Exhibit
10.1
Dated
July 16, 2020
Global
Telesat Communications Limited
to
HSBC
UK Bank plc
Debenture
Form
of charge filed at the Land Registry under reference MD1552Q
This
Debenture by way of deed made the 16th day of 2020
Between
(1) Global Telesat Communications Limited Number 06764531 (the “Company”) and
(2)
HSBC UK Bank plc (“the Bank”) (registered in England number 09928412) whose address for service for entry on the register
is: Securities Processing Centre, PO Box 6304, Coventry, CV3 9JY
WITNESSES
as follows
Debenture
as security for the Debt
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1.
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This
Debenture shall be security for the payment and discharge of the Debt mentioned in clause
2 below.
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2.
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The
Debt is all money and liabilities whatever, whenever and however incurred whether now
or in the future due, or becoming due, from the Company to the Bank whether incurred
solely or jointly with any other person and whether as principal or surety (“the
Debt”), including without limitation:-.
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(a)
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overdrafts,
loans or other facilities and further advances of money;
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(b)
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guarantees
and indemnities to the Bank and any of the Company’s other contingent liabilities
owed to the Bank;
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(c)
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discount,
commission and other lawful charges and expenses;
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(d)
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interest
in accordance with any agreement between the Company and the Bank and, if there is no
agreement, interest on any money and liabilities due from the Company at an annual rate
of 3% above the Bank of England base rate from time to time computed and compounded monthly
and/or according to the Bank’s then current practice. Interest as above applies before
and after any demand or judgment; and
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(e)
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money
agreed to be paid by the Company under clause 25 below.
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The
Agreement to pay the Debt
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3.
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The
Company agrees to pay and discharge the Debt when the same is due to be paid and discharged.
It acknowledges and agrees that the Debt shall, in the absence of express written agreement
by the Bank to the contrary, be due and payable to the Bank upon demand.
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Security
given over the Company’s Assets
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4.
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The
Company, with full title guarantee, and as continuing security for the payment and discharge
of the Debt,: -
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(a)
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Charges
by way of legal mortgage, all freehold (including commonhold) and leasehold land now
vested in the Company together with all buildings fixtures, fittings and fixed plant
and machinery now or at any time afterwards on it. This includes (without limitation)
the land described or referred to in Part I of the Schedule below.
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(b)
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Charges
by way of first fixed charge (except as already charged above):-
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(i)
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All
the present and future right, title and interest of the Company in or to any freehold
(including commonhold) or leasehold land or other immovable property wherever situated
and all fixtures, fittings and fixed plant and machinery now or at any time afterwards
on it.
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(ii)
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All
chattels now or at any time afterwards belonging to the Company. This excludes any of
them for the time being forming part of the stock in trade or work-in-progress of the
Company.
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(iii)
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The
benefit of all rights, licences, guarantees, rent deposits, contracts, deeds, undertakings
and warranties relating to any land or other property mentioned above and/or to any trade
or business from time to time carried on by the Company.
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(iv)
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All
book debts and other debts and monetary claims and any rents, licence fees or other payments
due from any lessee, licensee or occupier of any immoveable property (wherever) situated
now or at any time afterwards due owing or incurred to the Company. In addition, the
full benefit of all guarantees and securities for them and all liens, reservations of
title and other rights enabling the Company to enforce any such debts or claims (all
of the above collectively called the “debts”). This excludes any debts and
claims (if any) which the Bank may from time to time have agreed in writing with the
Company as being excluded from this fixed charge and also such debts and claims as are
charged in accordance with clause 4 (b) (v) below.
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(v)
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Any
credit balance on any account of the Company with the Bank now or in the future.
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(vi)
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Any
credit balance on any account of the Company with any bank (other than the Bank) or other
person, now or in the future.
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(vii)
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All
goodwill and uncalled capital of the Company now or in the future.
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(viii)
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All
the present and future right, title and interest of the Company in or to:
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(a)
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all
stocks, shares, debentures, bonds, loan capital and other securities of any description
of any other person (including, without limitation, any subsidiary or subsidiary undertaking
of the Company);
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(b)
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all
rights to subscribe to or convert other securities into or otherwise acquire any such
securities now or at any time afterwards belonging to the Company; and
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(c)
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all
dividends, interest and other income and all other rights of whatsoever kind deriving
from or incidental to, any of these.
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(collectively
called, the “securities”).
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(ix)
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All
rights and other property to which the Company is now, or may at any time afterwards,
become entitled as a result of, or in connection with, any proceedings threatened or
commenced under the Insolvency Act 1986 or any similar legislation in any jurisdiction.
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(x)
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The
benefit of all agreements for the provision by the Company to any person of any loan
or credit or other financial accommodation of any description (including, without limitation,
any finance leases and hire or hire-purchase agreements) now, or at any time afterwards,
entered into by the Company.
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(xi)
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All
rights under all policies of insurance, including life insurance or assurance, (including,
without limitation, the insurances mentioned to in clause 8(a) below), including all
rights and claims to which the Company is now, or may at any time afterwards, become
entitled in relation to the proceeds of those policies (collectively called, the “charged
insurances”).
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(xii)
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All
patents, trademarks, service marks, designs, utility models, copyrights, design rights,
moral rights, inventions, confidential information, know-how, applications for registration
of any of them and the right to apply for them in any part of the world and rights of
a similar nature arising or subsisting anywhere in the world in relation to all or any
of the above (whether registered or unregistered) now or at any time afterwards belonging
to the Company (collectively called, the “intellectual property”).
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(xiii)
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The
proceeds of sale of any property mentioned above.
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(c)
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Assigns
and agrees to assign absolutely, subject to a proviso for reassignment on the irrevocable
discharge in full of the Debt, all of its present and future right, title and interest
in and to:-
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(i)
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To
the extent not charged by clause 4(a) and 4(b), all present and future rents and other
sums due to the Company under any lease, agreement for lease, underlease, tenancy, licence
or other right of occupation to which Company’s real property is from time to time
subject together with any related guarantee or other security for the performance of
a lessee’s obligations.
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(ii)
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To
the extent not charged by clause 4(b), the charged insurances.
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(iii)
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To
the extent not charged by clause 4(b), the intellectual property.
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(d)
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Charges
by way of floating charge, all the undertaking of the Company and all its property whatsoever
and wheresoever both present and future excluding any part of the same which is, for
the time being, effectively charged by way of legal mortgage, assigned or charged by
way of fixed charge by this Debenture and recognised as effectively so charged under
the laws of the jurisdiction in which the same is situated.
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The
property referred to in clauses 4 (a), (b), (c) and (d) above is collectively called the “charged property”. The property
referred to in clauses 4 (a), (b) and (c) (together with any property for the time being effectively charged by way of fixed charge
by the application of clause 5 below) is collectively called the “fixed charged property”.
If
or to the extent that the mortgaging, assigning or charging of any charged property is ineffective because of a prohibition on
that mortgaging, assigning or charging, the Company holds it on trust for the Bank.
To
the extent that this Debenture creates security over any hedging or derivative contract, that security shall be by way of charge
and this Debenture shall only charge the net amount owed thereunder, and in accordance with the terms of, that hedging or derivative
contract after all applicable set-off, close-out netting or combination of accounts has taken place.
Bank’s
ability to convert Floating Charge and automatic conversion
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5.
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(a)
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The
Bank may, by notice in writing to the Company, convert the floating charge created by clause
4(d) above into a fixed charge in respect of such of the property of the Company as may be
specified in such notice. The Bank may give such notice:
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(i)
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on
or following the happening of any of the events mentioned in clause 10 below; or
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(ii)
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if
it appears to the Bank that such property is in danger of seizure, distress, diligence,
execution or any other form of legal process or that the same, and/or the security now
created in respect of it, is otherwise in jeopardy.
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In
either event, the ability of the Company to deal in any way with such property shall cease except to the extent that the Bank
may otherwise agree in writing.
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(b)
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The
floating charge created by clause 4(d) will convert automatically into fixed charges:
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(i)
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if
any of the circumstances set out in clause 10(c), (d) or (e) occur;
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(ii)
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if
the Company creates or attempts to create security over all or any of the charged property
(other than security permitted under this Debenture or created pursuant to a Parallel
Security Document);
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(iii)
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on
the crystallisation of any other floating charge over the charged property;
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(iv)
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if
any person levies or attempts to levy any distress, attachment, execution or other legal
process against any assets referred to in clause 4(d); and/or
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(v)
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in
any other circumstances prescribed by law.
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Restrictions
on Company
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6.
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The
Company shall not, except with the prior written consent of the Bank: -
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(a)
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create,
or attempt to create, or allow to subsist over all or any of the charged property, any
mortgage, charge, lien, trust, pledge or other security other than this Debenture, any
Parallel Security Document and the mortgages or matters (if any) mentioned in Part 2
of the Schedule below; or
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(b)
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allow
any tangible property, forming part of the fixed charged property, to leave the possession
of the Company (except for the purpose of necessary repair or maintenance) or to be used
by any person other than the Company or for any purpose other than in connection with
the business of the Company; or
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(c)
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release,
exchange, compound, set off, grant time or agree to any other arrangement in respect
of, or in any other way deal with, all or any of the debts except as expressly allowed
by this Debenture; or
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(d)
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part
with, hire, lend, sell, assign or dispose of all, or any part of (or any right, title
or interest in), the fixed charged property or all, or (except by a sale or disposal
in the ordinary course of the Company ordinary day to day trading activities and for
the purpose of carrying on the same) any part of, the remainder of the charged property.
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Land
Registry Restriction
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7.
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In
respect of any part of, or interest in, the fixed charged property title to which is
or becomes registered at the Land Registry, the Company applies to the Chief Land Registrar
to enter the following restriction on the Proprietorship Register of the title of all
such property: -
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“No
disposition of the registered estate by the proprietor of the registered estate, or by the proprietor of any registered charge,
not being a charge registered before the entry of this restriction, is to be registered without a written consent signed by the
proprietor for the time being of the charge dated in favour of HSBC UK Bank plc referred to in the Charges Register.”
Company’s
Obligations to the Bank
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8.
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Until
this Debenture is discharged:
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(i)
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Insure,
and keep insured, the charged property with such insurer and against such risks and in
such amounts and otherwise upon such terms as the Bank may reasonably require or in the
case that the Bank makes no such requirement, then in accordance with accepted prudent
business practice from time to time in respect of property of the same type.
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(ii)
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Comply
with the terms and conditions of, and punctually pay all premiums and other monies necessary
for keeping up such insurances referred to in clause 8(a)(i) or any other insurance referred
to in clause 4(b)(xi) and clause 4(c) (collectively called the “insurances”).
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(iii)
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See
that the interest of the Bank is noted upon all policies of the insurances or, if the
Bank reasonably so requires, that any policy relating to the insurances is held on a
co-insured basis in the names of the Company and the Bank.
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(iv)
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If
the Bank reasonably requires, produce to, or deposit with, the Bank all policies of insurance
and the receipts for all premiums and other payments necessary for effecting and keeping
up such policies of insurance as the Company is required to take out under this Debenture
(collectively called the “policies”). The Company shall be deemed to have
complied with this clause 8(a)(iv) if it has complied with the equivalent clause of any
Parallel Security Document.
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(v)
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Promptly
notify the Bank of anything which may give rise to a claim under the policies and ensure
that nothing is done or not done as a consequence of which any of the policies might
be adversely affected or which may increase the premium payable.
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(b)
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The
Company agrees (whether or not this Debenture shall have become enforceable) that: -
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(i)
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The
Bank may (but need not) itself effect or maintain any insurances, and, if it does so,
the Company shall be liable to the Bank for the cost of such insurances and the expenses
incurred by the Bank in relation thereto.
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(ii)
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All
sums at any time payable to the Company under any policies of insurance shall (subject
to any prior rights and claims of any third party) be paid direct to the Bank. If the
same are not paid directly to the Bank by the insurers then the Company shall be trustee
of them for the benefit of the Bank and shall transfer them to the Bank accordingly and
in any event upon the Bank’s request. The insurance monies shall at the option
of the Bank be applied (subject to clause 27 below) in or towards the payment or discharge
of the Debt or in making good or recouping expenditure in respect of the loss or damage
for which such monies are received.
