EXHIBIT 10.47
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THIS DEBENTURE is made the /S/ 14TH day of /S/ JUNE Two thousand and Two
BETWEEN IGNITION ENTERTAINMENT LIMITED whose registered office is situate at
Xxxxxxx Xxxxx, 00 Xxxxxxxxx Xxxx, Xxxxx XX0 0XX (hereinafter called "the
Company") of the first part and REVELATE LIMITED whose registered office is
situate at Xxxxxxxxx House, 000-000 Xxx Xxxxxx, Xxxxxx XX0X 0XX (hereinafter
called "the Lender") of the second part
1. The Company will on demand pay to the Lender all monies and discharge
all obligations and liabilities whether, present or future, actual or contingent
now or hereafter due owing or incurred to the Lender by the Company or for which
the Company may be or become liable to the Lender (including liabilities as
surety or guarantor) in any manner whatsoever (whether any such liability shall
be the sole liability of the Company or shall be a joint liability with any
other person, firm or company) together with interest from the date of demand to
the date of repayment calculated from day to day at the rate of 4% per cent per
annum over Barclays Bank Base Rate and to accrue after as well as before any
judgement obtained hereunder and together with any other costs (including legal
costs on a full indemnity basis as between Solicitor and own client) charges and
expenses incurred directly or indirectly by the Lender.
2. The Company as beneficial owner and to the intent that the security
hereby created shall rank as a continuing security for all the liabilities
described in Clause 1 hereof
(i) charges by way of legal mortgage the property referred to in the
Schedule hereto (the legally mortgaged property) and/or the proceeds of sale
thereof
(ii) charges by way of fixed equitable charge all estates or
interests in any other freehold or leasehold property now or at any time during
the continuance of this security belonging to or charged to the Company (the
equitably charged property) and/or the proceeds of sale thereof
(iii) charges by way of fixed charge all plant, machinery, vehicles,
computers and office and other equipment of the Company both present and future
(iv) charges by way of fixed charge all stocks shares and/or other
securities now or at any time during the continuance of this security belonging
to the Company in any of its subsidiary companies
(v) assigns to the Lender its goodwill and any licences subject to
redemption on discharge of the liabilities hereby secured
(vi) charges by way of fixed charge all book and other debts
(including contingent contractual debts) now or from time to time due or owing
to the Company and the full benefit of all rights and remedies relating thereto
including but not limited to any legal and equitable charges and other security
and/or reservation of proprietors' rights or trading liens
(vii) charges by way of fixed charge all patents, patent
applications, trade marks, trade names, registered designs and copyrights and
all licences and ancillary and connected rights relating to the intangible
property both present and future of the Company and
(viii) charges by way of fixed charge all contracts and choses in
action which may give rise to a debt, revenue or claim
(ix) charges by way of floating security its undertaking and all its
other property assets and rights whatsoever and wheresoever both present or
future and the property and assets described in the previous sub-paragraphs of
this clause if and in so far as the charges therein contained shall for any
reason be ineffective as fixed charges
3. With reference to the legally mortgaged property and the equitably
charged property the Company agrees:
(i) to keep it in a good state of repair and condition and insured
against such risks and in such office for such amounts as the Lender may require
or approve and that failure to do so will entitle the Lender to do so at the
expense of and as agent for the Company without thereby becoming a mortgagee in
possession
(ii) that the statutory power of leasing or accepting surrenders of
leases conferred on mortgagors shall not be exercised by the Company without the
consent in writing of the Lender but the Lender may grant or accept surrenders
of leases without restriction
(iii) not to part with the possession of it or any part thereof nor
confer upon any person firm company or body whatsoever any licence right or
interest to occupy it or any part thereof without the consent in writing of the
Lender
(iv) observe and perform all covenants and stipulations from time to
time affecting it and not to change the use thereof or carry out any alterations
thereto without the prior consent in writing of the Lender
(v) to authorise any prior debenture holder to give to the Lender
from time to time such information as the Lender shall require concerning the
monies secured by such prior debenture
(vi) to supply to the Lender from time to time such financial
information concerning the affairs of the Company as the Lender shall from time
to time require.
