Allen & Overy LLP MORTGAGE OF SHARES Between INYX, INC. and WESTERNBANK PUERTO RICO August 2005
Exhibit
10.7
INYX,
INC.
and
WESTERNBANK
PUERTO RICO
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ClausePage
1
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Interpretation
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1
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2
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Creation
of Security
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3
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3
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Representations
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3
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4
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Restrictions
on dealings
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4
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5
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Shares
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4
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6
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When
Security becomes enforceable
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6
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7
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Enforcement
of Security
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6
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8
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Receiver
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7
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9
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Powers
of Receiver
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8
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10
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Application
of proceeds
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9
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11
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Expenses
and indemnity
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10
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12
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Delegation
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10
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13
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Further
assurances
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10
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14
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Power
of attorney
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11
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15
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Preservation
of Security
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11
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16
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Changes
to the Parties
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12
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17
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Miscellaneous
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13
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18
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Release
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13
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19
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Notices
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20
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Language
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14
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21
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Severability
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14
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22
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Waivers
and remedies cumulative
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14
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23
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Counterparts
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15
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24
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Governing
law
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15
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25
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Enforcement
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15
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Signatories
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17
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THIS
DEED
is dated
August,
2005
BETWEEN:
(1) |
INYX,
INC.
(a corporation registered in Nevada, USA) (the Chargor);
and
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(2) |
WESTERNBANK
PUERTO RICO
(the Lender).
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BACKGROUND:
(A) |
The
Chargor enters into this Deed in connection with the Credit Agreement
(as
defined below).
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(B) |
It
is intended that this document takes effect as a deed notwithstanding
the
fact that a party may only execute this document under
hand.
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IT
IS AGREED as
follows:
1. |
INTERPRETATION
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1.1 |
Definitions
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In
this
Deed:
Act
means
the Law of Property Xxx 0000.
Borrowers
means
the
Chargor, Inyx USA Limited (a company incorporated in the Isle of Man), INyx
Pharma Limited the Company and Celltech Manufacturing Services Limited (to
be
renamed Ashton Pharmaceuticals Limited) each a Borrower.
Company
means
INyX Europe Limited, a limited liability company incorporated in England with
registered number 5370001.
Credit
Agreement
means
the loan and security agreement dated as of on or about 31st
August
2005 between the Company and Celltech Manufacturing Services Limited as
borrowers and the Lender.
Financing
Agreement means
an
agreement defined as a Financing Agreement in each of the Credit Agreement
and
Parent Credit Agreement.
Obligor
means
each Borrower, the Chargor and any other Subsidiary of the Company which has
given any guarantee or security interest in favour of the Lender in respect
of
the liabilities of the Company or the Borrowers under the Financing
Agreements.
Parent
Credit Agreement means
the
loan and security agreement dated as of 31 March 2005 as amended and
supplemented from time to time (including without limitation, as amended on
11
May 2005) between the Chargor, Inyx USA Limited and INyx Pharma Limited as
borrowers and the Lender.
Party
means a
party to this Deed.
Receiver
means an
administrative receiver, a receiver and manager or a receiver, in each case,
appointed under this Deed.
1
Related
Rights means:
(a) |
any
dividend or interest paid or payable;
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(b) |
any
right, money or property accruing or offered at any time by way
of
redemption, substitution, exchange, bonus or preference, under
option
rights or otherwise;
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in
relation to that stock, share, debenture, bond or other security.
Secured
Liabilities
means
all present and future obligations and liabilities (whether actual or contingent
and whether owed jointly or severally or in any other capacity whatsoever)
of
each Obligor to the Lender, except for any obligation which, if it were so
included, would result in this Deed contravening any law (including
Section 151 of the Companies Act 1985).
Security
Assets
means
all assets of the Chargor the subject of any security created by this
Deed.
Security
Period
means
the period beginning on the date of this Deed and ending on the date on which
all the Secured Liabilities have been unconditionally and irrevocably paid
and
discharged in full.
