ex1021securitytrustdeedu







Exhibit 10.21    





 







               CONTENTS   Clause Page   1.  Definitions And Interpretation .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1   2.  Trust For The Secured Parties .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3   3.  Application Of Proceeds .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3   4.  Administrative Agent' s Actions .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4   5.  Resignation Of Administrative Agent .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9   6.  Change Of Party .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9   7.  Delegation And Additional Administrative Agents .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  10   8.  Taxes, Expenses And Indemnity .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  11   9.  Amendments And Releases..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  12   10.  Miscellaneous .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  12   11.  Remedies And Waivers, Partial Invalidity .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  13   12.  Notices .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  13   13.  Winding-Up Of Trust And Perpetuity Period .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  18   14.  Chargors .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  18   15.  Counterparts ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  19   16.  Governing Law ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  19   17. Enforcement..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  19   Schedule 1 ORIGINAL CHARGORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  21   Schedule 2 FORM OF AGENT ACCESSION UNDERTAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  22   Schedule 3 FORM OF CHARGOR ACCESSION UNDERTAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  24              





 







    





 







      2      Receiver means a receiver and manager or a receiver or, where permitted by law, an   administrative receiver of the whole or part of the Secured Property and that term will   include any appointee under a joint and/or several appointment,  in each case,   appointed under any Security Document.   Secured Property means all the assets of the Chargors which from time to time are,   or are expressed to be, the subject of the Transaction Security.   Security Documents means (a) the English Guarantee and Security Agreement, (b) the   English Share Charge, and (c) any other document governed by English law that   evidences or creates any guarantee or any Security Interest over any asset of any   member of the Group (or other person) to guarantee or secure the Secured Obligations   in favour of the Administrative Agent and/or is designated a "Security Document" for   the purposes of this Deed by the Administrative Agent and the Chargors.   Security Interest means any mortgage, pledge, lien, charge (fixed or floating),   assignment, hypothecation, set-off or trust arrangement for the purpose of creating   security, reservation of title or security interest or any other agreement or arrangement   having a similar effect.    Secured Obligations means all advances to, and debts, liabilities, obligations,   covenants and duties of, any Loan Party arising under any Loan Document or   otherwise with respect to any Loan or Letter of Credit, whether direct or indirect   (including those acquired by assumption), absolute or contingent, due or to become   due, now existing or hereafter arising and including interest and fees that accrue after   the commencement by or against any Loan Party of any proceeding under any Debtor   Relief Laws naming such Person as the debtor in such proceeding, regardless of   whether such interest and fees are allowed claims in such proceeding.   Transaction Security means any guarantee or Security Interest created or expressed to   be created in favour of the Administrative Agent pursuant to the Security Documents.   Trustee Acts means the Trustee Act 1925 and the Trustee Act 2000 of England and   Wales.    1.2 Construction   In this Deed:   (i) the rules of interpretation contained in clause 1.2 (Interpretation) of the   English Guarantee and Security Agreement shall apply to the construction   of this Deed, but as if references to the Credit Agreement were to this   Deed; and    (ii) the Parties intend that this document shall take effect as a deed   notwithstanding the fact that a Party may only execute this document   under hand.     





 







      3      1.3 Third Party Rights   (a) Unless expressly provided to the contrary in this Deed, a person who is not a   Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the   Third Parties Act) to enforce or to enjoy the benefit of any term of this Deed.   (b) Notwithstanding any term of this Deed, the consent of any person who is not a   Party is not required to rescind or vary this Deed at any time.    1.4 The Administrative Agent   The Administrative Agent is entitled to all of the rights and benefits of Article IX   (Administrative Agents and Other Agents) of the Credit Agreement, and to the extent   that Article IX (Administrative Agents and Other Agents) of the Credit Agreement is   inconsistent with the provisions of this Deed, the provisions of Article IX   (Administrative Agents and Other Agents) of the Credit Agreement shall prevail.    2.  TRUST FOR THE SECURED PARTIES   (a) The Administrative Agent declares that it shall hold the Transaction Security on   trust for those entities which are from time to time Secured Parties.   (b) Each of the Parties agrees that the Administrative Agent shall have only those   duties, obligations and responsibilities expressly specified in this Deed or in any   other Loan Document (and no others shall be implied).    3.  APPLICATION OF PROCEEDS   3.1 Order of Application   (a) All moneys from time to time received or recovered by the Administrative   Agent or any Receiver in connection with the realisation or enforcement of all   or any part of the Transaction Security shall be held by the Administrative   Agent on trust for the Secured Parties from time to time in accordance with the   provisions of this Deed to apply them at such times as the Administrative Agent   sees fit, to the extent permitted by applicable law (subject to the provisions of   this Clause), in accordance with the terms of the Credit Agreement.     (b) This Clause shall not prejudice the right of any Secured Party to recover any   shortfall from any Chargor.   3.2 Investment of Proceeds   Prior to the application of the proceeds of the Transaction Security in accordance with   Clause 3.1 (Order of Application), the Administrative Agent may, at its discretion,   hold all or part of those proceeds in an interest bearing suspense or impersonal   account(s) in the name of the Administrative Agent with such financial institution   (including itself) for so long as the Administrative Agent shall think fit or as the   Required Lenders may direct (the interest being credited to the relevant account)   pending the application from time to time of those monies at the Administrative   Agent' s discretion in accordance with the provisions of this Clause 3.     





