DATED April 19, 2006 DEBENTURE REED SMITH RAMBAUD CHAROT LLP Minerva House London SE1 9BB Tel: +44 (0) 20 7403 2900 Fax: +44 (0) 20 7403 4221 Ref. DJR/CRJ/728098.00006
Exhibit
7
DATED
April 19, 2006
(1)
FUTUREMEDIA PUBLIC LIMITED COMPANY
(2)
____________________________________________
_________
DEBENTURE
XXXX
XXXXX
XXXXXXX
CHAROT LLP
Xxxxxxx
House
0
Xxxxxxxx Xxxxx
London
SE1 9BB
Tel:
x00 (0) 00 0000 0000
Fax:
x00 (0) 00 0000 0000
Ref.
DJR/CRJ/728098.00006
Index
Clause No. |
Page
No.
|
|
1.
|
Definitions
and Interpretations
|
1
|
2.
|
Covenant
to Pay
|
5
|
3.
|
Fixed
Security
|
5
|
4.
|
Floating
Security
|
6
|
5.
|
Debts
|
6
|
6.
|
Investments
|
7
|
7.
|
Representations
and Warranties
|
8
|
8.
|
Negative
Covenants
|
9
|
9.
|
Covenants
Relating to Business
|
10
|
10.
|
Covenants
Relating to the Charged Property
|
10
|
11.
|
Enforcement
of Security
|
14
|
12.
|
Powers
of Receiver and Lender
|
15
|
13.
|
Delegation
of Powers by Xxxxxx or Receiver
|
16
|
14.
|
Exclusion
of Liability
|
16
|
15.
|
Reimbursement
and Indemnity
|
17
|
16.
|
Application
of Sums Realised
|
18
|
17.
|
Protection
of Persons Dealing with Lender or Receiver
|
18
|
18.
|
Notice
of Subsequent Charge
|
18
|
19.
|
Further
Assurance
|
19
|
20.
|
Power
of Attorney by Xxxxxxx
|
19
|
21.
|
Set-off
|
20
|
22.
|
Discharge
of Security
|
20
|
23.
|
Communications
|
21
|
24.
|
Assignment
and Transfer
|
22
|
25.
|
Miscellaneous
|
22
|
26.
|
Governing
Law and Jurisdiction
|
23
|
THIS
DEBENTURE
is made
on
2006
BETWEEN:
(1)
|
FUTUREMEDIA
PUBLIC LIMITED COMPANY (registered
under number 01616681)
of Nile House, Nile Street, Brighton, East Sussex BN1 1HW (the
"Chargor");
and
|
(2)
|
CORNELL
CAPITAL PARTNERS, LP
of
000 Xxxxxx Xxxxxx - Xxxxx 0000, Xxxxxx Xxxx, XX 00000 (the "Lender").
|
AGREED
TERMS
1.
|
Definitions
and Interpretations
|
1.1
|
Definitions
|
In
this
deed the following expressions have the following meanings:
"Building
Contract" means
any
building contract entered into or to be entered into by the Chargor in relation
to or for the purposes of any Development.
"Charged
Property"
means
all property mortgaged, charged or assigned by this deed.
"Companies"
means
each of Executive Business Channel Limited and Open Training Sweden
AB.
"Debts"
means
all existing and future book and other debts and rights to money and income
(including Rental Income) liquidated and unliquidated owing to the Chargor
including the benefit of all negotiable instruments, securities, guarantees
and
indemnities for such debts and rights but not including cash at
bank.
"Designated
Account"
means
any account of the Chargor with any bank which has been notified of the interest
of the Lender in such account and has agreed in writing not to permit
withdrawals from such account except with the written consent of the
Lender.
"Development"
means:
(a)
|
any
works of construction on any Real Property; or
|
(b)
|
any
refurbishment of any Real Property
|
in
accordance with the plans and specifications approved or to be approved by
or on
behalf of the Lender.
"Development
Contracts"
means
any Building Contract, the existing and future terms of appointment of any
architects, quantity surveyors, engineers and other consultants or persons
whose
services are required for a Development, all existing and future warranty
agreements in favour of the Chargor which relate to a Development, and any
other
existing and future agreement relating to the acquisition, construction,
management, design, servicing, marketing, development, operation and use
of any
Real Property.
"Encumbrance"
means a
mortgage, charge, assignment by way of security, pledge, lien, any form of
distress, attachment, execution or other legal process or any other type
of
encumbrance or security interest or any other type of arrangement (including
any
sale and leaseback or sale and repurchase arrangement) having or intended
to
have a similar effect.
"Enforcement
Event"
means
any of the following events:
(a)
|
a
failure by the Chargor to pay any Secured Liability on the date
on which
it is due;
|
(b)
|
a
failure by the Chargor to pay on demand any Secured Liability which
is
payable to the Lender on demand; or
|
(c)
|
any
event by virtue of which any Secured Liability becomes due before
the date
on which it would otherwise be due for
payment.
|
"Environmental
Law"
means
any Law concerning the protection of the environment or human health, the
condition of any Real Property or of any place of work or the production,
storage, treatment, transport or disposal of any substance capable of causing
harm to any living organism or the environment.
"Intellectual
Property" means
any
existing and future right in respect of any patent, copyright, trade mark,
service mark, invention, design, know-how, confidential information or any
other
kind of intellectual property whether registered or unregistered and any
registration or application for registration, licence or permission relating
to
any of the foregoing.
"Investment"
means:
(a)
|
the
entire issued share capital of each of the Companies;
and
|
(b)
|
all
stocks, shares and other securities offered by way of redemption,
bonus,
preference or option or otherwise in respect of any of the shares
referred
to in (a) above,
|
"Law"
includes
common law, any statute, by-law, regulation or instrument and any kind of
subordinate legislation; and any order, requirement, code of practice, circular,
guidance note, licence, consent or permission made or given under any of
the
foregoing.
"Lease"
includes
any underlease, tenancy, letting, licence, any document supplemental or
collateral to any of them and any agreement to enter into any of them and
the
expression tenant will be construed accordingly.
"LPA"
means
the Law of Property Act 1925.
2
"Real
Property"
means
all freehold or leasehold property forming part of the Charged
Property.
