the Collateral Agent that it shall pay
and discharge the Secured Indebtedness at the time and in the manner
provided for in the Facility
Borrower Fixed and Floating Charge
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Agreement and the Chargor hereby creates the Security in the Charged
Property in the manner and on the terms set out in clause 3 (Security).
2.2 NATURE OF SECURED INDEBTEDNESS
Each conveyance, transfer, assignment and charge hereunder expressed to be
to, each undertaking and agreement hereunder expressed to be to or with,
and each representation and warranty hereunder expressed to be given to,
the Collateral Agent is to, with or, as the case may be, given to the
Collateral Agent for itself and as agent and trustee for the Secured
Parties from time to time. Without prejudice to the generality of the
foregoing or clause 1.1 (Interpretation), any reference in this Fixed and
Floating Charge to the Chargor, the Collateral Agent or any Secured Party
shall be construed so as to include their respective successors and
permitted assigns or transferees.
3. SECURITY
3.1.1 ASSIGNMENT, FIXED AND FLOATING CHARGE
Subject always to clause 3.1.2 hereof, the Chargor as beneficial owner, by
way of continuing security for the payment and discharge of the Secured
Indebtedness, hereby:
(A) conveys, transfers and assigns absolutely to the Collateral Agent all
of the right, title, interest and benefit of the Chargor (present and
future and whether legal or equitable) in, to and under the
Receivables;
(B) charges in favour of the Collateral Agent by way of first fixed charge
all its rights under or in respect of the assets listed in sub-clause
3.1.1(A) to the extent they are not the subject of a mortgage or an
assignment under such sub-clause 3.1.1(A); and
(C) charges in favour of the Collateral Agent by way of first floating
charge the whole of the Chargor's undertakings and all its property,
assets and rights, whatsoever and wheresoever, present and future
(including without limitation its respective uncalled capital, its
rights to any insurance policy or insurance proceeds and any property
held on trust for the benefit of it by a third party), other than:
(i) any property, assets or rights from time to time or for the time
being effectively:
(a) the subject of a Lien (in equity or at law) by
sub-clause 3.1.1(A) and (B) (Assignment, Fixed and
Floating Charge) or otherwise pursuant to this Fixed
and Floating Charge;
(b) the subject of a Lien pursuant to the H3C Share
Mortgage or Borrower Fixed Charge Over Bank Accounts
(as both are defined in the Facility Agreement); or
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(c) subject to clause 11.8 (Discharge Conditional),
released, discharged and/or reassigned, or as
appropriate, transferred in accordance with sub-clauses
3.3(A) to 3.3(B) inclusive;
to hold the same unto the Collateral Agent, but in each case subject to
clause 3.3 (Redemption).
3.1.2 Notwithstanding any other provision of this Fixed and Floating Charge, the
following shall not be in any way subject to the security created by this
Fixed and Floating Charge:
(A) the amounts of US$112 million and US$45 million received by the Chargor
from 3Com Cayman pursuant to Sections 5.9 or 5.12 of the Facility
Agreement;
(B) the Receivables representing such amounts whilst they are held in a
bank account by the Chargor;
(C) the benefit of the loans of US$112 million and US$45 million from H3C
to Chargor referred to in Section 6.1(n)(x) of the Facility Agreement; and
(D) the amounts of US$112 million and US$45 million received by the Chargor
from H3C pursuant to the loans referred to in (iii) above and the bank
accounts in which such amounts are held whilst held by the Chargor.
3.2 COLLATERAL AGENT NO OBLIGATION TO PERFORM
Notwithstanding the conveyance, transfer and assignment to the Collateral
Agent of all the right, title, interest and benefit of the Chargor in, to
and under the Receivables, the Collateral Agent shall not be or be deemed
to be liable to perform any of the obligations of the Chargor under any of
the Receivables and the Chargor hereby acknowledges and confirms that it
shall remain fully liable for the performance of all such obligations and
shall have no claim against the Collateral Agent in respect of any omission
on the part of the Collateral Agent to perform the same.
3.3 REDEMPTION
(A) Subject always to clause 11.8 (Discharge Conditional), upon the
Secured Indebtedness having been fully paid and unconditionally and
irrevocably discharged in full the Collateral Agent shall at the
request and cost of the Chargor, promptly release, discharge and/or
re-assign, or, as appropriate, transfer the benefit of the Security
constituted by clause 3.1.1 (Assignment, Fixed and Floating Charge) to
the Chargor or as the Chargor may direct and, thereafter, the Chargor
shall have no future obligation hereunder.
(B) The execution of a discharge, release, re-assignment or partial
discharge by the Collateral Agent shall be a good and valid release or
discharge of the Security constituted by this clause 3 (Security) or
the relevant part thereof (as the case may be) and the obligations (or
the relevant part thereof, as the case may be) of
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the Chargor from this Fixed and Floating Charge without the need for
the Chargor to be a party thereto.
(C) The Collateral Agent hereby agrees that it shall, at the request and
cost of the Chargor, do all such things and execute all such documents
and procure that its nominees do all such things and execute all such
documents within its power to do and execute as may be reasonably
necessary to give effect to the release, discharge, re-assignment
and/or transfer referred to in sub-clauses (A) and (B).
(D) Upon any release, discharge, re-assignment and/or transfer pursuant to
and in accordance with sub-clause (A), the Collateral Agent shall, at
the request and cost of the Chargor:
(i) promptly procure the redelivery to the Chargor of all deeds,
certificates and other documents deposited with the Collateral
Agent or to its order pursuant to clause 4.2 (Deposit of Title
Documents);
(ii) promptly reverse or remove such memoranda endorsed on such
documents pursuant to clause 4.3 (Endorsement on Documents) as
are in the possession of the Collateral Agent;
(iii) promptly procure the redelivery to the Chargor, if it requests
the same, of the instruments and papers delivered by the Chargor
to the Collateral Agent under sub-clause 3.2(A);
(iv) promptly give notice to each person (if any) who has received
notice of the Security pursuant to clause 4.1 (Further Deeds and
Documents) of such release, discharge, re-assignment and/or
transfer; and
(v) promptly instruct the relevant insurance company to remove any
endorsements and reverse any amendments made pursuant to
sub-clause 4.1(C),
in each case to the extent the same relates to such release,
discharge, re-assignment and/or transfer.