 







      4      3.3 Currency Conversion   (a) For the purpose of or pending the discharge of any of the Secured Obligations   the Administrative Agent may convert any moneys received or recovered by the   Administrative Agent from one currency to another, at the spot rate at which the   Administrative Agent is able to purchase the currency in which the Secured   Obligations are due with the amount received.     (b) The obligations of the Chargors to pay in the due currency shall only be   satisfied to the extent of the amount of the due currency purchased after   deducting the costs of conversion.   3.4 Permitted Deductions     The Administrative Agent shall be entitled (a) to set aside by way of reserve amounts   required to meet, and (b) to make and pay, any deductions (on account of Taxes or   otherwise), which it is or may be required by any applicable law to make from any   distribution or payment made by it under this Deed, and to pay all Taxes which may   be assessed against it in respect of any of the Secured Property, or as a consequence of   performing its duties in accordance with this Deed and the Security Documents, or by   virtue of its capacity as Administrative Agent under the Security Documents and this   Deed or otherwise (other than in connection with its remuneration for performing its   duties under this Deed).     3.5 Discharge of Secured Obligations   Any payment made to the Lenders in respect of the Secured Obligations by the   Administrative Agent shall be a good discharge to the extent of that payment.   3.6 Sums received by Chargors   If any of the Chargors receives any sum which, pursuant to any of the Loan   Documents, should have been paid to the Administrative Agent, the relevant Chargor   shall procure that such sum shall promptly be paid to the Administrative Agent for   application in accordance with this Clause and pending such payment, such sum shall   be held by that Chargor on trust for the Administrative Agent.    3.7 No Security Interest   No part of this Deed is intended to or shall create a registerable Security Interest.   4.  ADMINISTRATIVE AGENT'S ACTIONS   4.1 Administrative Agent's Actions   Subject to the provisions of this Clause 4:   (a) the Administrative Agent may in the absence of any instructions to the contrary,   take such action in the exercise of any of its powers and duties under the Loan   Documents which in its absolute discretion it considers to be for the protection   and benefit of all the Secured Parties; and     





 







      5      (b) at any time after receipt by the Administrative Agent of instructions from the   Required Lenders or such other number or percentage of the Lenders as shall be   expressly provided for in the Credit Agreement (the "Relevant Lenders"),    directing the Administrative Agent to exercise all or any of its rights, remedies,   powers or discretions under any of the Loan Documents to enforce any   Transaction Security, the Administrative Agent may, and shall if so directed by   the Relevant Lenders, take any action as in its sole discretion it thinks fit to   enforce the Transaction Security.    4.2 Administrative Agent's Discretions   The Administrative Agent may:   (a) assume, unless it has, in its capacity as Administrative Agent for the Secured   Parties, received actual notice to the contrary, that (a) no Default or Event of   Default has occurred and no Chargor is in breach of or in default under its   obligations under any of the Loan Documents and (b) any right, power,   authority or discretion vested by any Loan Document in any person has not been   exercised;   (b) engage, pay for and rely on the advice or services of any lawyers, accountants,   surveyors or other experts (whether obtained by the Administrative Agent or by   any other Secured Party) whose advice or services may at any time seem   necessary, expedient or desirable;   (c) rely upon any communication or document believed by it to be genuine and, as   to any matters of fact which might reasonably be expected to be within the   knowledge of a Secured Party or a Chargor, upon a certificate signed by or on   behalf of that person; and     (d) refrain from acting in accordance with the instructions of the Relevant Lenders,    in accordance with the terms of the Credit Agreement (including bringing any   legal action or proceeding arising out of or in connection with the Loan   Documents), until it has received any indemnification and/or security that it may   in its absolute discretion require (whether by way of payment in advance or   otherwise) for all costs, losses and liabilities which it may incur in bringing such   action or proceedings.   4.3 Excluded Secured Obligations   Notwithstanding anything to the contrary expressed or implied in this Deed or any   Security Document, the Administrative Agent shall not:   (a) be bound to enquire as to (i) the occurrence or otherwise of any Default or   Event of Default or (ii) the performance, default or any breach by a Chargor of   its obligations under any of the Loan Documents;   (b) be bound to account to any other Secured Party for any sum or the profit   element of any sum received by it for its own account;     