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(i)
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Keep
all buildings on any land charged by this Debenture and all fixtures and plant and machinery
on and in them (and all other tangible property comprised in the charged property) in
good and substantial repair and condition.
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(ii)
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Whenever
any of the said buildings, fixtures, fittings or plant and machinery are destroyed, damaged
or deteriorates, immediately repair, replace and make good the same and ensure that any
such replacement property is subject to security in favour of the Bank on the same terms
as set out in this Debenture. If the Company shall fail to do so, then the Bank shall
be entitled (but not bound) to do so instead at the Company’s cost and expense and all
amounts so paid by the Bank shall become part of the Debt and be payable by the Company
to the Bank on demand.
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(d)
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The
Company will not without the prior written consent of the Bank: -
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(i)
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pull
down or remove the whole or any part of any buildings forming part of the land charged
by this Debenture;
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(ii)
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sever
or unfix or remove any of the fixtures or fittings; or
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(iii)
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except
for the purpose of effecting necessary repairs to them or of replacing the same with
new or improved models or substitutes, remove any of the plant and machinery belonging
to, or in use by, the Company.
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(i)
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Carry
on any trade, business or agricultural use on any land now or afterwards used by the
Company for the purposes of trade, business or agriculture. It shall do so in accordance
with the standards of good management from time to time current in the trade or business
or (in the case of agricultural use) with the standards of good husbandry, from time
to time. The Company shall also do so in accordance with the authorised planning use
of such land.
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(ii)
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Obtain,
maintain and comply with all licences, consents and other authorisations (including,
without limitation, environmental permits) and effect all registrations which may be
necessary or desirable in relation to all or any part of the charged property or any
business or other activity from time to time carried on by the Company.
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(f)
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The
Company will not without the prior written consent of the Bank: -
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(i)
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carry
out, or allow to be carried out, on any land charged by this Debenture, any development
as defined in the Town and Country Planning Act 1990;
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(ii)
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enter
into any agreement under Section 106 of the said Act; or
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(iii)
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change,
or allow to be changed, the use of any land charged by this Debenture.
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(i)
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Observe
and perform all covenants, stipulations and conditions which from time to time affect
the use or possession of the charged property whether arising under any lease, Commonhold
Community Statement, or other agreement under which the charged property is held.
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(ii)
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Punctually
pay all rents and other payments becoming due, or to become due, under any lease, Commonhold
Community Statement or other agreement mentioned above. Pay all taxes, rates, duties,
fees, charges, assessments, impositions, calls, instalments and outgoings properly payable
in respect of any of the charged property as and when due and the Bank may do so as agent
of the Company if the Company fails to do so and all amounts so paid by the Bank shall
become part of the Debt and be payable by the Company to the Bank on demand.
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(iii)
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If
the Bank so requires, produce to the Bank evidence sufficient to reasonably satisfy the
Bank that the requirements mentioned at clauses 8(g)(i) and 8(g)(ii) have been complied
with.
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(i)
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Comply
with all statutory and other laws and regulations affecting the charged property including
but not limited to all environmental laws and environmental permits applicable from time
to time to all or any part of the charged property or any business or other activity
from time to time carried on by the Company.
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(ii)
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Not
allow any circumstances to arise which could lead:-
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(a)
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to
any competent authority or other person taking action, or making a claim under any environmental
laws (including the requirement to clean up any contaminated land or the revocation,
suspension, variation or non-renewal of any environmental permit); or
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(b)
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to
the Company having to take action to prevent the possibility of any such action or claim.
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(iii)
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Indemnify
separately each of the Bank or any Receiver (defined in clause 12 below) (and their respective
officers, agents and delegates) against all costs expenses and liabilities properly incurred
(directly or indirectly) as a result of any non-compliance or alleged non-compliance
with any environmental laws in relation to all or any part of the charged property or
anything done or not done on it.
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(i)
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Within
7 days after becoming aware of the same, give full particulars to the Bank of any notice,
order, direction, designation, resolution or proposal given or made by any planning authority
or other public body or authority whatsoever (including, without limitation, any licensing
authority) which affects all or any part of the charged property including, in the case
of any land, the locality in which it is situated.
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(ii)
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If
the Bank reasonably requires, immediately, and at the cost of the Company, take all reasonable
and necessary steps to comply with any of the matters mentioned in clause 8(i)(i) above
and make (or join with the Bank in making) such objections or representations as may
reasonably be available in respect of them.
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(j)
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The
Company will permit the Bank, its agents and any person authorised by it, to enter on
any land charged by this Debenture or on which any other part of the fixed charged property
is situated, at all reasonable times and on reasonable notice (except in case of emergency)
for the purpose of inspecting or valuing any of the fixed charged property and if the
Bank calls for such a valuation (which it is entitled to call for) such valuation shall
be at the expense of the Company.
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(k)
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The
Company will not without the prior written consent of the Bank: -
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(i)
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grant
or vary, or agree to grant or vary, any licence or tenancy affecting any land charged
by this Debenture;
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(ii)
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exercise
the powers of leasing, or agreeing to lease, or of accepting or agreeing to accept surrenders
of leases, conferred by Sections 99 or 100 of the Law of Property Act 1925;
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(iii)
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in
any other way, dispose, or agree to dispose of, or create, any legal or equitable estate
or interest in any land charged by this Debenture;
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(iv)
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negotiate,
settle or waive any claim for loss, damage or other compensation (including without limitation
compulsory purchase compensation) affecting any land charged by this Debenture; or
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(v)
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apply
for an improvement or other grant or do anything which might result in any land charged
by this Debenture being subject to any statutory charge.
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(l)
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The
Company will ensure that, without the prior written consent of the Bank: -
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(i)
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no
person other than the Company shall be registered under the legislation in force from
time to time in relation to the registration of land in England and Wales as proprietor
of any land charged by this Debenture;
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(ii)
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no
person shall become entitled to any proprietary right or interest which may adversely
affect the value of such land (unless such entitlement exists at the date of this Debenture
or at the time of the acquisition of such land by the Company) and the Company shall
indemnify the Bank for all expenses reasonably incurred by the Bank in lodging from time
to time cautions, restrictions or notices against the registration of title to any such
land.
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(i)
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Permanently
keep all tangible moveable property forming part of the fixed charged property at the
Company’s premises or at such other premises as the Bank may from time to time reasonably
approve in writing.
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(ii)
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Keep
such fixed charged property within England and Wales and notify the Bank upon request
of the location of such fixed charged property from time to time.
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(iii)
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Upon
written notice from the Bank, keep such fixed charged property at the premises so notified
or at such other premises as may be reasonably authorised in writing by the Bank.
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(i)
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Get
in and realise the debts in the ordinary course of its business (which shall not extend
to selling or assigning or transferring any right or interest in them or in any other
way factoring or discounting them).
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(ii)
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Pay
the proceeds of such getting in and realisation, and all other monies received, recovered
or realised in respect of the fixed charged property, into such separate and denominated
accounts as the Bank shall from time to time nominate in writing for such purpose or
as the Bank may otherwise from time to time require. If the Bank shall not nominate any
such account, the Company current account with the Bank shall be the nominated account
for the purpose of this clause 8(n).
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(iii)
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Pending
such payment, hold such proceeds and other monies upon trust for the Bank.
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(iv)
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Except
with the prior written consent of the Bank, not be entitled to withdraw or transfer from
any such account any monies standing to the credit of such account.
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(o)
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The
Company will punctually pay all calls, instalments and other monies that may become due
in respect of the securities.
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(p)
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The
Company will: -
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(i)
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Not
exercise any of the rights and powers attaching to any of the securities in a manner
which, in the reasonable opinion of the Bank, may adversely affect the value of the security
created by this Debenture; and
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(ii)
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prior
to this Debenture becoming enforceable, and subject to clause 8(p)(i) above, all rights
and powers attaching to the securities shall be exercisable by the Company or as it may
direct.
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(i)
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Take
all such necessary steps, and do all such acts (including the payment as and when due
of any appropriate fees and policing against any infringement of, or challenge to, the
intellectual property) to maintain the value, subsistence and validity of the intellectual
property.
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(ii)
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Where
appropriate, use its best endeavours to protect and safeguard the intellectual property
from and against theft, loss, destruction, unauthorised access, copying or use by third
parties.
|
|
|
|
|
|
|
(iii)
|
Not
use, or allow to be used, or take any step in respect of any of the intellectual property
in any way which, in the reasonable opinion of the Bank, may adversely affect the value
of it.
|
|
|
(r)
|
The
Company will deposit with the Bank (and the Bank shall be entitled to retain) all deeds,
certificates and other documents constituting or evidencing title to the fixed charged
property (except insofar as the same are held, or required to be held, by any third party
in accordance with any obligation ranking in priority to the security created by this
Debenture). The Company shall be deemed to have complied with this clause if it has complied
with the equivalent clause of any Parallel Security Document relating to the same fixed
charged property.
|
|
|
|
|
|
|
(s)
|
The
Company will on being reasonably required to do so by the Bank, and at the cost and expense
of the Company:-
|
|
|
(a)
|
Execute,
sign, deliver and do all things necessary (including, without limitation, the assignment
of all or any of the debts and the transfer of all or any of the securities, to the Bank
or its nominee and the giving of any notices and effecting of any registrations) as (and
in such form as) the Bank may reasonably require to (among other things) perfect a legal
mortgage, assignment or other fixed security in favour of the Bank of all or such part
as shall be specified of the fixed charged property or otherwise to improve, perfect
or protect the security (including the Bank’s priority) intended to be created
by or pursuant to this Debenture or to facilitate the exercise of any powers, authorities
and discretions conferred on the Bank and/or any Receiver under or in accordance with
this Debenture.
|
|
|
|
|
|
|
(b)
|
Endorse,
or cause to be endorsed, on any documents constituting or evidencing title to the fixed
charge property and give to third parties such notices of the security created by this
Debenture as the Bank may reasonably require.
|
|
|
(i)
|
Notify
the Bank prior to taking any steps to open an account with any bank (other than the Bank)
or other person.
|
|
|
(i)
|
Comply
in full with any obligations of the Company to provide information under the PSC Regime
to any company that shall have issued any shares in which the Company holds any interest
from time to time. Further, on the date of this Debenture, the Company represents to
the Bank that the Company has complied in full with any obligations the Company has under
the PSC Regime to provide information to any company that shall have issued any shares
in which the Company holds an interest and that no “warning notice” or “restrictions
notice” (in each case as defined in Schedule 1B to the Companies Act 2006) has been
issued to the Company in respect of all or any part of the securities and remains in
effect.
|
|
|
|
|
|
|
(ii)
|
Comply
with any notice served on the Company under the Companies Act 2006 (including pursuant
to Part 21A of the Companies Act 2006) within the timeframe specified in the notice.
|
Bank’s
Powers
|
9.
|
(a)
|
At
any time before this Debenture is discharged (and whether or not the same shall have become
enforceable), the Bank may, if and whenever, and so often as it shall reasonably think fit,
apply the whole or any part of the monies from time to time standing to the credit of any
account as referred to in clause 8(n) in or towards the discharge of the Debt.
|
|
|
(b)
|
The
Bank may pay the monies mentioned in clause 9(a) above to the credit of any other account
nominated by the Bank (including an account opened by it for this purpose) as security
for any contingent or future liability of the Company to the Bank.
|
|
|
|
|
|
|
(c)
|
Unless
otherwise stated, all powers of the Bank conferred by this Debenture shall be exercisable
without prior notice to the Company.
|
When
the Debenture becomes enforceable
|
10.