4. PERFECTION OF SECURITY AND FURTHER ASSURANCE
4.1 FURTHER DEEDS AND DOCUMENTS
The Chargor shall at any time at the request of the Collateral Agent but at
the cost of the Chargor for costs reasonably incurred promptly sign, seal,
execute, deliver and do all deeds, instruments, notices, documents, acts
and things (including, without limitation further or other legal
assignments, transfers, mortgages, legal or other charges or securities or
any filings or registrations) as in each such case may be necessary or
desirable for the purpose of maintaining, perfecting or protecting the
Security or at any time after the Security has become enforceable for
facilitating the realisation thereof and the exercise of all powers,
authorities and discretions vested in the Collateral Agent or any Receiver
appointed hereunder provided that and without limitation:
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(A) promptly following the execution and delivery of this Fixed and
Floating Charge, the Chargor shall:
(i) enter the relevant particulars of this Fixed and Floating Charge
in the register of charges kept or to be kept at the registered
office of the Chargor; and
(ii) make all such other filings and registrations as may be requested
in writing by the Collateral Agent as may be necessary to
perfect, protect and maintain the Security;
(B) as soon as practicable following request by the Collateral Agent the
Chargor shall assign any material insurance policies inuring to its
benefit and join with the Collateral Agent in giving notice of such
assignment in a form reasonably satisfactory to the Collateral Agent
to each insurance company under such insurance policies and use
reasonable endeavours to procure that such insurance company
acknowledges such notice in a form reasonably satisfactory to the
Collateral Agent and ensure that all endorsements then existing on
each of such insurance policies will be deleted, and each of such
insurance policies will be endorsed substantially as set out in, and
the named insured under each of the insurance policies will be
amended, in a form reasonably satisfactory to the Collateral Agent;
(C) as soon as practicable following request by the Collateral Agent the
Chargor shall use its reasonable efforts to procure that its insurance
brokers issue to the Collateral Agent the brokers' undertaking(s) in
respect of the insurance policies assigned pursuant to sub-clause (B)
above in a form satisfactory to the Collateral Agent;
(D) the Chargor shall, at the request of the Collateral Agent or any
person deriving title under the Collateral Agent, execute or do all
lawful acts, assurances and things for further or more perfectly
assuring the Charged Property or any part thereof to the Collateral
Agent and to those deriving title under the Collateral Agent,
and without prejudice to the generality of the foregoing, such assignments,
transfers, mortgages, legal or other charges or securities shall be in such
form as the Collateral Agent shall reasonably require and may contain
provisions such as are herein contained or provisions to the same effect.
4.2 DEPOSIT OF TITLE DOCUMENTS
In addition to the provisions of clause 3 (Security), the Chargor shall, as
soon as practicable following request by the Collateral Agent following the
execution and delivery of this Fixed and Floating Charge (or upon becoming
possessed thereof at any time hereafter), deposit with the Collateral Agent
or to the Collateral Agent's order all deeds, certificates and other
documents (other than those relating to the shares subject to the H3C Share
Mortgage) constituting or evidencing title to any material asset forming
part of the Charged Property originally charged pursuant to Clause 3.1.1
(A) or (B) or subsequently becoming subject to a fixed charge hereunder
pursuant to clause 5
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hereof or any part thereof (if they have not already done so) and the
Collateral Agent, if held by it or to its order, shall hold or procure to
be held such deeds, certificates and other documents in safe custody and
clearly identified so as to be distinct from all other deeds, certificates
and other documents of the Collateral Agent.
4.3 ENDORSEMENT ON DOCUMENTS
The Chargor, shall from time to time at the reasonable request of the
Collateral Agent but at the Chargor's cost for costs reasonably incurred
endorse or cause to be endorsed on documents referred to in clause 4.2
(Deposit of Title Documents) such memoranda as the Collateral Agent may
reasonably require for the purpose of referring or drawing attention to the
security interests created by this Fixed and Floating Charge.
5. PROTECTION OF SECURITY AND CRYSTALLISATION OF FLOATING CHARGE
5.1 PART CRYSTALLISATION
The Collateral Agent shall be entitled at any time by notice in writing to
the Chargor after an Event of Default to convert the floating charge
created by sub-clause 3.1.1(C) into a fixed charge affecting all the
property and assets which for the time being are the subject of such
floating charge or, as the case may be, such of the said property and
assets as are specified in such notice.
5.2 AUTOMATIC CRYSTALLISATION
Notwithstanding clause 5.1 (Part Crystallisation) and without prejudice to
any rule of law which may have a similar effect, the floating charge shall
automatically be converted with immediate effect into a fixed charge as
regards all the property and assets subject to the floating charge and
without notice from the Collateral Agent to the Chargor on:
(A) the presentation of a petition for the compulsory winding up of the
Chargor;
(B) the convening of a meeting for the passing of a resolution for the
voluntary winding up of the Chargor;
(C) the presentation or making of an application for a warrant of
execution, writ of fieri facias, garnishee order or charging order in
respect of any material part of the property or assets of the Chargor
subject to the floating charge which is not discharged within 60 days;
or
(D) the Chargor creating or permitting any Lien over or with respect to
any of the Charged Property, or attempting to do so other than as
permitted by the Facility Agreement; or
(E) the occurrence of the circumstances referred to in clause 8 (Default
Procedure).
5.3 RECONVERSION OF CRYSTALLISED ASSETS
The Collateral Agent may by notice in writing to the Chargor re-convert any
of the assets which has become subject to a fixed charge pursuant to
clauses 5.1 (Part
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Crystallisation) or 5.2 (Automatic Crystallisation) so that such asset
shall again be subject to the floating charge specified in sub-clause
3.1.1(C) provided that the floating charge over any asset re-converted
under this clause 5.3 (Reconversion of Crystallised Assets) shall be
subject to the further operation of clauses 5.1 (Part Crystallisation) or
5.2 (Automatic Crystallisation).
6. REPRESENTATIONS
6.1 The Chargor represents that, subject only to this Fixed and Floating
Charge, it is the sole legal and beneficial owner of the Charged Property
and that the Charged Property is free from any Lien other than as permitted
by the Facility Agreement and any interest or claims of third parties other
than interest or claims arising by operation of law affecting companies
generally.
6.2 The above representations are made on the date of this Fixed and Floating
Charge and are deemed to be repeated by the Chargor on each day following
the date of this Fixed and Floating Charge until the termination of the
Facility Agreement or this Fixed and Floating Charge, whichever is later.
7. COVENANTS AND UNDERTAKINGS
7.1 COVENANTS AND UNDERTAKINGS OF THE CHARGOR
The Chargor covenants and undertakes with the Collateral Agent that:
(A) it shall take all such actions as are available to it:
(i) to perfect and protect the Security intended to be conferred by
it on the Collateral Agent pursuant to this Fixed and Floating
Charge, including, inter alia, making all payments, carrying out
all registrations or renewals and generally taking all steps to
perfect, preserve, maintain and renew when necessary or desirable
the Security pursuant to this Fixed and Floating Charge; and
(ii) to maintain the Security intended to be conferred by it on the
Collateral Agent pursuant to this Fixed and Floating Charge as
first ranking security;
(B) it shall not sell, transfer, assign, exchange or otherwise dispose of
the whole or any part of the Charged Property or agree to do any of
the foregoing other than as expressly permitted or provided for in the
Facility Agreement or in this Fixed and Floating Charge or (with
respect to the assets charged pursuant to sub-clause 3.1.1 (C)) in the
ordinary course of business and in accordance with the Facility
Agreement;
(C) other than as provided in the Facility Agreement or in this Fixed and
Floating Charge it shall not create, incur or permit to subsist any
Lien on the Charged Property;
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(D) at the written request of the Collateral Agent, make all such filings
and registrations, and take all such other reasonable steps, as may be
necessary or desirable in connection with the creation, perfection or
protection of any security which it may, or may be required to, create
in connection herewith;
(E) at all times give to the Collateral Agent such information as the
Collateral Agent may reasonably require in respect of the Charged
Property for the purpose of the discharge of the trusts, powers,
rights, duties, authorities and discretions vested in it hereunder or
by operation of law;
(F) take all reasonable steps as may be required by the Collateral Agent
to allow the Collateral Agent to sell or dispose of the Charged
Property on or after the Security becomes enforceable; and
(G) not to do or cause or permit to be done, or omit to do anything which
may in any way jeopardise the Security created hereunder.