 







      6      (c) be bound to disclose to any other person (including any Secured Party) (i) any   confidential information or (ii) any other information if disclosure would or   might in its reasonable opinion constitute a breach of any law or be a breach of   fiduciary duty;    (d) be under any obligations other than those which are specifically provided for in   this Deed and the other Loan Documents; or   (e) have or be deemed to have any duty, obligation or responsibility to, or   relationship of trust or agency with any Chargor.   4.4 Exclusion of Administrative Agent's Liability   Without prejudice to section 10.05 (Indemnification by the Borrowers) of the Credit   Agreement, unless caused by its gross negligence or wilful misconduct, as determined   by the final judgment of a court of competent jurisdiction, the Administrative Agent   shall not accept responsibility or be liable for:   (a) the adequacy, accuracy and/or completeness of any information supplied by the   Administrative Agent or any other person in connection with the Loan   Documents or the transactions contemplated in the Loan Documents, or any   other agreement, arrangement or document entered into, made or executed in   anticipation of, pursuant to or in connection with the Loan Documents;    (b) the legality, validity, effectiveness, adequacy or enforceability of any Loan   Document or the Transaction Security or any other agreement, arrangement or   document entered into, made or executed in anticipation of, pursuant to or in   connection with any Loan Document or the Transaction Security;    (c) any losses to any person or any liability arising as a result of taking or refraining   from taking any action in relation to any of the Loan Documents or the   Transaction Security or otherwise;    (d) the exercise of, or the failure to exercise, any judgment, discretion or power   given to it by or in connection with any of the Loan Documents, the Transaction   Security or any other agreement, arrangement or document entered into, made   or executed in anticipation of, pursuant to or in connection with the Loan   Documents or the Transaction Security; or   (e) any shortfall which arises on the enforcement of the Transaction Security.    4.5 No Proceedings   No Party (other than the Administrative Agent) may take any proceedings against any   officer or employee of the Administrative Agent in respect of any claim it might have   against the Administrative Agent or in respect of any act or omission of any kind by   that officer or employee in relation to any Security Document and any officer or   employee of the Administrative Agent may rely on this Clause subject to Clause 1.3   (Third Party Rights) and the provisions of the Third Parties Act.      





 







      7      4.6 Own Responsibility   It is understood and agreed by each Secured Party at all times that that Secured Party   has itself been and will continue to be solely responsible for making its own   independent appraisal of and investigation into all risks arising under or in connection   with the Loan Documents including but not limited to:   (a) the financial condition, creditworthiness, condition, affairs, status and nature of   each of the Chargors;   (b) the legality, validity, effectiveness, adequacy and enforceability of each of the   Loan Documents and the Transaction Security and any other agreement,   arrangement or document entered into, made or executed in anticipation of,    pursuant to or in connection with the Loan Documents or the Transaction   Security;    (c) whether that Secured Party has recourse, and the nature and extent of that   recourse, against any Chargor or any other person or any of their respective   assets under or in connection with the Loan Documents, the transactions   contemplated in the Loan Documents or any other agreement, arrangement or   document entered into, made or executed in anticipation of, pursuant to or in   connection with the Loan Documents;    (d) the adequacy, accuracy and/or completeness of any information provided by any   person in connection with the Loan Documents, the transactions contemplated in   the Loan Documents or any other agreement, arrangement or document entered   into, made or executed in anticipation of, pursuant to or in connection with the   Loan Documents; and   (e) the right or title of any person in or to, or the value or sufficiency of any part of   the Secured Property, the priority of any of the Transaction Security or the   existence of any Security Interest affecting the Secured Property,   and each Secured Party shall be deemed by their reliance on the terms of this Deed to   warrant and represent to the Administrative Agent that it has not relied on and will not   at any time rely on the Administrative Agent in respect of any of these matters.    4.7 No responsibility to perfect Transaction Security   Unless caused by its gross negligence or wilful misconduct, as determined by the final   judgment of a court of competent jurisdiction, the Administrative Agent shall not be   liable for any failure to:   (a) require the deposit with it of any deed or document certifying, representing or   constituting the title of any Chargor to any of the Secured Property;    (b) obtain any licence, consent or other authority for the execution, delivery,   legality, validity, enforceability or admissibility in evidence of any of the Loan   Documents or the Transaction Security;     





 