"Receiver"
means
any receiver appointed over any Charged Property whether under this deed
or by
order of the court on application by the Lender and includes a receiver and
manager and an administrative receiver.
"Rental
Income"
means
all amounts payable to or for the benefit of the Chargor in connection with
the
occupation of the Real Property including each of the following
amounts:
(a)
|
rent
including any increase of rent or interim rent agreed by the Chargor
or
payable pursuant to any provisions of the Landlord and Tenant Act
1954 and
all other sums payable under any Lease;
|
(b)
|
sums
payable from any deposit held as security for performance of any
tenant's
obligations or by any guarantor of those obligations;
|
(c)
|
any
other monies payable in respect of occupation and/or use of any
Real
Property including any fixture for display or
advertisement;
|
(d)
|
(any
profits, damages, compensation, settlement or expenses awarded
or agreed
as a result of any claim made by the Chargor in respect of any
Real
Property net of any costs, fees and expenses incurred but not reimbursed
to the Chargor in connection with such claim;
|
(e)
|
any
monies payable under any policy of insurance in respect of loss
of
rent;
|
(f)
|
any
sum payable or the value of any consideration to be given by or
on behalf
of a tenant for the surrender or variation of any occupational
lease or
occupancy agreement; and
|
(g)
|
any
interest payable on any sum referred to
above;
|
"Secured
Liabilities"
means
all liabilities of the Chargor owed or expressed to be owed to the Lender
whether or not originally owed to the Lender and whether owed jointly or
severally, as principal or surety or in any other capacity provided that
Secured
Liabilities shall not include the Unsecured Liabilities.
"Security
Document"
means
any document including this deed executed by the Chargor or any third party
which grants security rights or rights by way of guarantee or indemnity in
respect of the Secured Liabilities.
"Unsecured
Liabilities" means
the
liabilities of the Chargor under Section 3(b)(ii) of the Secured Convertible
Note made by the Chargor and dated on or about the date of this
deed.
"Value
Added Tax"
or
"VAT"
means
value added tax or any other tax substituted therefor or in respect of turnover
or value added sales.
3
1.2
|
Interpretation
|
In
this
deed (including any introduction):
(a)
|
the
expression "Lender"
includes
its respective successors and assigns;
|
(b)
|
the
expression "Chargor"
includes the person deriving title under the Chargor or entitled
to redeem
the charges created by this deed;
|
(c)
|
a
reference to any statute or statutory provision includes that statute
or
statutory provision as amended, extended or re-enacted and to any
by-law,
regulation, order, instrument or subordinate legislation made under
the
relevant statute or statutory provision;
|
(d)
|
any
reference to any agreement or document is a reference to such agreement
or
document as it may have been or may from time to time be amended,
novated,
supplemented or replaced by a document having a similar
effect;
|
(e)
|
reference
to the singular includes the plural and vice versa;
|
(f)
|
references
to clauses and sub-clauses are to the clauses and sub-clauses of
this
deed;
|
(g)
|
reference
to any gender includes other genders;
|
(h)
|
reference
to persons includes individuals, bodies corporate, unincorporated
associations, partnerships, governments, states and state agencies
(whether or not having separate legal personality) and any reference
to
any party who is an individual will include his personal
representatives;
|
(i)
|
the
words "including"
and "in
particular"
are to be construed as being by way of illustration or emphasis
only and
are not to be construed so as to limit the generality of any words
preceding them;
|
(j)
|
the
words "other"
and "otherwise"
are not to be construed as being limited by any words preceding
them;
|
(k)
|
references
to "property"
include choses in action and other intangible property;
|
(l)
|
references
to liabilities, property, rights, assets or other tangible or intangible
things include the whole or any part of them, present and future,
actual
and contingent and in any part of the world;
|
(m)
|
any
reference to any property or interest in property includes any
such
interest or property acquired by the Chargor after the date of
this
deed;
|
(n)
|
any
covenant made by or obligation imposed on the Chargor in this deed
will
continue in force until all the Secured Liabilities have been irrevocably
paid in full; and
|
(o)
|
the
headings to clauses and sub-clauses are to be ignored in construing
this
deed.
|
4
2.
|
Covenant
to Pay
|
The
Chargor covenants with the Lender to pay the Secured Liabilities when
due.
3.
|
Fixed
Security
|
As
continuing security for the payment of the Secured Liabilities the Chargor
with
full title guarantee:
(a)
|
charges
to the Lender by way of equitable mortgage its interest in any
freehold or
leasehold property acquired by the Chargor after the date of this
deed;
|
(b)
|
charges
to the Lender by way of fixed charge its interest
in:
|
(i)
|
all
existing and future fittings, plant, equipment, machinery, tools,
vehicles, furniture and other tangible movable
property;
|
(ii)
|
any
Investment;
|
(iii)
|
its
existing and future goodwill and uncalled capital;
|
(iv)
|
all
existing and future cash at bank;
|
(v)
|
any
Intellectual Property;
|
(vi)
|
any
money now or at any time after the date of this deed standing to
the
credit of any Designated Account; and
|
(vii)
|
to
the extent not otherwise subject to any fixed security in favour
of the
Lender:
|
(A)
|
any
existing and future proceeds of any insurance of any Charged Property;
and
|
(B)
|
any
sum now or at any time after the date of this deed received by
the Chargor
as a result of any order of the court under sections 213, 214,
238, 239 or
244 of the Insolvency Act 1986;
|
(c)
|
charges
and assigns to the Lender by way of fixed security its interest
in the
Debts and the benefit of the Debts and any guarantee or security
for the
payment of any Debts provided that if any such guarantee or security
is
expressed to be non-assignable then the Chargor charges to the
Lender by
way of fixed security its interest in and the benefit of
it;
|
(d)
|
assigns
to the Lender its interest in and the benefit of the Development
Contracts
and the benefit of any guarantee or security for the performance
of any of
the Development Contracts provided
that if any Development Contract is expressed to be non-assignable
then
the Chargor charges to the Lender by way of fixed charge its interest
in
and the benefit of it; and,
|
(e)
|
charges
to the Lender by way of fixed charge, all other existing and future
property of the Chargor not charged or assigned by the previous
paragraphs
of this clause (other than the Chargor's stock in trade or work
in
progress).
|
5
4.
|
Floating
Security
|
4.1
|
Creation
of floating charge
|
As
continuing security for the payment of the Secured Liabilities the Chargor
charges to the Lender by way of floating charge with full title guarantee
the
whole of its existing and future undertaking and property to the extent not
otherwise at any time subject to any fixed charge in favour of the
Lender.
