DATED 20TH APRIL 0000
XXXXXXXXXX LIFE SCIENCES LIMITED
(as mortgagor)
- and -
NATIONAL WESTMINSTER BANK Plc
(as agent)
EQUIPMENT MORTGAGE
WILDE SAPTE
0 Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Tel. 0000 000 0000
Fax. 0000 000 0000
Ref TJF/GP/58993/BF0316896.02
TABLE OF CONTENTS
Clause Heading Page No
1. DEFINITIONS AND INTERPRETATION......................................2
2. COVENANTS TO PAY....................................................3
3. MORTGAGES, ASSIGNMENTS AND FIXED CHARGES............................4
4. NEGATIVE PLEDGE.....................................................5
5. FURTHER ASSURANCE...................................................5
6. REPRESENTATIONS BY THE MORTGAGOR....................................6
7. INSURANCE...........................................................6
8. UNDERTAKINGS BY THE MORTGAGOR.......................................7
9. ENFORCEMENT.........................................................9
10. REMEDIES...........................................................10
11. APPOINTMENT OF RECEIVER............................................11
12. POWER OF ATTORNEY..................................................13
13. PROTECTION OF PURCHASERS...........................................14
14. CONSOLIDATION OF ACCOUNTS AND SET-OFF..............................14
15. CURRENCY...........................................................15
16. APPLICATION........................................................15
17. NOTICES............................................................15
18. NEW ACCOUNTS.......................................................16
19. REMEDIES CUMULATIVE ETC............................................16
20. PROVISIONS SEVERABLE...............................................17
21. THE AGENT'S DISCRETION.............................................17
22. AMENDMENTS.........................................................17
23. LAW................................................................17
24. ASSIGNMENT.........................................................18
SCHEDULE - THE EQUIPMENT............................................19
THIS EQUIPMENT MORTGAGE is made on 20th April 1998
BETWEEN:
1. HUNTINGDON LIFE SCIENCES LIMITED, a company incorporated under the
laws of England and Wales with registered number 1815730 having its
registered office at Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx, XX00 0XX
(the "Mortgagor"); and
2. NATIONAL WESTMINSTER BANK Plc of 3rd Floor, Juno Court, 00 Xxxxxxx
Xxxxxx, Xxxxxx, X0 0XX as agent and trustee for the Secured Parties
(the "Agent").
WHEREAS:
(A) By a facilities agreement (the "Facilities Agreement") dated 1st
November 1995 made between (1) the Mortgagor (2) Huntingdon Life
Sciences Group Plc, (3) Huntingdon Life Sciences Inc, (together the
"Borrowers") (4) the Banks (as defined therein) and the Agent (as
amended by a letter dated 21st November 1995), the Banks agreed to
make available certain facilities to the Borrowers on the terms set
out therein.
(B) By a guarantee dated 1st November 1995 from the Mortgagor to the
Agent (as agent and trustee for the Secured Parties) (as amended by
supplemental deeds dated 20th January 1998 and 26th February 1998)
(the "Guarantee"), the Mortgagor guaranteed the obligations and
liabilities of the Borrowers to the Agent, the Banks and the
Overdraft Bank (as defined below).
(C) Pursuant to a New Facility Letter dated 17th March 1998 (the "New
Facility Letter") from the Agent as overdraft bank (the "Overdraft
Bank") in respect of the new overdraft facility being provided
thereunder, the Mortgagor has agreed to execute this Mortgage to
secure the further performance by the Mortgagor of its obligations
to the Overdraft Bank, the Agent and the Banks under the Facilities
Agreement, the New Facility Letter and the Guarantee by charging
the Equipment on the terms set out herein.
NOW THIS DEED WITNESSETH as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Mortgage, unless the context otherwise requires or unless
otherwise defined or provided for in this Mortgage, words and
expressions shall have the same meanings as is attributed to them
under the Facilities Agreement and the New Facility Letter. In
addition, the following words and expressions shall have the
respective meanings ascribed to them:
"Facility Rate" means the rate of interest specified in Clause
6.1.3 of the New Facility Letter and calculated as provided
therein.