|
This
Debenture shall become enforceable:-
|
|
|
(a)
|
if
the Debt is not paid or discharged when due (whether on demand, at agreed maturity or
earlier as the case may be); or
|
|
|
|
|
|
|
(b)
|
if
the Company is in breach of any of the obligations under this Debenture; or
|
|
|
|
|
|
|
(c)
|
if
the Company shall enter into any composition or arrangement for the benefit of its creditors;
or
|
|
|
|
|
|
|
(d)
|
if
any step is taken for the administration or winding up of the Company (which includes,
without limitation, in each case, the board of directors or the Company’s shareholders,
passing a resolution for the same) except where, in the case of winding up, the Bank
has consented in writing for the purpose of a solvent reconstruction or amalgamation;
or
|
|
|
|
|
|
|
(e)
|
if
a third party shall take possession of, or a receiver shall be appointed over, or any
secured creditor of the Company shall seek to enforce its security in respect of, all
or any of the charged property or any other event shall happen which puts in jeopardy
all or any part of the security created by this Debenture; or
|
|
|
|
|
|
|
(f)
|
if
the Bank, in its reasonable discretion, considers that any claim may be or has been made
against the Bank under any bond, guarantee, indemnity or other contingent liability issued
or entered into for any liabilities of the Company in respect of which the Bank reasonably
considers that it may not be or has not been indemnified on demand or as and when required
under any agreement it has with the Company regarding the same;
|
|
|
|
|
|
|
(g)
|
if
any security granted under a Parallel Security Document has become enforceable; or
|
|
|
|
|
|
|
(h)
|
if
any other event shall occur which has been agreed by the Company and the Bank as an event
upon the occurrence of which this or any other security for the Debt shall be enforceable,
which shall include but not be limited to a request by the Company to the Bank to appoint
a receiver and/or administrator of the Company.
|
If
any of the above events referred to at clauses 10(a) to 10(h) should occur:-
|
|
(i)
|
the
powers of sale and of appointing a receiver conferred by Section 101 of the Law of Property
Act 1925 shall immediately arise and become exercisable by the Bank free from the restrictions
contained in Sections 103 and 109 of that Act; and
|
|
|
|
|
|
|
(j)
|
the
powers of leasing, or agreeing to lease, or of accepting or agreeing to accept surrenders
of leases (conferred by Sections 99 and 100 of the Law of Property Act 1925) shall immediately
become exercisable.
|
These
powers are available to the Bank whether or not the Bank shall then be in possession of all or any part of the charged property.
The Bank may grant a lease at a premium and for any length of term and, generally, without the necessity for the Bank to comply
with any restrictions imposed by, or other provisions of, the sections and legislation mentioned above (and so that for the purposes
of Sections 99 and 100 of the Law of Property Act 1925, the expression “mortgagor” shall include any person deriving
title under the Company and sub-sections 99 (18) and 100 (12) shall not apply).
Right
of Appropriation
|
11.
|
To
the extent that the security created by this Debenture constitutes a “security financial
collateral arrangement” and the assets secured by this Debenture (“Secured
Assets”) constitute “financial collateral” for the purpose of the Financial
Collateral Arrangements (No 2) Regulations 2003 (“Regulations”), the Bank shall
have the right on giving prior notice to the Company, at any time after this Debenture
becomes enforceable, to appropriate all or any part of those Secured Assets in or towards
discharge of the Debt. The parties agree that the value of the appropriated Secured Assets
shall be, in the case of cash, the amount of cash appropriated and, in the case of any
stocks, shares, debentures, bonds, loan capital and other securities of any description,
determined by the Bank by reference to any publicly available market price and, in the
absence of which, by such other means as the Bank (acting reasonably) may select including,
without limitation, an independent valuation. For the purpose of Regulation 18(1) of
the Regulations, the Company agrees that any such determination by the Bank will constitute
a valuation “in a commercially reasonable manner”.
|
Appointment
of Administrator or Receiver
|
12.
|
(a)
|
The
floating charge created by this Debenture is intended to be a qualifying floating charge
as defined by paragraph 14 of schedule B1 to the Insolvency Act 1986.
|
|
|
(b)
|
At
any time after having been requested to do so by the Company, or after this Debenture
has become enforceable (and whether or not any of the events mentioned in clause 10 are
continuing), the Bank may appoint by deed or by writing under the hand of a duly authorised
officer of the Bank, or otherwise (i) any one or more persons to be administrator of
the Company (each an “Administrator”) or (ii) any one or more persons to
be a receiver of any charged property (each a “Receiver”). These expressions
shall, where necessary, include any person substituted as Administrator or Receiver.
|
|
|
|
|
|
|
(c)
|
The
Bank may (so far as it is lawfully able to do so) from time to time by deed or by writing
under the hand of a duly authorised officer of the Bank or otherwise, remove any person
appointed to be a Receiver and may in a similar way appoint another in his place.
|
|
|
|
|
|
|
(d)
|
If
at any time two or more persons shall hold office as Receiver of the same property, each
one of them shall be separately entitled (subject to any contrary direction in the appointment)
to exercise all the powers, authorities and discretions conferred on them.
|
|
|
|
|
|
|
(e)
|
The
power to appoint a Receiver shall be in addition to all statutory and other powers of
the Bank under the Insolvency Act 1986 and the Law of Property Act 1925.
|
|
|
|
|
|
|
(f)
|
The
power to appoint a Receiver shall be and remain exercisable by the Bank even though there
may be a prior appointment in respect of all or any part of the charged property.
|
|
13.
|
(a)
|
The
Bank shall not, nor shall the Receiver, be liable to account as mortgagee in possession in
respect of all or any of the charged property nor be liable for any loss upon realisation
or for any neglect or default (unless wilful) of any nature whatsoever in connection with
all or any of the charged property for which a mortgagee in possession might as such be liable.
|
|
|
(b)
|
All reasonable costs,
charges and expenses properly incurred by the Bank or the Receiver (including its internal management and administration costs
and the costs of any proceedings in relation to this Debenture or the Debt) shall be paid by the Company on demand.
|
|
14.
|
The
Receiver shall be the agent of the Company and the Company shall be responsible for his
acts and remuneration as well as for any defaults committed by him.
|
Powers
of Receiver
|
15.
|
The
Receiver shall (subject to any limitations or restrictions expressed in the document
appointing him but notwithstanding any restriction or limitation binding on the Company
under this Debenture or any winding-up or dissolution of the Company or any analogous
proceedings in any jurisdiction) have all the powers (as varied and extended by this
Debenture) conferred on receivers by the Insolvency Act 1986 and the Law of Property
Act 1925 and (without affecting the above in any way) the following powers:-
|
|
|
(a)
|
(i)
|
to
sell, transfer, assign, convey or grant, accept surrender or vary, terminate or surrender
leases of or in exchange and enter into and or terminate leases of any of the charged property;
and
|
|
|
(ii)
|
in any other way
to dispose of, or deal with, all or any of the charged property in respect of which the Receiver is appointed (or agree any
of the same) and in either case in such a way and generally on such terms and conditions as he reasonably thinks fit.
|
Any
transaction mentioned above may be for such payment or other consideration as the Receiver shall think fit whether for (i) a lump
sum and/or (ii) a consideration payable in instalments and whether for cash or otherwise. In the case of the latter, it shall
form part of the charged property and be charged with the payment and discharge of the Debt.
Fixtures
and plant and machinery may be taken and sold separately from the premises to which they are fixed (or in which they are contained)
without the consent of the Company being obtained or necessary.
|
|
(b)
|
To
take possession of, collect and get in, all or any of the charged property in respect
of which the Receiver is appointed and for that purpose to make such demands and take
any proceedings as the Receiver shall reasonably think fit.
|
|
|
|
|
|
|
(c)
|
To
carry on, manage, develop, reconstruct, amalgamate or diversify (or agree the same) any
trade or business (including farming) as has from time to time been carried on the whole
or any part of the fixed charged property.
|
|
|
(d)
|
(i)
|
To
make any arrangement or compromise between the Company and any other person which the Receiver
may reasonably think expedient.
|
|
|
(ii)
|
To
take, defend or participate in any proceedings (including, without limitation, arbitration
proceedings) as the Receiver may reasonably think expedient.
|
|
|
(e)
|
To
make, effect and complete such improvements, development and repairs to any of the charged
property as the Receiver may reasonably think expedient.
|
|
|
|
|
|
|
(f)
|
To
make calls (and to enforce payment of them) conditionally, or unconditionally, on the
members of the Company in respect of any uncalled capital with the benefit of all the
powers in the Articles of Association of the Company conferred on the directors.
|
|
|
|
|
|
|
(g)
|
To
appoint managers, officers, servants, workmen, nominees and agents for any of the purposes
mentioned in this clause 15 at such remuneration and for such periods and on such terms
as the Receiver may reasonably determine.
|
|
|
|
|
|
|
(h)
|
If
the Receiver thinks fit, but without affecting the indemnity contained in clause 23 below,
to effect with any insurer any policy or policies of insurance either in lieu, or satisfaction
of, or in addition to, such indemnity.
|
|
|
|
|
|
|
(i)
|
To
delegate by power of attorney, or in any other way, to any person or persons approved
in writing by the Bank, all or any of the powers, authorities and discretions which are
for the time being exercisable by the Receiver under this Debenture.
|
|
|
(j)
|
(i)
|
To
promote the formation, or otherwise acquire the share capital of, any body corporate with
a view to such body corporate becoming a subsidiary of the Company or otherwise;
|
|
|
(ii)
|
to
purchase, lease, or otherwise acquire any interest in all or any of the Company undertaking
and property;
|
|
|
|
|
|
|
(iii)
|
to
carry on any business in succession to the Company or any subsidiary of the Company;
and in each case, as the Receiver may otherwise reasonably think fit.
|
|
|
(k)
|
To
apply for, and otherwise take such steps as the Receiver may consider reasonably necessary
or desirable to obtain (in the name of a nominee or otherwise), such licences, consents,
permits and approvals as the Receiver may reasonably think expedient.
|
|
|
(l)
|
To
make elections for value added tax purposes as the Receiver may reasonably think fit.
|
|
|
|
|
|
|
(m)
|
For
any of the purposes authorised by this clause 15, to raise money by borrowing from the Bank or from any other person on the
security of all or any of the charged property in respect of which the Receiver is appointed.
|
|
|
(i)
|
The
Receiver may raise money as mentioned above on such terms (including, if the Bank shall consent, terms under which such security
ranks in priority to all or any of the security created by this Debenture) as the Receiver may reasonably think fit; and
|
|
|
|
|
|
|
(ii)
|
the
repayment of all such monies and the payment of interest on them and related costs charges and expenses, shall be treated
for all purposes as expenses properly payable by the Receiver.
|
|
|
(n)
|
To
exercise any of the powers which the Bank would be entitled to exercise under this Debenture.
|
|
|
|
|
|
|
(o)
|
To
do all such other acts and things as the Receiver may reasonably consider to be incidental or necessary to any of the matters
or powers mentioned above and/or which the Receiver lawfully may or can do as agent for the Company.
|
|
|
|
|
|
|
(p)
|
To
exercise any of the above powers on behalf of the Company or on the Receiver’s own behalf or, in the case of the powers
contained in clause 15 (f) above, on behalf of the directors of the Company.
|
|
16.
|
Subject
to claims having priority to the security created by this Debenture, all monies received, recovered or realised by the Receiver
or (on any exercise by the Bank of its enforcement powers under this Debenture) the Bank, shall be applied in the following
order:-
|
|
|
(a)
|
In
payment of all reasonable costs, charges and expenses of, and incidental to, (i) the appointment of the Receiver and (ii)
the exercise of all or any of the powers of the Receiver or the Bank and of any other outgoings properly payable by them including
without limitation (A) the repayment of monies borrowed as referred to in clause 15(m) above (B) the payment of interest and
related costs, charges, and expenses (to the extent that the Bank has consented to the same being secured in priority to the
security created by this Debenture) and (C) all amounts payable by the Bank to the Receiver under any order of any court or
otherwise.
|
|
|
|
|
|
|
(b)
|
In
payment of remuneration to the Receiver at such rate as may from time to time be agreed between the Receiver and the Bank.
|
|
|
|
|
|
|
(c)
|
In
payment to the Bank in or towards payment or discharge of the Debt and all other amounts expressed to be secured by, or due
or payable to the Bank under or in connection with, this Debenture.
|
|
|
|
|
|
|
(d)
|
In
payment of any surplus to the Company or any other person entitled to it.
|
Power
of Attorney
|
17.