4.2
|
Conversion
|
Subject
to clause 4.3, the Lender may at any time by written notice to the Chargor
convert the floating charge created under clause 4.1(Creation of floating
charge) into a fixed charge as regards any property specified in the notice
if:
(a)
|
an
Enforcement Event has occurred; or
|
(b)
|
in
the opinion of the Lender such property is at risk of becoming
subject to
any Encumbrance (other than one in favour of the Lender) or is
otherwise
at risk of ceasing to be within the ownership or control of the
Chargor.
|
4.3
|
Moratorium
under 1986 Act
|
The
Lender shall not be entitled to convert the floating charge created by clause
4.1 into a fixed charge as a result only of the Chargor obtaining a moratorium
or anything done with a view to obtaining a moratorium under section 1A of
and
schedule A1 to the Insolvency Act 1986.
4.4
|
Qualifying
floating charge
|
Section
14(2)(a) of schedule B1 to the Insolvency Act 1986 applies to the floating
charge created by clause 4.1 which is a "qualifying floating charge" for
the
purpose of section 14(1) of the Insolvency Act 1986.
5.
|
Debts
|
5.1
|
Dealings
with debts
|
The
Chargor will:
(a)
|
use
all its reasonable endeavours to realise the
Debts;
|
6
(b)
|
from
time to time if required by the Lender provide the Lender with
a list of
the names and addresses of all debtors of the Chargor and the amount
of
the Debts owing from each of them and all other information relating
to
the Debts as the Lender may reasonably require;
|
(c)
|
from
time to time if required by the Lender execute a legal assignment
of any
Debt to the Lender in such terms as the Lender may reasonably require
and
give notice of such assignment to the debtor;
|
(d)
|
pay,
or procure that the proceeds of realisation of any Debt are paid
into a
Designated Account nominated by the Lender and pay or otherwise
deal with
such proceeds in any Designated Account in accordance with any
reasonable
directions given by the Lender from time to time; and
|
(e)
|
permit
any bank or other institution with which a Designated Account is
held to
furnish directly to the Lender from time to time upon request full
particulars of all the Chargor's accounts with such bank or other
institution and all other information relating to the Chargor as
is
available to such bank or other
institution.
|
5.2
|
Prohibited
dealings
|
The
Chargor will not except with the prior written consent of the Lender sell,
assign, charge, discount, factor or otherwise deal with any of the Debts,
or
(save for minor bad debts) compound, release or do anything by virtue of
which
the collection and recovery of any of the Debts may be impeded, delayed or
prevented.
5.3
|
No
obligation to recover
|
The
Lender will be under no obligation to take any steps to recover any of the
Debts.
5.4
|
Notice
of assignment
|
At
any
time the Lender may give notice of assignment of the Debts to any debtor
of the
Chargor.
6.
|
Investments
|
6.1
|
Deposit
of certificates
|
The
Chargor will, as soon as reasonably practical after the date of this deed,
deliver to the Lender the share certificates and a duly executed undated
stock
transfer form in respect of all the issued shares of Executive Business Channel
Limited. The Chargor will at the request of the Lender deposit with the Lender
the certificates or other documents of title to any other Investment belonging
to the Chargor and duly executed undated blank transfers in respect of any
such
Investment and will promptly pay all monies which may from time to time be
due
in respect of any such Investment.
7
6.2
|
Nominees
|
If
any
Investment charged under clause 3(c)(ii) is registered in the name of a nominee
for the Chargor, the Chargor will on demand provide to the Lender a power
of
attorney in favour of the Lender in such terms as the Lender may require
duly
executed by or on behalf of such nominee.
6.3
|
Transfer
into name of Xxxxxx
|
After
the
occurrence of an Enforcement Event:
(a)
|
the
Lender may transfer any Investment into its own name or into the
name of a
nominee and the Xxxxxxx agrees to waive and to ensure that any
nominees
holding any Investment on its behalf waive all rights of pre-emption
which
may relate to the transfer of any such Investment; and
|
(b)
|
pending
any such transfer the Chargor will exercise all voting rights in
respect
of any Investment as directed by the
Lender.
|
6.4
|
Uncertificated
securities
|
If
any
Investment is an uncertificated unit of a security, the Chargor will upon
the
execution of this deed (or in the case of any Investment issued or acquired
after the date of this deed as soon as practicable after it is issued or
acquired) send or procure the sending to the operator of a relevant system
in
which title to that Investment is evidenced and transferred of such instructions
as the Lender may require to effect the transfer of that Investment into
the
escrow balance of the Xxxxxxx's account with the said operator or after the
occurrence of an Enforcement Event into an account in the name of the Lender
or
a nominee for the Lender.
7.
|
Representations
and Warranties
|
7.1
|
Representations
and Warranties
|
The
Chargor represents and warrants to the Lender as set out in clauses 7.3 (Charged
Property), 7.4 (Avoidance) and 7.5 (Environmental Law).
7.2
|
Duration
and Scope
|
(a)
|
The
representations and warranties set out in clauses 7.3 (Charged
Property),
7.4 (Avoidance) and 7.5 (Environmental Law) will be deemed to be
repeated
by the Chargor on each day until the Secured Liabilities have been
paid in
full in relation to the then existing circumstances.
|
(b)
|
References
to Charged Property in clause 7.3(a), (c) and (d) will not include
property subject only to a floating charge in favour of the
Lender.
|
7.3
|
Charged
Property
|
(a)
|
The
Chargor is the legal and beneficial owner of the Charged
Property.
|
8
(b)
|
The
Charged Property is free from any Encumbrance.
|
(c)
|
The
Chargor has not received or acknowledged notice of any adverse
claim by
any person in respect of the Charged Property or any interest in
it.
|
(d)
|
All
the Charged Property of a repairable nature is in good and substantial
repair.
|
(e)
|
There
is no breach of any Law which materially adversely affects the
Real
Property.
|
(f)
|
There
are no covenants, agreements, reservations, conditions, interest
rights or
other matters whatever which materially adversely affect the Real
Property.
|
(g)
|
No
facility necessary for the enjoyment and use of the Real Property
is
subject to terms entitling any person to terminate or curtail its
use.
|
(h)
|
Nothing
has arisen or has been created or is subsisting which would be
an
overriding interest over the Real
Property.
|
7.4
|
Avoidance
|
No
charge
expressed to be created pursuant to this deed is liable to be avoided or
otherwise set aside on the liquidation or administration of the Chargor or
otherwise.