      8      (c) register, file or record or otherwise protect any of the Transaction Security (or   the priority of any of the Transaction Security) under any applicable laws in any   jurisdiction or to give notice to any person of the execution of any of the Loan   Documents or of the Transaction Security;    (d) take, or to require any of the Chargors to take, any steps to perfect its title to   any of the Secured Property or to render the Transaction Security effective or to   secure the creation of any ancillary security under the laws of any jurisdiction;   or    (e) require any further assurances in relation to any Security Document.   4.8 Insurance by Administrative Agent   (a) The Administrative Agent shall not be under any obligation to insure any of the   Secured Property, to require any other person to maintain any insurance or to   verify any obligation to arrange or maintain insurance contained in the Loan   Documents.  The Administrative Agent shall not be responsible for any loss   which may be suffered by any person as a result of the lack of or inadequacy of   any such insurance.     (b) Where the Administrative Agent is named on any insurance policy as an insured   party, it shall not be responsible for any loss which may be suffered by reason   of, directly or indirectly, its failure to notify the insurers of any material fact   relating to the risk assumed by the insurers or any other information of any   kind, unless any Secured Party shall have requested it to do so in writing and   the Administrative Agent shall have failed to do so within fourteen days after   receipt of that request.    4.9 Custodians and Nominees   The Administrative Agent may appoint and pay any person to act as a custodian or   nominee on any terms in relation to any assets of the trust as the Administrative Agent   may determine, including for the purpose of depositing with a custodian this Deed or   any document relating to the trust created under this Deed and the Administrative   Agent shall not be responsible for any loss, liability,  expense, demand, cost, claim or   proceedings incurred by reason of the misconduct, omission or default on the part of   any person appointed by it under this Deed or be bound to supervise the proceedings   or acts of any person.   4.10 Acceptance of Title   The Administrative Agent shall be entitled to accept without enquiry, and shall not be   obliged to investigate, such right and title as each of the Chargors may have to any of   the Secured Property and shall not be liable for or bound to require the relevant   Chargor to remedy any defect in its right or title.      





 







      9      4.11 Refrain from Illegality   The Administrative Agent may refrain from doing anything which in its opinion will   or may be contrary to any relevant law, directive or regulation of any jurisdiction   which would or might otherwise render it liable to any person, and the Administrative   Agent may do anything which is, in the opinion of its legal counsel, necessary to   comply with any law, directive or regulation.    4.12 Business with the Chargors   The Administrative Agent may accept deposits from, lend money to, and generally   engage in any kind of banking or other business with any of the Chargors.   4.13 Powers Supplemental   The rights, powers and discretions conferred upon the Administrative Agent by this   Deed shall be supplemental to the Trustee Acts and in addition to any which may be   vested in the Administrative Agent by general law or otherwise.    4.14 Disapplication   Section 1 of the Trustee Act 2000 shall not apply to the duties of the Administrative   Agent in relation to the trusts constituted by this Deed.  Where there are any   inconsistencies between the Trustee Acts and the provisions of this Deed, the   provisions of this Deed shall, to the extent allowed by law, prevail and, in the case of   any inconsistency with the Trustee Act 2000, the provisions of this Deed shall   constitute a restriction or exclusion for the purposes of that Act.    5.  RESIGNATION OF ADMINISTRATIVE AGENT   5.1 Resignation of Administrative Agent   (a) The Administrative Agent (in its capacity as security agent and trustee) may   resign and a new Administrative Agent may be appointed in accordance with the   provisions of section 9.10 (Successor Administrative Agent) of the Credit   Agreement.    (b) The Loan Parties party hereto will (at their own cost) take such actions and   execute such documents as are reasonably required by an Administrative Agent   that is resigning in accordance with section 9.10 (Successor Administrative   Agent) of the Credit Agreement and any successor agent so that the Transaction   Security provides for effective and perfected security in favour of any successor   Administrative Agent.   6.  CHANGE OF PARTY   6.1 Assignment   No Party may assign any of its rights or transfer any of its obligations under this Deed   except as expressly contemplated by this Deed or as may be required by law except as   a result of a transaction pursuant to section 7.04 (Fundamental Changes) of the Credit   Agreement.     





 