Shares
means
all
of the issued shares in the share capital of the Company.
1.2 |
Construction
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(a) |
Words
and expressions defined in the Credit Agreement have, unless expressly
defined in this Deed, the same meaning when used in this
Deed.
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(b) |
The
principles of construction set out in the first paragraph of
Section 1 (Definitions) of the Credit Agreement will apply
to this
Deed as if they were set out in this
Deed.
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(c) |
(i)
The
term Financing
Agreement
includes all amendments and supplements including supplements providing
for further advances; and
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(ii) |
the
term this
Security
means any security created by this
Deed.
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(d) |
Any
covenant of the Chargor under this Deed (other than a payment obligation)
remains in force during the Security
Period.
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(e) |
If
the Lender considers that an amount paid to it under a Financing
Agreement
is capable of being avoided or otherwise set aside on the liquidation
or
administration of the payer or otherwise, then that amount will not
be
considered to have been irrevocably paid for the purposes of this
Deed.
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(f) |
Unless
the context otherwise requires, a reference to a Security Asset
includes:
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(i) |
the
proceeds of sale of that Security Asset;
and
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(ii) |
any
present and future asset of that
type.
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2
2. |
CREATION
OF SECURITY
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2.1 |
General
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All
the
security created under this Deed:
(a) |
is
created in favour of the Lender;
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(b) |
is
security for the payment of all the Secured Liabilities;
and
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(c) |
is
made with full title guarantee in accordance with the Law of Property
(Miscellaneous Provisions) Xxx
0000.
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2.2 |
Security
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The
Chargor charges:
(a) |
by
way of a first equitable mortgage all the Shares owned by it or held
by
any nominee on its behalf; and
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(b) |
by
way of a first fixed charge, all Related
Rights.
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3. |
REPRESENTATIONS
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3.1 |
Representations
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The
Chargor makes the representations set out in this Clause to the
Lender.
3.2 |
Status
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It
is a
corporation duly organised and of good standing under the laws of the
jurisdiction of its incorporation.
3.3 |
Powers
and authorities
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It
has
the power to enter into and perform, and has taken all necessary action to
authorise the entry into and performance of, this Deed and the transactions
contemplated by this Deed.
3.4 |
Legal
validity
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Subject
to any qualifications as to matters of law contained in any legal opinion
provided to the Lender in connection with the Financing Agreements, this Deed
constitutes its legally valid, binding and enforceable obligation.
3.5 |
Non-conflict
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The
entry
into and performance by it of, and the transactions contemplated by, this Deed
do not and will not conflict with:
(a) |
any
law or regulation applicable to it;
or
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(b) |
its
constitutional documents; or
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(c) |
any
document which is binding upon it or any of its assets in any material
respect.
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3
3.6 |
Authorisations
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All
authorisations required by it in connection with the entry into, performance,
validity and enforceability of, and the transactions contemplated by, this
Deed
have been obtained or effected (as appropriate) and are in full force and
effect.
3.7 |
Nature
of security
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This
Deed
creates those security interests it purports to create and is not liable to
be
avoided or otherwise set aside on its
liquidation or administration or otherwise.
3.8 |
Shares
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(a) |
The
Shares are fully paid;
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(b) |
the
Shares
represent the whole of the issued share capital of the Company;
and
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(c) |
the
Chargor is the sole legal and beneficial owner of the
Shares.
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3.9 |
Times
for making representations
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(a) |
The
representations set out in this Deed are made on the date of this
Deed.
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(b) |
Each
representation under this Deed is deemed to be repeated by the Chargor
on
the date of each advance of a loan or issue of a letter of credit
under
the Credit Agreement.
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(c) |
When
a representation is repeated, it is applied to the circumstances
existing
at the time of repetition.
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4. |
RESTRICTIONS
ON DEALINGS
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The
Chargor must not:
(a) |
create
or allow to subsist any security interest (other than this Deed)
on any
Security Asset; or
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(b) |
sell,
transfer, licence, lease or otherwise dispose of any Security
Asset.