7.5
|
Environmental
Law
|
The
Chargor has at all times complied in all material respects with all applicable
Environmental Law.
8.
|
Negative
Covenants
|
The
Chargor will not except with the prior written consent of the
Lender:
(a)
|
dispose
or purport or agree to dispose of any interest in or lend or grant
any
licence or other right over any property mortgaged, charged or
assigned
under clause 3 (Fixed Security) or, save for full consideration
in money
or money's worth and in the ordinary course of the Chargor's business,
dispose of any interest in or lend or grant any licence or other
right
over any of the property charged by way of floating charge under
clause 4 (Floating Security) ;
|
(b)
|
create,
agree to create or allow to arise or remain outstanding any Encumbrance
over any Charged Property;
|
(c)
|
redeem
or purchase its own shares or provide financial assistance for
such
purposes or pay an abnormal sum by way of dividend; or
|
(d)
|
terminate
or amend in any material respect any Development Contract or release,
settle or discharge any claim, right or entitlement which the Chargor
may
have under any Development Contract, whether by assignment, transfer,
novation or otherwise.
|
9
9.
|
Covenants
Relating to Business
|
The
Chargor will:
(a)
|
carry
on its business in a proper manner and not make any material alteration
in
the nature of its business;
|
(b)
|
keep
proper accounting records and make all proper entries in relation
to its
affairs and make such records available for inspection by or on
behalf of
the Lender or any Receiver at the cost of the Chargor at all reasonable
times;
|
(c)
|
give
to the Lender or any Receiver such information relating to its
undertaking
or property or otherwise relating to its affairs as either of them
reasonably requires; and
|
(d)
|
observe
and perform all Laws, covenants and stipulations from time to time
affecting any Charged Property or otherwise relating to its
business.
|
10.
|
Covenants
Relating to the Charged
Property
|
10.1
|
Repair
|
The
Chargor will:
(a)
|
keep
the Charged Property of a repairable nature in good and substantial
repair
and condition; and
|
(b)
|
not,
without the prior written consent of the Lender, make any structural
alterations or additions to or carry out any development (other
than a
Development) on
or make any planning or similar application relating to any of
the Real
Property.
|
If
the
Chargor fails to comply with the covenants in this clause the Lender will
be
entitled to repair and maintain the Real Property and carry out works of
reinstatement at the cost of the Chargor and will for this purpose have the
rights of entry set out in clause 10.9 (Rights of entry).
10.2
|
Insurance
|
(a)
|
The
Chargor will except as provided in clause 10.2(c) keep all Charged
Property which is of an insurable nature insured in the joint names
of the
Lender and the Chargor against all risks which a prudent person
carrying
on a business similar to that of the Chargor would reasonably insure
against and such other risks as the Lender may from time to time
specify
(including terrorism):
|
(i)
|
in
the case of Charged Property other than buildings to its full replacement
value; and
|
(ii)
|
in
the case of buildings on a full reinstatement basis and against
all
professional fees, Value Added Tax, demolition and site clearance
charges
and loss of rental and other income derived from such buildings
for at
least three years (and ensure that the insurance on the buildings
and
works comprised in a Development is increased as the Development
proceeds
so that such buildings and works will at all times be and remain
insured
to their full reinstatement value).
|
10
(b)
|
All
such insurances will be in amount and form and with an insurance
office
acceptable to the Lender and the Chargor will, within 5 business
days,
produce the policy and the last receipt for such insurances to
the Lender
and will apply all monies received by virtue of such insurances
either in
making good the loss or damage in respect of which the monies were
received or at the option of the Lender in or towards payment of
the
Secured Liabilities. If the Chargor fails to comply with this clause
the
Lender will be entitled to effect any relevant insurance at the
cost of
the Chargor.
|
(c)
|
If
the Real Property includes any leasehold property of which the
Chargor is
the tenant and the landlord under the lease (or any superior landlord)
is
responsible for the insurance of any buildings on such Real Property
and
if the terms of such insurance are satisfactory to the Lender and
the
Chargor:
|
(i)
|
procures
that the interest of the Lender is endorsed on every relevant
policy;
|
(ii)
|
procures
that every relevant policy contains a clause of the type referred
to in
clause 10.2(d); and
|
(iii)
|
provides
a full copy of every relevant policy to the Lender once in every
year
together with a copy of the receipt for that year's
premium,
|
then
such
insurance will be deemed to have been accepted by the Lender in satisfaction
of
the obligation of the Chargor in this deed to insure the relevant
buildings.
(d)
|
The
Chargor will ensure that every insurance policy contains a clause
(in
terms satisfactory to the Lender) under which such insurance will
not be
prejudiced, vitiated or avoidable as against a mortgagee in the
event of
any misrepresentation, act or neglect or failure to disclose on
the part
of the insured party or parties (subject to the payment of any
increased
premium required by the insurer) and will not be invalidated as
against a
mortgagee for failure to pay any premium owing without the insurer
giving
to the Lender ten working days prior written
notice.
|
10.3
|
Compliance
with obligations
|
The
Chargor will in respect of the Real Property:
11
(a)
|
pay
all rents, rates, outgoings and other sums payable and observe
and comply
with any covenants, stipulations and conditions binding on the
Chargor;
|
(b)
|
enforce
all tenant's obligations under any Lease over any of the Real
Property;
|
(c)
|
comply
with all obligations under any Law and produce to the Lender within
seven
days of receipt every notice, order or proposal given or made by
any
competent authority and make any objections and representations
against it
as the Lender may require or
approve;
|
(d)
|
not
commit any waste which injures or lessens the value of the Real
Property;
|
(e)
|
not
detach or allow any fixture to be detached from the Real Property
except
for the purpose of replacing it by another of at least equal value;
and
|
(f)
|
not
fix any Charged Property referred to in clause 3(c)(i) to any land
other
than the Real Property unless it has obtained the written consent
of the
Lender and obtained waivers satisfactory to the Lender from all
other
persons interested in such land of any rights in respect of such
Charged
Property and has marked such Charged Property in a manner specified
by the
Lender to indicate it is charged to the
Lender.