|
(a)
|
The
Company irrevocably, and by way of security, appoints the Bank, any Receiver and each of their respective delegates, jointly
and also individually to be the attorney and attorneys of the Company. Any attorney is authorised by the Company to do all
things which the Company may be required to do under this Debenture. This includes (without limitation) anything which the
Bank or the Receiver (or any such delegate) may consider necessary or appropriate for, or in connection with:
|
|
|
(i)
|
the
improvement, perfection or protection of the security intended to be created by this Debenture; or
|
|
|
|
|
|
|
(ii)
|
the
exercise of any of the powers authorities and discretions conferred under this Debenture on the Bank and/or any Receiver.
|
|
|
(b)
|
The
Company ratifies and confirms (and agrees to do so) whatever any such attorney shall do, or attempt to do, in the exercise
of all or any of the powers, authorities and discretions mentioned above or under this power of attorney. The power of attorney
conferred under this clause 17 is to secure the performance of obligations owed to the donees within the meaning of the Powers
of Attorney Act 1971.
|
Bank
has Powers of Receiver and other powers
|
18.
|
(i)
|
Without
affecting any other powers, authorities and discretions of the Bank, all or any of the powers, authorities and discretions
conferred upon the Receiver (whether arising under this Debenture or otherwise) may also be exercised by the Bank at any time
after this Debenture has become enforceable. This is so whether or not a Receiver has been appointed.
|
|
|
(ii)
|
The
Bank shall also be entitled to delegate by power of attorney, or in any other manner, to any person or persons all or any
of its powers authorities and discretions.
|
|
|
|
|
|
|
(iii)
|
No
such delegation mentioned above shall prevent the subsequent exercise of the powers, authorities and discretions by the Bank
itself or prevent the Bank from making any subsequent delegation of them to some other person.
|
|
|
|
|
|
|
(iv)
|
The
Bank may revoke any such delegation at any time.
|
|
19.
|
At
any time after this Debenture shall have become enforceable, or after any powers conferred by any interest having priority
to the security created by this Debenture shall have become exercisable, the Bank may redeem such or any other prior interest
or arrange the transfer of it to itself. It may settle and pass the accounts of any third party concerned and any account
so settled and passed shall be conclusive and binding on the Company. All monies paid by the Bank to the third party in accordance
with such accounts shall as from such payment be due from the Company to the Bank on current account and shall bear interest
and be secured as part of the Debt.
|
|
20.
|
The
rights and remedies of the Bank under this Debenture are in addition to, and not in substitution for, any rights or remedies
provided by law.
|
|
|
|
|
21.
|
The
restriction on the right of consolidating mortgages contained in Section 93 of the Law of Property Act 1925 shall not apply
to this Debenture.
|
|
22.
|
(i)
|
If
the Company at any time fails to perform and observe the terms, and obligations contained in this Debenture, the Bank may
(but without being under any duty to do so) take such steps as in its reasonable opinion may be required to remedy such failure;
and
|
|
|
(ii)
|
this
includes, without limitation, making any payment, and for the purpose mentioned in clause 22 (i) above, the Bank and its agents
may enter upon any land of the Company without being regarded as having entered into possession of it.
|
Indemnity
|
23.
|
The
Company agrees to fully indemnify each of the Bank and the Receiver from and against all and any liability they might incur
in the exercise (or apparent exercise) of any powers, authorities and discretions under or in connection with this Debenture
(with the exception of fraud or wilful default on the part of the Bank or the Receiver, but only to the extent committed by
any of them) or any failure by the Company to comply with any of its obligations under this Debenture.
|
Protection
of Purchasers
|
24.
|
No
purchaser or other person dealing with the Bank or the Receiver (or any of their respective delegates)
|
|
|
(i)
|
shall
be bound or entitled to see or enquire whether any power, authority or discretion under this Debenture has arisen or become
exercisable;
|
|
|
|
|
|
|
(ii)
|
be
concerned with any notice to the contrary or to see whether any delegation shall have lapsed for any reason or been revoked;
or
|
|
|
|
|
|
|
(iii)
|
be
bound or entitled to concern himself with the proceeds of any sale or other dealing or be answerable in any circumstances
for the application of the said proceeds.
|
Payment
of costs, charges and expenses
|
25.
|
The
Company shall reimburse to the Bank on demand on a full indemnity basis, all costs, charges and expenses (including, without
limitation, all amounts reasonably determined by the Bank to be necessary to compensate it for internal management or administration
costs, charges and expenses) properly incurred by the Bank:-
|
|
|
(i)
|
in
ensuring this Debenture is effective;
|
|
|
|
|
|
|
(ii)
|
in
connection with the improvement, perfection or protection of the security created by this Debenture;
|
|
|
|
|
|
|
(iii)
|
in
the exercise of any rights, remedies, powers, authorities and discretions conferred under, or in connection with, this Debenture.
|
|
|
|
|
|
|
(together with any value added tax or similar tax charged or chargeable in respect of such costs, charges and expenses).
|
|
|
|
|
|
|
All such amounts shall be debited to an account in the name of the Company. Until they are reimbursed they shall bear interest at the rate of three per cent per annum over the Bank of England base rate from time to time calculated and compounded monthly and/or according to the Bank’s then current practice and shall be payable on demand. They will be secured as part of the Debt by this Debenture.
|
Independence
of Security
|
26.
|
(a)
|
This
Debenture shall be in addition to, and independent of, every other security which the Bank may at any time hold for any of
the Debt secured by this Debenture.
|
|
|
(b)
|
No
prior security held by the Bank over all or any of the charged property shall merge in the security created by this Debenture.
|
|
|
|
|
|
|
(c)
|
This
Debenture shall remain in full force and effect as a continuing security unless and until the Bank discharges it.
|
Bank’s
powers to deal with Accounts and Money Received
|
27.
|
(a)
|
If
the Bank receives notice of any subsequent charge or other interest affecting all or any of the charged property (other than
arising under a Parallel Security Document), the Bank may open a new account or accounts for the Company in its books.
|
|
|
|
|
|
|
(b)
|
If
the Bank does not open a new account, it shall be regarded as having done so unless the Bank gives express written notice
to the contrary to the Company. Notwithstanding any appropriation by the Company to the contrary, as from the time of receipt
of such notice, all payments made by the Company to the Bank (other than those dealt with under clause 8(n)) shall be treated
as having been credited to a new account of the Company. Such payments will not be applied in reduction of the amount due,
owing or incurred from the Company to the Bank at the time when it received the notice.
|
|
|
|
|
|
28.
|
(a)
|
All
monies received, recovered or realised by the Bank under this Debenture (including the proceeds of any conversion under clause
31 below) may, in the reasonable discretion of the Bank, be credited to any suspense or impersonal account.
|
|
|
|
|
|
|
(b)
|
Such
monies referred to above in clause 28(a) may be held in such account (where they shall not reduce the Debt) for so long as
the Bank may think fit pending the application from time to time of such monies and all accrued interest (at the rate, if
any, agreed in writing between the Company and the Bank from time to time) in or towards the discharge of the Debt.
|
|
29.
|
The
Company waives any right of set-off it may have now, or at any time in the future, in respect of the Debt (including sums
payable by the Company under this Debenture).
|
|
|
|
|
30.
|
The
Bank may certify or determine the amount of a rate or amount applicable or due under this Debenture and in relation to the
Debt. These certifications and determinations by the Bank shall, in the absence of manifest error, be conclusive evidence
of those rates and amounts.
|
Currency
Conversion
|
31.
|
(a)
|
For
the purpose of or pending the discharge of the Debt, the Bank may convert any monies received, recovered or realised by the
Bank under this Debenture (including the proceeds of any previous conversion under this clause) from their existing currency
of denomination into such other currency of denomination as the Bank may reasonably think fit.
|
|
|
(b)
|
Any
such conversion shall be made at the Bank’s then prevailing spot selling rate of exchange for such other currency against
the existing currency.
|
|
|
|
|
|
|
(c)
|
Each
previous reference in this clause to a currency extends to funds of that currency and, for the avoidance of doubt, funds of
one currency may be converted into different funds of the same currency.
|
Dealings
with you and others
|
32.
|
The
Bank may, in its discretion, grant time, or make any other arrangement, variation or release with any person or persons not
party to this Debenture (whether or not such person or persons are jointly liable with the Company) in respect of any of the
Debt or of any other security or guarantee for it. If the Bank does, it will not in any way affect either this Debenture or
the liability of the Company for the Debt.
|
Bank’s
Right of Set Off
|
33.
|
In
addition to all rights of set off conferred by law, the Bank may set-off any money standing from time to time to the credit
of any account the Company has with the Bank against the Debt. If the obligations are in different currencies, the Bank may
convert either obligation into the other currency in accordance with clause 31.
|
Preservation
and Retention of Security
|
34.
|
(a)
|
Any
settlement, discharge or release (including in relation to this Debenture or the Debt) between (i) the Company and (ii) the
Bank or the Receiver (the “Relevant Person(s)”) shall be conditional upon no security given, or payment made,
to the Relevant Person(s) by the Company (or any other person) being avoided or reduced as a result of any provisions or enactments
relating to insolvency for the time being in force in any jurisdiction.
|
|
|
(b)
|
In
the event of such security or payment being avoided or reduced, the Relevant Person(s) shall be entitled to recover the value
or amount of such security or payment from the Company subsequently as if such settlement, discharge or release had not occurred.
|
Notices
Governing Law and Jurisdiction
|
35.
|
Without
affecting any other lawful method of service, any demand or notice to be made or given by the Bank to the Company (including
without limitation, a demand for payment of all or any of the Debt) may be made or given by any manager or officer of the
Bank or of any branch of it:-
|
|
|
(a)
|
By
letter addressed to the Company and delivered to any officer of the Company at any place or sent by first- class post to,
or left at the registered office of, the Company or any place of business or activity of the Company last known to the Bank.
If sent by post it will be deemed to have been made or given two business days (Monday to Friday, except public holidays in
England) after the day of posting.
|
|
|
|
|
|
|
(b)
|
By
electronic means to the electronic mail address of the Company last known to the Bank. It shall be regarded as having been
made or given at the time of transmission.
|
|
36.
|
(a)
|
English
law governs this Debenture, its interpretation and any non-contractual obligations arising from or connected with it.
|
|
|
(b)
|
Both
the Company and the Bank submit to the exclusive jurisdiction of the courts of England and Wales in relation to all claims,
disputes, differences or other matters (including non-contractual claims, disputes, differences or other matters) arising
out of or in connection with this Debenture.
|
Disclosure
of Information
|
37.
|
The
Company consents to the disclosure by the Bank of any information about the Company, this Debenture, the charged property
and the Debt:-
|
|
|
(a)
|
to
any person to whom the Bank has transferred, or proposes or may propose to transfer, all or any of its rights under this Debenture
and/or the Debt and to any rating agencies and any advisers to the Bank in connection with such transfer; and/or
|
|
|
|
|
|
|
(b)
|
to
any person with whom the Bank has entered into, or proposes or may propose to enter into, any contractual arrangements in
connection with this Debenture and/or the Debt; and/or
|
|
|
|
|
|
|
(c)
|
to
any company within the HSBC Group being HSBC Holdings plc and its associated and subsidiary companies from time to time, or
any of its or their agents; and/or
|
|
|
|
|
|
|
(d)
|
to
any insurer who is to, or who proposes to, provide insurance to the Bank in respect of the charged property, this Debenture
and/or the Debt; and/or
|
|
|
|
|
|
|
(e)
|
to
any other person to whom, and to the extent that, such information is required to be disclosed by any applicable law or regulation.
|
Transfer
of Rights
|
38.
|
(a)
|
The
Bank may transfer all or any of its rights under this Debenture and/or the Debt to any person at any time.
|
|
|
|
|
|
|
(b)
|
If
the Bank transfers all or any of its rights under this Debenture and/or the Debt, the Company rights under this Debenture
and/or the Debt (as the case may be) will stay exactly the same.
|
|
|
|
|
|
|
(c)
|
The
Company will be bound to any person to whom the Bank transfers any such rights. That person will have the Bank’s powers
and rights so far as the Bank transfers these to that person. The Bank will be released automatically from its obligations
to the Company so far as that person assumes the Bank’s obligations.
|
|
|
|
|
|
|
(d)
|
The
Company will at the expense of the Bank or the person to whom the rights are transferred, do anything reasonably requested
by the Bank to effect a transfer of all or any of the Bank’s rights under this Debenture and/or the Debt.