"Documents" means all logbooks, maintenance records, record books,
manuals, handbooks, drawings, technical data and all other
documents from time to time of the Mortgagor relating to the
Mortgaged Property.
"Equipment" means the equipment listed in the Schedule together
with any replacements or substitutes for such containers and other
equipment.
"Insurances" means all insurances and all policies and contracts of
insurance effected or procured by the Mortgagor or the Agent from
time to time in respect of the Equipment (whether in accordance
with Clause 7 or otherwise) and all claims and all moneys payable
thereunder (including any return of premium in respect thereof).
"Mortgaged Property" means all and any of the Equipment, Documents,
and the Insurances and any other property, assets or income
assigned by way of mortgage or charged to the Agent under or
pursuant to this Mortgage.
"Receiver" means any receiver appointed pursuant to this Mortgage.
"Secured Obligations" means all moneys now or at any time hereafter
becoming due or owing by the Mortgagor to the Secured Parties on
any account and all liabilities, actual or contingent, now existing
or hereinafter incurred by the Mortgagor to the Secured Parties
(whether due, owing or incurred by the Mortgagor alone or jointly
with any other person and whether as principal or surety).
"Secured Parties" means all and each of the Overdraft Bank, the
Agent and the Banks.
1.2 In this Mortgage (unless otherwise provided):
(a) references to Clauses and Schedules are to be construed
as references to the Clauses of, and Schedules to, this
Mortgage as amended or varied from time to time and
references to sub-Clauses shall unless otherwise
specifically stated be construed as references to the
sub-Clauses of the Clause in which the reference
appears and references to this Mortgage include its
Schedules;
(b) references to any document or agreement are to be
construed as references to such document or agreement
as is in force for the time being and as amended,
varied, novated or supplemented from time to time;
(c) words importing the singular shall include the plural
and vice versa;
(d) references to a person shall be construed so as to
include that person's assigns or transferees or
successors in title and shall be construed as including
references to an individual, firm, partnership, joint
venture, company, corporation, unincorporated body of
persons or any state or any agency thereof;
(e) references to any statute or statutory provision
include any statute or statutory provision which
amends, extends, consolidates or replaces the same, or
which has been amended, extended, consolidated or
replaced by the same, and shall include any orders,
regulations, instruments or other subordinate
legislation made under the relevant statute;
(f) the words "other" and "otherwise" shall not be
construed ejusdem generis with any foregoing words
where a wider construction is possible; and
(g) the words "including" and "in particular" shall be
construed as being by way of illustration or emphasis
only and shall not be construed as, nor shall they take
effect as, limiting the generality of any foregoing
words.
2. COVENANTS TO PAY
2.1 The Mortgagor hereby covenants with the Agent and each of the
other Secured Parties that it will on demand pay and discharge
each of the Secured Obligations when due to the Agent and the
other Secured Parties.
2.2 A certificate signed by an officer of the Agent or other Secured
Party (as the case may be) as to the money and liabilities for the
time being due or incurred to the Agent or any other Secured Party
from or by the Mortgagor shall for all purposes (in the absence of
manifest error) be conclusive evidence against and binding on the
Mortgagor.
3. MORTGAGES, ASSIGNMENTS AND FIXED CHARGES
3.1 The Mortgagor, as continuing security for the full payment and
discharge on demand of the Secured Obligations, hereby assigns
with full title guarantee absolutely to the Agent (as agent
and trustee for the Secured Parties):
(a) the Equipment and the Documents;
(b) all right, title, benefit and interest of the Mortgagor
(present, future, actual or contingent) in and to all
Insurances; and
(c) all right, title, benefit and interest of the Mortgagor
(present, future, actual or contingent) in and to all
warranties and other claims under or in connection with
the sale to and purchase by the Mortgagor of the
Equipment and/or its condition and repair and all
contracts and agreements relating thereto.
3.2 The Mortgagor and to the intent that the security hereby created
shall rank as a continuing security for the full payment and
discharge on demand of the Secured Obligations hereby charges with
full title guarantee to the Agent (as agent and trustee for the
Secured Parties) by way of fixed charge all its property, rights,
interests and other assets expressed to be assigned to the Agent
pursuant to Clause 3.1 above if and to the extent that such
assignments shall be or become ineffective but without prejudice to
any such assignments as shall continue to be effective.