      10      6.2 Change of Administrative Agent   Without prejudice to section 9.10 (Successor Administrative Agent) of the Credit   Agreement, any person which is appointed as the Administrative Agent after the date   of this Deed in accordance with the provisions of section 9.10 (Successor   Administrative Agent) of the Credit Agreement, shall execute and deliver to the   outgoing Administrative Agent an Agent Accession Undertaking and, with effect from:    (a) the date of acceptance by the outgoing Administrative Agent; and   (b) subject to all necessary steps having been taken to transfer and/or, as the case   may be, retake (and duly perfect, as required) the Transaction Security   (including, without limitation, delivery (and/or filing, as applicable) of all   necessary corporate authorities, legal opinions, notices, acknowledgements,    certificates of discharge, transfer certificates, share certificates or any other   documents of title) or as otherwise stipulated by the Credit Agreement:    (i) the outgoing Administrative Agent shall be discharged from further   obligations under this Deed and their respective rights against one another   shall be cancelled (except in each case for those rights which arose prior   to such date, its rights under Clause 4 (Administrative Agent' s Actions)   and Clause 8 (Taxes, Expenses and Indemnity); and   (ii) the replacement Administrative Agent shall assume the same obligations,   and become entitled to the same rights, as an Administrative Agent under   this Deed as if it had been an original party to this Deed.    6.3 Additional Chargor   The Chargors shall procure that any Additional Chargor shall execute and deliver to   the Administrative Agent a Chargor Accession Undertaking and with effect from the   date of acceptance by the Administrative Agent, the Additional Chargor will become a   party to this Deed.   6.4 Credit Agreement   The Parties acknowledge section 9.18 (Acknowledgement of Security Trust Deed) of the   Credit Agreement.    7.  DELEGATION AND ADDITIONAL ADMINISTRATIVE AGENTS   7.1 Delegation   (a) The Administrative Agent or any Receiver may delegate by power of attorney or   in any other manner to any person any right, power or discretion exercisable by   it under this Deed.   (b) Any such delegation may be made upon any terms (including power to sub-   delegate) which the Administrative Agent or any Receiver may think fit.    (c) Neither the Administrative Agent nor any Receiver will be in any way liable or   responsible for any loss or liability arising from any act, default, omission or     





 







      11      misconduct on the part of any Delegate, except in the case of the Administrative   Agent, if such loss or liability resulted from the gross negligence, bad faith, or   wilful misconduct of the Administrative Agent, as determined by the final, non-   appealable judgment of a court of competent jurisdiction.   7.2 Additional Administrative Agents   (a) The Administrative Agent may at any time appoint (and subsequently remove)   any person to act as a separate Administrative Agent or as a co-Administrative   Agent jointly with it (i) if it considers that appointment to be in the interests of   the Secured Parties or (ii) for the purposes of conforming to any legal   requirements, restrictions or conditions which the Administrative Agent deems   to be relevant or (iii) for obtaining or enforcing any judgment in any   jurisdiction, and the Administrative Agent shall give prior notice to the   Chargors of any such appointment.     (b) Any person so appointed (subject to the terms of this Deed) shall have the   rights, powers and discretions (not exceeding those conferred on the   Administrative Agent by this Deed) and the duties and obligations as are   conferred or imposed by the instrument of appointment.     (c) The remuneration the Administrative Agent may pay to any person, and any   costs and expenses incurred by that person in performing its functions pursuant   to that appointment shall, for the purposes of this Deed, be treated as costs and   expenses incurred by the Administrative Agent.   8.  TAXES, EXPENSES AND INDEMNITY   (a) Each Chargor must pay, or on an indemnity basis reimburse, any and all   amounts for which it is liable in accordance with, and solely to the extent   required by, sections 2.08 (Interest), 3.01 (Taxes), 10.4 (Attorney Costs and   Expenses), 10.05 (Indemnification by the Borrowers) and 10.19 (Judgment   Currency) of the Credit Agreement.    (b) And any amount due but unpaid shall carry interest at the rate and on the basis   mentioned in Clause 10.3 (Interest).      





 







      12      9.  AMENDMENTS AND RELEASES   9.1 Amendments   Unless the provisions of any Loan Document expressly provide otherwise, the   Administrative Agent may, if authorised pursuant to the terms of the Credit   Agreement, amend the terms of, waive any of the requirements of, or grant consents   under, this Deed or any of the Security Documents, any such amendment, waiver or   consent being binding on all the parties to this Deed and the Administrative Agent   shall be under no liability whatsoever in this respect unless caused by its own gross   negligence or wilful misconduct, as determined by the final judgment of a court of   competent jurisdiction.   9.2 Releases   Upon a disposal of any of the Secured Property:   (a) pursuant to the enforcement of the Transaction Security by a Receiver or the   Administrative Agent; or    (b) if that disposal is permitted under the Loan Documents,    the Administrative Agent shall (at the cost of the Chargors) release that property from   the Transaction Security and is authorised to execute, without the need for any further   authority from the Secured Parties, any release of the Transaction Security or other   claim over that asset and to issue any certificates of non-crystallisation of floating   charges that may be required or desirable.   10.  MISCELLANEOUS   10.1 Secured Parties' Information   The Secured Parties shall provide to the Administrative Agent, such information as the   Administrative Agent may reasonably specify as being necessary or desirable to enable   the Administrative Agent to perform its functions as Administrative Agent.      10.2 Chargors’ Waiver   Each of the Chargors hereby waives, to the extent permitted under applicable law, all   rights it may otherwise have to require that the Transaction Security be enforced in   any particular order or manner or at any particular time or that any sum received or   recovered from any person, or by virtue of the enforcement of any of the Transaction   Security or any other security, which is capable of being applied in or towards   discharge of any of the Secured Obligations is so applied.   10.3 Interest   If a Chargor fails to pay any sums on the due date for payment of that sum the   Chargor shall pay interest on such sum (before and after any judgment and to the   extent interest at a default rate is not otherwise being paid on that sum) from the date   of demand until the date of payment calculated and compounded in accordance with   the provisions of section 2.08 (Interest) of the Credit Agreement.     