|
|
|
|
|
|
|
(e)
|
The
Company will not transfer all or any part of its rights under this Debenture and/or the Debt without the prior written consent
of the Bank.
|
|
|
|
|
|
|
(f)
|
In
these Transfer of Rights provisions and in the Disclosure of Information provisions above;
|
|
|
(i)
|
the
term transfer means sale, assignment and/or transfer by novation;
|
|
|
|
|
|
|
(ii)
|
the
term rights means rights, benefits and/or obligations; and
|
|
|
|
|
|
|
(iii)
|
the
term person means any person, trust, fund or other entity.
|
The
Bank’s written consent and reasonable requirement
|
39.
|
(a)
|
Where
the words “without the Bank’s written consent” appear in any clause, the Bank will not unreasonably withhold
consent. The Company agrees that it is reasonable for the Bank to refuse to consent to something if, in the Bank’s reasonable
opinion, it adversely affects or might affect:
|
|
|
(i)
|
the
Bank’s security under this Debenture and its ability to enforce it;
|
|
|
|
|
|
|
(ii)
|
the
value of that which is secured to the Bank and its ability to sell the same;
|
|
|
|
|
|
|
(iii)
|
the
Bank’s ability to recover the Debt; or
|
|
|
|
|
|
|
(iv)
|
the
assessment of the value of this Debenture as an asset of the Bank.
|
|
|
(b)
|
Where
the words “the Bank reasonably requires” appear in any clause, the Company agrees that it is reasonable for the
Bank to require something if, in the Bank’s reasonable opinion, it will or might assist in:
|
|
|
(i)
|
the
preservation of the Bank’s security under this Debenture or the value of that which is secured by it; or
|
|
|
|
|
|
|
(ii)
|
the
Bank’s ability to recover the Debt.
|
Severance
and Modification - Unenforceability
|
40.
|
(a)
|
If
any of the clauses (or part of a clause) and/or any of the paragraphs (or part of a paragraph) becomes invalid or unenforceable
in any way under any law, the validity of the remaining clauses (or part of a clause) or paragraph (or part of a paragraph)
will not in any way be affected or impaired.
|
|
|
(b)
|
If
any invalid or unenforceable clause or paragraph mentioned above (or part of either) would not be invalid or unenforceable
if its form or effect were modified in any way, it shall be deemed to have the modified form or effect so long as the Bank
consents.
|
Parallel
Security
|
41.
|
(a)
|
The
Company may at any time enter into a Parallel Security Document. Entry into and performance of the terms of a Parallel Security
Document shall not breach any term of this Debenture.
|
|
|
(b)
|
The
Company consents to the Bank and HSBC Bank plc entering into priority, intercreditor or other similar arrangements (to which
the Company shall not be party) to regulate the ranking of the security granted by the Company under this Debenture and any
Parallel Security Document.
|
Interpretation:-
|
42.
|
(a)
|
The
words or expressions:-
|
|
|
(i)
|
“the
Company” shall include any person from time to time deriving title under the Company.
|
|
|
|
|
|
|
(ii)
|
“the
Bank” shall include its successors and transferees and in both cases to the extent of their respective rights and benefits
(including, without limitation, any person in whom under the laws of such person’s place of incorporation all or substantially
all of the assets and liabilities of the Bank become vested).
|
|
|
|
|
|
|
(iii)
|
“environmental
laws” includes all applicable laws, regulations and directives (and all notices, circulars, orders, judgments and decisions
of any court or other competent authority in any jurisdiction) concerning the pollution or protection of the environment or
the health of humans, animals or plants including without limitation public and workers’ health and safety, the generation,
use, treatment, storage, transportation or disposal, or discharge or release into the environment, of any chemicals or other
pollutants or contaminants or industrial, radioactive, dangerous, toxic or hazardous substances or wastes (in whatever form
and including noise and genetically modified organisms).
|
|
|
|
|
|
|
(iv)
|
“environmental
permits” means all permits, licenses, consents, approvals, certificates and other authorisations (including all conditions
applicable to them) required under any environmental laws.
|
|
|
|
|
|
|
(v)
|
“holding
company” “subsidiary” and “subsidiary undertaking” shall have the meanings respectively set
out in the Companies Act 2006 (as the same may be amended, varied or replaced from time to time).
|
|
|
|
|
|
|
(vi)
|
“PSC
Regime” means the regime relating to “people with significant control”, as set out in Part 21A of the Companies
Act 2006 and The Register of People with Significant Control Regulations 2016.
|
|
|
|
|
|
|
(vii)
|
“include(s)”,
“including” and “in particular” shall be construed as being by way of illustration or emphasis only
and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words.
|
|
|
(viii)
|
“other”
and “otherwise” shall not have their meaning narrowed on account of any preceding words where a wider construction
is possible.
|
|
|
|
|
|
|
(ix)
|
“Parallel
Security Document” means any security document in respect of any asset secured under this Debenture entered into by
the Company in favour of HSBC Bank plc.
|
|
|
(b)
|
Any
reference to a person shall include any person, company, corporation, body corporate, government, state (or agency of a state)
and any association or partnership (whether or not having legal personality) of any of these.
|
|
|
|
|
|
|
(c)
|
Any
reference to any statute or any section of any statute shall be regarded as including reference to any statutory modification
or re-enactment of it for the time being in force.
|
|
|
|
|
|
|
(d)
|
References
to the singular shall include the plural and vice versa; the use of the male pronoun shall include the female and neuter;
the use of the neuter pronoun shall include both the male and the female.
|
|
|
|
|
|
|
(e)
|
The
headings are used for guidance only.
|
Company
compliance with Memorandum and Articles of Association
|
43.
|
The
Company confirms that this Debenture does not contravene any of the provisions of its Memorandum and Articles of Association.
|
IN
WITNESS this Deed has been executed as a deed by the Company and is intended to be and is delivered on the date first mentioned
above.
The
Schedule referred to above
Part
1
(Freehold
and/or leasehold land)
Registered
Title
All
the property(ies) comprised in the following title(s) at the Land Registry:
|
Title
Number
|
|
Short
description of the property
|
|
|
|
|
Unregistered
Title
All
the property(ies) now vested in the Company and comprised in the Deed(s) referred to below:
|
Short
description of the property
|
Date
|
Deed/Document
|
Parties
|
Part
2
(Prior
mortgages or other matters relating to the property described above)
|
Short
description of the property
|
Legal
Mortgage / Charge dated
|
Parties
|
|
|
|
|
Executed
as a deed by the Company acting by:
|
Signature
|
/s/
David Phipps
|
|
Director
|
|
|
|
|
|
|
|
ü
ï
|
(For
use by a
|
|
Name
in full
|
David
Phipps
|
|
|
ï
|
Company
with
|
|
(Block
letters)
|
|
|
|
ý
|
multiple
directors
|
|
|
|
|
|
ï
|
and/or a Company
|
|
Signature
|
/s/
Jenna Foster
|
|
Director/Company
Secretary
|
ï
|
Secretary)
|
|
|
|
|
|
þ
|
|
|
Name
in full
|
Jenna
Foster
|
|
|
|
|
|
(Block
letters)
|
|
|
|
|
|
Executed
as deed by the Company acting by:
|
Signature
|
|
|
Director
|
ü
|
(For
use where one
|
|
|
|
|
|
ï
|
director
is
|
|
Name
in full
|
|
|
|
ý
|
authorised
to sign)
|
|
(Block
letters)
|
|
|
|
ï
|
|
|
|
|
|
|
þ
|
|
|
In
the presence of:
|
|
|
|
|
|
Signature
of witness
|
/s/
Lucy Angell
|
|
Witness
|
|
|
|
|
|
|
|
|
Full
name of witness
|
Lucy
Angell
|
|
|
|
|
(Block
letters)
|
|
|
|
|
Address:
6 Rowland Ave Poole BH15 3DE
Occupation:
Senior Ecommerce Coordinator
For
and on behalf of HSBC UK Bank plc
/s/
Sabah Anwar
Exhibit
10.2
The
Directors
Global
Telesat Communications Limited
19-25 Nuffield Road
Nuffield
Industrial Estate
Poole
Dorset
BH17 0RU
29th
April 2020
Coronavirus
Business Interruption Loan Agreement
THIS
IS AN IMPORTANT LEGAL DOCUMENT THAT YOU SHOULD READ IN ITS ENTIRETY USING A DEVICE WITH A LARGE SCREEN, SUCH AS A TABLET, LAPTOP
OR SIMILAR. WE RECOMMEND THAT YOU OBTAIN INDEPENDENT LEGAL ADVICE AND MAKE SURE YOU UNDERSTAND IT BEFORE YOU SIGN IT.
YOU
ARE RESPONSIBLE FOR REPAYING THE WHOLE OF THIS LOAN AT ALL TIMES. WE WILL ALWAYS TRY TO RECOVER THE FULL AMOUNT OF THE LOAN FROM
YOU OR FROM ANY SECURITY PROVIDED TO US FIRST.
We
are pleased to offer you a committed sterling term loan facility (the Facility). This agreement sets out the terms that
apply to the Facility.
This
agreement is between you and us.
By
‘you’ and ‘your’ we mean everyone or every business we have offered to provide the Facility to.
By
‘us’, ‘we’ and ‘our’, we mean HSBC UK Bank plc, or another entity that we transfer our rights
and/or obligation to under the agreement to.
1.
What we are providing and what it will cost you
The
details of this Facility are:
|
Limit
|
£250,000.00
(the Limit).
|
|
|
|
|
Currency
|
Sterling
|
|
|
|
|
Purpose
|
You
will only use the loan we provide under this Facility (the Loan) for general working capital requirements. We will
not monitor or check how you use the Loan.
|
HSBC
UK Bank plc. Registered in England and Wales (company number: 9928412).
Registered
Office: 1 Centenary Square, Birmingham, B1 1HQ. Authorised by the Prudential Regulation Authority and regulated by the Financial
Conduct Authority and the Prudential Regulation Authority (Financial Services Register number: 765112).
|
Drawdown
Period
|
You
may draw down the Loan from the date you accept this agreement (the Acceptance Date)
to the date falling 60 days after the Acceptance Date.
|
|
|
|
|
Cancellation
|
If
you do not make a draw down within the Drawdown Period, we will cancel the Facility and
you will immediately pay us any amounts owing to us in connection with the Facility.
If
you do not draw down the Loan in an amount equal to the Limit within the Drawdown Period, we will cancel the undrawn portion
of the Facility at the end of the Drawdown Period.
We
may cancel the Facility and require you to pay all amounts outstanding under the Facility if it becomes unlawful for us
to comply with this agreement or to provide the Facility.
|
|
|
|
|
Repayments
|
You
are responsible for paying back the money you owe us.
You
won’t need to make any repayments of capital for the first 12 months after the date you draw down the Loan (the
Initial Repayment Free Period). Your first repayment will be made on the date 13 month(s) after the date you draw
down the Loan and you will repay the Loan in 59 monthly instalments of £4,166.67 (exclusive of interest). You will
then make a final repayment of £4,166.47 on the Final Repayment Date.
Once
you have made a repayment or prepayment you cannot redraw that amount of the Loan that was repaid or prepaid.
As
well as repaying the Loan, you will also pay us interest as detailed below.
We
may change the amount of your repayment instalments if you make a prepayment or if it is required to accurately reflect
the remaining amount payable by you.