|
10.4
|
Development
|
The
Chargor will:
(a)
|
as
soon as possible apply for and diligently take all steps necessary
to
obtain all permissions, consents, licences and approvals required
by any
by-laws, regulations, planning permissions, orders or statutes
from time
to time in force for the construction or implementation of the
Development
and produce to the Lender true copies of all such permissions,
consents,
licences and approvals as soon as they are received;
|
(b)
|
engage
or employ all such architects, quantity surveyors, engineers and
other
consultants or other competent persons as may be requisite for
the
Development;
|
(c)
|
complete
the Development, or cause the Development to be completed with
all due
diligence to a high and substantial standard of construction in
accordance
with the agreed and approved drawings and specifications and in
conformity
with the provisions of all statutes, orders, by-laws, planning
permissions
and building and other regulations and conditions and the requirements
of
the local and other competent authorities;
|
(d)
|
diligently
and promptly perform its obligations under any Development Contracts
and
promptly notify the Lender of any dispute or disagreement arising
under
any of the Development Contracts.
|
12
10.5
|
Proprietorship
|
The
Chargor will not permit any person:
(a)
|
to
be registered as proprietor under the Land Registration Act 2002
of any
Real Property nor create or permit to arise any interest with overriding
status or which is capable of registration under the Land Registration
Act
2002 affecting the Real Property; or
|
(b)
|
to
become entitled to any proprietary right or interest which might
affect
the value of the Real Property.
|
10.6
|
Notification
of acquisitions and disposals
|
The
Chargor will promptly notify the Lender of any proposal, contract, conveyance,
option, transfer or other disposition involving the acquisition by the Chargor
of any interest in freehold or leasehold property or any disposal by the
Chargor
of an interest in any Real Property.
10.7
|
Environmental
Law
|
The
Chargor will properly discharge all duties of care and responsibilities placed
upon it by Environmental Law and observe and perform all the requirements
of
Environmental Law both in the conduct of its general business and in the
management possession or occupation of the Real Property and will apply for
and
obtain all authorisations, licences and consents necessary to ensure that
it
does not breach Environmental Law.
10.8
|
Powers
of leasing
|
The
Chargor's statutory and any other powers of entering into Leases and accepting
or agreeing to accept surrenders of Leases will be excluded and will not
be
exercisable by the Chargor in relation to the Real Property and the Chargor
will
not without the prior written consent of the Lender:
(a)
|
part
with possession or occupation of, confer any licence or right to
occupy
nor confer any interest in any Real Property;
|
(b)
|
grant
any permission to assign, underlet or part with possession or occupation
of any Real Property;
|
(c)
|
agree
or permit any amendment to or waiver of the terms of any Lease
(including
any Lease under which the Chargor is tenant); or
|
(d)
|
exercise
any power to determine any Lease.
|
10.9
|
Power
of entry
|
The
Chargor will permit the Lender, its agents and contractors at reasonable
times
and upon reasonable notice (or at any time without notice after the occurrence
of an Enforcement Event or in case of emergency) to enter into or upon the
Real
Property without becoming liable as mortgagee in possession:
13
(a)
|
to
view the state and condition of or to value it;
|
(b)
|
to
comply with or object to any direction or notice or other matter
served
upon the Chargor; and
|
(c)
|
to
carry out at the expense of the Chargor any repairs or maintenance
or to
take any action which the Lender considers necessary or desirable
in
connection with the Real Property to procure compliance with any
covenant
or obligation set out in this deed.
|
10.10
|
Identification
plate
|
The
Chargor will if so requested by the Lender, place and maintain on each item
of
property charged pursuant to clause 3(c)(i), in a conspicuous place, a clearly
legible identification plate containing the following wording:
"NOTICE
OF CHARGE
This
[description of item] and ancillary equipment is subject to a fixed charge
in
favour of ____________."
11.
|
Enforcement
of Security
|
11.1
|
Powers
arising
|
Section
103 of the LPA will not apply to this deed and the power of sale and all
other
powers conferred by section 101 of the LPA as varied or extended by this
deed
will arise upon execution of this deed by the Chargor.
11.2
|
Powers
exercisable
|
The
power
of sale and all other powers conferred by section 101 of the LPA as varied
or
extended by this deed will be exercisable immediately upon or at any time
after
an Enforcement Event has occurred.
11.3
|
Appointment
of Receiver
|
(a)
|
At
the request of the Chargor or, subject to paragraph (d) below, at any
time after the occurrence of an Enforcement Event the Lender may
appoint
by writing a Receiver of any Charged Property upon such terms as
to
remuneration and otherwise as the Lender thinks fit.
|
(b)
|
Any
Receiver will be the agent of the Chargor for all purposes and
the Chargor
will be responsible for such Receiver's acts and defaults and for
his
remuneration, costs, fees, taxes and expenses to the exclusion
of
liability on the part of the
Lender.
|
14
(c)
|
Where
two or more persons are appointed as Receivers under or pursuant
to this
deed any act authorised to be done by the Receivers may be done
by all of
them acting jointly or by any one or more of them acting
severally.
|
(d)
|
The
Lender shall not be entitled to appoint a Receiver as a result
only of the
Chargor obtaining a moratorium or anything done with a view to
obtaining a
moratorium under section 1A of and schedule A1 to the Insolvency
Act
1986.
|
11.4
|
Removal
of Receiver
|
The
Lender may at any time by writing remove any Receiver (subject to the obtaining
of any required order of the court in the case of an administrative receiver)
whether or not the Lender appoints any other person as Receiver in his
place.