 







      13      11.  REMEDIES AND WAIVERS, PARTIAL INVALIDITY   11.1 Remedies and Waivers   (a) No failure to exercise, or any delay in exercising, on the part of any Secured   Party, any right or remedy under this Deed shall operate as a waiver of that   right or remedy, nor shall any single or partial exercise of any right or remedy   prevent any further or other exercise thereof or the exercise of any other right   or remedy.     (b) The rights and remedies provided in this Deed are cumulative and not exclusive   of any rights or remedies provided by law.   11.2 Partial Invalidity   If,  at any time, any provision of this Deed is or becomes illegal, invalid or   unenforceable in any respect under the law of any jurisdiction, neither the legality,   validity or enforceability of the remaining provisions of this Deed nor of such   provision under the laws of any other jurisdiction shall in any way be affected or   impaired thereby.   12.  NOTICES   12.1 Communications in Writing   Each communication to be made under or in connection with this Deed shall be made   in writing and, unless otherwise stated, shall be made by email, fax or letter.   12.2 Addresses   (a) Any notice or other communication herein required or permitted to be given to a   party to this Deed shall be sent to the relevant party’s address set out in Clause   12.2(b) or as set forth in the Credit Agreement or any substitute address, fax   number or department or officer as the relevant party may notify to the   Administrative Agent (or the Administrative Agent may notify to the other   parties, if a change is made by the Administrative Agent) by not less than five   business days'  notice.   (b) For the purposes of Clause 12.2(a), the address of each Chargor shall be:   Avaya UK Holdings Limited   To:   Legal Department (UK)   Ena Hunter – Corporate Counsel, UK and Ireland   Avaya House     





 







      14      Cathedral Hill   Guildford   Surrey GU2 7YL   Tel: 01483 308332   Email: ehunter@avaya.com   with a copy to:   Legal Department (US)   Adele Freedman, VP and Deputy GC   c/o Avaya Inc.   4655 Great American Parkway   Santa Clara, CA 95054   Tel: (408) 562-3400     Email: afreedman@avaya.com         Avaya UK   To:     





 







      15      Legal Department (UK)   Ena Hunter – Corporate Counsel, UK and Ireland   Avaya House   Cathedral Hill   Guildford   Surrey GU2 7YL   Tel: 01483 308332   Email: ehunter@avaya.com   with a copy to:   Legal Department (US)   Adele Freedman, VP and Deputy GC   c/o Avaya Inc.   4655 Great American Parkway   Santa Clara, CA 95054   Tel: (408) 562-3400     Email: afreedman@avaya.com         Avaya International Sales Limited   To:   The Atrium, Block A, Blackthorn Road, Sandyford Business   Park, Sandyford, Dublin 18   Attention: Michael Murray   mmurray@avaya.com   with a copy to:     





 







      16       Legal Department (US)   Adele Freedman, VP and Deputy GC   c/o Avaya Inc.   4655 Great American Parkway   Santa Clara, CA 95054   Tel: (408) 562-3400     Email: afreedman@avaya.com      Legal Department (UK)   Ena Hunter – Corporate Counsel, UK and Ireland   Avaya House   Cathedral Hill   Guildford   Surrey GU2 7YL   Tel: 01483 308332   Email: ehunter@avaya.com      Avaya Deutschland GmbH   To:   Theodor-Heuss-Allee 112, 60486 Frankfurt am Main, Germany   Attention: Wolfgang Zorn   Area Controller DACH   with a copy to:   Adele Freedman   c/o Avaya Inc.     