In
any event you must pay us all outstanding amounts under this Facility (including accrued interest) by the Final Repayment
Date.
|
|
|
|
|
Final
Repayment Date
|
The
date 6 years from the date of the drawdown of the Loan.
|
|
Deferred Capital Repayments
|
You can request to defer some of your capital repayments provided that:
|
|
|
(a)
|
no Event of Default has occurred and is continuing;
|
|
|
|
|
|
|
(b)
|
you elect to defer the repayments before the Final Repayment Date; and
|
|
|
|
|
|
|
(c)
|
the term of the Loan (including any extended term) does not exceed 6 years from the date of drawdown of the Loan.
|
|
|
You must defer at least three monthly repayment(s) each time you elect to defer and cannot defer more than 24 months’ worth of repayments in total including those repayments which were deferred during the Initial Repayment Free Period.
|
|
|
If
you elect to defer any capital repayments we will either:
|
|
|
|
|
|
|
(a)
|
extend
the Final Repayment Date by the number of deferred repayments (provided that this does not extend the Final Repayment Date
to a date which is more than 6 years from the date of drawdown of the Loan); or
|
|
|
|
|
|
|
(b)
|
adjust
the amount of the repayment amounts to be paid by you following the deferred period.
|
|
|
|
|
|
|
We will confirm which option we have chosen as soon as we can following our receipt of your notice of deferral.
|
|
|
|
|
|
|
Deferring
your capital repayments will not affect your obligation to pay us interest, which will still accrue and will be payable as
set out in this letter.
|
|
|
|
|
Voluntary
Prepayments
|
You
can prepay the Loan at any time if:
|
|
|
|
|
|
|
(a)
|
you
give us at least 5 business days’ written notice;
|
|
|
|
|
|
|
(b)
|
the
amount of the prepayment is equal to 10% or more of the Limit or, if less, the balance of the Loan; and
|
|
|
|
|
|
|
(c)
|
you
also pay us all accrued interest on the amount prepaid.
|
|
|
|
|
|
|
If
you make a prepayment you will still have to make the repayments set out above but we may adjust the repayment amounts.
|
You
must pay us the following fees and interest in connection with the Facility:
|
Fixed
Rate Break Fee
|
If
we have offered you a fixed rate following a request under clause 4 of this agreement you may ask us in writing to change
the interest rate applicable to the Loan from a fixed rate back to the Bank of England Base Rate. If you do this, or if you
make any prepayment during the Fixed Rate Period, you must pay us a fee equal to:
|
|
|
|
|
|
(a)
|
for
each full year of the Fixed Rate Period remaining, 1% of the amount voluntarily prepaid, or if we are changing the rate to
the Bank of England Base Rate, 1% of the amount of the Loan which remains outstanding at that time; and
|
|
|
|
|
|
|
(b)
|
for
each part of a year remaining, 1% of the amount prepaid or if we are changing the interest rate to the Bank of England Base
Rate, 1% of the amount of the Loan which remains outstanding at that time, divided by 365 and multiplied by the number of
days remaining in that partial year.
|
|
|
|
|
|
Security
Fees
|
Debenture
Bank fee: £180
Bank fee for registration at Companies House: £50
Companies House registration fee: £15
|
|
|
|
|
Interest
|
Interest
at a rate of 3.99% per annum over the Bank of England Base Rate payable on the outstanding
principal amount of the Loan monthly and on the Final Repayment Date. We will either
debit these interest payments from your account held with us (or any other nominated
bank account, the details which have been confirmed and accepted by us) or your Loan
account and will continue to do so until the Loan is fully repaid.
|
|
|
If
you elect to apply for the business interruption payment (the BIP) from the UK Government (which was set out in the
BIP offer letter provided to you) you won't need to make any payment of interest to us for the first 12 months after the date
you draw down the Loan. This is because the BIP will cover those interest payments on your behalf. Your first payment of interest
will therefore be on the date 13 months after the date you draw down the Loan and then monthly thereafter.
|
|
|
|
|
|
If
you do not elect to apply for the BIP, no interest payments will be covered on your behalf and you will therefore be responsible
for the payment of all interest accrued on the Loan.
|
|
|
|
|
|
The
amount of interest you pay may change if, for example, there is a change in the Bank of England Base Rate.
|
|
|
|
|
|
If
the Bank of England Base Rate is less than zero, the Bank of England Base Rate shall be deemed to be zero.
|
|
|
|
|
|
If
you ask us in writing we will tell you the interest rate that is applicable to your Loan at that time.
|
|
|
|
|
|
You
are not required to pay any fee to benefit from the CBILS. Please see schedule 3 for
further details.
|
Your
total indicative costs for the first 12 months following drawdown of the Loan, which will be covered by the BIP (should you elect
to apply for it), will be £10,470.00 which is comprised of £10,225.00 interest and £245.00 security fees.
2.
What we need from you
Before
you draw down under the Facility you must provide us with the following documents in a form we are happy with:
|
|
(i)
|
a
signed copy of this letter;
|
|
|
|
|
|
|
(ii)
|
a
duly signed, dated and completed copy of the business interruption payment offer letter confirming whether you do/do not want
to apply for a business interruption payment;
|
|
|
|
|
|
|
(iii)
|
a
resolution of your board of directors approving your entry into this agreement and the Documents;
|
|
|
|
|
|
|
(iv)
|
evidence
of who is authorised to make drawings from an account on your behalf or a bank mandate. If you don’t give this to us
we will assume that anyone who is authorised to instruct us to make payments on your behalf in Sterling in the amount of the
relevant drawing from an account held with us is authorised; and
|
|
|
(v)
|
the
form of information declaration provided to you by us, duly signed, dated and completed without any amendments or variations;
|
|
|
(i)
|
the
following security documents, signed by the relevant parties (other than us):
|
|
|
1.
|
Debenture
comprising fixed and floating charges over all the assets and undertaking of the Borrower including all present and future
freehold and leasehold property, book and other debts, chattels; goodwill; uncalled capital, both present and future.
|
|
|
(ii)
|
evidence
that you, or the person providing us with any security, has good and marketable title to the assets it is securing; and
|
|
|
|
|
|
|
(iii)
|
any
documents we need to enable us to register the security;
|
|
|
(i)
|
all
information needed for us to comply with our “know your client” requirements.
|
We
will let you know if something further is needed and when we are happy with the form of the documents.
We
will allow you to draw down the Loan if:
|
(a)
|
we
have everything we have asked from you under this clause 2; and
|
|
|
|
|
(b)
|
no
Event of Default or Potential Event of Default is continuing or would result from the drawdown.
|
By
Event of Default we mean any of the events set out in clause 8 of this letter and by Potential Event of Default
we mean an event or circumstance which would, with the expiry of a grace period, the giving of notice or the making of any determination
be an Event of Default.
A
Potential Event of Default is continuing if it has not been remedied or waived and an Event of Default is continuing
if it has not been waived by us.
3. How you can request the Loan
You
must provide us with a drawdown request by 9.30am on the morning of the proposed drawdown date.
The
drawdown request must be in the form set out in schedule 1, or in such other form as we agree, and include:
|
(a)
|
the
proposed drawdown date;
|
|
|
|
|
(b)
|
the
amount of the Loan; and
|
|
|
|
|
(c)
|
details
of the bank account to which the Loan should be paid.
|
Once
you have submitted the request it cannot be amended or withdrawn.
You
can only make one drawdown and it must be in an amount equal to the Limit.
4.
How you can request a Fixed Rate
At
any time following the drawdown of the Loan, if no Event of Default has occurred and is continuing, you may ask us for a fixed
rate by making a request in the form set out in schedule 2.
We
will use reasonable endeavours to offer you a confirmed fixed rate but we are not obliged to do so. If we agree to offer you a
confirmed fixed rate we will do this in a fixed rate quote. The fixed rate quote will tell you what the fixed rate is and for
what period it applies (Fixed Rate Period).
5.
About the Coronavirus Business Interruption Loan Guarantee
This
Loan is supported by the Coronavirus Business Interruption Loan Scheme (CBILS), managed by the British Business Bank, on
behalf of, and with the financial backing of, the Secretary of State for Business, Energy and Industrial Strategy.
(a) CBILS Guarantee
We
can only make the Loan available to you if we receive a guarantee from the UK Government under CBILS (the CBILS Guarantee).
If you do not repay us the full amount of the Loan, the Government will pay some of the amounts due to us instead.
(b) Your responsibility for the repayment of the Loan
The
CBILS Guarantee is provided to us and not to you. You are responsible for repaying the whole of this Loan at all times.
If
you fail to repay the Loan to us, we can recover the full amount you owe us from any security that may have been provided to us
for the Loan. If we are unable to recover the full amount of the Loan from you, or from any security provided to us, the CBILS
Guarantee provides us with a partial guarantee for the Loan. We will always try to recover the full amount of the Loan from
you or any security provided to us first.
(c) Claiming under the CBILS Guarantee
Where
the CBILS Guarantee is called upon, we may be required to make repayments to the UK Government from any amounts we receive by
enforcing any security that may have been provided to us for the Loan.
6.
Your confirmations to us
You
make the following representations and warranties to us on: (i) the date that you sign this letter; (ii) on any date on which
you request a drawdown; (iii) any date on which you make a drawdown; and (iv) on each date you make a payment of capital and/or
interest to us.
You
make these representations and warranties on your behalf and on behalf of any other party which provides guarantees or security
to us (other than the CBILS Guarantee) in support of your obligations to us (an Obligor). Any reference to ‘you’
in paragraphs (a) to (o) below refer to you and any Obligor:
|
(a)
|
you
are duly incorporated or established under the laws of your jurisdiction of incorporation or establishment and you have the
power and authorisations needed to own your assets and carry on your business as it is being conducted;
|
|
(b)
|
you
are able to enter into and perform your obligations under any document required in connection with us providing the Facility
to you (the Documents);
|
|
|
|
|
(c)
|
your
obligations under the Documents are legal, valid and binding;
|
|
|
|
|
(d)
|
you
comply with all laws and regulations (including all environmental laws and regulations) which apply to you;
|
|
|
|
|
(e)
|
no
Event of Default or Potential Event of Default is continuing or would result from the drawdown and there are no other events
or circumstances which constitute (or would, with the expiry of a grace period, the giving of notice or the making of any
determination constitute) a default or termination event (however described) under any other agreement or instrument you are
a party to;
|
|
|
|
|
(f)
|
there
is no material current, pending or threatened litigation or similar proceedings affecting you or any proceedings that could,
if adversely determined, affect you;
|
|
|
|
|
(g)
|
you
have good and marketable title to the assets over which the security is granted;
|
|
|
|
|
(h)
|
any
security that we have the benefit of has or will have first ranking priority (unless we agree otherwise with you);
|
|
|
|
|
(i)
|
your
obligations to us rank pari passu with your other unsecured and unsubordinated obligations to other parties (other than us)
unless those other obligations are preferred by law;
|
|
|
|
|
(j)
|
no
person has taken any step to commence any insolvency proceedings, or threatened to take any step to commence any insolvency
proceedings, in relation to you or, if you are part of a wider group of entities, any member of your group;
|
|
|
|
|
(k)
|
your
centre of main interests is situated in the jurisdiction of your incorporation or establishment and you have no establishment
in any other jurisdiction;
|
|
|
|
|
(l)
|
any
written information provided to us by you or on your behalf was true, complete and accurate in all material respects when
it was provided and has not become materially misleading or incorrect;
|
|
|
|
|
(m)
|
you
are not required to make any deduction or withholding for or on account of tax, duty or any other charge for any payment you
make to us;
|
|
|
|
|
(n)
|
you
have conducted your businesses in compliance with applicable anti-corruption laws and have instituted and maintained policies
and procedures designed to promote and achieve compliance with such laws; and
|
|
|
|
|
(o)
|
neither
you, nor any subsidiary, director, officer, employee, agent or affiliate of yours nor any of their subsidiaries is, or is
owned or controlled by, an individual or entity that is, (i) the subject of any Sanctions, or (ii) located, organised or resident
in a country or territory that is, or whose government is, the subject of Sanctions.
|
What
are Sanctions?
Sanctions
means any counter-terrorism legislation or any international economic or trade sanctions adopted, administered or enforced
by the United Nations Security Council (the Council as a whole or its individual members), the Office of Foreign Assets Control
of the U.S. Department of the Treasury (OFAC), the U.S. Department of Commerce Bureau of Industry and Security, the US Department
of State, the European Union (the Union as a whole or its member states), Hong Kong or the United Kingdom.
7.