12.
|
Powers
of Receiver and Lender
|
12.1
|
Statutory
powers
|
A
Receiver will be entitled to exercise all the powers conferred on a receiver
by
the LPA and, whether or not such a Receiver is an administrative receiver,
may
exercise all the powers conferred upon an administrative receiver by the
Insolvency Act 1986.
12.2
|
Additional
powers
|
By
way of
addition to and without limiting the powers referred to in clause 12.1
(Statutory Powers) a Receiver will have power (both before and after the
commencement of any liquidation of the Chargor) to do every act and thing
and
exercise every power:
(a)
|
which
the Chargor would have been entitled to do or exercise if no Receiver
had
been appointed;
|
(b)
|
which
such Receiver in his absolute discretion considers necessary or
desirable
for maintaining or enhancing the value of any Charged Property
or for or
in connection with the enforcement of the charges created by this
deed or
the realisation of any Charged Property; and
|
(c)
|
which
such Receiver in his absolute discretion considers necessary or
desirable
for completing a Development including continuing and performing
the
Development, or any part of it, or any other development, entering
into a
building contract or other contract or agreement for or relating
to the
Development, or any part of it, or any other development, purchasing
such
materials and other articles and things as he may think fit in
connection
with the Development, discontinuing the Development or any part
of it, or
any other development, and repudiating and rescinding any building
contract or other contract or
agreement,
|
15
and
may
use the name of the Chargor in connection with any exercise of such
powers.
12.3
|
Uncharged
property
|
The
powers of a Receiver may be exercised in relation to or in connection with
any
property of the Chargor whether or not such property forms part of the Charged
Property.
12.4
|
Exercise
of powers by Xxxxxx
|
After
the
occurrence of an Enforcement Event all the powers of a Receiver under clauses
12.1 (Statutory powers), 12.2 (Additional powers) and 12.3 (Uncharged property)
may be exercised by the Lender whether or not the Lender goes into possession
as
mortgagee.
12.5
|
Prior
encumbrances
|
At
any
time after the security given by this deed has become enforceable, the Lender
may redeem any prior Encumbrance against the Charged Property or procure
a
transfer of such Encumbrance to itself and may agree the accounts of the
person
entitled to that Encumbrance and any accounts so agreed will be binding on
the
Chargor.
13.
|
Delegation
of Powers by Xxxxxx or
Receiver
|
13.1
|
Delegation
|
The
Lender or any Receiver may from time to time delegate by power of attorney
or in
any other manner to any person the powers, authorities and discretions which
are
for the time being exercisable by the Lender or a Receiver under this deed
in
relation to any Charged Property and any such delegation may be made upon
such
terms as the Lender or such Receiver may think fit. Neither the Lender nor
any
Receiver will be in any way liable or responsible to the Chargor for any
loss or
damage arising from any act or omission on the part of any such
delegate.
13.2
|
Possession
|
If
the
Lender, any Receiver or any delegate of the Lender or any Receiver enters
into
possession of any Charged Property any of them may from time to time go out
of
possession.
14.
|
Exclusion
of Liability
|
14.1
|
Liability
to account
|
The
Lender will not in any circumstances by reason of it taking possession of
any
Charged Property or for any other reason whatever, and whether as mortgagee
in
possession or on any other basis whatever, be liable to account to the Chargor
for anything except the Xxxxxx's own actual receipts or be liable to the
Chargor
for any loss or damage arising from any realisation of any Charged Property
or
from any act, default or omission of the Lender in relation to any Charged
Property or from any exercise or non-exercise by the Lender of any power,
authority or discretion conferred upon it in relation to any Charged Property
by
or pursuant to this deed or by the LPA unless such loss or damage is caused
by
the Lender's own fraud, gross negligence or wilful misconduct.
16
14.2
|
Losses
on enforcement
|
Upon
the
sale of any Charged Property on enforcement of the charges created by this
deed,
the Chargor will not have any right or claim against the Lender in respect
of
any loss arising out of such sale however such loss may have been caused
and
whether or not a better price could or might have been obtained on the sale
of
such Charged Property by either deferring or advancing the date of such sale
or
for any other reason.
14.3
|
Application
to Lender and Receiver
|
The
provisions of clauses 14.1 (Liability to account) and 14.2 (Losses on
enforcement) will apply in relation to the liability of any Receiver and
any
delegate of the Lender or any Receiver in all respects as though every reference
in clauses 14.1 (Liability to account) and 14.2 (Losses on enforcement) to
the
Lender were reference to such Receiver or (as the case may be) to such
delegate.
15.
|
Reimbursement
and Indemnity
|
15.1
|
Reimbursement
|
Any
sums
paid or expended by the Lender or any Receiver either:
(a)
|
as
a result of the Lender or any Receiver taking action which the
Lender or
any Receiver considers necessary or desirable in connection with
any
Charged Property or to procure compliance with any covenant or
obligation
on the part of the Chargor contained in any Security Document;
or
|
(b)
|
which
is in respect of any action or thing expressed in this deed to
be done at
the cost of the Chargor,
|
and
all
costs, fees, taxes and expenses incurred by the Lender or any Receiver under
or
in connection with this deed or its enforcement and/or the preservation of
the
Lender's rights under this deed will be reimbursed by the Chargor to the
Lender
on demand. The Lender will also be entitled to charge the Chargor a reasonable
fee to recover the cost of management time spent in connection with the
preservation of its rights under this deed which will be payable by the Chargor
on demand.
15.2
|
Indemnity
|
The
Chargor will indemnify the Lender (whether or not acting as mortgagee in
possession) and any Receiver against all liabilities, claims and expenses
whether arising out of contract or in tort or in any other way (including
any
liability of the Lender or any Receiver under any Environmental Law) which
may
at any time be incurred by either of them (or by any person for whom they
may be
vicariously liable) in connection with this deed or for anything done or
omitted
to be done in the exercise or purported exercise of their powers pursuant
to
this deed.
17
15.3
|
Secured
Liabilities
|
All
monies payable by the Chargor under this clause will form part of the Secured
Liabilities and if unpaid will bear interest (both before and after judgment)
at
a rate equal to any default rate specified in any loan or facility or other
agreement between the Chargor and the Lender and will form part of the Secured
Liabilities. If there is more than one such agreement, then the default rate
shall be the highest rate payable.