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5. |
SHARES
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5.1 |
Deposit
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The
Chargor must:
(a) |
immediately
deposit with the Lender,
or as the Lender
may direct, all certificates and other documents of title or evidence
of
ownership in relation to any
Security Asset;
and
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(b) |
promptly
execute in blank and deliver to the Lender
all share transfers and other documents which may be requested by
the
Lender
in
order to enable the Lender
or
its nominees to be registered as the owner or otherwise obtain a
legal
title to any
Security Asset following an Event of Default.
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4
5.2 |
Changes
to rights
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The
Chargor must
not
take or allow the taking of any action on its behalf which may result in the
rights attaching to any Security Asset being altered or further shares in the
Company being issued.
5.3 |
Calls
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(a) |
The
Chargor must pay all calls or other payments due and payable in respect
of
any
Security Asset.
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(b) |
If
the Chargor fails to do so, the Lender
may pay the calls or other payments on behalf of the
Chargor. The
Chargor must immediately on request reimburse the Lender
for any payment made by the Lender
under this Subclause.
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5.4 |
Other
obligations in respect of Security
Assets
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(a) |
(i)
The
Chargor must comply with all requests for information relating to
any
Security Asset which is within its knowledge and which it is required
to
comply with by any law (including section 212 of the Companies
Act 1985) or its constitutional documents. If it fails to
do so, the
Lender may elect to provide any information which it may have on
behalf of
the Chargor.
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(ii) |
The
Chargor must promptly supply a copy to the Lender of any information
referred to in subparagraph (i)
above.
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(b) |
The
Chargor must comply with all other conditions and obligations assumed
by
it in respect of any of Security
Asset.
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(c) |
The
Lender is not obliged to:
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(i) |
perform
any obligation of the Chargor;
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(ii) |
make
any payment;
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(iii) |
make
any enquiry as to the nature or sufficiency of any payment received
by it
or the Chargor; or
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(iv) |
present
or file any claim or take any other action to collect or enforce
the
payment of any amount to which it may be entitled under this
Deed,
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in
respect of any Security Asset.
5.5 |
Voting
rights
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(a) |
Before
this Security becomes enforceable, the voting rights, powers and
other
rights in respect of the Security Assets will be exercised in any
manner
which the Chargor
may direct in writing.
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(b) |
The
Chargor must indemnify the Lender against any loss or liability incurred
by the Lender as a consequence of the Lender acting in respect of
the
Security Assets on the direction of the
Chargor.
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5
(c) |
After
this Security has become enforceable, the Lender
may exercise (in the name of the Chargor
and without any further consent or authority on the part of
the Chargor)
any voting rights and any powers or rights which may be exercised
by the
legal or beneficial owner of any Investment, any person who is the
holder
of any Investment or otherwise.
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6. |
WHEN
SECURITY BECOMES
ENFORCEABLE
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6.1 |
Event
of Default
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This
Security will become immediately enforceable if an Event of Default is
continuing and the Lender gives notice to the Chargor that this Security is
enforceable.
6.2 |
Enforcement
|
After
this Security has become enforceable, the Lender
may in
its absolute discretion enforce all or any part of this Security in any manner
it sees fit.
7. |
ENFORCEMENT
OF SECURITY
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7.1 |
General
|
(a) |
The
power of sale and any other power conferred on a mortgage by law
(including under section 101 of the Act) will be immediately exercisable
at any time after this Security has become
enforceable.
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(b) |
For
the purposes of all powers implied by law, the Secured Liabilities
are
deemed to have become due and payable on the date of this Deed.
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(c) |
Any
restriction on the power of sale or the right of a mortgagee to
consolidate mortgages conferred by law (including under section 93
of the
Act) does not apply to this
Security.