7.2 POWER OF COLLATERAL AGENT TO REMEDY FAILURES
If at any time the Chargor shall fail to comply with or perform any of the
covenants contained in this Fixed and Floating Charge or any Credit
Document, the Collateral Agent shall have the power on behalf of or in the
name of the Chargor, but shall not be under any obligation, to perform the
covenants and to take such steps which the Collateral Agent may in its
discretion, consider appropriate with a view to remedying, or mitigating
the consequences of such failure but so that the exercise of this power or
the failure to exercise it shall, in no circumstances, prejudice the other
rights of the Collateral Agent under this Fixed and Floating Charge or any
Credit Document. The Chargor shall on demand reimburse to the Collateral
Agent all proper costs, expenses and losses incurred or sustained by the
Collateral Agent in connection with such steps and until such costs,
expenses and losses are reimbursed the outstanding sums shall carry
interest in accordance with Section 2.10 of the Facility Agreement from the
date when payment is due to the date of reimbursement and such outstanding
sums including any accrued interest shall form part of the Secured
Indebtedness. No exercise by the Collateral Agent of its powers under this
clause 7.2 (Power of Collateral Agent to Remedy Failures) shall render the
Collateral Agent liable to account as a mortgagee in possession.
8. DEFAULT PROCEDURE
The Security shall become immediately enforceable:
(A) automatically upon the occurrence of any Event of Default described in
sections 8.1(e) or 8.1(f) of the Facility Agreement (except with
respect to Excluded Subsidiaries); and
(B) at the request of (or with the consent of) the Requisite Lenders and
upon notice to the Borrower by the Administrative Agent, upon the
occurrence of any other Event of Default (including those described in
sections 8.1(e) or 8.1(f) of the Facility Agreement with respect to
Excluded Subsidiaries).
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9. EFFECTS OF THE SECURITY BECOMING ENFORCEABLE
9.1 EFFECTS
After the Security (or the relevant part thereof) shall have become
enforceable in accordance with clause 8 (Default Procedure) and without
prejudice to the powers of the Collateral Agent to appoint a Receiver
pursuant to clause 14 (Appointment of Receiver):
(A) the floating charge created under sub-clause 3.1.1(C) shall
automatically and immediately crystallise and operate as a fixed
charge;
(B) the Chargor's rights or power to deal with the Charged Property
(whether statutory or otherwise) shall cease and the Collateral Agent
shall be entitled to deal with, collect in and realise the same in
such manner as the Collateral Agent thinks fit;
(C) the Collateral Agent may exercise all of the rights conferred on any
mortgagee by law and on the Collateral Agent or on any Receiver under
this Fixed and Floating Charge including, without limitation, the
right to sell or otherwise dispose of, for any consideration (as
referred to in clause 14.4 (Disposal by Receiver)), the whole or any
part of the Charged Property in respect of which the security hereby
constituted has become enforceable accordingly and, nothing shall
restrict the exercise by the Collateral Agent or any Receiver of its
powers hereunder and the Security shall become immediately enforceable
and the statutory power of sale and other powers of sale and
appointing a Receiver shall become immediately exercisable without any
juridical or other formality or any presentment, demand, protest or
other notice of any kind on or at any time after the Enforcement Date;
(D) without prejudice to the foregoing, (and subject to clause 9.9
(Inconsistency and Conflict)), the Collateral Agent may in addition to
any powers granted it by applicable law, upon and from the Enforcement
Date and upon and subject to the terms and conditions of the Facility
Agreement):
(i) sell all the title to and interest in the Charged Property or any
interest in the same and do so in consideration of an agreement
to pay all or part of the purchase price at a later date or
dates, or an agreement to make periodical payments, whether or
not the agreement is secured by a security or a guarantee, or for
such other consideration whatsoever as the Collateral Agent may
think fit, and also grant any option to purchase and effect
exchanges;
(ii) with a view to, or in connection with, the sale of the Charged
Property, carry out any transaction, scheme or arrangement which
the Collateral Agent considers appropriate;
(iii) do all or any of the following things or exercise all or any of
the following powers, so far as not included in paragraphs (i)
and (ii) of sub-clause (D):
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(a) take possession of, get in and collect the Charged Property;
(b) carry on the business of the Chargor in so far as it relates
to the Charged Property as it thinks fit;
(c) sell, exchange, license or otherwise dispose of or in any
way whatsoever deal with the Charged Property for such
consideration (if any) and upon such terms as it may think
fit;
(d) appoint and engage managers, agents and advisers in respect
of the Charged Property upon such terms as to remuneration
and otherwise and for such periods as it may determine, and
to dismiss them;
(e) bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims and proceedings concerning the
Charged Property;
(f) transfer all or any of the Charged Property and/or any of
the liabilities of the Chargor to any other company or body
corporate, whether or not formed or acquired for the purpose
and whether or not a subsidiary or associated company of the
Collateral Agent or a company in which the Collateral Agent
has an interest;
(g) in connection with the exercise of any of its powers
hereunder, execute or do, or cause or authorise to be
executed or done, on behalf of or in the name of the
Chargor, as it may think fit, but only in respect of the
Charged Property all assurances, deeds, transactions,
schemes of arrangement, documents, acts and things which it
may consider appropriate and to do and exercise, in relation
to the Charged Property, all such powers as it would be
capable of exercising if it were the absolute beneficial
owner of the same and to use the name of the Chargor for all
or any of the foregoing purposes;
(h) exercise or permit any other person to exercise any powers,
rights, remedies or privileges in respect of the Charged
Property;
(i) exercise any of the powers and perform any of the duties
conferred on the Chargor by any Credit Document or any
statute, deed or contract;
(j) disclaim, discharge, abandon, disregard, alter or amend all
or any of the outstanding contracts of the Chargor but only
in respect of the Charged Property and allow time for
payment of any monies either with or without security;
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(k) make and effect insurances in respect of the Charged
Property and submit claims thereunder;
(l) do all such other acts and things as it may consider
necessary, incidental or conducive to the exercise of any of
the powers hereby conferred;
(m) generally use the name of the Chargor and its corporate seal
(where appropriate) in the exercise of all or any of the
powers hereby conferred;
(n) in respect of the Charged Property, sanction or confirm
anything done by the Chargor and concur with the Chargor in
any dealing not hereinbefore specifically mentioned; and
(o) generally carry out, cause or authorise to be carried out
any transaction, scheme or arrangement whatsoever, whether
similar or not to any of the foregoing, in relation to the
Charged Property which it may consider expedient as
effectually as if it were solely and absolutely entitled to
the Charged Property.