 







      17      4655 Great American Parkway   Santa Clara, CA 95054   U.S.A.   Michael Lee   ROPES & GRAY LLP   Prudential Tower, 800 Boylston Street   Boston, MA 02199-3600   U.S.A.      12.3 Delivery   (a) Any communication or document made or delivered by one person to another   under or in connection with this Deed will only be effective:     (i) if by way of fax or email, when received in legible form; or   (ii) if by way of letter, when it has been left at the relevant address or, as the   case may be, five days after being deposited in the post postage prepaid in   an envelope addressed to it at that address.    (b) Any communication or document to be made or delivered to the Administrative   Agent under or in connection with this Deed shall be effective only when   actually received by the Administrative Agent and then only if it is expressly   marked for the attention of the department or officer identified with the   Administrative Agent’s communication details (or any substitute department or   officer as the Administrative Agent shall specify for this purpose).    12.4 Notification of address, fax number and email address   Promptly upon receipt of notification of an address, fax number and email address or   change of address, email or fax number pursuant to Clause 12.2 (Addresses) or   changing its own address, email or fax number, the Administrative Agent shall notify   the other parties.   12.5 English language   (a) Any notice given under or in connection with this Deed must be in English.    (b) All other documents provided under or in connection with this Deed must be:   (i) in English; or   (ii) if not in English, and if so required by the Administrative Agent,   accompanied by a certified English translation and, in this case, the     





 







      18      English translation will prevail unless the document is a constitutional,    statutory or other official document.    13.  WINDING-UP OF TRUST AND PERPETUITY PERIOD   13.1 Winding up of Trust   If the Administrative Agent determines that (a) all of the Secured Obligations and all   other obligations secured by each Security Document have been fully and finally   discharged and (b) none of the Secured Parties is under any commitment, obligation or   liability (whether actual or contingent) to make advances or provide other financial   accommodation to any Loan Party pursuant to the Loan Documents, the trusts set out   in this Deed shall be wound up.  At that time the Administrative Agent shall, at the   request of and at the sole cost of the Chargors, release, without recourse or warranty,   all of the Transaction Security then held by it and the rights of the Administrative   Agent under each of the Security Documents, at which time each of the Administrative   Agent, the Secured Parties and the Chargors shall be released from their obligations   under this Deed (save for those which arose prior to such winding-up).   13.2 Perpetuity Period   The perpetuity period for the trusts in this Deed is 125 years from the date of this   Deed.   14.  CHARGORS   (a) All communications under this Deed to or from a Secured Party must be sent   through the Administrative Agent.   (b) Each Chargor (other than Avaya UK Holdings Limited) irrevocably appoints   Avaya UK Holdings Limited to act as its agent:   (i) to give and receive all communications under the Security Documents or   this Deed;   (ii) to supply all information concerning itself to any Secured Party; and   (iii) to agree and sign all documents under or in connection with this Deed   without further reference to any Chargor; this includes any amendment or   waiver of this Deed which would otherwise have required the consent of   the Chargors.   (c) Avaya UK Holdings Limited hereby accepts the appointment under Clause   14(b).   (d) Any communication given to Avaya UK Holdings Limited in connection with   this Deed will be deemed to have been given also to the other Chargors.   (e) The Administrative Agent may assume that any communication made by Avaya   UK Holdings Limited is made with the consent of each Chargor.     





 







      19      15.  COUNTERPARTS   This Deed may be executed in any number of counterparts and all of those   counterparts taken together shall be deemed to constitute one and the same instrument.   16.  GOVERNING LAW   This Deed and any non-contractual obligations arising out of or in connection with it   are governed by English law.   17. ENFORCEMENT   17.1 Jurisdiction of English courts   (a) The courts of England have exclusive jurisdiction to settle any dispute arising   out of or in connection with this Deed (including a dispute relating to the   existence, validity or termination of this Deed or any non-contractual obligation   arising out of or in connection with this Deed) (a "Dispute").   (b) The parties to this Deed agree that the courts of England are the most   appropriate and convenient courts to settle Disputes and accordingly no party   will argue to the contrary.   (c) This Clause 17.1 is for the benefit of the Secured Parties only. As a result, no   Secured Party shall be prevented from taking proceedings relating to a Dispute   in any other courts with jurisdiction.  To the extent allowed by law, the Secured   Parties may take concurrent proceedings in any number of jurisdictions.    17.2 Waiver of immunity    (a) Each Chargor irrevocably and unconditionally:   (i) agrees not to claim any immunity from proceedings brought by a   Secured Party against it in relation to this Deed and to ensure that no   such claim is made on its behalf;   (ii) consents generally to the giving of any relief or the issue of any   process in connection with those proceedings; and   (iii) waives all rights of immunity in respect of it or its assets.    17.3 Service of process   (a) Without prejudice to any other mode of service allowed under any relevant law,   each Chargor not incorporated in England and Wales irrevocably appoints   Avaya UK Holdings Limited as its agent under this Deed for service of process   in any proceedings before the English courts in connection with this Deed (and   Avaya UK Holdings Limited, by its execution of this Deed, accepts that   appointment).   (b) If any person appointed as process agent under this Clause is unable for any   reason to so act, the Avaya UK Holdings Limited (on behalf of all the Chargors)   must immediately (and in any event within 3 Business Days of such event taking     





 







      20      place) appoint another agent on terms acceptable to the Administrative Agent.   Failing this,  the Administrative Agent may appoint another process agent for   this purpose.   (c) Each Chargor agrees that failure by a process agent to notify it of any process   will not invalidate the relevant proceedings.    17.4 Waiver of trial by jury   EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF   ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH THIS DEED   OR ANY TRANSACTION CONTEMPLATED BY THIS DEED. THIS DEED   MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.      THIS DEED has been executed and delivered as a deed on the date stated at the beginning of   this Deed.     