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7.2 |
No
liability as mortgagee in
possession
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Neither
the Lender
nor any
Receiver will be liable, by reason of entering into possession of a Security
Asset:
(a) |
to
account as mortgagee in possession or for any loss on realisation;
or
|
(b) |
for
any default or omission for which a mortgagee in possession might
be
liable.
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7.3 |
Privileges
|
Each
Receiver and the Lender
is
entitled to all the rights, powers, privileges and immunities conferred by
law
on mortgagees and receivers duly appointed under any law (including the
Act).
7.4 |
Protection
of third parties
|
No
person
(including a purchaser) dealing with the Lender
or a
Receiver or its or his agents will be concerned to enquire:
(a) |
whether
the Secured Liabilities have become payable;
|
6
(b) |
whether
any power which the Lender
or
a Receiver is purporting to exercise has become exercisable or is
being
properly exercised;
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(c) |
whether
any money remains due under the Financing Agreements;
or
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(d) |
how
any money paid to the Lender
or
to that Receiver is to be applied.
|
7.5 |
Redemption
of prior mortgages
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(a) |
At
any time after this Security has become enforceable, the Lender
may:
|
(i) |
redeem
any prior security interest against any Security Asset;
and/or
|
(ii) |
procure
the transfer of that security interest to itself;
and/or
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(iii) |
settle
and pass the accounts of the prior mortgagee, chargee or encumbrancer;
any
accounts so settled and passed will be, in the absence of manifest
error,
conclusive and binding on the
Chargor.
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(b) |
The
Chargor must pay to the Lender,
immediately on demand, the costs and expenses incurred by the Lender
in
connection with any such redemption and/or transfer, including the
payment
of any principal or interest.
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7.6 |
Contingencies
|
If
this
Security is enforced at a time when no amount is due under the Financing
Agreements but at a time when amounts may or will become due, the Lender
(or the
Receiver) may pay the proceeds of any recoveries effected by it into a suspense
account.
8. |
RECEIVER
|
8.1 |
Appointment
of Receiver
|
(a) |
Except
as provided below, the Lender
may appoint any one or more persons to be a Receiver of all or any
part of
the Security Assets if:
|
(i) |
this
Security has become enforceable; or
|
(ii) |
the
Chargor so requests the Lender
in
writing at any time.
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(b) |
Any
appointment under paragraph (a)
above
may be by deed, under seal or in writing under its
hand.
|
(c) |
Any
restriction on the right of a mortgagee to appoint a Receiver conferred
by
law (including under section 109(1) of the Act) does not apply to
this
Deed.
|
(d) |
The
Lender is not entitled to appoint a Receiver solely as a result of
obtaining a moratorium (or anything done with a view to obtaining
a
moratorium) under the Insolvency Xxx 0000 except with the leave of
the
court.
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8.2 |
Removal
|
The
Lender
may by
writing under its hand (subject to any requirement for an order of the court
in
the case of an administrative receiver) remove any Receiver appointed by it
and
may, whenever it thinks fit, appoint a new Receiver in the place of any Receiver
whose appointment may for any reason have terminated.
7
8.3 |
Remuneration
|
The
Lender
may fix
the remuneration of any Receiver appointed by it and the maximum rate imposed
by
any law (including under section 109(6) of the Act) will not apply.
8.4 |
Agent
of the Chargor
|
(a) |
A
Receiver will be deemed to be the agent of the Chargor for all purposes
and accordingly will be deemed to be in the same position as a Receiver
duly appointed by a mortgagee under the Act. The Chargor alone
is
responsible for the contracts, engagements, acts, omissions, defaults
and
losses of a Receiver and for liabilities incurred by a
Receiver.
|
(b) |
The
Lender will
incur no liability (either to the Chargor or to any other person)
by
reason of the appointment of a Receiver or for any other
reason.
|
8.5 |
Relationship
with Lender
|
To
the
fullest extent allowed by law, any right, power or discretion conferred by
this
Deed (either expressly or impliedly) or by law on a Receiver may after this
Security becomes enforceable be exercised by the Lender
in
relation to any Security Asset without first appointing a Receiver and
notwithstanding the appointment of a Receiver.