9.2 ENTITLEMENT TO PAY EXPENSES AND OUTGOINGS
Subject to the order of priority of payments set out in Section 2.16(h) of
the Facility Agreement, the Collateral Agent may pay and discharge the
expenses incurred (whether by the Collateral Agent, any Receiver or any
other person) in and about the carrying on and management of any such
business as contemplated by clause 9.1 (Effects) or in the exercise of any
of the powers conferred by clause 9.1 (Effects) or otherwise in respect of
the Charged Property and all outgoings which it shall think fit to pay out
of the profits and income of the Charged Property and the moneys received
by it in carrying out any business as contemplated by clause 9.1 (Effects)
and may apply the residue of the said profits, income and moneys in the
manner provided by Section 2.16(h) of the Facility Agreement provided that
any such expenses shall, in any event, to the extent not fully paid or
discharged, form or shall be deemed to form part of the Secured
Indebtedness.
9.3 NO WAIVER
No failure on the part of the Collateral Agent or any Receiver to exercise,
and no delay on its part in exercising, any right, power or remedy under
this deed will operate as a waiver thereof nor will any single or partial
exercise of any right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. .
9.4 WAIVERS TO BE IN WRITING
Any waiver and any consent by the Collateral Agent under this Fixed and
Floating Charge must be in writing, be express and not implied and may be
given subject to any conditions which the Collateral Agent considers fit.
Any waiver or consent shall be effective only in the instance and for the
purpose for which it is given.
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9.5 NO OBLIGATION TO INSURE
Notwithstanding any provisions to the contrary, the Collateral Agent shall
not be under any obligation to insure any of the Charged Property or the
title deeds or other evidence in respect thereof and shall not be
responsible for any loss which may be suffered as a result of the lack of
or inadequacy of any such insurance.
9.6 NO RESPONSIBILITY FOR LOSSES
The Collateral Agent shall not be responsible for any loss or diminution in
the value occasioned to the Charged Property by any act or omission of the
Chargor or any prior ranking encumbrancer or any other person.
9.7 NO RESPONSIBILITY FOR TAX
The Collateral Agent shall have no responsibility whatsoever to any person
as regards any deficiency which might arise because the Collateral Agent is
subject to any tax in respect of the Charged Property or any part thereof
on any income therefrom or any proceeds thereof.
9.8 NO LIABILITY
The Collateral Agent shall not be liable for any failure, omission or
defect in perfecting the Security or any security created by the Facility
Agreement or any of the Credit Documents.
9.9 INCONSISTENCY AND CONFLICT
To the maximum extent permitted by applicable law, where any inconsistency
or conflict exists between the provisions of this Fixed and Floating Charge
and the provisions of any applicable law, the provisions of this Fixed and
Floating Charge shall prevail and such inconsistent or conflicting
provisions shall be deemed to be expressly negated or modified hereby
provided that none of the foregoing shall be construed as a limitation on
the powers of any Receiver.
9.10 NO EXEMPTION
Nothing in this Fixed and Floating Charge shall exempt the Collateral Agent
from or indemnify it against any liability which would by rule of law or
otherwise attach to it in respect of any act of negligence or wilful
default which it may have committed in relation to its duties and/or
discretions under this Fixed and Floating Charge.
10. CHATTELS AND FIXTURES
At any time after the Security has become enforceable, the Collateral Agent
or any Receiver may:
10.1 dispose of any chattels owned by the Chargor forming part of the Charged
Property as agent for the Chargor and without prejudice to any obligation
on the part of the
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Collateral Agent or the Receiver to account for the proceeds of sale of
such chattels; and
10.2 sever any plant machinery and other fixtures and fittings owned by the
Chargor from any premises containing them and sell the same separately
without the consent of the Chargor.
11. PRESERVATION OF RIGHTS
11.1 SECURITY ADDITIONAL
The Security shall be in addition to and shall be independent of every
guarantee, indemnity or other security which the Collateral Agent may at
any time hold for the Secured Indebtedness and it is hereby declared that
no prior security held by the Collateral Agent over the whole or any part
of the Charged Property shall merge in the Security.
11.2 SECURITY CONTINUING
The Security shall be a continuing security notwithstanding the winding-up
or dissolution of the Chargor or any partial payment, settlement of account
or other matter whatsoever and in particular (but without prejudice to the
generality of the foregoing) shall not be considered satisfied by any
intermediate repayment in satisfaction of all or any of the Secured
Indebtedness and shall continue in full force and effect until the Secured
Indebtedness has been discharged and satisfied in full.
11.3 INDULGENCE AND RELEASE
The Collateral Agent may (with the prior written consent of the Requisite
Lenders) in its discretion grant time or other indulgence, or make any
other arrangement variation or release with, the Chargor or any other
person (whether or not party hereto and whether or not jointly liable with
the Chargor) in respect of the Secured Indebtedness or of any other
security therefor or guarantee in respect thereof without prejudice either
to the Security or to the liability of the Chargor for the Secured
Indebtedness.
11.4 RIGHTS CUMULATIVE
The rights, powers and remedies provided in this Fixed and Floating Charge
are cumulative and are not, nor are they to be construed as, exclusive of
any rights, power or remedies provided by law.
11.5 SECURITY NOT AFFECTED
Neither the Security nor any of the rights, powers and remedies conferred
upon the Collateral Agent or any Receiver (or their respective delegates)
by this Fixed and Floating Charge or by law nor the liability of the
Chargor hereunder shall be discharged, impaired or otherwise affected by:
(A) the insolvency, bankruptcy, winding-up or dissolution of the Chargor
or any change in its status, function, control or ownership;
15
(B) any of the obligations of the Chargor under any of Credit Document or
under any other Lien taken in respect of the obligations of the
Chargor under any Credit Document being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
(C) time or other indulgence being granted or agreed to be granted to the
Chargor in respect of any of its obligations under any Credit Document
or under any such Lien;
(D) any amendment to, or any variation, waiver or release of, any of the
obligations of the Chargor under any Credit Document or under any such
Lien;
(E) any failure to take, or fully to take, any Lien contemplated by any
Credit Document or otherwise agreed to be taken in respect of any of
the obligations of the Chargor under any Credit Document;
(F) any deficiency in the powers of the Chargor to enter into or perform
any of its obligations under any Credit Document to which it is a
party or any irregularity in the exercise thereof or any lack of
authority by any person purporting to act on their behalf;
(G) any other Credit Document or Lien (other than the Security) or right
or remedy (other those under this Fixed and Floating Charge) being or
becoming wholly or partly void, voidable, unenforceable or impaired or
by the Collateral Agent releasing, refraining from enforcing, varying
or in any other way dealing with any of the same or any power, right
or remedy the Collateral Agent may now or hereafter have from or
against the Chargor;
(H) any waiver, exercise, omission to exercise, compromise, renewal or
release of any rights against the Chargors or any compromise,
arrangement or settlement with it;
(I) any invalidity or irregularity in the execution of this Fixed and
Floating Charge or any other Credit Document; and
(J) any other act (save for any act of release and discharge granted by
the Collateral Agent), event or omission which, but for this Clause
11.5 (Security Not Affected) might operate to discharge, impair or
otherwise affect the Security or the liability of the Chargor for the
Secured Indebtedness or any of the rights, powers or remedies
conferred upon the Collateral Agent or any Receiver (or their
respective delegates) by this Fixed and Floating Charge or by law or
the liability of the Chargor hereunder.