3.3 The security constituted by or pursuant to this Mortgage shall be
in addition to and shall be independent of every xxxx, note,
guarantee, mortgage, pledge or other security which the Agent or
any other Secured Party may at any time hold in respect of any of
the Secured Obligations and it is hereby declared that no prior
security held by the Agent or any other Secured Party over the
Mortgaged Property or any part thereof shall merge in the security
created hereby or pursuant hereto.
4. NEGATIVE PLEDGE
The Mortgagor hereby covenants that, without the prior written
consent of the Agent, it shall not nor shall it agree or purport
to:
(a) create or permit to subsist any Encumbrance whether in
any such case ranking in priority to or pari passu with
or after the security created by this Mortgage over the
whole or any part of the Mortgaged Property; or
(b) sell, assign, transfer, or otherwise dispose of,
whether by means of one or a number of transactions
related or not and whether at one time or over a period
of time, the whole or any part of the Mortgaged
Property or any interest therein; or
(c) lease, sub-lease, hire, lend or otherwise part with the
possession or operational control of all or any of the
Equipment; or
(d) do or permit to be done any act or thing which might
jeopardise the rights of the Agent in the Mortgaged
Property or any part thereof and will not omit or allow
the omission of any act which might prevent the rights
of the Agent in the Mortgaged Property or any part
thereof from being exercised. In particular, the
Mortgagor covenants that it shall obtain and effect and
keep effective all permissions, licences and permits
which may from time to time be required in connection
with the Mortgaged Property.
5. FURTHER ASSURANCE
The Mortgagor shall from time to time, at the request of the Agent
or any Receiver and at the Mortgagor's cost, execute in favour of
the Agent, or as it may direct, such further or other legal
assignments, transfers, mortgages, charges or other documents as in
any such case the Agent or any Receiver shall reasonably stipulate
over the Mortgaged Property for the purpose of more effectively
providing security to the Agent for the payment or discharge of the
Secured Obligations. The obligations of the Mortgagor under this
Clause shall be in addition to and not in substitution for the
covenants for further assurance deemed to be included herein by
virtue of the Law of Property (Miscellaneous Provisions) Xxx 0000.
6. REPRESENTATIONS BY THE MORTGAGOR
The Mortgagor hereby represents and warrants to the Agent that at
the date of this Mortgage the Mortgagor is the sole legal and
beneficial owner of the Mortgaged Property and that the Mortgaged
Property is free from all Encumbrances.
7. INSURANCE
7.1 The Mortgagor covenants and agrees with the Agent that, at all
times during the subsistence of the security constituted by or
pursuant to this Mortgage, the Mortgagor will (as its own cost and
expense) cause the Equipment to be insured and to be kept insured
with such insurers, in such amounts and on such terms as the Agent
reasonably requires to a value not less than the full replacement
value of the Equipment and against any liability for death or
injury to any person and any loss or damage to any property
howsoever caused or arising.
7.2 The Mortgagor further covenants and agrees with the Agent that,
during the continuance of this Mortgage, the Mortgagor shall:
(a) fully and promptly comply with all the terms,
covenants, undertakings and conditions of each policy
of insurance relating to any part of the Equipment and
will not do, consent, agree to, suffer or permit any
act or omission which may invalidate any policy of
insurance relating to any part of the Equipment or
render the same unenforceable in whole or in part;
(b) ensure that the Agent is included on each policy of
insurance relating to any part of the Equipment as an
additional insured with no operational interests in the
Equipment with the effect that the provisions of each
policy of insurance, except the limits on liability,
shall operate as if there were a separate policy with
and covering each insured and so that the insurance
provided for the Agent under the policy is not
invalidated by any act or omission on the part of the
Mortgagor or its servants or agents;
(c) ensure that all Insurances contain a clause to the
effect that the policy may not be terminated, cancelled
or materially altered unless at least 30 days prior
notice of the intended termination, cancellation or
alteration has been given to the Agent;
(d) hold all slips, cover notes and contracts and policies
of insurance relating to the Equipment to the order of
the Agent and shall, on the request of the Agent,
deliver the originals or copies thereof to the Agent;
(e) duly and punctually pay all premiums and other moneys
due and payable under all such insurances as aforesaid
and promptly upon request by the Agent produce to the
Agent the premium receipts or other evidence of payment
thereof; and
(f) not terminate, cancel or amend any insurance without
the prior written consent of the Agent (such consent
not to be unreasonably withheld).