9. |
POWERS
OF RECEIVER
|
9.1 |
General
|
(a) |
A
Receiver has all of the rights, powers and discretions set out below
in
this Clause in addition to those conferred on it by any law,
including all the rights, powers and discretions conferred on a receiver
under the Act and a receiver or an administrative receiver under
the
Insolvency Act, 1986.
|
(b) |
If
there is more than one Receiver holding office at the same time,
each
Receiver may (unless the document appointing him states otherwise)
exercise all of the powers conferred on a Receiver under this Deed
individually and to the exclusion of any other
Receiver.
|
9.2 |
Possession
|
A
Receiver may take immediate possession of, get in and collect any Security
Asset.
9.3 |
Employees
|
A
Receiver may appoint and discharge managers, officers, agents, accountants,
employees and others for the purposes of this Deed upon such terms as to
remuneration or otherwise as he thinks fit.
9.4 |
Borrow
money
|
A
Receiver may raise and borrow money either unsecured or on the security of
any
Security Asset either in priority to this Security or otherwise and generally
on
any terms and for whatever purpose which he thinks fit.
8
9.5 |
Sale
of assets
|
(a) |
A
Receiver may sell, exchange, convert into money and realise any Security
Asset by public auction or private contract and generally in any
manner
and on any terms which he thinks fit.
|
(b) |
The
consideration for any such transaction may consist of cash, debentures
or
other obligations, shares, stock or other valuable consideration
and any
such consideration may be payable in a lump sum or by instalments
spread
over any period which he thinks fit.
|
9.6 |
Compromise
|
A
Receiver may settle, adjust, refer to arbitration, compromise and arrange any
claim, account, dispute, question or demand with or by any person who is or
claims to be a creditor of the Chargor or relating in any way to any Security
Asset.
9.7 |
Legal
actions
|
A
Receiver may bring, prosecute, enforce, defend and abandon any action, suit
or
proceedings in relation to any Security Asset which he thinks fit.
9.8 |
Receipts
|
A
Receiver may give a valid receipt for any moneys and execute any assurance
or
thing which may be proper or desirable for realising any Security
Asset.
9.9 |
Delegation
|
A
Receiver may delegate his powers in accordance with this Deed.
9.10 |
Other
powers
|
A
Receiver may:
(a) |
do
all other acts and things which he may consider desirable or necessary
for
realising any Security Asset or incidental or conducive to any of
the
rights, powers or discretions conferred on a Receiver under or by
virtue
of this Deed or law;
|
(b) |
exercise
in relation to any Security Asset all the powers, authorities and
things
which he would be capable of exercising if he were the absolute beneficial
owner of that Security Asset; and
|
(c) |
use
the name of the Chargor for any of the above
purposes.
|
10. |
APPLICATION
OF PROCEEDS
|
Any
moneys received by the Lender
or any
Receiver after this Security has become enforceable must be applied in the
following order of priority:
(a) |
in
or towards payment of or provision for all costs and expenses incurred
by
the Lender
or
any Receiver under or in connection with this Deed and of all remuneration
due to any Receiver under or in connection with this
Deed;
|
(b) |
in
or towards payment of or provision for the Secured Liabilities;
and
|
9
(c) |
in
payment of the surplus (if any) to the Chargor or other person entitled
to
it.
|
This
Clause is subject to the payment of any claims having priority over this
Security. This Clause does not prejudice the right of the
Lender
to
recover any shortfall from the Chargor.
11. |
EXPENSES
AND INDEMNITY
|
The
Chargor must:
(a) |
immediately
on demand pay all costs and expenses (including legal fees) incurred
in
connection with this Deed by the Lender,
any Receiver, attorney, manager, agent or other person appointed
by the
Lender
under this Deed; and
|
(b) |
keep
each of them indemnified against any failure or delay in paying those
costs or expenses.
|
12. |
DELEGATION
|
12.1 |
Power
of Attorney
|
The
Lender
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.