4.(A) With reference to the assets subject to the floating charge:
(a) The Company shall not be at liberty without the prior consent in
writing of the Lender to:
(i) create or attempt to create any mortgage or charge or
permit any lien or other encumbrance to arise on any of its property or assets
ranking in priority to or PARI PASSU with this Debenture or
(ii) sell or part with possession or otherwise dispose of the
whole, or except in the ordinary course of business and for the purpose of
carrying on the business, any part of the Company's undertaking or attempt to
agree to do so or deal with its book or other debts or securities for money
otherwise than in the ordinary course of getting in and realising the same which
expression shall not authorise the selling factoring or discounting by the
Company of its book debts
(b) the Lender may at any time by notice to the Company convert the
floating charge into a specific charge as regards any assets specified in the
notice and the Company will, if required to do so, execute over such assets a
fixed charge in favour of the Lender in such form as the Lender may require
(c) without prejudice to the provisions of sub-clause (ii) of this
paragraph (A) the Company will, upon notice in writing by the Lender and at the
cost of the Company, execute such documents and such further or other legal or
further or other mortgages charges assignments or assurances in such form and on
such terms as the Lender may require in respect of the property rights assets
and undertaking belonging to the Company now or which may belong to it in the
future and do such acts matters or things as the Lender may require (including
the deposit with the Lender of any deeds and documents of title or share
certificates) in order to perfect or protect the security hereby created or any
of it
(B) The Company hereby covenants with the Lender that during the
continuance of its security the Company will:
(a) conduct and carry on its business in a proper and efficient
manner and not make any substantial alteration in the nature of or mode of
conduct of that business and keep or cause to be kept proper books of account
relating to such business
(b) observe and perform all covenants and stipulations from time to
time affecting its freehold and leasehold or other property
(c) from time to time as required by the Lender give to the Lender
or any accountant to be nominated by the Lender, or any Receiver appointed by
the Lender, such information relating to the business and affairs of the Company
and its subsidiary companies and as to its property, assets and liabilities as
the Lender may require and to permit and procure such inspection of the books of
account and other books or documents of the Company and its subsidiary companies
by the Lender or such accountant and for the making of such other investigations
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as either of them deem necessary for the purpose of verification of such
information or otherwise
(d) observe and perform all covenants and stipulations from time to
time affecting its patents, patent applications, trade marks, trade names,
registered designs and copyrights and all other industrial or intangible
property
(e) keep all buildings and erections and all plant, machinery,
fixtures, fittings, vehicles, computers and office and other equipment and every
part thereof in good and substantial repair and in good working order and
condition and (the same being the subject of a fixed charge) not to remove sell
or otherwise dispose of any such plant, machinery, fixtures, fittings, vehicles,
computers and office and other equipment without the prior written consent of
the Lender
(f) punctually pay and indemnify the Lender and any Receiver
appointed by it against all existing and future rent, rates, taxes, duties,
charges, assessments and outgoings whatsoever now or at any time during the
continuance of this security payable in respect of the assets charged hereunder
or any part thereof
(g) not to do or cause or permit to be done anything which may in
any way depreciate, jeopardise or otherwise prejudice the value to the Lender of
the security hereby charged
(h) the Company agrees to observe and perform the covenants on the
part of the Company contained in any Debenture or Mortgage having priority over
any of the assets for the time being the subject of this Debenture
(C) The Lender shall be entitled at any time to require the submission of
the Company's most recently audited accounts prior to the date of such request
so as to show the true state of the business and the assets credits and
liabilities of the Company and the amount of profits during the year ending on
the date specified in the said audited accounts
(D) With reference to the said book and other debts the Company hereby
covenants with the Lender:
(a) To pay into a current account or a separately designated account
with a Bank nominated by the Lender if the Lender so requires, in the name of
the Company all monies which it may receive in respect of the book debts and the
other debts hereby charged not otherwise encumbered and (subject to any rights
of the Bank) pay or otherwise deal with such monies standing in the account or
accounts in accordance with any directions from time to time given in writing by
the Lender. Prior to any demand under this Debenture any monies received by the
Company and paid into such account in respect of the book debts and other debts
hereby charged shall upon such payment stand released from the fixed charge on
such debts and shall be subject to the floating charge created by the Debenture.
(b) If called upon to do so by the Lender to execute a legal
assignment of such book debts and other debts to the Lender in such terms as the
Lender may require and give notice to the debtors for whom the debts are owing
or incurred and take all appropriate steps to perfect such assignment.
(c) To deal with such book debts and other debts in accordance with
any directions given by the Lender in writing.
(d) To permit and direct the Bank to furnish direct to the Lender
from time to time on request full statements of the Company's accounts with the
Bank.
5. Section 103 of the Law of Property Act 1925 shall not apply to this
Debenture which shall immediately become enforceable and the power of sale and
other powers conferred by Section 101 of the said Act as varied or extended by
this Debenture shall be immediately exercisable at any time after notice
demanding payment of any moneys hereby secured shall have been served by the
Lender on the Company.
6. (i) All monies obligations and liabilities hereby secured shall
immediately become due and payable and this Debenture automatically enforceable
without any demand on the occurrence of any of the following events of default
namely:
(a) If the Company fails to pay on demand or otherwise on the due
date any money or to discharge any obligation or liability payable by it from
time to time due to the Lender or to perform any obligation or liability of the
Company to the Lender or if any representation warranty or undertaking from time
to time made to the Lender by the Company is or becomes incorrect or misleading
in a material respect.