7.3 If the Mortgagor fails to procure that insurance is effected,
renewed or maintained in accordance with the provisions of this
Clause 7, the Agent shall be entitled, but not bound, to do so
either in its own name or in its name and that of the Mortgagor
jointly or in the name of the Mortgagor with an endorsement of the
Agent's interest. The moneys expended by the Agent on so effecting,
renewing or maintaining any such insurance shall be reimbursed by
the Mortgagor to the Agent on demand and until so reimbursed shall
carry interest at the Facility Rate
7.4 All claims and moneys received or receivable under any such
insurances as aforesaid shall at the direction of the Agent be
applied either in making good the loss or damage in respect of
which the same has been received or in or towards the discharge of
the Secured Obligations.
8. UNDERTAKINGS BY THE MORTGAGOR
8.1 The Mortgagor hereby covenants with the Agent that until discharge
of the security hereby created:
(a) the Mortgagor shall, at its own expense, keep the
Equipment and all parts of the same in good operational
repair and condition in all respects, and to that end
(but without limiting the generality of the foregoing)
shall carry out all necessary maintenance, overhauls,
replacements and repairs to the Equipment and all such
parts;
(b) the Mortgagor shall, at its own expense, comply with
all provisions having the force of law affecting the
Equipment or any of them or any parts thereof and shall
maintain the same in such condition so as to comply
with all laws and regulations of any country to or from
which any of the Equipment is operated or to whose
jurisdiction any of the Equipment is subject;
(c) the Mortgagor shall not knowingly employ or suffer the
employment of any of the Equipment for any illegal or
unlawful purpose;
(d) the Mortgagor shall keep accurate, complete and current
records complying with the requirements of any
applicable regulations from time to time in force and
with the recommendations of the manufacturers or
supplier of the Equipment and of parts of the same of
the location, use and condition of the Equipment and
shall upon request provide full written details thereof
to the Agent;
(e) the Agent shall have the right (through agents or
otherwise) at any time upon reasonable notice to
inspect the Equipment and the records to be kept in
accordance with Clause 8.1(d);
(f) the Mortgagor shall do all acts and things the Agent
may reasonably require to protect the Agent's interest
in the Mortgaged Property against the claims of any
other person and shall at its own cost, if requested by
the Agent, affix to each item of Equipment in a
prominent position a durable nameplate containing the
following legend:
"This [description of Equipment] is the subject of a
mortgage in favour of * dated *"
and the Mortgagor shall not remove or obscure such
nameplates and shall not permit such nameplates to be
removed or obscured and shall as soon as practicable
replace any nameplate which is removed, becomes
detached or is or becomes obscured.
8.2 the Mortgagor shall indemnify and keep the Agent indemnified
against and on demand reimburse the Agent for:
(a) all costs and expenses of operating, insuring,
maintaining and repairing the Mortgaged Property;
(b) all damages, liabilities, claims, costs and expenses
whatsoever (including financial or consequential loss)
which may at any time be made or claimed by the
Mortgagor or by any employee, servant, agent or
sub-contractor of the Mortgagor or by any third party
or parties or by their respective dependants arising
directly or indirectly out of the possession,
management, storage, operation, control, use, leasing,
maintenance and/or repair of any of the Equipment; and
(c) any losses, damages or expenses which, consequent upon
a judgment being obtained or enforced in respect of
the non-payment by the Mortgagor of any amount secured
by this Mortgage, arises or results from any variation
between the date of the said amount becoming due (or
the date of the said judgment being obtained as the
case may be) and the date of actual payment thereof in
the rates of exchange between the currency in which
such amount was due and the currency in which such
judgment was obtained and this indemnity granted from
time to time and shall continue in full force and
effect notwithstanding any judgment in favour of the
Agent.
