DATED DECEMBER 15, 1999
CERPLEX LIMITED
and
BURDALE FINANCIAL LIMITED
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DEED OF DEBENTURE
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XXXXXXX
INDEX
Clause Page
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1. INTERPRETATION..........................................................................................1
2. FIXED SECURITY..........................................................................................5
3. FLOATING CHARGE.........................................................................................7
4. INTEREST................................................................................................8
5. REPRESENTATIONS AND WARRANTIES..........................................................................8
6. UNDERTAKINGS...........................................................................................11
7. DEFAULT................................................................................................19
8. WHEN SECURITY BECOMES ENFORCEABLE......................................................................20
9. ENFORCEMENT OF SECURITY................................................................................20
10. RECEIVER...............................................................................................21
11. POWERS OF RECEIVER.....................................................................................22
12. APPLICATION OF PROCEEDS................................................................................24
13. EXPENSES AND INDEMNITY.................................................................................25
14. DELEGATION.............................................................................................25
15. FURTHER ASSURANCES.....................................................................................25
16. POWER OF ATTORNEY......................................................................................25
17. MISCELLANEOUS..........................................................................................26
18. RELEASE................................................................................................27
19. NOTICES................................................................................................27
20. GOVERNING LAW..........................................................................................27
SCHEDULES
1. The Mortgaged Property..............................................................................29
2. Forms of Notice to Banks and Acknowledgement........................................................30
3. Group Shares........................................................................................38
4. Credit Insurance Policies...........................................................................39
5. Form of Notice to Insurers and Acknowledgement......................................................40
6. Form of Notice to be affixed to invoices and sent to Account Debtors................................43
7. Other Accounts......................................................................................44
SIGNATORIES..................................................................................................45
THIS DEED OF DEBENTURE is dated 1999
BETWEEN:
(1) CERPLEX LIMITED (Registered in England and Wales No. 2953372) (the
"Company"); and
(2) BURDALE FINANCIAL LIMITED (Registered in England and Wales No. 2656007)
("Burdale").
BACKGROUND:
(A) The Company enters into this Deed to secure the repayment and satisfaction
of the Secured Liabilities.
(B) The Company and Burdale intend that this document take effect as a deed
notwithstanding that it may be executed under hand.
IT IS AGREED:
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed:
"ACCOUNT BANKS" is defined in the Facility Agreement.
"AMOUNTS" means the aggregate of the Blocked Amounts and the Other
Amounts.
"ASSIGNABLE RECEIVABLES" means all Receivables which are not
Unassignable Receivables or Purchased Receivables.
"BLOCKED ACCOUNT" is defined in the Facility Agreement.
"BLOCKED AMOUNTS" means all sums from time to time standing to the
credit of the Blocked Account, all interest on such sums and all other
amounts of whatever nature deriving directly or indirectly from such
sums, whether or not credited to the Blocked Account.
"BOOK DEBTS" means:
(a) all book and other debts in existence from time to time (including,
without limitation, any sums whatsoever owed by banks or similar
institutions) both present and future, due, owing to or which may
become due, owing to or purchased or otherwise acquired by the Company;
and
(b) the benefit of all rights whatsoever relating to the debts referred to
above including, without limitation, any related agreements, documents,
rights and remedies
(including, without limitation, negotiable or non-negotiable
instruments, guarantees, indemnities, legal and equitable charges,
reservation of proprietary rights, rights of tracing, unpaid vendor's
liens and all similar connected or related rights and assets).
"CHARGED ACCOUNTS" means the Blocked Account and the Other Accounts.
"DANGEROUS SUBSTANCE" means any substance of whatever kind and form
and in whatever combination capable of causing harm to any lifeform
or the environment.
"ENVIRONMENTAL LAW" means all laws, regulations, directives, statutes
and any guidance, circular or regulations issued thereunder,
subordinate legislation, common law, equity, all other international,
national and local laws and all judgments, orders, instructions or
awards of any court or competent authority concerning the protection
of or compensation for damage to human health, the environment, or
the condition, of any work place or the generation, dealing with, or
disposal of any Dangerous Substance.
"ENVIRONMENTAL LICENSE" means any consent, approval, authorisation,
exemption, licence, order, permission, condition, recording,
registration, variation, modification or transfer required by any
Environmental Law.
"EQUIPMENT" means all present and future plant, equipment, machinery,
computers and computer hardware and software (whether owned or
licensed), vehicles, tools, furniture and fixtures and all
attachments, accessories owned by the Company and property (other
than Fixtures) now or in future relating to it or used in connection
with it and replacements and substitutions for it wherever located.
"EVENT OF DEFAULT" is defined in the Facility Agreement.
"FACILITY AGREEMENT" means the facility agreement dated on or about
the date of this Deed between Burdale and the Company as Borrower.
"FINANCE DOCUMENTS" is defined in the Facility Agreement.
"FIXTURES" means all fixtures and fittings (including those of trade)
and fixed plant and machinery on the Mortgaged Property.
"GROUP SHARES" means all shares specified in Schedule 3 together with
all other stocks, shares, debentures, bonds, warrants, coupons or
other securities and investments now or in the future owned by the
Company from time to time;
"INSURANCES" means all contracts and policies of insurance taken out
by or for the Company or in which the Company has an interest (to the
extent of that interest) including, without limitation, the credit
insurance policies specified in Schedule 4.
"INTELLECTUAL PROPERTY" means all subsisting patents and subsisting
rights of a similar nature held in any part of the world,
applications for patents and such rights, divisions and continuations
of such applications for patents, registered and unregistered trade
marks, registered and unregistered service marks, registered designs,
utility models (in each case for their full period and all extensions
and renewals of them), applications for any of them
and the right to apply for any of them in any part of the world,
inventions, confidential information, Know-how, business names, trade
names, brand names, copyright and rights in the nature of copyright,
design rights and get-up and any similar rights existing in any
country; and the benefit (subject to the burden) of any and all
agreements, arrangements and licences in connection with any of the
foregoing.
"KNOW-HOW" means all the body of knowledge, technical experience,
expertise and skills, technical processes, secret processes, formulae
and technical information held by the Company and relating to its
business, which is not in the public domain.
"MORTGAGED PROPERTY" means any freehold or leasehold property
(including the Premises) the subject of the security created by this
Deed.
"OTHER ACCOUNTS" means the bank accounts of the Chargor specified in
Schedule 7 and/or such other bank accounts of the Chargor with
Account Banks as Burdale may permit.
"OTHER AMOUNTS" means all sums from time to time standing to the
credit of the Other Accounts, or withdrawn from the Blocked Account
for payment into (but not yet credited to) any of the Other Accounts,
all interest on such sums and all other amounts of whatsoever nature
deriving directly or indirectly from such sums, whether or not
credited to the Other Accounts.
"PERMITTED ENCUMBRANCE" means any Encumbrance which the Company is
permitted to create or maintain under the terms of the Facility
Agreement.
"PLANNING ACTS" means the Town and Country Planning Xxx 0000, the
Planning (Listed Buildings and Conservation Areas) Xxx 0000, the
Planning (Hazardous Substances) Xxx 0000, the Planning (Consequential
Provisions) Xxx 0000 and the Planning and Compensation Xxx 0000 and
all other legislation regulating the use and development of land.
"PREMISES" means any building or other edifice on the Mortgaged
Property or other Security Asset.
"PURCHASED RECEIVABLES" is defined in the Facility Agreement.
"RECEIVABLE" is defined in the Facility Agreement.
"RECEIVER" means a receiver and manager or (if Burdale so specifies
in the relevant appointment) a receiver, in either case, appointed
under this Deed or pursuant to any statute.
"RELATED RIGHTS" means, in relation to the Group Shares, all
dividends and other distributions paid or payable after today's date
on all or any of the Group Shares and all stocks, shares, securities
(and the dividends or interest on them), rights, money or property
accruing or offered at any time by way of redemption, bonus,
preference, option rights or otherwise to or in respect of any of the
Group Shares or in substitution or exchange for any of the Group
Shares.
"REPORT ON TITLE" means any title report or certificate of title
pertaining to the Mortgaged Property and provided to Burdale before
today's date.
"SECURED LIABILITIES" means all present and future obligations and
liabilities, whether actual or contingent and whether owed jointly or
severally or in any other capacity whatsoever, of the Company to
Burdale except for any obligation which, if it were so included,
would result in a contravention of section 151 of the Companies Xxx
0000.
"SECURITY ASSETS" means all assets of the Company the subject of any
security created by this Deed (and includes the Mortgaged Property).
"SECURITY PERIOD" means the period beginning on the date of this Deed
and ending on the date on which Burdale is satisfied that the Secured
Liabilities have been irrevocably and unconditionally satisfied in
full. If Burdale considers that any amount paid by the Company and/or
in connection with the satisfaction of the Secured Liabilities is
capable of being avoided or otherwise set aside on the liquidation or
administration of the Company or otherwise, then that amount shall
not be considered to have been irrevocably paid for the purpose of
this Deed.
"SECURITY SHARES" means the Group Shares and the Related Rights.
"STOCK" means the Company's stock and inventory at any time which,
for the avoidance of doubt, includes Eligible Stock and any other
finished goods, raw materials or unfinished goods.
"UNASSIGNABLE RECEIVABLES" means any Receivables which are or become
unassignable or assignable only with the prior consent of the
relevant Account Debtor (where such consent has not been obtained)
and which are not Purchased Receivables.
1.2 CONSTRUCTION
(a) Any reference in this Deed to any assets or accounts includes
present and future assets or accounts and any substitutes of
such assets or accounts, unless the context requires otherwise.
(b) Any reference in this Deed, express or implied, to any enactment
includes references to any amendment, re-enactment, and/or
legislation subordinate to that enactment and/or any permission
of whatever kind given under that enactment.
(c) The headings in this Deed do not affect its interpretation.
(d) Any reference in this Deed to a charge or mortgage of any
freehold or leasehold property includes all Premises and
Fixtures on that property, the proceeds of sale of any part of
that property, and the benefit of any covenants for title (or
any moneys paid or payable in respect of them) given or entered
into by any predecessor in title in respect of that property.
(e) Any obligation in this Deed to commit or not to commit any act
or thing shall be deemed to include a like obligation to procure
or not to permit any such act or thing.
(f) Any reference in this Deed to, and the definition of, any
document (including this Deed) is a reference to such document
as it may be amended, supplemented, modified and replaced (in
whole or in part), but disregarding any such change taking place
otherwise than in accordance with this Deed.
(g) Any reference in this Deed to any party or person includes any
person deriving title from it or any successor, transferee or
assignee.
(h) Any reference in this Deed to a "person" includes any
individual, company, corporation, partnership, firm, joint
venture, association, organisation, trust, state or state agency
(in each case, whether or not having a separate legal
personality).
(i) Save where the context requires otherwise, words in this Deed in
the singular shall include the plural and vice versa.
(j) A reference in this Deed to Clauses and Schedules are a
reference to the clauses of and schedules to this Deed.
(k) Capitalised terms defined in the Facility Agreement have the
same meaning when used in this Deed unless the context requires
otherwise.
(l) In the event of any conflict between the provisions of this Deed
and the provisions of the Facility Agreement, the provisions of
this Deed shall prevail.
2. FIXED SECURITY
2.1 CREATION
The Company, as security for the payment and performance of the
Secured Liabilities and in the manner specified in Clause 2.3 of this
Deed:
(a) charges in favour of Burdale by way of a first legal mortgage
all the property (if any) now belonging to it and specified in
Schedule 1 and all other interests in any freehold or leasehold
property now or in the future belonging to it; and
(b) charges in favour of Burdale by way of a first fixed charge:
(i) (to the extent that they are not within paragraph 2.1(a))
all interests in any freehold or leasehold property now
or in the future belonging to it;
(ii) all of its rights and benefit under any agreement
relating to the acquisition of the Mortgaged Property by
it or for it and the benefit of all agreements,
contracts, deeds, undertakings, guarantees, warranties
and other documents now or hereafter in existence in
relation to the Mortgaged Property;
(iii) all Equipment now or in the future belonging to it and its
interest in any Equipment in its possession now or in the
future and in all Fixtures;
(iv) all of its benefits, claims and returns of premiums in
respect of the Insurances;
(v) all moneys standing to the credit of any account (including
the Charged Accounts and notwithstanding that the existence
of such an account may be in breach of this Deed) with any
person and the debts represented by them including, without
limitation, the Blocked Amounts and the Other Amounts;
(vi) its goodwill and its uncalled capital;
(vii) its Book Debts, both uncollected and collected, the proceeds
of the same and all moneys otherwise due and owing to it;
(viii) the benefit of all rights, securities and guarantees of
whatsoever nature enjoyed or held by it in relation to
anything in sub-paragraph 2.1(b)(vii);
(ix) its rights under any hedging arrangements;
(x) any of its beneficial interest, claim or entitlement in any
pension fund;
(xi) the benefit of all permissions of whatsoever nature and
whether statutory or otherwise, held in connection with its
business or the use of any Security Asset and the right to
recover and receive all compensation which may be payable to
it;
(xii) its Intellectual Property;
(xiii) all of its rights, title and interest and benefit in the
Unassignable Receivables;
(c) mortgages and charges and agrees to mortgage and charge to Burdale
all Group Shares held now or in the future by it and/or any nominee
on its behalf, the same to be a security by way of a first mortgage;
and
(d) mortgages and charges and agrees to mortgage and charge to Burdale
all the Related Rights accruing to all or any of the Group Shares
held now or in the future by it and/or any nominee on its behalf, the
same to be a security by way of a first mortgage or charge.
PROVIDED THAT:
(i) whilst no Event of Default exists, all dividends and other
distributions paid or payable as referred to in paragraph (d)
above may be paid directly to the Company (in which case
Burdale or its nominee shall execute any necessary dividend
mandate) and, if paid directly to Burdale shall be paid
promptly by it to the Company; and
(ii) subject to Clause 6.4(c) whilst no Event of Default exists,
all voting rights attaching to the relevant Group Shares may
be exercised by the Company or, where the shares have been
registered in the name of Burdale or its nominee, as the
Company may direct in writing, and Burdale and any nominee of
Burdale in whose name such Group Shares are registered shall
execute any form of proxy or other document reasonably
required in order for the Company to do so.
2.2 ASSIGNMENTS
The Company, in the manner specified in Clause 2.3 of this Deed,
assigns to Burdale by way of security all of its right, title and
interest (if any) in and to:
(a) all rental income and any guarantee of any rental income
contained in or relating to any lease or other occupational
arrangements affecting the Mortgaged Property;
(b) the Insurances;
(c) the Assignable Receivables.
2.3 TITLE GUARANTEE
(a) Every disposition effected by this Deed is made with full title
guarantee.
(b) The other terms of this Deed do not limit or extend any of the
covenants implied by virtue of Part 1 of the Law of Property
(Miscellaneous Provisions) Xxx 0000 but create separate and
independent obligations having effect cumulatively with those
implied covenants.
3. FLOATING CHARGE
3.1 CREATION
The Company as security for the payment of the Secured Liabilities and
in the manner specified in Clause 2.3 of this Deed charges in favour of
Burdale by way of a floating charge all its assets not otherwise
effectively mortgaged or charged by way of fixed mortgage or charge by
Clause 2.
3.2 CONVERSION BY NOTICE
Burdale may by notice to the Company convert the floating charge
created by this Deed into a fixed charge in relation to all or any of
the Company' s assets specified in the notice if:
(a) Burdale has reasonable grounds for considering those assets to be
in jeopardy, by legal process or otherwise; or
(b) an Event of Default has occurred; or
(c) Burdale becomes aware or has reason to believe that steps have
been taken which would, in the reasonable opinion of Burdale, be
likely to lead to the presentation of a petition to appoint an
administrator in relation to the Company (or such an
administrator has been appointed) or to wind up the Company (or
that such a petition has been presented).
3.3 AUTOMATIC CONVERSION
The floating charge created by this Deed shall (in addition to the
circumstances in which the same will occur under general law)
automatically be converted into a fixed charge over the assets, rights
and property of the Company on the convening of any meeting of the
members of the Company to consider a resolution to wind the Company up
(or not to wind the Company up) provided that this Clause 3.3 shall not
apply to any of the Company's undertaking and assets situate in
Scotland if, and to the extent that, a Receiver would not be capable of
exercising his powers in Scotland pursuant to Section 72 of the
Insolvency Act 1986 by reason of such automatic conversion.
3.4 NO WAIVER
The giving by Burdale of a notice pursuant to Clause 3.2 in relation to
any class of the Company's assets, rights and property shall not be
construed as a waiver or abandonment of Burdale's rights to give other
similar notices in respect of any other class of assets.
4. INTEREST
Interest shall accrue on the Secured Liabilities from the date of
demand by Burdale until payment (after as well as before any judgment
obtained or the liquidation or administration of the Company) at the
Default Rate upon such days as Burdale may from time to time determine
and such interest shall be compounded in the event of it not being
punctually paid with monthly rests in accordance with the usual
practice of Burdale but without prejudice to the right of Burdale to
require payment of such interest when due.
5. REPRESENTATIONS AND WARRANTIES
5.1 MAKING OF REPRESENTATIONS
The Company makes the representations and warranties set out in this
Clause 5 to Burdale and the Company repeats the representations and
warranties in Clause 13 of the Facility Agreement. The representations
and warranties so set out are made on the date of this Deed and are
deemed to be repeated by the Company daily throughout the Security
Period with reference to the facts and circumstances then existing.
5.2 CAPACITY
The Company has the capacity, power and authority to enter into this
Deed and the obligations assumed by it are its legal, valid, binding
and enforceable obligations.
5.3 ENVIRONMENTAL MATTERS
(a) The Company has at all times complied with all applicable
Environmental Law including the obtaining of and compliance with
all requisite Environmental Licences.
(b) No Dangerous Substance has been used, disposed of or otherwise
dealt with at, on, from or under any premises while within the
Company's ownership, occupation or control in circumstances which
could result in a liability on the Company.
5.4 MORTGAGED PROPERTY
Save as is disclosed in any Report on Title:
(a) the Company is the legal and beneficial owner of such Mortgaged
Property;
(b) other than as notified in writing to Burdale, the Mortgaged
Property is free from any agreement for lease, lease, licence,
tenancy, overriding lease or other occupational arrangement or
overriding interest;
(c) the Premises are in good and substantial repair;
(d) there subsists no breach of any law or regulation which could
affect materially the value of the Mortgaged Property;
(e) there are no covenants, agreements, stipulations, reservations,
conditions, interests, rights or other matters whatsoever which
could affect adversely the Mortgaged Property so far as the
Company is aware;
(f) the Mortgaged Property is free from any financial encumbrance of
whatsoever nature other than Permitted Encumbrances;
(g) the Company has not received any notice of any adverse claim, nor
has any acknowledgement been given in respect of the ownership of
the Mortgaged Property, or any interest in it; and
(h) no facility necessary for the enjoyment and use of the Mortgaged
Property may be terminated or curtailed.
5.5 REPORT ON TITLE
The information provided for the purpose of the preparation of any
Report on Title was true and complete in all material respects at the
date that such information was given to Burdale and remains so.
5.6 SECURITY
This Deed creates the various forms of security it purports to create
and is not liable to be avoided or otherwise set aside on the
liquidation or administration of the Company,
or otherwise, save that no representation is given that any charge is
of a fixed or floating nature.
5.7 SECURITY SHARES
(a) The Company is and will remain the sole beneficial owner of the
Security Shares and, save where the Security Shares have been
registered in the name of Burdale or its nominee pursuant to this
Deed and/or its nominee, is and will remain the absolute legal
owner of the Security Shares.
(b) The Company will not take any action whereby the rights attaching
to the Security Shares are altered or diluted.
(c) The Group Shares are fully paid and non-assessable and neither
the Group Shares nor the Related Rights are subject to any
options to purchase or similar rights of any person.
5.8 RECEIVABLES, AMOUNTS AND INSURANCES
(a) The Company is absolutely, solely and beneficially entitled to
its rights, interest and benefit under the Receivables, the
Amounts and the Insurances as from the date they or any part of
them falls to be charged or assigned under this Deed and its
rights in respect of the Receivables, the Amounts and the
Insurances are free from any Encumbrance of any kind save for any
Permitted Encumbrances.
(b) In relation to each Receivable and Insurance which is either
stated to be expressly assignable under the contractual terms
governing it or in relation to which such terms are silent
regarding its assignability the Company knows of no reason why
such Receivable or Insurance should not be assignable on such
date.
(c) The Company has to the best of its knowledge and belief after due
and careful enquiry disclosed or provided to Burdale or its
agents, legal advisers or representatives all the documentation
or other information requested of it relating to Receivables and
Insurances, it is not aware, after reasonable enquiry, of any
further such documentation or information in its possession and,
in relation to the documentation which it has so disclosed, such
documentation governs the whole of the value of the Receivables
or Insurances to which it relates.
(d) So far as the Company is aware (after due and careful enquiry)
the creation of a fixed charge over Receivables in accordance
with Clause 2.1(b) will not breach the contractual terms upon
which such Receivables are based;
(e) The Company has not sold or agreed to sell or otherwise disposed
of or agreed to dispose of, the benefit of all or any of its
rights, title, interest and benefit in the Receivables (other
than pursuant to the Facility Agreement), the Amounts or the
Insurances.
(f) Each of the Receivables and Insurances is in full force and legal
effect, valid and binding on both parties thereto, with no
default having occurred thereunder or claim
threatened, pending or subsisting in respect thereof, and all
premiums have been fully and timeously paid in respect of the
Insurances.
6. UNDERTAKINGS
6.1 DURATION
The undertakings in this Clause 6 shall remain in force throughout the
Security Period and are given by the Company to Burdale.
6.2 GENERAL
(a) FACILITY AGREEMENT: The Company repeats the undertakings set out
in Clause 14 of the Facility Agreement as if they were set out in
full in this Deed.
(b) BOOK DEBTS AND RECEIPTS: The Company shall collect and realise
the following and, save to the extent that Burdale otherwise
agrees, pay the proceeds thus realised into the Blocked Account:
(i) rent and other moneys due from tenants or other occupiers
of the Mortgaged Property;
(ii) Book Debts and other moneys; and
(iii) securities to the extent held by way of temporary
investment,
and, pending payment into the Blocked Account, hold the proceeds
thus realised upon trust for Burdale.
(c) COVENANT TO PERFORM: The Company shall continuously comply with
the terms (both express and implied) of this Deed and any
contracts relating to the Secured Liabilities.
(d) ENVIRONMENTAL MATTERS: The Company shall:
(i) comply in all material respects with all applicable
Environmental Law including the obtaining of and
compliance with all requisite Environmental Licences; and
(ii) promptly upon receipt, notify Burdale of any communication
of whatsoever nature, whether specific or general, served
on it concerning any alleged breach of any Environmental
Law or non-compliance with any Environmental Licence,
which, if substantiated, could have a material adverse
effect upon its financial position or upon its ability to
perform its obligations under this Deed.
(e) NOTICE TO INSURERS: The Company shall, today, give notice to any
relevant insurers in respect of each Insurance to which it is
party that the Company has assigned those rights by way of
security to Burdale in substantially the form set out in
Schedule 5 and shall use its reasonable endeavours to procure
that the relevant insurer acknowledges receipt of such notice in
substantially the form set out in Schedule 5 or such other form
acceptable to Burdale in its absolute discretion.
(f) RESTRICTIONS ON DEALINGS: The Company shall not:
(i) create or permit to subsist any Encumbrance of whatsoever
nature on any Security Asset other than a Permitted
Encumbrance or as created by this Deed; or
(ii) sell, transfer, grant, lease or otherwise dispose of any
Security Asset, except for the disposal in the ordinary
course of trade of any Security Asset subject to the
floating charge created by Clause 3.1 and except as
provided for in the Finance Documents.
(g) PROVIDE INFORMATION: The Company shall furnish to Burdale
forthwith on demand by Burdale such information and supply such
documents or papers relating to the Security Assets from time to
time as Burdale may in its discretion reasonably require.
(h) DEBENTURE BY SUBSIDIARY: The Company shall procure that any
company which may be or become a Subsidiary of the Company at any
time during the subsistence of this Deed shall provide in favour
of Burdale such security in such form as Burdale may in its
discretion require but on terms no more onerous than the terms of
this Deed.
(i) SHARES OF SUBSIDIARY: The Company shall not permit any
Subsidiary of the Company to issue any shares except to
the Company or to one of its other wholly owned
Subsidiaries.
(j) LABELLING EQUIPMENT: Forthwith after the date of this Deed, the
Company shall at the request of Burdale (acting reasonably)
attach to a visible part of each item of Equipment in a permanent
manner a clear and distinctive label, no smaller than 3 inches by
4 inches in size comprising the following notice: "This piece of
Equipment is subject to a charge in favour of Burdale Financial
Limited ("Burdale") and may not be removed or sold without the
prior written consent of Burdale" (the "Notice").
6.3 PROPERTY
(a) ACCESS: At all reasonable times, the Company shall permit Burdale
and any person nominated by it to enter and inspect any part of
the Mortgaged Property or other Security Asset.
(b) COMPLIANCE WITH APPLICABLE LAWS: The Company shall perform all
its obligations under any law or regulation in any way affecting
any Security Asset.
(c) DEPOSIT OF TITLE DEEDS: For the duration of the Security Period
the Company shall deposit with Burdale all deeds and documents of
title relating to the Mortgaged Property owned by it and any
property comprised within Clause 6.3(e).
(d) DEVELOPMENT: Save for any development carried out pursuant to the
contract for sale dated 23 November 1999 between the Company and
Easter Development Group Limited, the Company shall not:
(i) make any application for planning permission affecting any
part of the Mortgaged Property or other Security Asset
except with the previous written consent of Burdale; or
(ii) carry out any development on any part of the Mortgaged
Property or other Security Asset except with the previous
written consent of Burdale (for the purposes of this
sub-clause development shall be defined as in the Planning
Acts as that for which the permission of the local
planning authority is required).
(e) FUTURE ACQUISITIONS AND LEGAL MORTGAGE: The Company shall:
(i) notify Burdale immediately upon the acquisition by it of
any freehold or leasehold or other interest in property
(and for the purposes of this Clause 6.3(e) the date of
exchange of contracts for such an acquisition shall be
deemed the date of acquisition);
(ii) at its cost, execute and deliver to Burdale, on demand, a
legal mortgage (on terms no more onerous than this Deed)
in favour of Burdale of any freehold or leasehold or other
interest in property which becomes vested in it after the
date of this Deed; and
(iii) in any event, if applicable, give H.M. Land Registry
written notice of this Deed and procure that notice of it
be duly noted in the Registers to each such title.
(f) INSURANCE: The Company shall effect, in a form and with an
insurance company or underwriters acceptable to Burdale insurance
of the Security Assets in accordance with the terms of the
Facility Agreement.
(g) INVESTIGATION OF TITLE: Upon request, the Company shall grant
Burdale or its lawyers all facilities within its powers to enable
Burdale or its lawyers to carry out such investigations of title
to and enquiries into the Mortgaged Property or other Security
Asset as may be carried out by a prudent mortgagee.
(h) LEASE AND COVENANT COMPLIANCE: THE COMPANY SHALL:
(i) perform all the terms on its part contained in any lease
or agreement for lease comprising the Mortgaged Property
or to which the Mortgaged Property is subject;
(ii) not do anything as a result of which any lease or
agreement for lease comprising Mortgaged Property or to
which the Mortgaged Property is subject may become forfeit
or otherwise determinable;
(iii) properly perform (and indemnify Burdale for any breach of)
any covenants and stipulation of whatsoever nature
affecting the Mortgaged Property.
(i) NOTICES: Within 10 days after the receipt by the Company of any
application, requirement, order or notice served or given by any
public, local or other authority relating to any Security Asset,
the Company shall:
(i) deliver a copy to Burdale; and
(ii) inform Burdale of the steps taken or proposed to be taken
by way of compliance.
(j) POWER TO REMEDY: In case of default by the Company in performing
any obligation or other covenant affecting the Mortgaged Property
or other Security Asset, the Company shall permit Burdale or its
agents and contractors:
(i) to enter on the Mortgaged Property or other Security
Asset;
(ii) to comply with or object to any notice served on the
Company relating to the Mortgaged Property or other
Security Asset; and
(iii) to take any action Burdale may reasonably consider
expedient to prevent or remedy any breach of any such term
or to comply with or object to any such notice.
(k) REPAIR: The Company shall keep:
(i) the Premises in good and substantial repair and condition
and decorative order;
(ii) the Fixtures and other plant, machinery, implements and
other effects belonging to it in a good state of repair,
working order and condition; and
(iii) all Equipment in good repair, working order and condition
and fit for its purpose.
Without prejudice to Clause 6.3(k), if the Company fails to
repair any damage, within 6 months of its occurrence, to the
satisfaction of Burdale, Burdale may, but shall not be obliged
and without liability, take any of the steps referred to in
Clause 6.3(k).
6.4 DEPOSIT OF SECURITIES AND REGISTRATION
(a) The Company shall forthwith deposit with Burdale or as Burdale
may direct all bearer instruments, share certificates and other
documents of title or evidence of
ownership in relation to such Group Shares as are owned by it or
in which it has or acquires an interest and their Related Rights
and shall execute and deliver to Burdale all such share transfers
and other documents as may be requested by Burdale in order to
enable Burdale or its nominees to be registered as the owner or
otherwise to obtain a legal title to the same and, without
limiting the generality of the foregoing, shall deliver to
Burdale on today's date executed (and, if required to be stamped,
pre-stamped) share transfers for all Group Shares in favour of
Burdale and/or its nominee(s) as transferees or, if Burdale so
directs, with the transferee left blank and shall procure that
all such share transfers are at the request of Burdale forthwith
registered by the relevant company and that share certificates in
the name of Burdale and/or such nominee(s) in respect of all
Group Shares are forthwith delivered to Burdale.
(b) The Company shall provide Burdale with certified copies of all
resolutions and authorisations approving the execution of such
transfer forms and registration of such transfers as Burdale may
reasonably require.
(c) Burdale and its nominee may at any time after an Event of Default
has occurred or in any other instance where Burdale is of the
reasonable opinion that it is necessary for the avoidance of an
Event of Default or necessary for the protection of its material
interests exercise or refrain from exercising (in the name of the
Company, the registered holder or otherwise and without any
further consent or authority from the Company and irrespective of
any direction given by the Company) in respect of the Security
Shares any voting rights and any powers or rights under the terms
of the Security Shares or otherwise which may be exercised by the
person or persons in whose name or names the Security Shares are
registered or who is the holder thereof, including, without
limitation, all the powers given to trustees by Section 10(3) and
(4) of the Trustee Xxx 0000 as amended by Section 9 of the
Trustee Investments Act 1961 in respect of securities or property
subject to a trust PROVIDED THAT in the absence of notice from
Burdale the Company may and shall continue to exercise any and
all voting rights with respect to the Group Shares subject always
to the terms of this Deed. The Company shall not without the
previous consent in writing of Burdale exercise the voting rights
attached to any of the Group Shares in favour of resolutions
having the effect of changing the terms of the Group Shares (or
any class of them) or any Related Rights or prejudicing the
security under this Deed or impairing the value of the Security
Shares. The Company hereby irrevocably appoints Burdale or its
nominees its proxy to exercise (as provided in or permitted by
this Deed) all voting rights so long as the Group Shares remain
registered in the names of the Company.
(d) The Company during the continuance of this security will make all
payments which may become due in respect of any of the Security
Shares and, in the event of default in making any such payment,
Burdale may if it thinks fit make such payment on behalf of the
Company. Any sums so paid by Burdale shall be repayable by the
Company to Burdale on demand and pending such repayment shall
constitute part of the Secured Liabilities.
(e) It is expressly agreed that, notwithstanding anything to the
contrary contained in this Deed, the Company shall remain liable
to observe and perform all of the conditions
and obligations assumed by it in respect of the Security Shares
and Burdale shall not be under any obligation or liability by
reason of or arising out of the security over the Security Shares
conferred by this Deed. Burdale shall not be required in any
manner to perform or fulfil any obligation of the Company in
respect of the Security Shares, or to make any payment, or to
receive any enquiry as to the nature or sufficiency of any
payment received by them, or to present or file any claim or take
any other action to collect or enforce the payment of any amount
to which they may have been or to which they may be entitled
under this Deed at any time or times.
(f) Upon the occurrence of an Event of Default and at any time
thereafter while the same is continuing Burdale shall be entitled
to put into force and exercise immediately as and when it may see
fit any and every power possessed by Burdale by virtue of the
security over the Security Shares conferred by this Deed or
available to a secured creditor (so that Sections 93 and 103 of
the Law of Property Act 1925 shall not apply to this security)
and in particular (without limitation):
(i) to sell all or any of the Security Shares in any manner
permitted by law upon such terms as Burdale shall in its
absolute discretion determine;
(ii) to collect, recover or compromise and give a good
discharge for any moneys payable to the Company in respect
of the Security Shares or in connection therewith; and
(iii) to act generally in relation to the Security Shares in
such manner as Burdale acting reasonably shall determine.
For the avoidance of doubt, the Company agrees that the
enforceability of the security over the Security Shares conferred
by this Deed is not dependent on the performance or
non-performance by Burdale of its obligations under any agreement
with the Company.
(g) Immediately on conversion of any of the Group Shares from
certificated to uncertificated form, and on the creation or
conversion of any other securities which are for the time being
comprised in the Security Shares in or into uncertificated form,
the Company shall give such instructions or directions as Burdale
may require in order to protect or preserve its security.
(h) The Company shall, immediately upon receipt of any certificate or
other document evidencing any entitlement to further Security
Shares, deposit it with Burdale together with such share transfer
forms in blank and other documents as Burdale may require.
6.5 OPENING OF ACCOUNTS AND COLLECTION OF RECEIVABLES
(a) Forthwith upon the execution of this Deed, the Company shall open
the Blocked Account, and maintain the Other Accounts and execute
all deeds and documents and do all other acts and things required
by Burdale in connection with them and
the Company shall maintain such accounts throughout the
maintenance of this security.
(b) Forthwith upon the execution of this Deed, the Company shall
serve notice upon the Account Bank at which the Blocked Account
is opened (in respect of the Blocked Account) in substantially
the form set out in Part I of Schedule 2 and upon each Account
Bank at which any Other Account is held (in respect of such Other
Account(s)) in substantially the form set out in Part II of
Schedule 2, and shall use all reasonable endeavours to procure
that the relevant Account Bank returns the acknowledgement in
substantially the form set out in the relevant Part of Schedule 2
or such other form acceptable to Burdale in its absolute
discretion.
(c) Until the security constituted by this Deed is discharged, the
Company shall:
(i) get in and realise all Receivables in the ordinary course
of its business save that the expression "in the ordinary
course of its business" shall not include or extend to the
selling or assigning or in any other way factoring or
discounting any Receivable save as permitted in this Deed;
(ii) forthwith upon the date of this Deed, pay the proceeds or
procure the paying of proceeds of such getting in and
realisation directly into the Blocked Account; and
(iii) maintain no other bank accounts save for the Charged
Accounts.
6.6 OPERATION OF BLOCKED ACCOUNT
(a) Until the security constituted by this Deed is discharged, the
Company shall not be entitled to withdraw the whole or any part
of the Blocked Amounts and shall not, subject to paragraph (b)
below, take any action, claim or proceedings against Burdale or
any other party for the return or payment to any person of the
whole or any part of the Blocked Amounts.
(b) The Company agrees that until the security constituted by this
Deed is discharged, Burdale shall be able to withdraw on a daily
basis all deposits made into the Blocked Account provided that
the amount so withdrawn is credited to Burdale's loan account and
applied towards the Secured Liabilities in accordance with Clause
6.2 of the Facility Agreement and the Company shall direct the
Blocked Bank to transfer the cleared balance of the Blocked
Account to such account as Burdale shall specify for the purpose
from time to time at the end of each Business Day.
(c) Upon the occurrence, and during the continuance of an Event of
Default, Burdale shall have the exclusive right to apply and
determine the application of any and all of the Blocked Amounts
in or towards satisfaction of the Secured Liabilities, whether by
transfer into the Burdale's loan account or otherwise.
6.7 OPERATION OF OTHER ACCOUNTS
Other than on the occurrence, and during the continuance of a Default
the Company shall be entitled to operate the Other Accounts and shall
be entitled to withdraw the whole or any part of the Other Amounts
PROVIDED THAT:
(a) the Other Accounts each retain a credit or zero balance at all
times;
(b) the Company shall not and shall procure that no other person
shall deposit or transfer any monies into the Other Accounts
other than those transferred from the Blocked Account or any
Other Account; and
(c) the Company shall not at any time transfer the whole or any part
of the Other Amounts to any other Company bank account other than
to another Charged Account.
6.8 RECEIVABLES
(a) The Company shall, upon a Default, in respect of Assignable
Receivables then in existence serve notice of the assignment
contained in Clause 2.2 upon the relevant Account Debtor by
written notice in substantially the form set out in Schedule 6
and, in respect of Assignable Accounts Receivable created after a
Default, serve notice of the assignment contained in this Clause
by a notice, in the form set out in Schedule 6 on the invoice
itself forthwith upon the creation of such Receivable.