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(b) If the Company defaults under any agreement relating to the
borrowing or under any guarantee (which expression includes all contingent
liabilities undertaken in respect of the obligations or liabilities of any third
party including all guarantees or indemnities whether constituting primary or
secondary obligations or liabilities) or if any debenture, mortgage, charge or
other security from time to time created by the Company becomes enforceable,
obligations or liabilities or if any debenture, mortgage, charge or other
security from time to time created by the Company becomes enforceable.
(c) If a Petition is presented or an Order made or a Resolution
passed or analogous proceedings are taken for appointing an administrator of or
winding up the Company, or if a Notice is issued convening a meeting for the
purpose of passing any such Resolution or a Resolution to purchase or redeem or
reduce the issued share capital of the Company.
(d) If an encumbrancer takes possession or a Receiver is appointed
of the whole or any part of the undertaking, property, assets or revenues of the
Company.
(e) If any Judgement or Order made against the Company is not
complied with within seven days, or if an execution, distress, sequestration or
other process is levied or enforced upon or sued out against any part of
undertaking, property, assets or revenues of the Company.
(f) If the Company stops payment or becomes or is deemed to be
insolvent or unable to pay its debts within the meaning of Section 123 of the
Insolvency Xxx 0000 or when they fall due or if a Notice is issued convening a
meeting of or the Company proposes to enter into any composition or arrangement
with its creditors or any class of its creditors.
(g) If the Company without the prior consent in writing of the
Lender ceases or threatens to cease to carry on its business or any material
part thereof in the normal course or changes the nature or mode of conduct of
its trading in any material respect.
(h) If any material part of the assets or revenues of the Company is
sold or disposed of or threatened to be sold or disposed of (otherwise than in
the normal course of trading) or if any Notice served upon the Company with a
view to forfeiture pursuant to Section 146 of the Law of Property Act 1925 is
not complied with within the period specified.
(i) If any part of the security hereby created or any guarantee,
indemnity or other security for any money obligation or liability hereby secured
fails or ceases in any respect to have full force and effect or to be continuing
or is terminated or disputed or becomes in jeopardy invalid or unenforceable.
(ii) The Company hereby covenants immediately to notify the Lender in
writing of the occurrence of any of the events of default specified in Clause
6(i) or of the occurrence of any event which with the lapse of time will or may
constitute an event of default.
7. At any time after the Lender shall have demanded payment of any money
or the discharge of any obligation or liability hereby secured or if in any way
this Debenture shall have become enforceable the Lender may appoint any person
(or persons) to be an Administrative Receiver and/or Manager of the property
hereby charged or any part thereof (and all references hereafter to an
Administrative Receiver shall be deemed also to refer to a Manager) and may
similarly remove any receiver and appoint another in his stead. Any
Administrative Receiver so appointed shall be the agent of the Company and the
Company shall be solely responsible for his acts or defaults and for his
remuneration and any Administrative Receiver so appointed shall have power and
in addition power on behalf of and at the cost of the Company (notwithstanding
the liquidation of the Company):
(i) to take possession of, collect and get in all or any of the
property hereby charged and for that purpose to take or defend or discontinue
any proceedings in the name of the Company or otherwise as may be deemed
expedient to him
(ii) to manage, develop, reconstruct, amalgamate, diversify or carry
on or concur in carrying on the business of the Company as he may think fit and
for that purpose to raise or borrow money to rank for payment in priority to
this security and with or without a charge on the property hereby charge all or
any part of it
(iii) without the restrictions imposed by Section 103 of the Law of
Property Xxx 0000 or the need to observe any of the provisions of Sections 99
and 100 of such Act, to sell lease or surrender leases grant licences or
otherwise dispose of or deal with or concur in selling leasing or surrendering
leases or licences of any of the property hereby charged on such terms as he may
think fit in the name and on behalf of the Company or otherwise and so that he
may do any of these things for a consideration consisting of shares or
securities of any other company
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(iv) to make any arrangements or compromise which he shall think
expedient in his absolute discretion in the interests of the Lender
(v) to do all such other acts and things he may consider necessary
or desirable for the realisation of any of the property hereby charged
8. All moneys received by any Administrative Receiver shall be applied by
him in the following order:
(i) in payment of the costs charges and expenses of and incidental
to the appointment of the Administrative Receiver and the exercise of all or any
of his powers and of all outgoings paid by him
(ii) in payment of remuneration to the Administrative Receiver at
such rates as may be agreed between him and the Lender at or at any time after
his appointment
(iii) in or towards satisfaction of the amount owing on this
Debenture
(iv) the surplus (if any) shall be paid to the Company or other
person entitled to it