8.3 The Mortgagor shall pay to the Agent on demand all moneys
whatsoever which the Agent shall expend, be put to or become liable
for in or about the protection or maintenance of the security
created by this Mortgage, or in or about the exercise of its powers
hereunder and shall indemnify the Agent (and as a separate covenant
any Receiver or Receivers appointed by it) against all existing and
future rents, taxes, rates, duties, fees, renewal fees, charges,
assessments, impositions and outgoings whatsoever (whether imposed
by deed or statute or otherwise and whether in the nature of
capital or revenue and even though of a wholly novel character)
which now or at any time during the continuance of the security
constituted by or pursuant to this Mortgage are properly payable in
respect of the Mortgaged Property or any part thereof or by the
owner or occupier thereof.
8.4 If any such sums as are referred to in Clause 8.3 shall be paid by
the Agent (or any Receiver or Receivers) the same shall be
reimbursed by the Mortgagor to the Agent on demand and until so
reimbursed shall bear interest at the Facility Rate.
9. ENFORCEMENT
9.1 At any time after the Agent shall have duly served notice on the
Mortgagor demanding payment or discharge by the Mortgagor of all or
any of the Secured Obligations, in whole or in part, or if
requested by the Mortgagor or after an application to the court has
been made for an administration order in relation to the Mortgagor,
the Agent may exercise without further notice and without any of
the restrictions contained in section 103 of the Law of Property
Xxx 0000 (whether or not it shall have appointed a Receiver) all
the powers conferred on mortgagees by the Law of Property Xxx 0000
and all the powers and discretions conferred by this Mortgage.
9.2 The restriction on the right of consolidating mortgage securities
contained in section 93 of the Law of Property Act 1925 shall not
apply to this Mortgage.
9.3 So far as permitted by law, neither the Agent nor any Receiver
shall, by reason of it or any Receiver entering into possession of
any part of the Mortgaged Property when entitled so to do,
be liable to account as mortgagee in possession or be liable for
any loss or realisation or for any default or omission for which
a mortgagee in possession might be liable.
10. REMEDIES
After the security hereby created has become enforceable, the Agent
shall be entitled as and when it may see fit:
(a) to take possession of all or any part of the Mortgaged
Property and to enter upon any premises where the
Mortgaged Property or any part thereof may be located,
and, where necessary for so taking possession, to
sever any of the Equipment which may have become a
fixture, PROVIDED THAT, so far as permitted by law,
neither the Agent nor any Receiver shall, by reason
of it or any Receiver entering into possession of
any part of the Mortgaged Property when entitled so to
do, be liable for any loss or realisation or for any
default or omission for which a mortgagee in possession
might be liable;
(b) to sell, call in, collect and convert into money the
Mortgaged Property or any part thereof; to repair and
keep in repair the Equipment and to insure the
Equipment against loss or damage, against such risks
and in such sums and in such manner as the Agent shall
think fit;
(c) to lease, sub-lease, enter into hire and hire-purchase,
conditional sale and other similar agreements or
otherwise deal with any or all of the Equipment on such
terms at such rents and generally upon such conditions
and stipulations as the Agent considers fit;
(d) to settle, arrange, compromise or submit to arbitration
any accounts, claims, questions or disputes whatsoever
which may arise in connection with the Mortgaged
Property or in any way relating to this security and
execute receipts, releases or other discharges in
relation thereto and to bring, take, defend,
compromise, submit to arbitration or discontinue any
actions, suits or proceedings whatsoever civil or
criminal in relation to the Mortgaged Property;
(e) to appoint a receiver of all or any part of the
Mortgaged Property upon such terms as to remuneration
and otherwise as the Agent shall deem fit;
(f) to recover from the Mortgagor on demand all reasonable
costs, charges, expenses incurred or payments made by
the Agent in connection with the execution,
registration or perfection of this Mortgage or the
exercise of any right contained in this Mortgage or in
connection with the enforcement of this Mortgage; and
(g) to execute and do all such acts, deeds and things as to
the Agent acting reasonably may appear necessary or
proper for or in relation to any of the purposes
aforesaid.
11. APPOINTMENT OF RECEIVER
11.1 At any time after the Agent shall have served notice on the
Mortgagor demanding the payment or discharge by the Mortgagor of
all or any of the Secured Obligations, in whole or in part, or if
requested by the Mortgagor or after the application to the court
for an administration order in relation to the Mortgagor under the
Insolvency Xxx 0000, the Agent may appoint one or more persons to
be a Receiver or Receivers of the Mortgaged Property or any part
thereof.
11.2 Subject to section 45 of the Insolvency Xxx 0000, the Agent may:
(a) remove any Receiver previously appointed hereunder; and
(b) appoint another person or other persons as Receiver or
Receivers, either in the place of a Receiver so removed
or who has otherwise ceased to act or to act jointly
with a Receiver or Receivers previously appointed
hereunder.
11.3 If at any time and by virtue of any such appointment(s) any two or
more persons shall hold office as Receivers of the same assets or
income, each one of such Receivers shall be entitled (unless the
contrary shall be stated in any of the deed(s) or other
instrument(s) appointing them) to exercise all the powers and
discretions hereby conferred on Receivers individually and to the
exclusion of the other or others of them.
11.4 Every such appointment or removal, and every delegation,
appointment or removal by the Agent in the exercise of any right to
delegate its powers or to remove delegates herein contained, may be
made in writing under the hand of any manager or other officer of
the Agent.
11.5 Every Receiver shall have:
(a) all the powers conferred by the Law of Property Xxx
0000 on mortgagees in possession and receivers
appointed under that Act;
(b) power in the name or on behalf and at the cost of the
Mortgagor to exercise all the powers and rights of an
absolute owner and do or omit to do anything which the
Mortgagor itself could do and to exercise all powers
conferred on the Agent under this Mortgage; and
(c) all the powers specified in Schedule 1 of the Insolvency Xxx
0000.
11.6 In making any sale or other disposal of any of the Mortgaged
Property in the exercise of their respective powers the Receiver or
the Agent may require any consideration (without prejudice to its
obligations under applicable law) and may accept, as and by way of
consideration for such sale or other disposal, cash, shares, loan
capital or other obligations, including without limitation
consideration fluctuating according to or dependent upon profit or
turnover and consideration the amount whereof is to be determined
by a third party. Any such consideration may be receivable in a
lump sum or by instalments.
11.7 All moneys received by any Receiver appointed under this Mortgage
shall be applied in the following order:
(a) in the payment of the costs, charges and expenses of
and incidental to the Receiver's appointment and the
payment of his remuneration;
(b) in the payment and discharge of any outgoings paid and
liabilities incurred by the Receiver in the exercise of
any of the powers of the Receiver;
(c) in providing for the matters (other than the
remuneration of the Receiver) specified in the first
three paragraphs of section 109(8) of the Law of
Property Xxx 0000;
(d) in or towards payment of any debts or claims which are
required by law to be paid in preference to the Secured
Obligations but only to the extent to which such debts
or claims have such preference;
(e) in or towards the satisfaction of the Secured
Obligations in accordance with the terms of this
Mortgage; and any surplus shall be paid to the
Mortgagor or other person entitled thereto.
The provisions of this Clause and Clause 11.9 shall take effect as
and by way of variation and extension to the provisions of the said
section 109(8), which provisions as so varied and extended shall be
deemed incorporated herein.
11.8 Every Receiver shall be the agent of the Mortgagor which shall be
solely responsible for his acts and defaults and for the payment of
his remuneration, costs, charges and expenses.
11.9 Every Receiver shall be entitled to remuneration for his services
at a reasonable rate to be fixed by agreement between him and the
Agent (or, failing such agreement, to be conclusively fixed by the
Agent) commensurate with the work and responsibilities involved
upon the basis of charging from time to time adopted in accordance
with his current practice or the current practice of his firm and
without being limited to the maximum rate specified in section
109(6) of the Law of Property Xxx 0000.