Without prejudice to the generality of this Clause 11.5 (Security Not
Affected), the Chargor expressly confirms that it intends that its
liability for the Secured Indebtedness and its obligations under this Fixed
and Floating Charge shall extend from time to time to any variation,
increase, extension, addition or replacement (however fundamental) of or to
any of the Credit Documents and/or any facility or amount made available
under any of the Credit Documents.
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11.6 NO PREJUDICE TO OTHER SECURITY
Nothing contained in this Fixed and Floating Charge is intended to, or
shall operate so as to, prejudice or affect any guarantee, indemnity or
other security of any kind whatsoever which the Collateral Agent may have
for the Secured Indebtedness or any right, remedy or privilege of the
Collateral Agent thereunder.
11.7 SCOPE OF RELEASE
Any receipt, release or discharge of the Security or of any liability
arising under this Fixed and Floating Charge may be given by the Collateral
Agent and, unless expressly stated otherwise, shall not release or
discharge the Chargor from any liability for the same or any other monies
which may exist independently of this Fixed and Floating Charge. Where such
receipt, release or discharge relates only to part of the Charged Property
such receipt, release or discharge shall not prejudice or affect the
Security in relation to the remainder of the Charged Property, unless
expressly stated otherwise.
11.8 DISCHARGE CONDITIONAL
Any settlement, reassignment, release or discharge between the Chargor on
the one part and the Collateral Agent or any Receiver (or their respective
delegates) on the other (the Collateral Agent, any Receiver and their
respective delegates being referred to in this clause 11.8 (Discharge
Conditional) as the "TRANSACTION PERSON(S)") shall be conditional upon no
security or payment by any person in respect of the Secured Indebtedness
being avoided or reduced by virtue of any provisions of law or enactments
(including but not limited to those relating to bankruptcy, insolvency or
liquidation) for the time being in force and, in the event of any such
security or payment being so avoided or reduced, the Transaction Person(s)
shall be entitled, to recover the value or amount of such payment and the
Security subsequently as if such settlement or discharge had not occurred
but so that nothing herein shall confer on any Transaction Persons the
right to claim under this clause 11.8 (Discharge Conditional) for more than
the Collateral Agent would be entitled to claim in aggregate hereunder in
respect of such avoided or reduced security or payment, provided that any
such Settlement, reassignment, release or discharge shall become
unconditional upon the expiry of one month after the maximum period within
which such settlement, reassignment, release or discharge can be avoided or
reduced.
11.9 NO CONDITIONS TO EXERCISE OF RIGHTS
Neither the Collateral Agent nor any Receiver nor any of their respective
delegates shall be obliged before exercising any of the rights, powers or
remedies conferred upon them by this Fixed and Floating Charge or by law:
(A) to take any action or obtain judgment in any court against the
Chargor;
(B) to make or file any claim or proof in a winding-up or dissolution of
the Chargor; or
(C) to enforce or seek to enforce any other security taken in respect of
any of the obligations of the Chargor under any of the Credit
Documents.
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11.10 NEW ACCOUNT
At any time following (a) the Collateral Agent receiving notice (either
actual or constructive) of any subsequent charge affecting the Charged
Property or (b) the Collateral Agent receives notice of any assignment or
disposition affecting all or any part of the Charged Property or any
interest therein to which the Collateral Agent has not given its approval
or (c) the commencement of the insolvency, administration, reorganisation,
liquidation or dissolution of, or any analogous proceeding in respect of,
of the Chargor, the Collateral Agent may open a new account in the name of
the Chargor (whether or not it permits any existing account to continue).
If the Collateral Agent does not open such a new account, it shall
nevertheless be treated as if it had done so at the time when the notice
was received or was deemed to have been received or, as the case may be,
the insolvency, administration, reorganisation, liquidation, dissolution or
other proceeding commenced. Thereafter, all payments made by the Chargor to
the Collateral Agent or received by the Collateral Agent for the account of
the Chargor shall be credited or treated as having been credited to the new
account and shall not operate to reduce the amount secured by this Deed at
the time when the Collateral Agent received or was deemed to have received
such notice or, as the case may be, the insolvency, administration,
reorganisation, liquidation, dissolution or other proceeding commenced.
12. SUSPENSE ACCOUNT(S)
All monies received, recovered or realised by the Collateral Agent or a
Receiver under this Fixed and Floating Charge (including the proceeds of
any conversion of currency) after the security created hereunder has become
enforceable, except where such monies together with all other monies
received, recovered or realised by the Collateral Agent or any Receiver
under this Fixed and Floating Charge are sufficient to satisfy and
discharge the Secured Indebtedness in full, may in the discretion of the
Collateral Agent or the Receiver (provided that such action has first been
approved by the Collateral Agent) be credited to any suspense or impersonal
account in the name of the Collateral Agent at the Account Bank and may be
held in such account for so long as the Collateral Agent may think fit
(with interest accruing thereon at such market rate, if any, as the
Collateral Agent may deem fit) pending their application from time to time
(as the Collateral Agent shall be entitled to do in its discretion) in or
towards satisfaction of the Secured Indebtedness in accordance with the
terms of this Fixed and Floating Charge. Save as provided above, no party
shall be entitled to withdraw any amount at any time standing to the credit
of any such suspense or impersonal account.
13. PROTECTION OF PURCHASERS
No purchaser or other person dealing with the Collateral Agent or its
delegate or any Receiver appointed hereunder shall be bound to see or
inquire whether the right of the Collateral Agent or such Receiver to
exercise any of its or his powers has arisen or become exercisable or be
concerned to see whether any such delegation by the Collateral Agent shall
have lapsed for any reason or been revoked. Any sale or other dealing by
the Collateral Agent or its delegate or any Receiver of or with the Charged
Property and any part thereof shall be deemed to be within the power of the
person effecting the same and the receipt by such person of the purchase or
other moneys connected therewith shall effectively discharge the purchaser
or other party to such
18
dealing who shall not be concerned with the manner of application of the
proceeds of sale or other dealing or be in any way answerable therefor.
14. APPOINTMENT OF RECEIVER
14.1 APPOINTMENT AND REMOVAL
The Collateral Agent may if requested by the Chargor or at any time after
the Security (or the relevant part thereof) shall have become enforceable
in accordance with clause 8 (Default Procedure), appoint one or more
persons to be a Receiver or Receivers of the whole or any part of the
Charged Property. The Collateral Agent may:
(A) remove any Receiver previously appointed hereunder; and
(B) appoint another person or other persons as Receiver or Receivers,
either in the place of a Receiver so removed or who has otherwise
ceased to act or to act jointly with a Receiver or Receivers
previously appointed hereunder.