 







      21      SCHEDULE 1    ORIGINAL CHARGORS   (1) AVAYA UK HOLDINGS LIMITED (registered number 04036659) with its   registered office at 25 Moorgate, London EC2R 6AY.   (2) AVAYA UK (registered number 03049861) with its registered office at Avaya   House, Cathedral Hill, Guildford, Surrey GU2 7YL.    (3) AVAYA INTERNATIONAL SALES LIMITED a limited liability company   incorporated under the laws of Ireland.   (4) AVAYA DEUTSCHLAND GMBH a limited liability company (Gesellschaft mit   beschränkter Haftung) existing under the laws of Germany.        





 







      22      SCHEDULE 2    FORM OF AGENT ACCESSION UNDERTAKING   To: [Insert full name of current Administrative Agent], for itself and as agent and trustee   for the Secured Parties (as such term is defined in the Security Trust Deed (as defined   below)); and    THIS UNDERTAKING is made on [date] by [new Administrative Agent] (the Acceding   Agent) in relation to the Security Trust Deed (the Security Trust Deed) dated [●], between,   inter alios, [●] as current Administrative Agent and the Secured Parties named therein.    Terms defined in the Security Trust Deed shall bear the same meanings when used in this   Undertaking.   In consideration of the Acceding Agent being accepted for the purposes of the Security Trust   Deed, the Acceding Agent hereby confirms that, as from [date], it intends to be party to the   Security Trust Deed as the Administrative Agent, undertakes to perform all the obligations   expressed in the Security Trust Deed to be assumed by the Administrative Agent and agrees   that it shall be bound by all the provisions of the Security Trust Deed, as if it had been an   original party to the Security Trust Deed.   This Undertaking shall be governed by and construed in accordance with English law.    THIS UNDERTAKING has been entered into on the date stated above.    Acceding Administrative Agent      By:    Address for Notices:    Fax:    For attention of      





 







      23         Accepted and agreed by:       -----------------------------------------------   For and on behalf of [existing Administrative Agent]   By:   Date:        





 







      24      SCHEDULE 3    FORM OF CHARGOR ACCESSION UNDERTAKING   To: [   ] as Administrative Agent   From: Avaya UK Holdings Limited and [Proposed Additional Chargor]   Date: [               ]   Security Trust Deed   dated [         ] 2015 (the Security Trust Deed)   We refer to the Security Trust Deed.  This is a Chargor Accession Undertaking.    1. [Name of company] of [address/registered office] (the Additional Chargor) agrees to   become a party under the Security Trust Deed and to be bound by the terms of the   Security Trust Deed as an Additional Chargor.    2. With effect from the date of this Deed:   (a) the Additional Chargor will become a party to the Security Trust Deed as a Chargor;    (b) the Additional Chargor will be bound by all the terms of the Security Trust Deed   which are expressed to be binding on a Chargor;   (c) the Security Trust Deed will be read and construed for all purposes as if the   Additional Chargor had been an original party in the capacity of a Chargor;   (d) any reference in the Security Trust Deed to "this Deed" and similar phrases will   include this Chargor Accession Undertaking; and   (e) Avaya UK Holdings Limited, for itself and as agent for each of the Chargors, agrees   to all matters provided for in this Chargor Accession Undertaking.    3. It is intended that this document takes effect as a deed notwithstanding the fact that a   party may only execute this document under hand.   4. This Chargor Accession Undertaking has been executed and delivered as a deed on   the date stated at the beginning of this Chargor Accession Undertaking and is   governed by English law.     





 







   25   1243209-LONSR01A - MSW      The Additional Chargor      Executed as a deed by   ) ... .. .. ... .. .. ... .. .. .. ... .. .. .. . ... .. .. . Director   [                               ]  )    acting by    )   and     ) ... .. .. ... .. .. ... .. .. .. ... .. .. .. . ... ..... Director/Secretary      Chargors   Executed as a deed by   )      Avaya UK Holdings Limited )   ... .. .. ... .. .. ... .. .. .. ... .. .. .. . ... .. .. . Director   (for itself and as agent for each  )   of the Chargors party to  )   the Security Trust Deed   )   referred to in this Deed)  )  ... .. .. ... .. .. ... .. .. .. ... .. .. .. . ... ..... Director/Secretary   acting by    )         The Administrative Agent       [                               ]      By: