THIS DEBENTURE is dated
and made BETWEEN:
(1) ICS UNICOMP LIMITED, UNIBOL LIMITED, ICS COMPUTING GROUP LIMITED whose
registered offices are at Xxxx Xxxxx, 00-00 Xxxxxxx Xxxx, Xxxxxx, XX0
0XX and AURORA UNICOMP LIMITED whose registered office is at Xxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxxxx, XX00 0XX (the `Guarantor'); and
(2) SX3 LIMITED whose registered office is at 000 Xxxxxx Xxxx, Xxxxxxx XX0
0XX (the `Lender')
WHEREAS
(a) By a Loan Agreement of even date the Lender agreed to make available a
loan of (Pounds)1,000,000 to UniComp Holdings (UK) Limited having its
registered office at Xxxx Xxxxx 00-00 Xxxxxxx Xxxx Xxxxxx XX0 0XX
(hereinafter called "the Borrower") upon condition that the same be
secured (inter alia) by Guarantees by the Guarantor to be further
secured in the manner hereinafter set forth.
(b) The Guarantor and each of them have executed a Guarantee in pursuance
of the Loan Agreement.
(c) The Guarantor owns the freehold and leasehold premises, short
particulars of which are set forth in the Schedule hereto.
WITNESSES as follows:
References to the Guarantor shall mean each and every one of the Guarantor or
any one of them as the case may be.
1. COVENANT TO PAY
1.1 The Guarantor covenants when the same shall be or become due or, in the
absence of any specified due date, on demand to pay and discharge to
the Lender all monies obligations and liabilities whether principal
interest or
1
otherwise which may now or at any time in the future be due owing or
incurred by the Borrower to the Lender whether actual or contingent and
whether alone severally or jointly as principal guarantor surety or
otherwise and in whatever name or style and whether on any current or
other account or in any other manner together with interest charges and
other expenses so that interest shall be calculated and compounded in
accordance with the usual practice of the Bank of Ireland from time to
time as well after as before any demand made or judgment obtained
hereunder under the terms of the Loan Agreement hereinbefore referred
to.
2. CHARGE
2.1 The Guarantor as beneficial owner and as a continuing security for the
payment or discharge of all monies obligations and liabilities hereby
covenanted to be paid or discharged by the Guarantor:
(a) hereby grants demises charges and assigns unto the Lender the
hereditaments and premises described in the Schedule hereto
and all buildings fixed plant machinery and other things of
the nature of fixtures which are now or may at any time during
the continuance of the security be thereon;
(i) to hold so much thereof as is held in fee simple unto
and to the use of the Lender in fee simple;
(ii) to hold so much thereof as is held in fee farm unto
the Lender for 10,000 years without impeachment of
waste;
(iii) to hold so much thereof as is of leasehold tenure
unto the Lender for the residue of the term or terms
of years for which the same are held except the last
three days of such term without impeachment of waste
and;
(iv) so much thereof as consists of lands registered in
the Land Registry of Northern Ireland with all monies
lent or to be lent by the Lender to the Company with
interest thereon and the Company hereby assents to
the registration of the Charge hereby created as a
burden affecting the said lands;
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(b) hereby charges by way of first fixed charge:
(i) all freehold leasehold and other immovable property
now or in the future belonging to the Guarantor
together with all buildings, trade and other
fixtures, fixed plant and machinery of the Guarantor
from time to time thereon;
(ii) all plant and machinery now or in the future
belonging to the Guarantor other than fixed plant and
machinery;
(iii) all book debts and other debts now or in the future
due or owing to the Guarantor;
(iv) all stocks shares and other securities now or in the
future belonging to the Guarantor together with all
dividends and other rights deriving therefrom;
(v) the goodwill of the Guarantor and its uncalled
capital for the time being;
(vi) all patents trade marks service marks designs and
other intellectual property rights choses in action
and claims and all fees, royalties and other rights
of every kind deriving therefrom now or in the future
belonging to the Guarantor;
(c) hereby charges by way of first floating charge the whole of
the Guarantor's undertaking and all its property and assets
whatsoever and wheresoever present and future other than the
property and assets from time to time effectively charged to
the Lender by way of legal mortgage or fixed charge by this
Debenture.
2.2 The Lender may convert the floating charge at any time by notice in
writing to the Guarantor into a fixed charge as regards all the
property and assets which for the time being are the subject of such
floating charge or, as the case may be, such of the said property and
assets as are specified by such notice.
2.3 The security from time to time constituted by or pursuant to this
Debenture shall be in addition to and shall not prejudice determine or
affect any other security which the Lender may from time to time hold
for or in respect of all or any part of the monies obligations and
liabilities hereby secured. No prior security held
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by the Lender over the property charged by this Debenture or any part
of it shall merge in the security created hereby or pursuant hereto
which will remain in force and effect as a continuing security until
discharged by the Lender.
3. RESTRICTIONS ON DEALING
3.1 The Guarantor shall not without the prior written consent of the
Lender:
(a) create or permit to subsist any mortgage charge pledge
hypothecation lien (other than a lien arising by operation of
law) or other security interest on any of its assets ranking
in priority or pari passu with the fixed and floating charges
hereby created other than this Debenture;
(b) sell transfer lease lend or otherwise dispose of the whole or
any part of its undertaking or (save in the normal course of
trading at not less than market value) of its assets or enter
into any agreement or grant any option for any such sale
transfer lease loan or other disposal;
(c) part with possession of any freehold or leasehold property
grant or agree to grant any option or any licence tenancy or
other right of occupation to any person or exercise the powers
of leasing or agreeing to lease or of accepting or agreeing to
accept surrenders conferred by Section 18 of the Conveyancing
Xxx 0000 and Section 3 of the Conveyancing Xxx 0000 provided
that such restrictions shall not be construed as a limitation
on the powers of any receiver appointed under this Debenture
and being an agent of the Guarantor and the Lender may grant
or accept surrenders of leases without restriction;
(d) pull down or remove or redevelop or make any material
alteration to the whole or any part of any buildings or sever
unfix or remove any fixtures or remove any plant or machinery
belonging to or in use by the Guarantor except for the purpose
of effecting repairs or replacing the same.
4. COVENANTS BY THE GUARANTOR
4.1 The Guarantor shall:
(a) keep all buildings and all plant machinery fixtures and
fittings in good
4
repair and condition and permit any person or persons
nominated by the Lender free access at all reasonable times to
view the state and condition thereof;
(b) insure and keep insured such of its property as is insurable
with such insurer and against such risks and in such amounts
and otherwise in such terms as the Lender may require and will
maintain such other insurances as are normally maintained by
prudent companies carrying on similar businesses with the
interest of the Lender noted upon all policies of such
insurance or, if the Lender shall require, in the joint names
of the Guarantor and the Lender and will produce or deposit
with the Lender all such policies and receipts for all premium
and other payments necessary for effecting and maintaining
such insurances;
(c) subject to any rights of a lessor apply any insurance proceeds
in making good the loss or damage or at the Lender's option in
or towards the discharge of the monies obligations and
liabilities secured by this Debenture;
(d) punctually pay all rents taxes duties assessments and other
outgoings and observe and perform all restrictive and other
covenants under which any of the property subject to this
Debenture is held;
(e) deal with its book or other debts and all licence fees,
royalties and other monies deriving from its intellectual
property in accordance with any directions from time to time
given in writing by the Lender and in default of and subject
to any such directions not release factor sell at discount
charge assign or otherwise deal with such debts, licence fees,
royalties or other monies otherwise than by getting in and
paying the same into such account;
(f) permit to furnish directly to the Lender from time to time
upon request full statements and particulars of all the
Guarantor's accounts with the and such other financial
statements information respecting the assets and liabilities
of the Guarantor as are from time to time available to the
Lender;
(g) subject to the rights of any prior mortgagee deposit with the
Lender all deeds certificates and documents constituting or
evidencing title to the
5
property or any part thereof charged by this Debenture and all
insurance policies;
(h) comply with the provisions of all present or future statutes
and directives and every notice order or direction made under
any of the foregoing;
(i) provide the Lender with all financial and other information
with respect to the assets, liabilities and affairs of the
Guarantor and its subsidiaries and associated companies (if
any) that the Lender may from time to time require.
4.2 If the Guarantor shall fail to satisfy the Lender that it has performed
any of its obligations under clause 4.1 then the Lender may take such
steps as it considers appropriate to procure the performance of such
obligation and shall not thereby be deemed to be a mortgagee in
possession and the monies expended by the Lender shall be reimbursed by
the Guarantor on demand and until so reimbursed shall carry interest as
mentioned in clause 1 from the date of payment to the date of
reimbursement.
5. ENFORCEMENT
5.1 This Debenture shall become enforceable:
(a) if any of the monies obligations and liabilities secured by
this Debenture shall not be paid or discharged by the
Guarantor in accordance with clause 1; or
(b) if the Guarantor shall be in breach of any provision of this
Debenture or of any agreement containing any terms and
conditions of or applicable to the monies obligations and
liabilities secured by this Debenture; or
(c) upon the presentation of a petition for the winding up of the
Guarantor or the making of an order for the winding up of the
Guarantor or the passing by the Guarantor of a resolution for
voluntary winding up; or
(d) if an encumbrancer shall take possession of or a receiver
shall be appointed over or any secured creditor of the
Guarantor shall seek to enforce his security in respect of all
or any of the property or assets charged by this Debenture; or
(e) if a petition shall be presented for an administration order
in relation to
6
the Guarantor; or
(f) if the Guarantor shall enter into any composition or
arrangement for the benefit of its creditors; or
(g) any other event shall take place which in the opinion of the
Lender puts in jeopardy all or any part of the security
created by this Debenture.
5.2 Section 20 of the Conveyancing Act 1881 shall not apply and the
statutory power of sale and all other powers under that or any other
Act as varied or extended by this Debenture shall arise on and be
exercisable at any time after the Lender shall have demanded the
payment or discharge by the Guarantor of all or any of the monies
obligations and liabilities secured by this Debenture.
5.3 Section 17 of the Conveyancing Xxx 0000 dealing with the consolidation
of mortgages shall not apply to this Debenture.
6. RECEIVER
6.1 At any time after this Debenture has become enforceable or if the
Guarantor so requests in writing the Lender may without further notice
to the Guarantor appoint by writing under hand or under seal any one or
more persons either singly jointly severally or jointly and severally
to be a receiver, receiver and manager or administrative receiver (each
a `Receiver') of all or any part of the property charged by this
Debenture and either at the time or appointment or any time thereafter
may fix his or their remuneration and except as otherwise required by
statute may remove any such Receiver and appoint another or others in
his or their place.
6.2 Any Receiver shall be the agent of the Guarantor which shall be solely
responsible for his acts and defaults and the payment of his
remuneration.
6.3 Any Receiver shall subject to any liabilities or restrictions expressed
in the deed or instrument appointing him have all the powers conferred
by the Conveyancing Xxx 0000 to 1911 and the Insolvency (NI) Order 1989
on mortgagors mortgagees
7
in possession (but without liability as such) receivers administrative
receivers and administrators appointed under those Acts which in the
case of joint receivers may be exercised either jointly or severally.
In addition, but without prejudice to the generality of the foregoing
the Receiver shall have power (in the name of the Guarantor or
otherwise and in such manner and on such terms and conditions as he
shall think fit) to:
(a) take possession of collect and get in all or any part of the
property in respect of which he is appointed and for that
purpose to take any proceedings;
(b) carry on or concur in carrying on the business of the
Guarantor and to raise money on the security of any property
charged by this Debenture;
(c) purchase or acquire any land and purchase, acquire and grant
any interest in or right over land;
(d) sell or concur in selling let or concur in letting and
terminate or accept surrenders of leases or tenancies of any
of the property charged by this Debenture and to carry any
such transactions into effect;
(e) sell, assign let or otherwise dispose of or concur in selling,
assigning, letting or otherwise disposing of all or any of the
debts and any other property in respect of which he is
appointed;
(f) make any arrangement or compromise between the Guarantor and
any other person which he may think expedient;
(g) make and effect all repairs improvement and insurances;
(h) purchase materials tools equipment goods or supplies;
(i) call up any uncalled capital of the Guarantor with all the
powers conferred by the Articles of Association of the
Guarantor in relation to calls;
(j) employ engage and appoint managers and other employees and
professional advisers;
(k) do all such other acts and things as may be considered to be
incidental or conducive to any other matters or powers
aforesaid or to the realisation of the security constituted by
this Debenture and which he lawfully may or can do.
7. APPLICATION OF PROCEEDS
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7.1 Any monies received by the Lender or any Receiver shall subject to the
repayment of any claims having priority to the charges created by this
Debenture be applied in the following order but without prejudice to
the right of the Lender to recover any shortfall from the Guarantor:
(a) in the payment of all costs charges and expenses of and
incidental to the appointment of the Receiver and the exercise
of all or any of his powers and of all outgoings paid by him;
(b) in the payment of the Receiver's remuneration;
(c) in or towards the satisfaction of the monies obligations and
liabilities secured by this Debenture in such order as the
Lender in its absolute discretion thinks fit;
(d) in payment of the surplus (if any) to the person or persons
entitled to it.
8. PROTECTION OF THIRD PARTIES
8.1 No person dealing with a Receiver or the Lender shall be concerned to
enquire whether any power which he or it is purporting to exercise has
become exercisable or whether any money is due under this Debenture or
as to the application of any money paid raised or borrowed or as to the
propriety or regularity of any sale by or other dealing with such
Receiver or the Lender. All the protection to purchasers contained in
Section 21 of the Conveyancing Xxx 0000 and Section 5 of the
Conveyancing Xxx 0000 and Section 24 of the Conveyancing Act 1881 shall
apply to any person purchasing from or dealing with a Receiver or the
Lender.
9. ENTRY INTO POSSESSION
9.1 If the Lender or any Receiver shall enter into possession of the
property hereby charged or any part thereof it or he may from time to
time and at any time go out of such possession. Neither the Lender nor
any Receiver shall in any circumstances (either by reason of any entry
into or taking of possession of any such property or for any other
reason and whether as mortgagee in possession
9
or on any other basis) be liable to account to the Guarantor for
anything except its or his actual receipts or be liable to the
Guarantor for any loss or damage arising from any realisation of the
property hereby charged or from any act default or omission in relation
thereto.
10. POWER OF ATTORNEY
10.1 The Guarantor irrevocably appoints the Lender any Receiver and any
person nominated by the Lender jointly and also severally to be the
attorney of the Guarantor with the power of substitution and in its
name and otherwise on its behalf and as its act and deed to sign or
execute all deeds instruments and documents which the Lender or any
Receiver may require or deem proper for any of the purposes of or which
the Guarantor ought to do under this Debenture. The Guarantor agrees to
ratify and confirm anything such attorney shall lawfully and properly
do.
11. CURRENCY INDEMNITY
11.1 For the purpose of or pending the discharge of any of the monies
obligations and liabilities secured by this Debenture the Lender may
convert any monies received recovered or realised by the Lender under
this Debenture (including the proceeds of any previous conversion) from
their existing currency into such other currency as the Lender may
think fit and any such conversion shall be effected at the Lender's
then prevailing spot selling rate of exchange for such other currency
against the existing currency. As a separate and independent obligation
the Guarantor agrees to indemnify and hold harmless the Lender against
any shortfall between any amount received or recovered by it in respect
of any payment due under this Debenture and converted in accordance
with the clause into the currency in which such amount was payable and
the amount in such currency which was due and payable to the Lender
under this Debenture.
12. PRIOR CHARGES
12.1 If there is any encumbrance over any of the property charged by this
Debenture
10
which ranks in priority to this Debenture and any proceedings or steps
are taken to exercise or enforce any powers or remedies conferred by
such prior encumbrance the Lender or any Receiver appointed under this
Debenture in respect of such property may (but without prejudice to any
rights the Receiver may have under the Insolvency (NI) Order 1989)
redeem such prior encumbrance or procure its transfer to itself and may
settle and pass the accounts of any prior mortgagee chargee or
encumbrancer. Any account so settled and passed shall be conclusive and
binding on the Guarantor and all the principal interest costs charges
and expenses of and incidental to such redemption or transfer shall be
secured on the property charged by this Debenture and all the powers
conferred by any prior encumbrance upon the encumbrancer or any
receiver thereunder shall be exercisable by the Lender or a Receiver in
like manner as if the same were expressly included in this Debenture.
13. FURTHER ASSURANCE
13.1 The Guarantor shall whenever requested by the Lender immediately
execute and sign all such deeds and documents and do all such things as
the Lender may require at the Guarantor's cost over any property or
assets specified by the Lender for the purpose of perfecting or more
effectively providing security to the Lender for the payment and
discharge of the monies obligations and liabilities secured by this
Debenture.
14. COSTS AND INDEMNITY
14.1 All costs charges and expenses properly incurred by the Lender in
relation to this Debenture or the monies and liabilities hereby secured
shall be reimbursed by the Guarantor to the Lender on demand on a full
indemnity basis and until so reimbursed shall carry interest as
mentioned in clause 1 from the date of payment to the date of
reimbursement and be secured on the property charged by this Debenture.
11
14.2 The Lender and every Receiver attorney or other person appointed by the
Lender under this Debenture and their respective employees shall be
entitled to be indemnified on a full indemnity basis out of the
property charged by this Debenture in respect of all liabilities and
expenses properly incurred by any of them in or directly or indirectly
as a result of the exercise or purported exercise of any of the powers
authorities or discretions vested in them under this Debenture and
against all actions proceedings losses costs claims and demands in
respect of any matter or thing done or omitted in any way relating to
the property charged by this Debenture and the Lender and any such
Receiver may retain and pay all sums in respect of the same out of the
monies received under the powers conferred by this Debenture.
15. MISCELLANEOUS
15.1 The Lender may without discharging or in any way affecting the security
created by this Debenture or any remedy of the Lender grant time or
other indulgence or abstain from exercising or enforcing any remedies
securities guarantees or other rights which it may now or in the future
have from or against the Guarantor and may make any arrangement
variation or release with any person or persons without prejudice
either to this Debenture or the liability of the Guarantor for the
monies obligations and liabilities secured by this Debenture.
15.2 The Lender shall have a full and unfettered right to assign the whole
or any part of the benefit of this Debenture and the expression `the
Lender' shall include its successors and assigns and the Lender shall
be entitled to disclose any information to any actual or prospective
assignee successor or participant.
15.3 The provisions of this Debenture shall be severable and if at any time
any one or more such provisions is or becomes invalid illegal or
unenforceable the validity legality and enforceability of the remaining
provisions shall not in any way be impaired.
15.4 The rights and remedies of the Lender provided by this Debenture are
12
cumulative and are not exclusive of any rights powers or remedies
provided by law and may be exercised from time to time and as often as
the Lender may deem expedient.
15.5 Any reference in this Debenture to any statute or any section of any
statute shall be deemed to include reference to any statutory
modification or re-enactment thereof for the time being in force.
16. REPRESENTATIONS WARRANTIES AND COVENANTS BY THE GUARANTOR
16.1 The Guarantor represents and warrants to the Lender and undertakes
that:-
(a) the Guarantor has acquired and maintained all environmental
licences required by its use or occupation of the properties
referred to in the Schedule and the premises or for the
conduct of its business as it has been and is currently being
carried on and has complied with all terms and conditions
relating thereto and with all other applicable environmental
laws which would have a material adverse affect on the
Guarantor's ability to perform its obligations under this
Debenture and has done or permitted any acts or omission
whereby any such environmental licence would be liable to be
varied or revoked;
(b) there has been no discharge spillage release or emission of
any prescribed dangerous noxious or offensive substance or any
controlled waste on into or from any of the properties or
premises, so far as the Guarantor is aware, any premises
adjoining any of them and no such substances or any controlled
waste have been stored or disposed of on or in any of the
properties or premises or, insofar as the Guarantor is aware,
any premises adjoining them except in accordance with the
requirements of the applicable environmental laws;
(c) the Guarantor is not in breach of and has not incurred or
become subject to any civil of criminal liability under any
environmental law or the terms of any environmental licence
which it would have a material adverse affect on the
Guarantor's ability to perform its obligations under this
Debenture;
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(d) the Guarantor has obtained and maintained all such insurance
policies as would be maintained by prudent companies carrying
on business of the type carried on by the Guarantor at all
relevant times and has complied in all material respects with
the terms and conditions of such policies.
17. NOTICES
17.1 Any demand or notice under this Debenture shall be in writing signed by
any manager or officer of the Lender or of any branch thereof and may
be served personally on any director or the secretary of the Guarantor
or may be sent by post or facsimile or may be delivered to the
registered office of the Guarantor or its last known place of business.
If such demand or notice is sent by post it shall be deemed to have
been received on the day following the day on which it was posted and
shall be effective notwithstanding that it was not in fact delivered or
was returned undelivered. If sent by facsimile it shall be deemed to
have been received (whether or not actually received) at the time of
dispatch.
18. GOVERNING LAW AND JURISDICTION
18.1 This Debenture shall be governed by and construed in accordance with
the laws of Northern Ireland and the Guarantor irrevocably submits to
the non-exclusive jurisdiction of the Northern Ireland Courts.
19. LAND REGISTRY
19.1 The Guarantor certifies that this Debenture does not contravene its
Memorandum and Articles of Association and has been executed in
accordance therewith.
20. The Guarantor hereby declares that the Guarantor shall hold all the
Guarantor's estate and interest from time to time in the lands and
premises and hereditaments specifically mortgaged or charged herein and
shall as from the date of crystallisation of any floating charge hold
all its estate and interest from
14
time to time in the lands premises and hereditaments therein comprised
whether in respect of freehold or leasehold reversions or otherwise
howsoever upon trust to convey assign or otherwise deal with the same
in such manner and to such person (whether to the Lender or its nominee
or otherwise) as the Lender its successors or assigns shall direct and
declares that it shall be lawful for the Lender during the continuance
of this security to remove the Company or any other person from being
trustee and to appoint the Lender or any person a new trustee or new
trustees of the said property and thereupon to make a declaration
vesting all the estate and interest of the Company in the said property
in such new trustee or trustees and so (but without prejudice to the
generality of the foregoing (that any such new trustee or trustees may
be any receiver or receivers of the said property appointed by the
Lender under the powers therein contained.
IN WITNESS whereof the parties hereto have caused their respective Common and
Corporate Seals to be hereunto affixed the day and year first herein written.
SCHEDULE
PREMISES OWNED BY:
(1) ICS Unicomp Ltd
Site 00 Xxxxxxxx Xxxxxxxx Xxxx
000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxxxxx Xxxxxx
Belfast
BT3 9ED
(2) Unibol Limited
Unicomp House
Victoria Business Park
Xxxx Xxxx Xxxx
Xxxxxxx
00
XX00 0XX
and
Warehouse
0 Xxxxxxxxx Xxxx
Xxxxxxxxx
Xx. Xxxxxx
EXECUTED as a Deed by ICS UNICOMP :
LIMITED in the presence of: :
:
____________________ :
Director :
:
____________________ :
Director/Secretary :
EXECUTED as a Deed by UNIBOL LIMITED :
in the presence of: :
:
____________________ :
Director :
:
____________________ :
Director/Secretary :
EXECUTED as a Deed by :
ICS COMPUTING GROUP LIMITED in the :
presence of: :
16
:
____________________ :
Director :
:
____________________ :
Director/Secretary :
EXECUTED as a Deed by :
AURORA UNICOMP LIMITED in the :
presence of: :
:
____________________ :
Director :
:
____________________ :
Director/Secretary :
Signed by :
FOR AND ON BEHALF OF SX3 LIMITED :
IN THE PRESENCE OF: :
17
DATED THIS DAY OF 199
ICS Unicomp Limited, Unibol Limited, ICS Computing Group Limited
and
Aurora Unicomp Limited
-to-
SX3 Limited
-----------------------------------------------
FIXED and FLOATING CHARGE and DEBENTURE
----------------------------------------------
Messrs Xxxxxx & XxXxxxxx
Solicitors
Xxxxxx Xxxxx
0/0 Xxxxxx Xxxxxx
XXXXXXX
XX0 0XX
18