If at any time and by virtue of any such appointment(s) any two or more
persons shall hold office as Receivers of the same assets or income, each
one of such Receivers shall be entitled (unless the contrary shall be
stated in any of the deed(s) or other instrument(s) appointing them) to
exercise all the powers and discretions hereby conferred on Receivers
individually and to the exclusion of the other or others of them.
14.2 POWERS OF RECEIVERS
Every Receiver for the time being holding office by virtue of an
appointment made by the Collateral Agent hereunder shall (subject to any
limitations or restrictions expressed in the deed or other instrument
appointing him but notwithstanding any winding-up or dissolution of the
Chargor) have, in relation to the Charged Property, or as the case may be,
that part of the Charged Property in respect of which he was appointed:
(A) all the powers (as varied and extended by the provisions hereof)
conferred by common law or otherwise by law on mortgagees (whether or
not in possession) and receivers appointed under common law; and
(B) the power in the name or on behalf and at the cost of the Chargor to
exercise all the powers and rights of an absolute owner of the Charged
Property or the relevant part thereof and do or omit to do anything
which the Chargor could do.
14.3 ADDITIONAL POWERS OF RECEIVERS
In addition and without prejudice to the generality of the foregoing every
Receiver shall (notwithstanding any winding-up or dissolution of the
Chargor) have the powers specified in clause 9.1 (Effects).
14.4 RECEIVER TO BE AGENT OF THE CHARGOR
Every Receiver so appointed shall be deemed at all times and for all
purposes to be the agent of the Chargor and the Chargor shall be solely
responsible, jointly and severally,
19
for the acts and defaults of such Receiver (save in the case of the fraud,
negligence, wilful default, breach of duty or breach of trust in relation
to duties by such Receiver) and for payment of such Receiver's remuneration
in respect thereof.
14.5 REMUNERATION OF RECEIVER
Every Receiver shall be entitled to remuneration for his services at a
reasonable rate to be fixed by agreement between him and the Collateral
Agent (or, failing such agreement, to be fixed by the Collateral Agent)
appropriate to the work and responsibilities involved upon the basis of
charging from time to time adopted in accordance with his current practice
or the current practice of his firm.
14.6 MONIES ACTUALLY PAID BY RECEIVER
Only monies actually paid by the Receiver to the Collateral Agent in
satisfaction of the Secured Indebtedness shall be capable of being applied
by the Collateral Agent in satisfaction thereof. The Receiver shall pay
over to the Collateral Agent any monies realised by the Receiver as a
result of the enforcement of the Security (other than monies paid into a
suspense account by such Receiver in accordance with clause 12 (Suspense
Account(s)).
14.7 LIMITATION OF LIABILITY
(A) Neither the Collateral Agent nor the Receiver nor any attorney or
agent of such party shall be liable to any person in respect of any
loss or damage whatsoever which arises out of the realisation of the
Charged Property or any part thereof or from any act, default or
omission in relation to the Security or from any exercise or
non-exercise, or the attempted or purported exercise of, or the
failure to exercise any of their respective powers, authorities or
discretions conferred upon them in relation to the Security or any
part of it, unless such loss or damage is caused by its negligence,
wilful default, breach of duty, breach of trust or fraud.
(B) The Collateral Agent shall not be liable to any person in respect of
any loss or damage whatsoever which arises out of the realisation of
the Charged Property or any part thereof or from any act, default or
omission in relation to the Security or from any exercise or
non-exercise, or the attempted or purported exercise of, or the
failure to exercise any of the powers, authorities or discretions
conferred upon it in relation to the Security or any part of it unless
such loss or damage is caused by its negligence, wilful default,
breach of duty, breach of trust or fraud.
(C) Without prejudice to the generality of sub-clauses (A) and (B), entry
into possession of the Charged Property shall not render the
Collateral Agent or the Receiver liable to account as mortgagee in
possession or liable for any loss on realisation or for any default or
omission for which a mortgagee in possession might be liable unless
such loss or damage is caused by its negligence, wilful default,
breach of duty, breach of trust or fraud and, if and whenever the
Collateral Agent or the Receiver enters into possession of the Charged
Property, it shall be entitled at any time at its pleasure to go out
of such possession.
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14.8 POWER OF APPOINTMENT ADDITIONAL
The foregoing powers of appointment of a Receiver shall be in addition to
and not to the prejudice of all other powers of the Collateral Agent under
common law or otherwise and so that such powers shall be and remain
exercisable by the Collateral Agent in respect of any part of the Charged
Property in respect of which no Receiver has been appointed and
notwithstanding that an appointment under the provisions of this clause 14
(Appointment of Receiver) shall have subsisted and been withdrawn in
respect of that property or shall be subsisting in respect of any other
part of the Charged Property.
15. INDEMNITY
15.1 INDEMNITY
Without prejudice to any right at law given to trustees, the Chargor
further covenants with and undertakes to each of the Collateral Agent and
any Receiver or Receivers fully to indemnify and keep indemnified it from
and against all liabilities, losses, damages, costs and expenses (including
legal costs and expenses), charges, actions, proceedings, claims and
demands or any other obligation or liability (including, without
limitation, in respect of taxes, duties, levies, imposts and other charges
any indemnity and other amounts which the Collateral Agent is or would
become obliged to pay, upon payment by the Chargor, under such indemnity)
which it may properly incur (except, having regard to the provisions of any
Credit Document, insofar as they are incurred because of fraud, negligence,
wilful default or breach of trust on the part of it whether before or after
the Enforcement Date):
(A) in consequence of anything done or purported to be done by the
Collateral Agent or any Receiver in relation to the Charged Property
or under this Fixed and Floating Charge or any Credit Document as a
result of or in connection with any failure by the Chargor to comply
with its obligations thereunder to the Collateral Agent or any
Receiver; or
(B) in consequence of any payment in respect of the Secured Indebtedness
(whether made by the Chargor or a third party) being impeached or
declared void for any reason whatsoever; or
(C) in consequence of the breach or non-performance by the Chargor of any
of their respective warranties, representations, covenants or
undertakings herein contained or otherwise relating to all or any part
of the Charged Property; or
(D) in connection with the realisation of the Charged Property (including
the costs of any proceedings in relation to this Fixed and Floating
Charge or to the Secured Indebtedness).
15.2 INTEREST
The amounts payable to the Collateral Agent or the Receiver under clauses
15.1 (Indemnity) and 19 (Stamp Duty and Taxes) shall carry interest in
accordance with Section 2.10 of the Facility Agreement from the date on
which they were paid or
21
incurred by the Collateral Agent or the Receiver (as the case may be) to
the date of actual payment to the Collateral Agent or, as the case may be,
the Receiver under the aforementioned clauses as well after as before any
judgment and such amounts and interest may be debited by the Collateral
Agent to any account of the Chargor, but shall, in any event (to the extent
not fully paid or discharged), form part of the Secured Indebtedness and
accordingly be secured on the Charged Property under the Security.