12. POWER OF ATTORNEY
12.1 The Mortgagor hereby irrevocably appoints the following, namely:
(a) the Agent;
(b) each and every person to whom the Agent shall from time
to time have delegated the exercise of the power of
attorney conferred by this Clause; and
(c) any Receiver appointed hereunder and for the time being
holding office as such;
jointly and also severally to be its attorney or attorneys and in
its name and otherwise on its behalf to do all acts and things and
to sign, seal, execute, deliver, perfect and do all deeds,
instruments, documents, acts and things which may be required for
carrying out any obligation imposed on the Mortgagor by or pursuant
to this Mortgage (including but not limited to the obligations of
the Mortgagor under Clause 5 (Further Assurance) and the statutory
covenant referred to in such Clause), for carrying any sale, lease
or other dealing by the Agent or such Receiver into effect, for
getting in the Mortgaged Property, and generally for enabling the
Agent and the Receiver to exercise the respective powers conferred
on them by or pursuant to this Mortgage or by law. The Agent shall
have full power to delegate the power conferred on it by this
Clause, but no such delegation shall preclude the subsequent
exercise of such power by the Agent itself or preclude the Agent
from making a subsequent delegation thereof to some other person;
any such delegation may be revoked by the Agent at any time.
12.2 The power of attorney hereby granted is as regards the Agent, its
delegates and any such Receiver (and as the Mortgagor hereby
acknowledges) granted irrevocably and for value as part of the
security constituted by this Mortgage to secure proprietary
interests in and the performance of obligations owed to the
respective donees within the meaning of the Powers of Xxxxxxxx Xxx
0000.
13. PROTECTION OF PURCHASERS
No purchaser or other person dealing with the Agent or its delegate
or any Receiver appointed hereunder shall be bound to see or
inquire whether the right of the Agent or such Receiver to exercise
any of its or his powers has arisen or become exercisable or be
concerned with notice to the contrary, or be concerned to see
whether any such delegation by the Agent shall have lapsed for any
reason or been revoked.
14. CONSOLIDATION OF ACCOUNTS AND SET-OFF
In addition to any general lien or similar rights to which they may
be entitled by operation of law, each Secured Party shall have the
right at any time and without notice to the Mortgagor to set off or
transfer any sum or sums standing to the credit of any accounts of
the Mortgagor with such Secured Party (whether current or otherwise
or subject to notice) in or towards satisfaction of the liability
of the Mortgagor to such Secured Party hereunder on any other
account or in any other respect. The liabilities referred to in
this Clause may be actual, contingent, primary, collateral, several
or joint liabilities, and the accounts, sums and liabilities
referred to in this Clause may be denominated in any currency.
15. CURRENCY
For the purpose of or pending the discharge of any of the Secured
Obligations the Agent may, in its sole discretion, convert any
moneys received, recovered or realised in any currency under this
Mortgage (including the proceeds of any previous conversion under
this Clause) from their existing currency of denomination into any
other currency at such rate or rates of exchange and at such time
as the Agent thinks fit.
16. APPLICATION
The Mortgagor shall have no rights in respect of the application by
the Secured Parties of any sums received, recovered or realised by
the Agent under this Mortgage.
17. NOTICES
17.1 Without prejudice to any other method of service of notices and
communications provided by law, a demand or notice under this
Mortgage shall be in writing signed by an officer or agent of the
Agent and may be served on the Mortgagor by hand, by post, by
facsimile transmission or by telex at the address set out above.
17.2 A notice or demand by the Agent or any Bank shall be deemed
received the day after posting if sent by first class post, or if
sent by telex or facsimile transmission shall be deemed received at
the time of despatch (or if sent outside working hours the next
day).
17.3 Any notice given to the Agent shall be deemed to have been given
only on actual receipt.