What you agree to do
We
want to build a relationship with you and continue to support your business. For us to do that we expect you to run your business
in a commercially prudent manner and keep the nature of your business the same as it is at the start of our relationship. We also
expect you to:
|
(a)
|
prepare
your financial information in accordance with generally accepted accounting standards;
|
|
|
|
|
(b)
|
let
us have copies (in a form acceptable to us) of:
|
|
|
i.
|
your
accounts (audited, if required by law) no later than 9 months after your financial year end;
|
|
|
if
your accounts have not been audited we can ask that an audit is carried out at your cost by a registered auditor;
|
|
|
|
|
(c)
|
give
us any information we reasonably request including information about your financial position or trading activities or anything
we need to satisfy our ‘know your customer’ requirements;
|
|
|
|
|
(d)
|
tell
us if you or any Obligor breach the agreement or any security or guarantee granted in our favour, if there is a Potential
Event of Default or if there is any material litigation or similar proceedings which affect you or any Obligor, or, if you
are part of a wider group of entities, any of your group companies; and
|
|
|
|
|
(e)
|
keep
your business and assets insured with a reputable insurer against risks that a business carrying on the same or similar business
would usually insure against and send us copies of any policies and premium receipts if we ask for them.
|
If
we ask you, you will fully co-operate with us and do what we reasonably ask you to do:
|
(a)
|
in
connection with: (i) any interest conferred or intended to be conferred on us by or (ii) any of our rights, powers or remedies
under, any Document; and/or
|
|
|
|
|
(b)
|
to
enable us to realise any Document which we have an interest in.
|
You
also confirm to us that:
|
(a)
|
you
have and will maintain any licences and/or authorisations you need to run your business;
|
|
|
|
|
(b)
|
you
will comply with all laws and regulations (including all environmental laws and regulations) which apply to you;
|
|
(c)
|
you
will not use, and you will make sure that, as applicable, no other member of your group, director, shareholder or Obligor
will use, directly or indirectly, any part of the Facility for any payments that could constitute a violation of any applicable
anti-bribery law,
|
|
|
|
|
(d)
|
you
will not, and you will make sure that, as applicable, no other member of your group, director, shareholder or Obligor will,
directly or indirectly, use the Facility or lend, contribute or otherwise make available the Facility to any person:
|
|
|
i.
|
to
fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding,
is, or whose government is, the subject of Sanctions; or
|
|
|
|
|
|
|
ii.
|
in
any other manner that would result in a violation of Sanctions by any person.
|
8.
Events of Default
If
any of these Events of Default occur then we may:
|
(a)
|
cancel
all or part of the Facility and we will have no further obligations to you;
|
|
|
|
|
(b)
|
stop
you from exercising your right to elect to defer any capital repayments;
|
|
|
|
|
(c)
|
demand
immediate repayment of all amounts due to us under the Facility;
|
|
(d)
|
declare
that all or any part of the Loan is repayable on demand; and/or
|
|
|
|
|
(e)
|
enforce
any security or guarantees.
|
An Event of Default will occur if:
|
(a)
|
you
or any Obligor does not pay any amount due to us under the Documents when due, unless there has been a technical error in
making the payment and it is made within 3 business days;
|
|
|
|
|
(b)
|
any
of the representations and warranties you or any Obligor makes to us under the Documents is or becomes materially misleading
or incorrect;
|
|
|
|
|
(c)
|
you
fail to provide any financial information that you are required to give us under clause 7 when due;
|
|
|
|
|
(d)
|
there
is a breach of any Document which provides security in favour of us;
|
|
|
|
|
(e)
|
you
or any Obligor breaches any provision of the Documents (other than those referred to in (a) to (d) above) unless the breach
can be remedied and is remedied within 10 business days of the earlier of you or the Obligor becoming aware of the breach
and us notifying you or the Obligor of the breach;
|
|
|
|
|
(f)
|
there
is an event of default (however described) under any other finance arrangements you or an Obligor are a party to;
|
|
|
|
|
(g)
|
you
or any Obligor rescinds or purports to rescind or repudiates or purports to repudiate any Document;
|
|
|
|
|
(h)
|
any
party to any intercreditor or priority arrangements (other than us) breaches the terms of those arrangements (unless such
breach is waived by all parties (other than the party in breach));
|
|
|
|
|
(i)
|
there
is a change in control of you, any Obligor, or if you are part of a wider group, your group, without our written consent;
|
|
|
|
|
(j)
|
any
of the following events occur:
|
|
|
(i)
|
you,
any Obligor, or, if you are part of a wider group, any member of your group, admits that it is, or is declared to be or deemed
to be, unable to pay its debts when due;
|
|
|
|
|
|
|
(ii)
|
you,
any Obligor, or, if you are part of a wider group, any member of your group enter into, or seek or propose, any composition
or voluntary arrangement with your creditors or scheme of arrangement of your affairs;
|
|
|
|
|
|
|
(iii)
|
any
action is taken or any court order is made which adversely affects the whole or a material part of your assets or, if you
are part of a wider group, assets of a member of your group;
|
|
|
|
|
|
|
(iv)
|
an
act, whether by you or another person, which either amounts to, or could directly result
in, a formal step being taken for the receivership, administration, bankruptcy, liquidation,
dissolution or analogous proceedings of, or in respect of, you or, if you are part of
a wider group, any member of your group;
|
|
(k)
|
you,
any Obligor, or, if you are part of a wider group, any member of your group, terminates or transfers the whole or a substantial
part of its business; or
|
|
|
|
|
(l)
|
it
becomes unlawful for you and/or an Obligor to comply with the Documents or any obligations under the Documents cease to be
legal, valid and binding.
|
9.
Costs and expenses
You
will pay to us all our costs and expenses that we incur in connection with the Documents.
If
we think we might, or if we have to, enforce or preserve our rights under, the agreement or any security or guarantee granted
in our favour in support of your obligations or have to investigate any breach of the agreement or any security or guarantee,
you will promptly pay us our costs and expenses associated with us taking such action.
We
can debit these costs to your current account with us (or any other nominated account) or your loan account with us. We will tell
you what the costs are before we debit them.
10.
Increased Costs
You
will pay us on demand the amount of any Increased Costs we incur because of:
|
(a)
|
a
change in (or the interpretation, administration or application of), or the introduction of, a law or regulation;
|
|
|
|
|
(b)
|
compliance
with any law or regulation made after the date of this agreement; and/or
|
|
|
|
|
(c)
|
the
implementation or application of, or compliance with, Basel III, CRDIV or any other law or regulation which implements Basel
III and/or CRDIV.
|
By
Increased Costs we mean additional or increased costs incurred by us or a reduction in our rate of return from the Facility
or our overall capital. This will include the consequences of any tax in respect of any payment received or receivable by us under
the Facility (other than tax payable on your overall net income).
What
are Basel Ill and CRDIV?
Basel Ill means:
|
(a)
|
the
agreements contained in "Basel Ill: A global regulatory framework for more resilient banks and banking systems",
"Basel Ill: International framework for liquidity risk measurement, standards and monitoring" and "Guidance
for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision
in December 2010, each as amended, supplemented or restated;
|
|
|
|
|
(b)
|
the
rules for global systemically important banks contained in "Global systemically important banks: assessment methodology
and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision
in November 2011, as amended, supplemented or restated; and
|
|
|
|
|
(c)
|
any
further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III.
|
CRDIV
means, together, the Capital Requirements Regulation (Regulation (EU) no. 575/2013 of 26 June 2013 on prudential requirements
for credit institutions and investment firms and amending regulation (EU) No. 648/2012 and the Capital Requirements Directive
(Directive 2013/36/EU of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit
institutions and investment firms, amending Directive 2002/87/EC and repealing Directive 2006/48/EC and 2006/49/EC) of the European
Parliament and the Council, as either of the same may be amended, supplemented or restated from time to time.
11.
Indemnity
You
must indemnify us on demand against any costs or losses that we incur because of:
|
(a)
|
a
breach by you of the agreement;
|
|
|
|
|
(b)
|
the
application by you of the Facility;
|
|
|
|
|
(c)
|
us
providing funding to you or making arrangements to fund the Facility; and/or
|
|
|
|
|
(d)
|
a
cancellation or prepayment of the Facility.
|
12.
Payments
|
(a)
|
You
must make all payments in cleared funds on the due date for payment or, if that day is not a business day, on the next business
day.
|
|
|
|
|
(b)
|
You
must make all payments without any deduction or withholding.
|
|
|
|
|
(c)
|
If
you are required by law to make any deduction or withholding from a payment, you will promptly pay to us additional sums that
will make the net sum received by us equal to the full sum payable had there been no deduction or withholding.
|
|
|
|
|
(d)
|
All
amounts payable to us under this agreement shall be deemed to be exclusive of VAT. Where VAT is chargeable, you must pay us
an amount equal to the amount of VAT charged.
|
|
|
|
|
(e)
|
We
may debit any amount you owe us under the agreement to any account you hold with us (including any accrued interest, fees
or costs) even if it causes that account to become overdrawn or for any limit on that account to be exceeded. We will tell
you the amount of any fees and/or costs before debiting them from your account.
|
13.
How we use the payments you make
We
will apply any payment we receive from you or any other person in connection with the Facility:
|
(a)
|
firstly,
to discharge all costs, fees and expenses (including legal fees) you owe us;
|
|
|
|
|
(b)
|
secondly,
in or towards the discharge of any interest or other amounts owed to us other than principal; and
|
|
|
|
|
(c)
|
thirdly,
in or towards the discharge of any principal you owe to us.
|
14.
Interest and fees
We
will calculate fees, interest and default interest on a daily basis:
|
(a)
|
from
the date we make the Facility available to you or, if applicable, the date the payment or fee is payable, until the date of
actual payment; and
|
|
|
|
|
(b)
|
on
the basis of a 365 day year or, if the market practice in the jurisdiction of the relevant currency differs, in accordance
with that market practice.
|
You
will pay us interest in arrears, at the rate specified in this agreement, on the charging dates you have agreed with us (you can
ask us what these rates or dates are at any time).
If
any fee or cost is specified as a percentage, it will be calculated on the total amount of the relevant Limit or Facility (as
applicable) unless otherwise stated.
15.
Currency
Payments
to us should be made in the currency in which they are due. If we receive any money which is in a different currency or if we
need to convert any order, judgment or award given in relation to a payment due from you into a different currency, we may convert
this at the HSBC Exchange Rate. You must indemnify us on demand against any costs or losses that we incur because of that conversion.
If
a change in any national currency unit occurs and affects the currency of the Loan we may amend the terms of this letter to reflect
the change without your consent.
If
we need to re-denominate the Loan we may ask you to enter into a new agreement on substantially the same terms as this agreement.
If you do not agree to the new terms you will be able to prepay the outstanding amounts under this agreement on 5 business days’
notice.
What
is the HSBC Exchange Rate?
This
is the rate we use to convert payments to and from currencies other than the currency of your payment. It's based on the foreign
currency market for each currency we offer so changes constantly. The rate will depend on the size of the payment and whether
we are buying currency (because you are receiving a payment) or selling currency (because you are making a payment).
You
can find out the rate at any time by contacting us (see our website for contact details http://www.business.hsbc.uk/en-gb/contact-us).
16.
Set-off
If
you have money in one of your accounts (except for trust, client or joint accounts), we may set it off against any amount you
owe us which is due for payment on other accounts (including money you owe on a joint account) so it reduces or repays the amount
you owe us. We’ll only do this with accounts in your name.
In
exercising our right, we may use any amounts you have in a fixed term deposit account and, where those deposits are not in the
same currency as the amount owed, we may convert those amounts to the currency of the amount owed using our HSBC Exchange Rate.
We may also adjust the amount of interest we pay you.
17.
Transfer
You
can’t transfer any of your rights and obligations under this agreement.
We
can transfer any of our rights and obligations under this agreement to anyone.
You
will, at our expense or at the expense of the person we transfer our rights and/or obligations to, do anything that we reasonably
request to effect the transfer.
18.
Third party rates
If
there is a change to any third party rate (for example the Bank of England Base Rate) the change will take effect on the same
business day that the change is published.
19.
Certificates and determinations
Any
rate or amount under any Document that we certify or determine will, unless there is a manifest error, be conclusive evidence
of the relevant matter.
20.
Sharing information
If
we make a reasonable request for information, you must give it to us as soon as possible. If you don’t, or we suspect fraudulent
or criminal activity of any kind:
|
(a)
|
we
might try to get it from another source; and/or
|
|
|
|
|
(b)
|
we
can terminate the Facility or suspend access to services.
|
You
must make sure the information you give us is accurate and up to date and tell us within 30 days if anything changes.