12.2 |
Interest
Periods
|
Any
such
delegation may be made upon any terms (including power to sub-delegate) which
the Lender
or any
Receiver may think fit.
12.3 |
Liability
|
Neither
the Lender
nor any
Receiver will be in any way liable or responsible to the Chargor for any loss
or
liability arising from any act, default, omission or misconduct on the part
of
any delegate or sub-delegate.
13. |
FURTHER
ASSURANCES
|
The
Chargor must, at its own expense, take whatever action the Lender
or a
Receiver may require for:
(a) |
creating,
perfecting or protecting any security intended to be created by this
Deed;
or
|
(b) |
facilitating
the realisation of any Security Asset, or the exercise of any right,
power
or discretion exercisable, by the Lender
or
any Receiver or any of its delegates or sub-delegates in respect
of any
Security Asset.
|
This
includes:
(i) |
the
execution of any transfer, conveyance, assignment or assurance of
any
property, whether to the Lender
or
to its nominee; or
|
(ii) |
the
giving of any notice, order or direction and the making of any
registration,
|
which,
in
any such case, the Lender
may
think expedient.
10
14. |
POWER
OF ATTORNEY
|
The
Chargor, by way of security, irrevocably and severally appoints the Lender,
each
Receiver and any of its delegates or sub-delegates to be its attorney to take
any action which the Chargor is obliged to take under this Deed. The Chargor
ratifies and confirms whatever any attorney does or purports to do under its
appointment under this Clause.
15. |
PRESERVATION
OF SECURITY
|
15.1 |
Continuing
security
|
This
Security is continuing and will extend to the ultimate balance of the Secured
Liabilities regardless of any intermediate payment or discharge in whole or
in
part.
15.2 |
Reinstatement
|
If
any
payment by an Obligor or discharge given by the Lender (whether in respect
of
the obligations of any Obligor or any security for those obligations or
otherwise) is avoided or reduced as a result of insolvency, liquidation,
administration or any similar event:
(a) |
the
liability of the Chargor shall continue as if the payment, discharge,
avoidance or reduction had not occurred;
and
|
(b) |
the
Lender shall be entitled to recover the value or amount of that security
or payment from the Chargor, as if the payment, discharge, avoidance
or
reduction had not occurred.
|
15.3 |
Waiver
of defences
|
The
obligations of the Chargor under this Deed will not be affected by any act,
omission or thing which, but for this provision, would reduce, release or
prejudice any of its obligations under this Deed (whether or not known to the
Chargor or the Lender). This includes:
(a) |
any
time or waiver granted to, or composition with, any
person;
|
(b) |
the
release of any person under the terms of any composition or
arrangement;
|
(c) |
the
taking, variation, compromise, exchange, renewal or release of, or
refusal
or neglect to perfect, take up or enforce, any rights against, or
security
over assets of, any person;
|
(d) |
any
non-presentation or non-observance of any formality or other requirement
in respect of any instruments or any failure to realise the full
value of
any security;
|
(e) |
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of any
person;
|
(f) |
any
amendment (however fundamental) of a Financing Agreement or any other
document or security;
|
(g) |
any
unenforceability, illegality, invalidity or non-provability of any
obligation of any person under any Financing Agreement or any other
document or security; or
|
(h) |
any
insolvency or similar proceedings.
|
11
15.4 |
Immediate
recourse
|
The
Chargor waives any right it may have of first requiring the Lender (or any
trustee or agent on its behalf) to proceed against or enforce any other rights
or security or claim payment from any person before claiming from the Chargor
under this Deed. This waiver applies irrespective of any law or any provision
of
a Financing Agreement to the contrary.