9. The powers conferred on mortgagees or receivers by the Law of Property
Xxx 0000 and Insolvency Xxx 0000 shall apply to this Debenture except in so far
as they are expressly or impliedly excluded and where there is any ambiguity or
conflict between the powers contained in the said Acts and those contained in
this Debenture the terms of this debenture shall prevail
10. The Company hereby irrevocably appoints the Lender and separately
every Administrative Receiver appointed severally hereunder, as Attorney of the
Company for the Company and in its name and on its behalf and as its act and
deed to execute seal and deliver and otherwise perfect any deed, assurance,
agreement, instrument or act which may be required or deemed proper by the
Lender or the Administrative Receiver and/or Manager for any of the purposes of
this Debenture. The Company hereby covenants with the Lender and separately with
any such Administrative Receiver and/or Manager that on request it will ratify
and confirm all security, agreements, documents, acts and things and all
transactions entered into by the Lender or such Administrative Receiver and/or
Manager or by the Company at the instance of the Lender or such Administrative
Receiver and/or Manager in the exercise or purported exercise of it or its
powers and the Company hereby irrevocably acknowledges and agrees that such
power of attorney is INTER ALIA given to secure the performance of the
obligations owed to the Lender and any such Administrative Receiver and/or
Manager by the Company
11. In the exercise of the powers hereby conferred the Lender or any
Administrative Receiver may sever and sell plant machinery or other fixtures
separately from the property to which they may be annexed
12. Neither the Lender nor any such Administrative Receiver and/or Manager
shall be liable to account as Mortgagees in possession in respect of all or any
of the assets charged hereunder nor be liable for any loss upon realisation of
any neglect or default of any nature whatsoever in connection therewith for
which a Mortgagee in possession may be liable as such
13. The Company hereby agrees to indemnify both the Lender and any such
Administrative Receiver and/or Manager against all losses, actions, claims,
expenses, demands and liabilities whether in contract or otherwise now or
hereafter incurred by it or by any manager, agent, officer or employee for whose
liability, act or omission it may be answerable for anything done or omitted in
the exercise or purported exercise of the powers herein contained or occasioned
by any breach by the Company of any of its covenants or other obligations to the
Lender. The Company shall so indemnify the Lender and any such Administrative
Receiver and/or Manager on demand and shall pay interest on the sums demanded at
the rate specified in Clause 1 hereof.
14. (i) No failure or delay by the Lender in exercising any right or
remedy shall operate as a waiver thereof nor shall any single or any partial
exercise or waiver of any right or remedy preclude its further exercise or the
exercise of any other right or remedy
(ii) Each of the provisions of this Debenture is severable and distinct
from the others and if at any time any one or more of such provisions is or
becomes invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
15. Any demand or notice by the Lender hereunder upon the Company shall
without prejudice to any other effective mode of making the same be in writing
signed by or on behalf of the Lender and may be served on the Company either:
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(i) by delivering the same to any officer of the Company at any
place or
(ii) by first class letter post addressed to the Company either at
its registered office last known to the Lender or any of its principal places of
business and a demand or notice so addressed and posted shall be effective
notwithstanding that it be returned undelivered or
(iii) by telefax and shall be deemed to have been received when
transmission of such telefax communication has been completed to the relevant
telephone number specified by the Company from time to time
16. In this Deed unless the context otherwise requires the singular
includes the plural and the neuter includes the masculine and feminine and vice
versa
17. The expression "the Lender" hereinbefore used shall include the
Lender's assigns whether immediate or derivative and any appointment or removal
under Clause 7 hereof may be made in writing signed or sealed by any of such
assigns and the Company hereby irrevocably appoints each of such assigns to be
its attorney in the terms and for the purpose of Clause 10 hereinbefore set
forth.
18. No delay or omission of the Lender in exercising any right, power or
privilege hereunder shall impair such right, power or privilege or be construed
as a waiver of such right, power or privilege.
IN WITNESS whereof the Company has executed this Deed the day and year
first before written
SIGNED as a Deed by
IGNITION ENTERTAINMENT LIMITED
acting by /S/ XXXXX XXXXXX
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Xxxxx Xxxxxx, Managing Director
/S/ MARIN MONNICKENDAM
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Xxxxxx Monnickendam
Director/Secretary
SIGNED as a Deed by
REVELATE LIMITED
acting by /S/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx, Director
/S/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx, Director
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The within written Revelate hereby acknowledges that it has no further
interest in the within written Debenture and that the same is hereby discharged.
Dated this day of One thousand
Nine hundred and
Signed as a Deed by
REVELATE LIMITED
acting by -----------------------------------
Director
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Director/Company Secretary
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