16. POWER OF ATTORNEY
16.1 APPOINTMENT AND POWERS
The Chargor hereby irrevocably appoints the following (each an "ATTORNEY"
and collectively the "ATTORNEYS", and acting solely or jointly with the
other Attorneys), namely:
(A) the Collateral Agent;
(B) each and every person to whom the Collateral Agent shall from time to
time have duly delegated the exercise of the power of attorney
conferred by this clause 16.1 (Appointment and Powers); and
(C) any Receiver appointed hereunder and for the time being holding
office,
to be its attorney or attorneys and in its name and otherwise on its behalf
and as its act and deed to sign, seal, execute, deliver, perfect and do all
deeds, instruments, acts and things which may be required (or which the
Collateral Agent, any person falling within sub-clause (B) or any Receiver
appointed hereunder shall reasonably consider requisite) for carrying out
any obligation imposed on the Chargor, as the case may be, by or pursuant
to this Fixed and Floating Charge (including but not limited to the
obligations of the Chargor under clause 4.1 (Further Deeds and Documents)
and the covenants referred to in clause 4.1 (Further Deeds and Documents)),
for carrying out any sale, lease or other dealing by the Collateral Agent
or any such Receiver into effect, for conveying or transferring any legal
estate or other interest in the Charged Property, for getting in the
Charged Property, and generally for enabling the Collateral Agent or any
person falling within sub-clause (B) or any Receiver to exercise the
respective powers conferred on them by or pursuant to this Fixed and
Floating Charge or by law provided that the power contained in this clause
16.1 (Appointment and Powers) shall not be exercisable unless and until the
Security shall have become enforceable. The exercise of such power by the
Collateral Agent or any person falling within sub-clause (B) or any
Receiver shall not put any person dealing with it upon any enquiry as to
whether a Event of Default shall have occurred. Each of the Collateral
Agent, any person falling within sub-clause (B) and any Receiver shall have
full power to delegate the power conferred on it by clause 16.1
(Appointment and Powers), but no such delegation shall preclude the
subsequent exercise of such power by the Collateral Agent or any person
falling within sub-clause (B) or any Receiver (as the case may be) itself
or preclude the Collateral Agent or any person falling within sub-clause
(B) or any Receiver (as the case may be) from making a subsequent
delegation thereof to some other person; any such delegation may be revoked
by the Collateral Agent or any person falling within sub-clause 16.1(B) or
any Receiver (as the case may be) at any time.
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16.2 RATIFICATION
The Chargor shall ratify and confirm all transactions lawfully and properly
entered into by the Collateral Agent or any Receiver or delegate of the
Collateral Agent in the exercise of the Collateral Agent's or such
Receiver's respective powers and all transactions lawfully and properly
entered into, documents executed and things done by the Collateral Agent or
such Receiver or delegate by virtue of the power of attorney given by
clause 16.1 (Appointment and Powers).
16.3 ACKNOWLEDGEMENT OF CONSIDERATION
The power of attorney hereby granted is as regards the Collateral Agent,
its delegates and any such Receiver (and as the Chargor hereby
acknowledges) granted irrevocably and severally, for value and for security
as part of the Security to secure the several proprietary interests of and
the performance of obligations owed to the respective donees.
17. SET-OFF AND CURRENCY
17.1 CURRENCY OF ACCOUNT
(A) Except where specifically provided otherwise, US dollars are the
currency of account and payment for each and every sum at any time due
to the Collateral Agent hereunder provided that payments in respect of
costs and expenses may be made in Hong Kong dollars if incurred in
Hong Kong dollars.
(B) If any sum due from the Chargor under this Fixed and Floating Charge
or any order or judgment given or made in relation hereto has to be
converted from the currency (the "FIRST CURRENCY") in which the same
is payable hereunder or under such order or judgment into another
currency (the "SECOND CURRENCY") for the purpose of (a) making or
filing a claim or proof against the Chargor, (b) obtaining an order or
judgment in any court or other tribunal or (c) enforcing any order or
judgment given or made in relation hereto then:
(i) the Chargor shall indemnify and hold harmless the Collateral
Agent from and against any loss suffered except to the extent
that such loss is suffered as a result of or in connection with
the Collateral Agent's own fraud, negligence, wilful default,
breach of duty or breach of trust; and
(ii) the Collateral Agent shall account to the Chargor for the amount
by which any sum realised by it exceeds the aggregate amount of
all sums owing to it by the Chargor at the time at which such
profit is realised provided that the Collateral Agent shall only
be required to make any payment to the Chargor in relation
thereto if at such time all the payment obligations of the
Chargor hereunder to the Collateral Agent are satisfied,
in each case where such loss or excess arises as a result of any
discrepancy between (1) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (2) the rate or
23
rates of exchange at which the Collateral Agent may in the ordinary
course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or
in part, of any such order, judgment, claim or proof.
17.2 SET-OFF
The Chargor waives, and (where incapable of waiver) agrees not to exercise
(unless required to do so by law), any right of set-off or netting, whether
conferred by agreement or law, which it may have against the Collateral
Agent so that it does not reduce any amount payable by it to the Collateral
Agent under this Fixed and Floating Charge.
17.3 CURRENCY CONVERSION
For the purpose of the satisfaction of the Secured Indebtedness or any
suspense account pursuant to clause 12 (Suspense Account(s)) or making any
application therefrom or for any other purpose in connection with this
Fixed and Floating Charge, the Collateral Agent may (unless otherwise
required by law) convert any monies received, recovered or realised or
subject to application by the Collateral Agent under this Fixed and
Floating Charge or any monies to be credited to any such account (including
the proceeds of any previous conversion under this clause 17 (Set-off and
Currency)) from their existing currency of denomination into such other
currency of denomination as the Collateral Agent may reasonably think fit
and any such conversion shall be effected at such rate or rates of exchange
as may be agreed by the Collateral Agent in consultation with the Chargor
as being relevant and any rate, method and date so agreed shall be binding
on the Chargor and any costs, expenses or commissions incurred in effecting
any such conversion shall be deducted from the proceeds of any such
conversion.
18. AMENDMENTS
This Fixed and Floating Charge may not be amended, modified or waived in
any respect whatsoever, without the prior written consent of the Collateral
Agent given with express reference to this Clause 18 (Amendments) and
expressly stated to be intended to operate as the Collateral Agent's
consent to such amendment, modification or waiver on behalf of the
Requisite Lenders.
19. STAMP DUTY AND TAXES
The Chargor shall pay all stamp duties, land registry and similar fees,
filing and registration fees and other transaction taxes required in
relation to or for the purpose of procuring the execution, validity and
enforceability of this Fixed and Floating Charge and the Security and shall
indemnify the Collateral Agent and each Receiver appointed hereunder
against any liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying the same on a full indemnity basis.
20. APPLICATION TO COURT
The Collateral Agent may, at any time after the Security has become
enforceable, apply to the court for an order that the terms of this Fixed
and Floating Charge be carried into
24
execution under the direction of the court and for the appointment of a
Receiver of the Charged Property or any part thereof and for any other
order in relation to the administration of the terms of this Fixed and
Floating Charge as the Collateral Agent shall deem fit and it may assent to
or approve any application to the court made at the instance of the
Collateral Agent or on its behalf and the Collateral Agent shall be
indemnified by the Chargor against all costs, charges and expenses properly
incurred by it in relation to any such application or proceedings.