16.
|
Application
of Sums Realised
|
Subject
to claims having priority to the charges created by this deed all monies
received by a Receiver will be applied in the following order:
(a)
|
in
payment of all costs, fees, taxes and expenses incurred by the
Receiver in
or pursuant to the exercise of the powers set out in this deed
and of all
other outgoings properly payable by the Receiver;
|
(b)
|
in
payment of remuneration to the Receiver;
|
(c)
|
in
payment of the Secured Liabilities to the Lender; and
|
(d)
|
the
balance (if any) will be applied as required by
law.
|
17.
|
Protection
of Persons Dealing with Lender or
Receiver
|
No
person
dealing with the Lender or any Receiver will be concerned to
enquire:
(a)
|
whether
any event has happened upon which any of the powers contained in
this deed
may have arisen or be exercisable;
|
(b)
|
otherwise
as to the propriety or regularity of any exercise of the powers
conferred
by this deed or of any act purporting or intended to be in exercise
of
such powers; or
|
(c)
|
whether
any Secured Liabilities remain
owing.
|
18.
|
Notice
of Subsequent Charge
|
If
the
Lender receives notice of any subsequent charge or other interest affecting
any
Charged Property, it may open a new account for the Chargor in its books
and may
transfer any outstanding balance owing by the Chargor to such new account.
If
the Lender does not do so then, unless it gives express written notice to
the
contrary to the Chargor, all payments made by the Chargor to the Lender will
as
from the time of receipt of such notice by the Lender be treated as having
been
credited to a new account of the Chargor and not as having been applied in
reduction of the Secured Liabilities.
18
19.
|
Further
Assurance
|
19.1
|
Execution
of further documents
|
As
and
when required by the Lender or any Receiver the Chargor, at its own cost,
will
(and will procure that every party other than the Lender to any Security
Document will):
(a)
|
execute
such further legal or other mortgages, fixed or floating charges
or
assignments in favour of the Lender for itself or any Receiver
from time
to time requires over any Charged Property to secure the Secured
Liabilities such further mortgages, charges or assignments to be
prepared
at the cost of the Chargor and to contain a power of sale which
arises
immediately upon execution, a clause excluding section 93 of the
LPA and
the restrictions contained in section 103 of the LPA and such other
clauses for the benefit of the Lender or any Receiver may reasonably
require;
|
(b)
|
execute
and do all such assurances, deeds, documents, acts and things for
perfecting or protecting the mortgages, charges and assignments
created by
this deed or any Security Document and for facilitating or effecting
any
dealing by the Lender or any Receiver under any authorities or
powers
granted under any Security Document; and
|
(c)
|
upon
or with a view to assisting in any enforcement of any mortgage,
charge or
assignment created by this deed convey, transfer, assign or otherwise
deal
with any Charged Property in such manner as the Lender or any Receiver
may
require.
|
19.2
|
Documents
of title
|
The
Chargor undertakes to deposit with the Lender the deeds and documents of
title
relating to any property charged pursuant to clause 3(b) and, whenever required
by the Lender, the Investments and the Intellectual Property immediately
after
they come into the Chargor's possession or control.
20.
|
Power
of Attorney by Xxxxxxx
|
The
Chargor irrevocably and by way of security appoints each of the Lender, any
person authorised in writing by or on behalf of the Lender and any Receiver
its
attorney in each case (with full power to appoint substitutes and to delegate)
severally in its name and on its behalf to execute any document or do any
act or
thing which the Chargor is obliged to execute or do whether under any Security
Document or which the Lender or the Receiver (or any substitute or delegate)
may
in their absolute discretion consider appropriate:
19
(a)
|
in
connection with the exercise of any of their rights or powers arising
under or by virtue of any Security Document, the LPA or the Insolvency
Act
1986; or
|
(b)
|
to
perfect, vest in or assure to the Lender any security for the Secured
Liabilities granted to the Lender or which the Lender may require
to have
granted to it under any Security
Document.
|
21.
|
Set-off
|
21.1
|
Combination
of accounts and set-off
|
The
Lender may, at any time after an Enforcement Event has occurred and without
notice to the Chargor:
(a)
|
combine
or consolidate any of the accounts of the Chargor of any nature
with the
Lender; and/or
|
(b)
|
set-off
or transfer any monies standing to the credit of any such accounts
in or
towards satisfaction of the Secured
Liabilities.
|
21.2
|
Time
deposits
|
The
Lender may exercise its rights under clause 21.1 (Combination of accounts
and
set-off) even in a case where such monies have been deposited with the Lender
for a specific period and such period has not expired.
21.3
|
Currency
conversion
|
Where
such combination or set-off requires the conversion of one currency into
another, such conversion will be calculated at HSBC's spot rate of exchange
between the currencies at the time of the combination or set-off.
22.
|
Discharge
of Security
|
22.1
|
Discharge
conditional
|
Any
discharge of the Chargor made by the Lender in reliance on a payment or Security
Document given by another person will be of no effect if that payment or
Security Document is avoided, reduced or invalidated for any reason and the
Lender will be entitled to recover from the Chargor on demand the amount
of such
payment or the value of any such Security Document.
22.2
|
Retention
of Security
|
Following
any discharge of the Chargor made by the Lender in reliance on a payment
or
Security Document given by another person the Lender may retain the security
constituted by this deed until the expiry of the maximum period within which
such payment or Security Document can be avoided, reduced or invalidated
for any
reason provided that if such other person goes into liquidation or
administration within that period the Lender may retain the security constituted
by this deed for as long as it thinks fit.
20
23.
|
Communications
|
23.1
|
Demands
and other communications
|
Any
demand for payment or any other communication made or given on or to the
Chargor
under or in connection with this deed may be left at any address referred
to in
clause 23.2 (Address for service) or sent there by first class post or
facsimile. Any such demand will be validly made whether or not it contains
a
statement as to the amount of the relevant Secured Liabilities or an inaccurate
or incomplete statement of the Secured Liabilities.