15.5 |
Appropriations
|
The
Lender (or any trustee or agent on its behalf) may at any time during the
Security Period without affecting the liability of the Chargor under this
Deed:
(a) |
(i) refrain
from applying or enforcing any other moneys, security or rights held
or
received by the Lender (or any trustee or agent on its behalf) in
respect
of those amounts; or
|
(ii) |
apply
and enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise);
and
|
(b) |
hold
in an interest bearing suspense account any moneys received from
the
Chargor or on account of the liability of the Chargor under this
Deed.
|
15.6 |
Additional
security
|
This
Security is in addition to and is not in any way prejudiced by any other
security now or subsequently held by the Lender.
15.7 |
Deferral
of Chargor's rights
|
Until
all
the Secured Liabilities have been irrevocably paid in full and unless the Lender
otherwise directs, the Chargor will not exercise any rights which it may have
by
reason of performance by it of its obligations under the Financing
Agreements:
(a) |
to
be indemnified by any Obligor;
|
(b) |
to
claim any contribution from any other guarantor of any Obligor's
obligations under the Financing Agreements;
and/or
|
(c) |
to
take the benefit (in whole or in part and whether by way of subrogation
or
otherwise) of any of the Lender's rights under the Financing Agreements
or
of any other guarantee or security taken pursuant to, or in connection
with, the Financing Agreements by the
Lender.
|
16. |
CHANGES
TO THE PARTIES
|
16.1 |
The
Chargor
|
The
Chargor may not assign or transfer any of its rights or obligations under this
Deed without the prior consent of the Lender.
16.2 |
The
Lender
|
(a) |
The
Lender may assign or otherwise dispose of all or any of its rights
under
this Deed in accordance with the Financing Agreements to which it
is a
party.
|
12
(b) |
References
to the Lender in this Deed include any successor Lender appointed
under
the Credit Agreement.
|
17. |
MISCELLANEOUS
|
17.1 |
Covenant
to pay
|
The
Chargor must pay or discharge the Secured Liabilities in the manner provided
for
in the Financing Agreements.
17.2 |
Tacking
|
The
Lender
must perform its obligations under the Credit Agreement (including any
obligation to make available further advances).
17.3 |
New
Accounts
|
(a) |
If
any subsequent charge or other interest affects any Security Asset,
the
Lender may open a new account with the
Chargor.
|
(b) |
If
the Lender does not open a new account, it will nevertheless be treated
as
if it had done so at the time when it received or was deemed to have
received notice of that charge or other
account.
|
(c) |
As
from that time all payments made to the Lender will be credited or
be
treated as having been credited to the new account and will not operate
to
reduce any Secured Liability.
|
17.4 |
Time
deposits
|
Without
prejudice to any right of set-off the
Lender
may have
under any other Financing Agreement or otherwise, if any time deposit matures
on
any account the Chargor has with the Lender within the Security Period
when:
(a) |
this
Security has become enforceable;
and
|
(b) |
no
Secured Liability is due and
payable,
|
that
time
deposit will automatically be renewed for any further maturity which
the
Lender
considers appropriate.
18. |
RELEASE
|
At
the
end of the Security Period but not otherwise, the Lender must, at the request
and cost of the Chargor, take whatever action is necessary to release
the
Security
Assets from this Security.
19. |
NOTICES
|
19.1 |
In
writing
|
(a) |
Any
communication in connection with this Deed must be in writing and,
unless
otherwise stated, may be given in person, by post, telex or
fax.
|
13
(b) |
Unless
it is agreed to the contrary, any consent or agreement required under
this
Deed must be given in writing.
|
19.2 |
Contact
details
|
(a) |
The
contact details of the Chargor for all notices in connection with
this
Agreement are the same as those set out in the Credit Agreement for
the
Company.
|
(b) |
The
contact details of the Lender all notices in connection with this
Agreement are the same as those set out in the Credit Agreement for
the
Lender.
|
(c) |
Any
Party may change its contact details by giving five Business Days'
notice
to the Lender or (in the case of the Lender) to the other
Party.
|
(d) |
Where
the Lender nominates a particular department or officer to receive
a
notice, a notice will not be effective if it fails to specify that
department or officer.