21. PARTIAL INVALIDITY
Every provision contained in this Fixed and Floating Charge shall be
severable and distinct from every other such provision and if at any time
any provision hereof is or becomes illegal, invalid or unenforceable in any
respect under the law of any jurisdiction, neither the legality, validity
or enforceability of the remaining provisions hereof nor the legality,
validity or enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
22. NOTICES
22.1 COMMUNICATIONS IN WRITING
Each communication to be made hereunder shall be made in writing and,
unless otherwise stated, shall be made by facsimile or letter.
22.2 ADDRESSES
Any communication or document to be made or delivered by one person to
another pursuant to this Fixed and Floating Charge shall (unless that other
person has by 15 days' written notice to the one specified another address
department, officer or person as the case may be) be made or delivered to
that other person at the address identified with its signature below and
shall be deemed to have been made or delivered (in the case of any
communication made by letter) when left at that address during normal
business hours on a Hong Kong Business Day (or on the next Hong Kong
Business Day if not left during normal business hours on a Hong Kong
Business Day) or (as the case may be) 5 days (in the case of local post)
and 10 days (in the case of overseas post) after being deposited in the
post postage prepaid in an envelope addressed to it at that address marked
for the attention of any specified department, officer or person or (in the
case of any communication made by facsimile transmission) when sent to the
correct facsimile number of the addressee identified with its signature
below and received in whole and in legible form by such addressee provided
that any communication or document to be made or delivered by the Chargor
or the Collateral Agent shall be effective only when received by the
Chargor or the Collateral Agent, as appropriate, and then only if the same
is expressly marked for the attention of the department, officer or person
identified below with the signature of the relevant addressee (or such
other department, officer or person as the relevant addressee shall from
time to time and in each case by not less than 3 days' prior notice in
writing to the parties hereto have specified for this purpose).
25
22.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to this Fixed and Floating Charge shall be in the English language
or accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true and
accurate translation thereof.
23. ASSIGNMENT
The Collateral Agent may assign its rights and obligations under this Fixed
and Floating Charge to any successor under the Facility Agreement in
accordance with Section 9.7 of the Facility Agreement.
24. COSTS AND EXPENSES
The Chargor further covenants with and undertakes to the Collateral Agent
and any Receiver appointed by the Collateral Agent hereunder or by law
(including more than one such receiver and any substitute receiver) to
reimburse or pay to the Collateral Agent or such Receiver (on the basis of
full indemnity) the amount of all proper costs, charges, liabilities and
expenses including costs, charges or expenses incurred by the Collateral
Agent or such Receiver or any attorney, manager, agent or delegate in
connection with:
(A) the registration, perfection, preservation or enforcement of this
Fixed and Floating Charge and any other document relating thereto; and
(B) the proper exercise or the attempted proper exercise by or on behalf
of the Collateral Agent or such Receiver of any of the powers of the
Collateral Agent or such Receiver or any other action properly taken
by or on behalf of the Collateral Agent with a view to or in
connection with the enforcement of any obligations of the Chargor
under any of the Credit Documents or the recovery by the Collateral
Agent or any such Receiver from the Chargor of the Secured
Indebtedness then due and payable.
25. GOVERNING LAW
This Fixed and Floating Charge is governed by the laws of the Cayman
Islands.
26. JURISDICTION
26.1 CAYMAN ISLANDS COURTS
The courts of the Cayman Islands have non-exclusive jurisdiction to settle
any dispute (a "DISPUTE") arising out of or in connection with this Fixed
and Floating Charge (including a dispute regarding the existence, validity
or termination of this Fixed and Floating Charge or the consequences of its
nullity).
26
26.2 CONVENIENT FORUM
The Chargor agrees that a judgement or order of a court of the Cayman
Islands in connection with this deed is conclusive and binding on it and
may be enforced against it in the courts of any other jurisdiction.
26.3 NON-EXCLUSIVE JURISDICTION
This clause 26 (Jurisdiction) is for the benefit of all parties hereto
other than the the Chargor. As a result and notwithstanding clause 26.1
(Cayman Islands Courts), it does not prevent any party hereto other than
the Chargor from taking proceedings relating to a Dispute ("PROCEEDINGS")
in any other courts with jurisdiction. To the extent allowed by law, the
parties hereto other than the Chargor may take concurrent Proceedings in
any number of jurisdictions.
27. EXECUTION AND COUNTERPARTS
This Fixed and Floating Charge may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same Fixed and
Floating Charge.
IN WITNESS WHEREOF the parties hereto have caused this Deed to be duly executed
the day and year first above written.
EXECUTION PAGES
THE COLLATERAL AGENT
Executed as a deed by affixing the common seal of )
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) ) SEAL AFFIXED
LIMITED )
in the presence of: )
XXXX XXXX XXX XXXXXXX
------------------------------------
Director
XXXXX XXX XXXX XXXXX
------------------------------------
Secretary
Address: 00xx Xxxxx, XXXX Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Facsimile Number: 2869 8221
Attention: __________________________________
EXECUTION PAGES
THE CHARGOR
Executed as a deed by )
for an on behalf of ) SEAL AFFIXED
H3C HOLDINGS LIMITED ) XXXX X. XXXXXXX
in the presence of: XXXXXXX X. HELD )
Address: XX Xxx 000 XX, Xxxxxx House, South Church Street,
Xxxxxx Town, Grand Cayman, Cayman Islands
Facsimile Number: _____________________
Attention: _____________________
CONFORMED COPY
Dated 22 March 2007
H3C HOLDINGS LIMITED
as Chargor
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
as Collateral Agent
----------
BORROWER FIXED AND FLOATING CHARGE
----------
(OGIER LOGO)
Our Ref: 0979-001 070321
CONTENTS
CLAUSE PAGE
------ ----
1. INTERPRETATION AND DEFINITIONS 1
2. COVENANT TO PAY AND NATURE OF SECURED INDEBTEDNESS 2
3. SECURITY 3
4. PERFECTION OF SECURITY AND FURTHER ASSURANCE 5
5. PROTECTION OF SECURITY AND CRYSTALLISATION OF FLOATING CHARGE 7
6. REPRESENTATIONS 8
7. COVENANTS AND UNDERTAKINGS 8
8. DEFAULT PROCEDURE 9
9. EFFECTS OF THE SECURITY BECOMING ENFORCEABLE 10
10. CHATTELS AND FIXTURES 13
11. PRESERVATION OF RIGHTS 14
12. SUSPENSE ACCOUNT(S) 17
13. PROTECTION OF PURCHASERS 17
14. APPOINTMENT OF RECEIVER 18
15. INDEMNITY 20
16. POWER OF ATTORNEY 21
17. SET-OFF AND CURRENCY 22
18. STAMP DUTY AND TAXES 23
19. APPLICATION TO COURT 23
20. PARTIAL INVALIDITY 24
21. NOTICES 24
22. ASSIGNMENT 25
23. COSTS AND EXPENSES 25
24. GOVERNING LAW 25
25. JURISDICTION 25
26. EXECUTION AND COUNTERPARTS 26