18. NEW ACCOUNTS
If the Agent or any other of the other Secured Parties receives or
is deemed to be affected by notice whether actual or constructive
of any subsequent charge or other interest affecting any part of
the Mortgaged Property and/or the proceeds of sale thereof, then
the Secured Parties may open a new account or accounts with the
Mortgagor. If the Secured Parties do not open a new account or
accounts they shall nevertheless be treated as if they had done so
at the time when the notice was, or was deemed to be, received and
as from that time all payments made to the Secured Parties shall be
credited or be treated as having been credited to the new account
or accounts and shall not operate to reduce the amount for which
this Mortgage is security.
19. REMEDIES CUMULATIVE ETC.
19.1 The rights, powers and remedies provided in this Mortgage are
cumulative and are not, nor are they to be construed as, exclusive
of any rights, powers or remedies provided by law or otherwise.
19.2 No failure on the part of the Agent to exercise, or delay on its
part in exercising, any of its respective rights, powers and
remedies provided by this Mortgage or by law (collectively the
"Rights") shall operate as a waiver thereof, nor shall any single
or partial waiver of any of the Rights preclude any further or
other exercise of that one of the Rights concerned or the exercise
of any other of the Rights.
19.3 The Mortgagor hereby agrees to indemnify the Agent and any Receiver
against all losses, actions, claims, costs, charges, expenses and
liabilities incurred by the Agent and by any Receiver (including
any substitute delegate attorney as aforesaid) in relation to this
Mortgage or the Secured Obligations (including, without limitation,
the reasonable costs, charges and expenses incurred in the carrying
of this Mortgage into effect or in the exercise of any of the
rights, remedies and powers conferred hereby or in the perfection
or enforcement of the security constituted hereby or pursuant
hereto or in the perfection or enforcement of any other security
for or guarantee in respect of the Secured Obligations) or
occasioned by any breach by the Mortgagor any of its covenants or
obligations under this Mortgage. The Mortgagor shall so indemnify
the Agent and any Receiver on demand and shall pay interest on the
sum demanded at the Facility Rate any sum so demanded together with
any interest, shall be a charge upon the Mortgaged Property in
addition to the moneys hereby secured.
20. PROVISIONS SEVERABLE
Every provision contained in this Mortgage shall be severable and
distinct from every other such provision and if at any time any one
or more of such provisions is or becomes invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining such provisions shall not in any way be affected thereby.
21. THE AGENT'S DISCRETION
21.1 Any liberty or power which may be exercised or any determination
which may be made hereunder by the Agent may be exercised or made
in the absolute and unfettered discretion of the Agent which shall
not be under any obligation to give reasons therefor.
21.2 A certificate by an officer of the Agent (a) as to the amount for
the time being due to the Agent and the other Secured Parties and
(b) as to any sums payable to the Agent hereunder shall (save in
the case of manifest error) be conclusive and binding upon the
Mortgagor for all purposes.
22. AMENDMENTS
No amendments or waiver of any provision of this Mortgage and no
consent to any departure by the Mortgagor therefrom shall in any
event be effective unless the same shall be in writing and signed
or approved in writing by the Agent, and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which it was given.
23. LAW
This Mortgage is governed by and shall be construed in accordance
with English law.
24. ASSIGNMENT
If the Secured Parties or any of them sell, assign or transfer any
of their respective Secured Obligations the Secured Parties shall
have a full and unfettered right to assign or otherwise transfer
the whole or any part of the benefit of this Mortgage to secure
such Secured Obligations and the expression the "Agent" wherever
used herein shall be deemed to include the assignees and other
successors, whether immediate or derivative, of the Agent, who
shall be entitled to enforce and proceed upon this Mortgage in the
same manner as if named herein. The Agent shall be entitled to
disclose any information concerning the Mortgagor to any such
assignee or other successor or any participant or proposed
assignee, successor or participant.
IN WITNESS whereof the Mortgagor has executed this Mortgage as a deed and the
Agent has executed this Mortgage under hand with the intention that it be
delivered on the day and year first before written.
SCHEDULE
THE EQUIPMENT
EXECUTED AS A Deed by )
HUNTINGDON LIFE )
SCIENCES LIMITED ) Director
acting by )
and by ) Director/Secretary
SIGNED for and on behalf of )
NATIONAL WESTMINSTER )
BANK Plc )