We’ll
use your information as explained in our Privacy Notice (available at www.business.hsbc.uk/legal).
You
consent to us sharing any information about you, the Facility and/or the agreement with:
|
(a)
|
any
person that we might transfer or have transferred our rights to under the agreement;
|
|
|
|
|
(b)
|
any
person that we might enter into or have entered into any sub-participation with or any other transaction under which payments
are to be made or may be made by reference to any of the Documents or any person who might or does invest in or finance such
a transaction;
|
|
|
|
|
(c)
|
any
member within the HSBC Group, being HSBC Holdings plc and its subsidiary companies from time to time;
|
|
|
|
|
(d)
|
any
rating agency or other person that we have to send that information to under any applicable law or regulation or where requested
by a regulatory authority or by the rules of a stock exchange or in connection with any litigation or similar proceedings;
|
|
|
|
|
(e)
|
any
insurer who is or who proposes to provide insurance to us in respect of a Facility; and
|
|
|
|
|
(f)
|
any
employees, officers, directors, affiliates, auditors or professional advisers of any of the above persons.
|
21.
Compliance with laws and regulations
We
and you are each required to comply with the laws and regulations that apply to us, in the countries where the HSBC Group does
business. These include, among others, laws and regulations that:
|
(a)
|
prohibit
criminal conduct, such as fraud, bribery and corruption, money laundering, terrorist financing, insider dealing, market manipulation
and tax evasion;
|
|
|
|
|
(b)
|
impose
asset freezes, economic and other sanctions; and
|
|
|
|
|
(c)
|
require
us to have controls, policies and procedures to prevent our services from being used for financial crime.
|
In
the event we reasonably consider that the performance of this agreement, or any part of it, would cause us to breach any law or
regulation that applies to us:
|
(a)
|
we
will not be required to perform that part of this agreement; and
|
|
|
|
|
(b)
|
we
will not be liable to you in any way for not performing it.
|
22.
Third party rights
This
agreement is between you and us, therefore a person who is not a party to the agreement will not have any rights to enforce it.
23.
Waiver
No
failure or delay by us in enforcing any of our rights under the agreement will mean that we have given up those rights, in whole
or in part, or prevent us from enforcing those rights in the future.
24.
Tax
It’s
up to you to meet your tax responsibilities in the UK and elsewhere. Some countries’ tax laws may apply to you even if you
don’t have a business there. As you’re responsible for your own tax obligations, no HSBC Group member is responsible
for this or provides tax advice. It’s your choice whether to seek independent legal and tax advice.
25.
Events outside our control
Sometimes
events happen which are outside of our reasonable control. These events can include natural events (such as a flood) and power
failure and are often called force majeure events. If such an event does happen and it prevents or delays our performance of any
of our commitments, we will not be liable to you as a result.
26.
Security
Any
amount that you owe us under this agreement will be secured by all the security that we already hold (or which we may hold in
the future) in respect of your liabilities to us.
27.
What laws apply to this agreement?
This
agreement and any non-contractual obligations are governed by the laws of England and Wales and you and we both agree that the
courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the agreement.
28.
Some final useful information about your Facility
Please
also note the following terms that apply to your Facility:
|
(a)
|
Unless
we have told you otherwise in this agreement, if we agree with you to amend any term of this agreement any amendment will
only be effective if in writing and signed by both of us.
|
|
|
|
|
(b)
|
Your
obligations under this agreement shall not be secured on any land or buildings to the extent that that security would make
this agreement a “regulated mortgage contract” for the purposes of the UK Financial Services and Markets Act 2000
(Regulated Activities) Order 2001 (SI 2001/544). This provision will always take priority over any provision in any security
document you enter into.
|
|
|
|
|
(c)
|
If
you need to contact us in connection with the Facility you should write to, or email, your relationship manager/director or
otherwise you can find our contact details at https://www.business.hsbc.uk/en-gb/contact-us
|
|
|
|
|
(d)
|
We’ll
contact you or a person you’ve authorised us to contact, using the most recent address (postal or email) or telephone
number you or they have given us. You must let us know as soon as possible if the contact details for you or any authorised
person change. If you don’t, you might not get information or notices from us – we won’t be responsible
for this.
|
|
|
|
|
(e)
|
If
we send you a letter, you will be deemed to have received it at 12pm on the business day two days after we have posted the
letter. In this agreement, by business day, we mean any day other than a Saturday, Sunday or public holiday in the United
Kingdom, where we are open for business. If we email you, or use a platform or other electronic channel, you will be deemed
to have received the notice or demand at the time the email was sent or, as applicable, at the time the notice or demand is
notified to you on the relevant platform or electronic channel.
|
29.
Right of appeal to lending conditions
You
may have a right to appeal against the terms and conditions that we have offered. See the Lending Appeals Guide page on the Bank’s
website (currently http://www.business.hsbc.uk/en- gb/contact-us/contact-us-appeals-for-borrowing-page) for details.
30.
How to make a complaint
|
(a)
|
If
you have a complaint, please contact us using the details below. We’ll send you
a written acknowledgement within five working days and keep you informed of our progress
until your complaint has been resolved. We’ll do everything we can to sort out
the problem.
|
You
can contact us:
|
|
At
Branch:
|
Customers
can visit a branch and speak to our dedicated members of staff face to face
|
|
|
|
|
|
|
By
Telephone:
|
Customers can give us a call on 03457 606060 (+44 1226 260878)
|
|
|
|
|
|
|
Online:
|
Customers can email us at customer.care.team@hsbc.com.
Alternatively customers can complete our online complaint form. A member
of our dedicated team will be in contact with the customer shortly.
|
|
|
|
|
|
|
By Letter
|
Customers can write to us at the following address
|
|
|
|
|
|
|
|
Customer Care Team
HSBC UK
PO Box 6125
Coventry
CV3 9GW
|
|
(b)
|
If
you still remain dissatisfied, you may be able to refer your complaint to the Financial Ombudsman Service using the contact
details set out below. If you’re not eligible to use the Ombudsman Service, please note that, at the date of this agreement,
we don’t use any alternative dispute resolution services.
|
|
|
●
|
Financial
Ombudsman Service, Exchange Tower, London, E14 9SR
|
|
|
|
|
|
|
●
|
www.financial-ombudsman.org.uk
|
|
|
|
|
|
|
●
|
complaint.info@financial-ombudsman.org.uk
|
31.
Accessibility
|
(a)
|
To
find out more about our accessible service please visit www.hsbc.co.uk/accessibility or ask at any of our branches.
|
|
|
|
|
(b)
|
If
you’d like this in another format such as large print, Braille or audio, please contact us.
|
32.
About us and our authorisation details
|
(a)
|
HSBC
UK Bank plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the
Prudential Regulation Authority.
|
|
|
|
|
(b)
|
Our
Financial Services Register number is 765112. You can check these details by visiting the Financial Conduct Authority’s
website www.fca.org.uk or contacting them on 0800 111 6768.
|
|
|
|
|
(c)
|
HSBC
UK Bank plc is a company registered and established in England and Wales under registration number 09928412. Our registered
office is at 1 Centenary Square, Birmingham, B1 1HQ, United Kingdom. Our VAT registration number is GB365684514.
|
To
accept this agreement, please sign this agreement where indicated below and arrange for it to be returned to us. If you do not
sign this agreement and return it to us within 30 days from the date specified on the front page, the offer set out in this agreement
will lapse.
If
we indicate as such to you, this letter may be signed by electronic signature (as defined in the Electronic Communications Act
2000) and shall have the same legal effect, validity and enforceability as if signed by hand written signature to the extent and
as provided for in any applicable law (including the Electronic Communications Act 2000).
We
can each sign different copies of this letter and these copies will, together, form a single agreement. Signed for and on behalf
of HSBC UK Bank plc.
|
Signed:
|
/s/
James Allingham
|
|
This
agreement, signed for and on behalf of Global Telesat Communications Limited with authority to do so.
Date:
July 16, 2020
SCHEDULE
1
DRAWDOWN
REQUEST
|
From:
|
Global
Telesat Communications Limited
|
|
|
|
|
To:
|
HSBC
UK Bank plc
|
Dated: __________________
Dear
Sirs
CORONAVIRUS
BUSINESS INTERUPTION LOAN SCHEME FACILITY LETTER DATED 29th April 2020 (THE “AGREEMENT”)
We
refer to the Agreement. This is a drawdown request. When we use capitalised terms in this drawdown request, these have the same
meaning as in the Agreement.
|
1.
|
We
wish to draw down the Loan on the following terms:
|
|
|
(a)
|
Drawdown
Date:
|
_________________ (or,
if that is not a business day, the
|
|
|
(b)
|
next
business day).1
Amount:
|
£
_________________ 2
|
|
2.
|
The
proceeds of the Drawdown should be credited to:3
|
Bank:
Account
name:
Account
number:
Sort
code:
|
3.
|
We
confirm that we have provided everything you require under clause 2 of the Agreement.
|
|
|
|
|
4.
|
We
agree that the applicable interest rate shall be determined as set out in the Agreement.
|
|
|
|
|
5.
|
We
confirm that no Event of Default has occurred and is continuing and that no Potential Event of Default would arise from the
proposed draw down.
|
|
|
|
|
6.
|
We
confirm that each of the representations we have made to you in the Agreement are true.
|
|
|
|
|
7.
|
This
drawdown request is unconditional and irrevocable.
|
Yours
faithfully
..........................................
Director
for and on behalf of
Global
Telesat Communications Limited
1
Please complete the Drawdown Date.
2
Please complete the amount of Drawdown
3
Please complete the details of the bank account for receiving proceeds of the Drawdown
SCHEDULE
2
FIXED
RATE REQUEST
Dated:
________________
Dear
Sirs
CORONAVIRUS
BUSINESS INTERUPTION LOAN SCHEME FACILITY LETTER DATED 29th April 2020 (THE “AGREEMENT”)
When
we use capitalised terms in this fixed rate request, these have the same meaning as in the Agreement.
|
1.
|
This
is a fixed rate request in accordance with clause 4 of the Agreement.
|
|
|
|
|
2.
|
We
request a fixed rate for a Fixed Rate Period of __________ months from ____________ (date).
|
|
|
|
|
3.
|
We
confirm that the full amount of the Loan will be subject to the Fixed Rate.
|
|
|
|
|
4.
|
This
fixed rate request is irrevocable.
|
Yours
faithfully
..........................................
Director
for and on behalf of
Global
Telesat Communications Limited
SCHEDULE
3
CBILS
BORROWER SIDE LETTER
Dear
Borrower
1. CORONAVIRUS BUSINESS INTERRUPTION LOAN SCHEME – CBIL Scheme
Following
the announcement by Chancellor Rishi Sunak on 11 March 2020 we are writing to inform that your facility is being provided to you
under the CBIL Coronavirus Business Interruption Loan Scheme (the “CBIL Scheme”).
The
CBIL Scheme is delivered through the Enterprise Finance Guarantee (“EFG”) framework. References to “EFG”
or the “Enterprise Finance Guarantee” in any communications from your finance provider should be read as references
to the CBIL Scheme.
2.
CBIL GUARANTEE
Your
lender’s ability to provide you with this facility is dependent upon your lender receiving a guarantee from the UK Government
under the CBIL Scheme. The guarantee provides your lender (and not you) with a partial guarantee, should you default on repaying
this facility. You remain responsible for repaying the whole of this facility at all times.
3.
SCHEME GUARANTEE FEE
You
will not be required to pay any Scheme Guarantee Fee for the term of your CBIL Scheme Facility. Your Scheme Facility Letter and
the Information Declaration you are asked to sign may refer to you paying a Scheme Guarantee Fee, this letter supersedes any parts
of the Scheme Facility Letter and the Information Declaration that mention a “fee”. You will be sent a Guarantee Fee
Payment Schedule by your lender, this should show the Scheme Guarantee Fee payable by you as being zero.
Yours
faithfully,
For
and on behalf of British Business Financial Services Limited as agent for the Secretary of State for Business, Energy and Industrial
Strategy