23.2
|
Addresses
for service
|
The
addresses for service referred to in clause 23.1 (Demands and other
communications) are:
(a)
|
the
Chargor's registered office;
|
(b)
|
any
address at which the Chargor carries on business;
|
(c)
|
any
address shown on any current letterhead of the Chargor;
and
|
(d)
|
the
address of the Chargor shown in this deed or, if the Chargor has
given
written notice to the Lender of any other address for service,
the most
recent address so notified.
|
23.3
|
Facsimile
service
|
A
document served by facsimile may be sent to any facsimile number shown on
any
current letterhead of the Chargor or specified in any notice of the kind
referred to in clause 23.2(d).
23.4
|
Proof
and time of service
|
In
proving service of a document it will be sufficient to prove that it
was:
(a)
|
left
at the relevant location in which case it will be deemed to be
received
when so left;
|
(b)
|
properly
addressed, stamped and posted in which case it will be deemed to
be
received on the next working day in the place of receipt following
the day
when it was posted; or
|
(c)
|
transmitted
by facsimile in which case it will be deemed to be received when
the
sending facsimile machine produces a print out which confirms that
transmission has taken place.
|
21
24.
|
Assignment
and Transfer
|
24.1
|
Lender
|
The
Lender may at any time, with the prior consent of the Chargor, assign or
transfer the whole of its rights under this deed to any person.
24.2
|
Chargor
|
The
Chargor may not assign any of its rights or transfer any of its obligations
under this deed or enter into any transaction which would result in any of
these
rights or obligations passing to another person.
24.3
|
Disclosure
|
The
Lender may disclose any information about the Chargor to any person connected
to
or associated with them and (in the case of the Lender) to any person to
whom
the Lender proposes to assign or transfer (or has assigned or transferred)
any
of its rights under this deed.
25.
|
Miscellaneous
|
25.1
|
Trust
|
This
security is granted to the Lender for itself. The Lender may make demand
of the
Chargor and otherwise exercise its rights under this deed.
25.2
|
Delay
and Waiver
|
The
rights of the Lender under this deed will not be prejudiced by any delay
in
exercising them or by any other act done or omitted by the Lender which but
for
this clause might have been deemed a waiver of such rights nor will any exercise
of any such right preclude any further exercise of such right or any other
right.
25.3
|
Certificates
|
A
certificate by the Lender as to any amount for the time being due to it by
the
Chargor will be conclusive evidence of the amount so due in the absence of
any
manifest error
25.4
|
Severability
|
Each
of
the provisions of this deed is severable and distinct from the others and
if at
any time one or more of such provisions is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions of
this
deed will not in any way be affected or impaired.
22
25.5
|
Rights
cumulative
|
All
rights of the Lender are cumulative and any express right conferred on the
Lender under this deed may be exercised without prejudicing or being limited
by
any other express or implied right of the Lender.
25.6
|
Continuing
Security
|
This
deed
is a continuing security and extends to the balance from time to time of
the
Secured Liabilities irrespective of any intermediate payment of monies due
to
the Lender.
25.7
|
Other
Security
|
This
deed
is in addition to and will not in any way be prejudiced or affected by the
holding or release by the Lender or by any other person of any other security
at
any time held by the Lender.
25.8
|
Consolidation
|
The
restrictions on the right of consolidating mortgage securities contained
in
section 93 of the LPA will not apply to this deed.
25.9
|
Land
Registry Consent
|
By
executing this deed the Chargor consents to the entry of the following
restriction against any registered titles (and any unregistered properties
subject to compulsory first registration) which are at any time subject to
this
deed:
"No
disposition of the registered estate by the proprietor of the registered
estate
or by the proprietor of any registered charge is to be registered without
a
written consent signed by the proprietor for the time being of the charge
dated
[date] in favour of __________ referred to in the charges register or, if
appropriate, signed on such proprietor’s behalf by its duly authorised
officer."
26.
|
Governing
Law and Jurisdiction
|
26.1
|
Law
|
This
deed
is governed by English law.
26.2
|
Courts
of England
|
Without
limiting clause 26.3, the courts of England will have jurisdiction to settle
any
disputes which may arise out of or in connection with this deed.
26.3
|
Other
courts
|
Clause
27.2 is for the exclusive benefit of the Lender which reserves the right
to
bring proceedings in respect of any matter which arises out of or in connection
with this deed in the courts of any country which have or claim jurisdiction
in
relation to that matter.
23
26.4
|
Waiver
of objection
|
The
Chargor waives any objection on the ground of inconvenient forum to any
proceedings which relate to this deed being brought:
(a)
|
in
the courts of England; and
|
(b)
|
in
any other courts by virtue of clause
26.3.
|
26.5
|
Service
of process
|
The
Chargor agrees:
(a)
|
that
any process or other document connected with proceedings in the
English
courts which relate to this deed will be treated for all purposes
as
having been duly served on the Chargor if it is received by Xxxxx
Xxxxxxx
Xxxxxxx Israels LLP, 0 Xxxxxxxx Xxxxxx / Xxxxxx X0X 0XX (FAO: Xxxx
Xxxxx /
Xxxxxx Xxxxxxx); and
|
(b)
|
that
if, at any time, the Chargor fails to maintain a process agent
in London
authorised to receive such process and documents, the Lender may,
on the
Chargor's behalf, appoint any person whom the Lender thinks appropriate
to
be the Chargor's process agent in London and that appointment will
be, in
every respect, as effective as if made by the Chargor
itself.
|
26.6
|
No
exclusion or limitation of
rights
|
Nothing
in this clause 27 excludes or limits any right which the Lender may have
(whether under the law of any country, an international convention or otherwise)
with regard to the bringing of proceedings, the service of process, the
recognition or enforcement of a judgment or any similar or related matter
in any
jurisdiction.
26.7
|
Proceedings
in more than one jurisdiction
|
If
the
Lender commences proceedings in connection with this deed that will not prevent
the Lender from commencing proceedings (whether concurrently or not) with
respect to this deed in another jurisdiction.
This
deed
has been executed and delivered as a deed on the date shown at the beginning
of
this deed.
24
EXECUTED
as
a DEED
by
FUTUREMEDIA
PUBLIC
LIMITED
COMPANY
acting
by two Directors or one Director and a Company Secretary
|
......................................
Director
.......................................
Director
/ Secretary
|
EXECUTED
as
a DEED
by
By:
Its:
|
......................................
|
25