|
19.3 |
Effectiveness
|
(a) |
Except
as provided below, any notice in connection with this Deed will be
deemed
to be given as follows:
|
(i) |
if
delivered in person, at the time of
delivery;
|
(ii) |
if
posted, five days after being deposited in the post, postage prepaid,
in a
correctly addressed envelope; and
|
(iii) |
if
by fax, when received in legible
form.
|
(b) |
A
communication given under paragraph (a)
above
but received on a non-working day or after business hours in the
place of
receipt will only be deemed to be given on the next working day in
that
place.
|
20. |
LANGUAGE
|
Any
notice given in connection with this Deed must be in English.
21. |
SEVERABILITY
|
If
a term
of this Deed is or becomes illegal, invalid or unenforceable in any
jurisdiction, that will not affect:
(a) |
the
legality, validity or enforceability in that jurisdiction of any
other
term of this Deed; or
|
(b) |
the
legality, validity or enforceability in any other jurisdiction of
that or
any other term of this Deed.
|
22. |
WAIVERS
AND REMEDIES CUMULATIVE
|
The
rights of the Lender under this Deed:
(a) |
may
be exercised as often as necessary;
|
14
(b) |
are
cumulative and not exclusive of its rights under the general law;
and
|
(c) |
may
be waived only in writing and
specifically.
|
Delay
in
exercising or non-exercise of any right is not a waiver of that
right.
23. |
COUNTERPARTS
|
This
Deed
may be executed in any number of counterparts. This has the same effect as
if
the signatures on the counterparts were on a single copy of this
Deed.
24. |
GOVERNING
LAW
|
This
Deed
is governed by English law.
25. |
ENFORCEMENT
|
25.1 |
Jurisdiction
|
(a) |
The
English courts have exclusive jurisdiction to settle any dispute
in
connection with this Deed.
|
(b) |
The
English courts are the most appropriate and convenient courts to
settle
any such dispute and the Chargor waives objection to those courts
on the
grounds of inconvenient forum or otherwise in relation to proceedings
in
connection with this Deed.
|
(c) |
This
Clause is for the benefit of the Lender only. To the extent allowed
by
law, the Lender may take:
|
(i) |
proceedings
in any other court; and
|
(ii) |
concurrent
proceedings in any number of
jurisdictions.
|
25.2 |
Service
of process
|
(a) |
The
Chargor irrevocably appoints the Company as its agent under this
Deed for
service of process in any proceedings before the English
courts.
|
(b) |
If
the Company is unable for any reason to act as agent for service
of
process, the Chargor must immediately appoint another agent on terms
acceptable to the Lender. Failing this, the Lender may appoint another
agent for this purpose.
|
(c) |
The
Chargor agrees that failure by a process agent to notify it of any
process
will not invalidate the relevant
proceedings.
|
(d) |
This
Clause does not affect any other method of service allowed by
law.
|
25.3 |
Waiver
of immunity
|
The
Chargor irrevocably and unconditionally:
(a) |
agrees
not to claim any immunity from proceedings brought by the Lender
against
it in relation to this Deed and to ensure that no such claim is made
on
its behalf;
|
15
(b) |
consents
generally to the giving of any relief or the issue of any process
in
connection with those proceedings;
and
|
(c) |
waives
all rights of immunity in respect of it or its
assets.
|
THIS
DEED has
been
entered into as a deed on the date stated at the beginning of this
Deed.
16
Chargor | ||
EXECUTED as a DEED by | ) |
/s/
Xxxx Xxxxxxx
|
INYX, INC. acting by | ) |
Xxxx
Xxxxxxx
|
) |
Chairman,
CEO, Director
|
|
and | ) | |
) | ||
acting under the authority of | ) | |
that corporation | ) | |
Lender | ) | |
WESTERNBANK PUERTO RICO | ) | |
By: /s/ Xxxxxx X. Xxxxxxx | ) | |
Xxxxxx
X. Xxxxxxx
|
||
President
Business Credit Div.
|
17