(b) With respect to any Unassignable Receivables coming into
existence after the date of this Deed, the Company shall, upon a
Default, in respect of Unassignable Receivables then in existence
serve notice of the charge contained in Clause 2.1(b) upon the
relevant Account Debtor in substantially the form set out in Part
I of Schedule 6 and, in respect of Unassignable Receivables
created after a Default shall serve notice of the charge
contained in Clause 2.1(b) upon the relevant Account Debtor
forthwith upon the creation of such Receivable by notice in
substantially the form Part I of Schedule 6 on the invoice
itself.
(c) The Company covenants to Burdale that it will use all reasonable
endeavours to obtain the necessary consents from the Account
Debtors in respect of Unassignable Receivables to the assignment
contained in Clause 2.2 and where a Default has occurred shall
forthwith upon obtaining such consents, serve upon the relevant
Account Debtors a written notice substantially in the form set
out in Part II of Schedule 6;
(d) The Company covenants to Burdale that it will not serve upon any
Account Debtor any notice whose terms conflict with those of the
notices in Schedule 6 until the security constituted by this Deed
has been released by Burdale.
6.9 RECEIVABLES, AMOUNTS AND INSURANCES
The Company undertakes to Burdale that:
(a) subject as otherwise provided in this Deed, it shall not take any
action claim or proceeding against Burdale or any other party for
the return or payment to any person of the Charged Accounts or
the Amounts or any part thereof or permit third party rights to
arise over any of its rights, title, interest and benefit in the
Receivables (other than under the Finance Documents), the Amounts
or the Insurance Policies or any part thereof, or attempt or
agree so to do save for Permitted Encumbrances;
(b) it shall not withdraw the whole or any part of the Amounts, or
deal in any other way with the Receivables, the Amounts or the
Insurances except as provided in this Deed;
(c) subject as otherwise provided in this Deed it shall not sell,
release, exchange, compound, set-off, assign, transfer, discount,
charge or otherwise dispose of or agree to sell, release,
exchange, compound, set-off, assign, transfer, discount, charge
or otherwise dispose of or deal with any of its rights, title,
benefit and interest whether present or future in Receivables,
the Amounts or the Insurances nor do or omit to do anything which
may delay or prejudice the right of Burdale to utilise, withdraw,
transfer or set-off the Receivables, the Amounts or the
Insurances in accordance with the provisions of this Deed without
prejudice to the foregoing, shall not without the prior written
consent of Burdale, settle or give credit against any Receivable
or any Insurance and shall deliver to Burdale on a weekly basis
until the Secured Liabilities have been irrevocably discharged in
full, a schedule of all settlements and credit proposed to be
given by it, which Schedule shall set out the amount of the
invoice, the proposed amount of the settlement and/or credit and
the name of the debtor; and
(d) it shall do all such things and execute all such assignments
charges authorities and documents as Burdale may from time to
time reasonably require to enable Burdale to utilise, withdraw,
transfer or set-off the Receivables, the Amounts and the
Insurances in accordance with the terms of this Deed, such
documents to be prepared by or on behalf of Burdale at the cost
of the Company in such form as Burdale may reasonably require.
7. DEFAULT
7.1 EVENTS OF DEFAULT
Each of the events set out in Clause 15 of the Facility Agreement is an
Event of Default (howsoever caused).
7.2 ACCELERATION
On and at any time after the occurrence of an Event of Default and at
any time whilst the relevant Event of Default is continuing Burdale may
by notice to the Company demand that all or part of the Secured
Liabilities, together with accrued interest and all other amounts
accrued be immediately due and payable, and upon the giving of such
notice they shall become immediately due and payable.
8. WHEN SECURITY BECOMES ENFORCEABLE
The security constituted by this Deed shall become immediately
enforceable and the power of sale and other powers conferred by section
101 of the Law of Property Xxx 0000, as varied or amended by this Deed,
shall be immediately exercisable upon and at any time after the
occurrence of any Event of Default after which Burdale may in its
absolute discretion enforce all or any part of the security in any
manner it sees fit.
9. ENFORCEMENT OF SECURITY
9.1 GENERAL
(a) For the purposes of all powers implied by statute, the Secured
Liabilities are deemed to have become due on the date of this
Deed.
(b) Section 103 of the Law of Property Act (restricting the power of
sale) and section 93 of the Law of Property Xxx 0000 (restricting
the right of consolidation) do not apply to the security
constituted by this Deed.
(c) The statutory powers of leasing conferred on Burdale are extended
so that, without the need to comply with any provision of section
99 or 100 of the Law of Property Xxx 0000, Burdale is empowered
to lease, make agreements for leases, accept surrenders of leases
and grant options as Burdale may think fit.
9.2 AGENT OF THE COMPANY
For all purposes each Receiver is deemed to be the agent of the Company
and to be in the same position as a Receiver duly appointed by a
mortgagee under the Law of Property Xxx 0000. The Company alone shall
be responsible for the receiver's contracts, engagements, commissions,
omissions, defaults and losses and for liabilities incurred by him.
Burdale shall not incur any liability of whatsoever nature (either to
the Company or to any other person) by reason of Burdale making his
appointment as a Receiver or for any other reason.
9.3 CONTINGENCIES
If Burdale enforces the security constituted by this Deed at a time
when no amounts are due to Burdale under the Finance Documents but at a
time when amounts may or will become so due, Burdale (or the Receiver)
may pay the proceeds of any recoveries effected by it into the Blocked
Account.
9.4 MORTGAGEE IN POSSESSION - NO LIABILITY
Neither Burdale nor any Receiver or Manager will be liable, by reason
of entering into possession of a Security Asset, to account as
mortgagee in possession or for any loss on realisation or for any
default or omission for which a mortgagee in possession might otherwise
be liable.
9.5 PRIVILEGES
Each Receiver and Burdale is entitled to all the rights, powers,
privileges and immunities conferred by the Law of Property Xxx 0000 on
mortgagees and receivers when such receivers have been duly appointed
under that Act, except that section 103 of that Act does not apply.
9.6 PROTECTION OF THIRD PARTIES
No person (including a purchaser) dealing with Burdale or a Receiver or
its or his agents need enquire:
(a) whether the Secured Liabilities have become payable; or
(b) whether any power purported to be exercised has become
exercisable; or
(c) whether any money remains due; or
(d) how any money paid to Burdale or to the Receiver is to be
applied.
9.7 REDEMPTION OF PRIOR MORTGAGES
At any time after the security constituted by this Deed has become
enforceable, Burdale may, at the sole cost of the Company (payable to
Burdale on demand):
(a) redeem any prior form of security against any Security Asset;
and/or
(b) procure the transfer of that form of security to itself; and/or
(c) settle and pass the accounts of any prior mortgagee, chargee or
encumbrancer which once so settled and passed shall be conclusive
and binding on the Company.
10. RECEIVER
10.1 APPOINTMENT OF RECEIVER
(a) At any time after the security constituted by this Deed becomes
enforceable, or, at any time if so requested by the Company in
writing, without further notice Burdale may appoint under seal or
in writing under its hand any one or more qualified persons to be
a Receiver of all or any part of the Security Assets as if
Burdale had become entitled under the Law of Property Xxx 0000 to
exercise the power of sale conferred under that Act.
(b) In this Deed "QUALIFIED PERSON" means a person who, under the
Insolvency Xxx 0000, is qualified to act as a receiver of the
property of any company with respect to which he is appointed or
as an administrative receiver of any such company.
10.2 RELATIONSHIP WITH BURDALE
To the fullest extent permitted by law, any right, power or discretion
conferred by this Deed (be it express or implied) upon a Receiver of
any Security Assets may, after the security created by this Deed has
become enforceable, be exercised by Burdale in relation to any Security
Asset either:
(a) without first appointing a Receiver; or
(b) notwithstanding the appointment of a Receiver.
10.3 REMOVAL
Burdale may by writing under its hand (subject to any requirement for
any order of the court in the case of an administrative receiver):
(a) remove any Receiver appointed by it; and
(b) whenever it deems it expedient, appoint a new Receiver in the
place of any Receiver whose appointment may for any reason have
terminated.
10.4 REMUNERATION
Burdale may fix the remuneration of any Receiver appointed by it.
11. POWERS OF RECEIVER
11.1 GENERAL
(a) In addition to those conferred by the Law of Property Xxx 0000 on
any receiver appointed under that Act, each Receiver has, and is
entitled to exercise, all of the rights, powers and discretions
set out below in this Clause 11.
(b) If there is more than one Receiver holding office at the same
time, unless the document appointing him states otherwise, each
Receiver may exercise all of the powers conferred on a Receiver
under this Deed individually and to the exclusion of any other
Receivers.
(c) A Receiver who is an administrative receiver of the Company has
all the rights, powers and discretions of an administrative
receiver under the Insolvency Xxx 0000.
(d) A Receiver may, in the name of the Company if he so wishes:
(i) do all other acts and things which he may consider
expedient for realising any Security Asset or incidental
or conducive to any of the rights, powers or discretions
conferred on a Receiver under or by virtue of this Deed;
and
(ii) exercise in relation to any Security Asset all the powers,
authorities and things which he would be capable of
exercising as if he were its absolute beneficial owner.
11.2 BORROW MONEY
A Receiver may raise and borrow money (either unsecured or on the
security of any Security Asset, either in priority to the security
constituted by this Deed or otherwise) on any terms and for whatever
purpose which he thinks fit. No person lending that money need enquire
as to the propriety or purpose of the exercise of that power or to
check the application of any money so raised or borrowed.
11.3 CARRY ON BUSINESS
A Receiver may carry on the business of the Company as he thinks fit.
11.4 COMPROMISE
A Receiver may settle, adjust, refer to arbitration, compromise and
arrange any claims, accounts, disputes, questions and demands with or
by any person who is or claims to be a creditor of the Company or
relating in any way to any Security Asset.
11.5 DELEGATION
A Receiver may delegate his powers in accordance with Clause 14.
11.6 EMPLOYEES
For the purposes of this Deed, a Receiver may:
(a) appoint and discharge managers, officers, agents, accountants,
servants, workmen and others upon such terms as to remuneration
or otherwise as he may think proper; and
(b) discharge any such persons appointed by the Company.
11.7 LEASES
A Receiver may let any Security Asset for any term and at any rent
(with or without a premium) which he thinks proper and may accept a
surrender of any lease or tenancy of any Security Asset on any terms
which he thinks fit (including the payment of money to a lessee or
tenant on a surrender).
11.8 LEGAL ACTIONS
A Receiver may bring, prosecute, enforce, defend and abandon all
actions, suits and proceedings in relation to any Security Asset as he
considers expedient.
11.9 POSSESSION
A Receiver may take immediate possession of, get in and collect any
Security Asset.
11.10 PROTECTION OF ASSETS
A Receiver may, in each case as he may think fit:
(a) make and effect all repairs and insurances and do all other acts
which the Company might do in the ordinary conduct of its
business be they for the protection or for the improvement of the
Security Assets;
(b) commence and/or complete any building operations on the Mortgaged
Property or other Security Asset; and
(c) apply for and maintain any planning permission, building
regulation approval or any other permission, consent or licence.
11.11 RECEIPTS
A Receiver may give valid receipts for all moneys and execute all
assurances and things which may be expedient for realising any Security
Asset.
11.12 SALE OF ASSETS
A Receiver may sell, exchange, convert into money and realise any
Security Asset by public auction or private contract in any manner and
on any terms which he thinks proper. The consideration for any such
transaction may consist of cash, debentures or other obligations,
shares, stock or other valuable consideration and any such
consideration may be payable in a lump sum or by instalments spread
over such period as he thinks fit. Fixtures may be severed and sold
separately from the property containing them without the consent of the
Company.
11.13 SUBSIDIARIES
A Receiver may form a subsidiary of the Company and transfer to that
subsidiary any Security Asset.
12. APPLICATION OF PROCEEDS
Any moneys received by Burdale or any Receiver after this Deed has
become enforceable shall be applied in the following order of priority
(but without prejudice to the right of Burdale to recover any shortfall
from the Company):
(a) in satisfaction of or provision for all costs and expenses
incurred by Burdale or any Receiver and of all remuneration due
to any Receiver under this Deed;
(b) in or towards payment of the Secured Liabilities or such part of
them as is then due and payable to Burdale; and
(c) in payment of the surplus (if any) to the Company or other person
entitled to it.
13. EXPENSES AND INDEMNITY
Immediately upon demand, the Company shall pay all other costs and
expenses (including legal fees and VAT) incurred from time to time in
connection with the enforcement of or preservation of rights under this
Deed by Burdale, or any Receiver, attorney, manager, agent or other
person appointed by Burdale under this Deed or by statute, and keep
each of them indemnified against any failure or delay in paying the
same (including any arising from any actual or alleged breach by any
person of any Environmental Law or Licence).
14. DELEGATION
Burdale and any Receiver may delegate by power of attorney or in any
other manner to any person any right, power or discretion exercisable
by Burdale under this Deed. Any such delegation may be made upon the
terms (including power to sub-delegate) and subject to any regulations
which Burdale or such Receiver (as the case may be) may think fit.
Neither Burdale nor any Receiver will be in any way liable or
responsible to the Company for any loss or liability arising from any
act, default, omission or misconduct on the part of any such delegate
or sub-delegate.
15. FURTHER ASSURANCES
The Company shall, at its own expense, take whatever action (including
payment of all stamp duties and other registration fees) Burdale or a
Receiver may reasonably require for:
(a) perfecting or protecting the security intended to be created by
this Deed over any Security Asset; and
(b) facilitating the realisation of any Security Asset or the
exercise of any right, power or discretion exercisable, by
Burdale or any Receiver or any of its or their delegates or
sub-delegates in respect of any Security Asset, including the
execution of any transfer, conveyance, assignment or assurance of
any property whether to Burdale or to its nominees, and the
giving of any notice, order or direction and the making of any
registration, which in any such case, Burdale may think
expedient.
16. POWER OF ATTORNEY
The Company, by way of security, irrevocably and severally appoints
Burdale, each Receiver and any of their delegates or sub-delegates to
be its attorney to take any action which the Company is obliged to take
under this Deed, including, without limitation, under Clause 15 and
Clause 6.3(e) and Clause 6.3(n). The Company ratifies and confirms
whatever any attorney does or purports to do pursuant to its
appointment under this Clause.
17. MISCELLANEOUS
17.1 ADDITIONAL SECURITY
The security constituted by this Deed is in addition to and is not in
any way prejudiced by any other security now or subsequently held by
Burdale for any of the Secured Liabilities.
17.2 CONTINUING SECURITY
The security constituted by this Deed is continuing and will extend to
the ultimate balance of all the Secured Liabilities, regardless of any
intermediate payment or discharge in whole or in part.
17.3 COVENANT TO PAY
The Company shall pay or discharge the Secured Liabilities in the
manner provided for in any document creating or evidencing the Secured
Liabilities and/or otherwise as agreed from time to time.
17.4 H.M. LAND REGISTRY
The Company applies to the Chief Land Registrar for a restriction in
the following terms to be entered on the Register of Title relating to
any property registered at H.M. Land Registry in its name and against
which this Deed may be noted:
"Except under an order of the Registrar, no disposition or
dealing by the proprietor of the land is to be registered
without the consent of the proprietor for the time being of
the Deed dated December 1999 between Cerplex Limited and
Burdale Financial Limited."
17.5 NEW ACCOUNTS
If Burdale receives, or is deemed to be affected by, notice, whether
actual or constructive, of any subsequent charge or other interest
affecting any Security Asset and/or the proceeds of sale of any
Security Asset, Burdale may open a new account with the Company. If
Burdale does not open a new account, it shall nevertheless be treated
as if it had done so at the time when it received or was deemed to have
received notice. As from that time all payments made to Burdale will be
credited or be treated as having been credited to the new account and
will not operate to reduce any amount for which this Deed is security.
17.6 TACKING
Burdale covenants with the Company that it shall perform its
obligations under any document creating or evidencing the Secured
Liabilities (including any obligation to make available further
advances).
18. RELEASE
Upon the expiry of the Security Period (but not otherwise), Burdale
shall, at the request and cost of the Company , take whatever action is
necessary to release the Security Assets from the security constituted
by this Deed and/or reassign the benefit of the Security Assets to the
Company.
19. NOTICES
19.1 DELIVERY AND RECEIPT
All notices pertaining to this Deed shall be given in writing or
facsimile and shall be deemed to be given as follows:
(a) if in writing, when delivered; and
(b) if by facsimile, when received,
save that any notice delivered or received on a non-working day or
after business hours shall be deemed to be given on the next working
day at the place of delivery or receipt.
19.2 ADDRESSES
(a) The Company's address and facsimile number for notices are:
Cerplex Limited
00 Xxxxxx Xxx
Xxxxxxx, Xxxxxxxxx XX0 0XX
Facsimile no: 0208 443 8750
For the attention of: Finance Director
or such as the Company may notify to Burdale by not less than 10 days'
notice.
(b) Burdale's address and facsimile number for notices are:
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Facsimile no: 0171 935 5445
For the attention of: Company Secretary
or such as Burdale may notify to the Company by not less than 10 days'
notice.
20. GOVERNING LAW
This Deed is governed by English law and the parties submit to the
non-exclusive jurisdiction of the English courts.
This Deed has been entered into as a deed on the date
stated at the beginning of this Deed.
SCHEDULE 1
MORTGAGED PROPERTY
Freehold land and buildings on the West side of Bilton Way, Enfield as the same
is registered at HM Land Registry under title number MX212336.
SCHEDULE 2
FORMS OF NOTICE TO BANKS AND ACKNOWLEDGEMENT
PART I
BLOCKED ACCOUNT NOTICE
[On Headed Notepaper of the Company]
[Date]
To: [Bank name]
o Branch
[Address]
Attention: o
Dear Sirs,
We hereby give you notice that by a Deed of Debenture dated o (the "DEED"), we
have charged to Burdale Financial Limited ("BURDALE") by way of first fixed
charge all our rights, title, interest and benefit in and to the following
account held with yourselves and all amounts standing to the credit of such
account from time to time:
Account No. o, sort code oo-oo-oo (the "BLOCKED ACCOUNT").
We have also assigned (where assignable) or charged by way of first fixed charge
(where not assignable) to Burdale pursuant to the Deed all our rights, title,
interest and benefit in and to inter alia, all accounts, accounts receivable,
other receivables, book debts and other forms of obligations, with respect to
goods and services supplied by us to a customer whether now owned or hereafter
acquired by us (the "ACCOUNTS RECEIVABLE").
Please acknowledge receipt of this letter by returning a copy of the attached
letter on your own headed notepaper with a receipted copy of this notice
forthwith, to Burdale at 00 Xxxxx Xxxx Xxxxxx, Xxxxxx, X0X 0XX, Attention:
Company Secretary.
Yours faithfully
.........................
for and on behalf of
CERPLEX LIMITED
BLOCKED ACCOUNT ACKNOWLEDGEMENT
[On the Headed Notepaper of Bank]
[Date]
To: Burdale Financial Limited ("BURDALE")
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Attention: Company Secretary
Dear Sirs,
CERPLEX LIMITED (THE "COMPANY")
We refer to the notice, received today from the Company (a copy of which we
attach, receipted) (the "NOTICE").
Terms not defined in this letter shall have the meanings given to them in the
Notice.
WITH RESPECT TO THE NOTICE:
1. We hereby acknowledge that:
(a) the Company has charged to Burdale by way of a first fixed charge
all of its rights, title, interest and benefit in and to the
Blocked Account; and
(b) the Company has absolutely and legally assigned (where
assignable) or charged by way of first fixed charge (where not
assignable) to Burdale all of its rights, title, interest and
benefit in and to the Accounts Receivable.
2. We hereby irrevocably undertake to you that until receipt by us of
notice from you confirming that you no longer have any interest in the
Blocked Account and the Accounts Receivable, we shall:
(a) not exercise any right of combination, consolidation, merger or
set-off which we may have in respect of, or otherwise exercise
any other right which we may have to apply any monies from time
to time standing or accruing to the credit of the Blocked Account
save for fees and charges payable to us for the operation of the
Blocked Account;
(b) promptly notify you of any renewal, renumbering or redesignation
of any and all of the Blocked Account;
(c) promptly send to you copies with respect to all the Blocked
Account of all statements together with copies of all credits,
debits and notices given or made by us in connection with such
account;
(d) not permit or effect any withdrawal or transfer from the Blocked
Account by or on behalf of the Company save for withdrawals and
transfers requested by you in writing to us pursuant to the terms
of this letter;
(e) comply with all instructions received by us from you from time to
time with respect to the conduct of the Blocked Account provided
that such instructions are given in accordance with the terms of
this letter;
(f) comply with all instructions received by us from you from time to
time with respect to the movement of funds from the Blocked
Account provided that:
(i) all instructions are received in writing, by facsimile, to
us at facsimile number o, attention: o; and
(ii) all instructions must be received by 2pm if they are to be
complied with on the same Business Day. Instructions
received outside such hours will be complied with on the
next Business Day following such receipt. Facsimile
instructions will be deemed received at the time of
transmission;
(iii) all instructions are given in compliance with the mandate
entered into by you stipulating who may give instructions
to us; and
(iv) to the extent that an instruction is given which would in
our opinion cause the Blocked Account to become overdrawn
we will transfer the outstanding balance in the account;
(g) (subject to paragraph (h) below) effect the following transaction
on a daily basis unless we receive written notice to the contrary
in accordance with paragraph (f) above: the cleared balance of
the Blocked Account will be transferred into the account at
[Bank] account number o, being an account in your name designated
the "[the Company] Loan Account" attn. o;
(h) we shall not be obliged to comply with any instructions received
from you or undertake the transactions set out in paragraph (g)
where:
(i) due to circumstances not within our direct control we are
unable to comply with such instructions; and
(ii) that to comply with such instructions will breach a Court
Order or be contrary to applicable law;
and in each case we shall give notice thereof to the Company and
Burdale as well as reasons why we cannot comply with such
instructions;
(i) in the event that we are unable to comply with any
instructions due to circumstances set out in paragraph (h)
we shall not be responsible for any loss caused to you or
to the Company and in any event we shall not be liable for
any consequential, special,
secondary or indirect loss of or damage to goodwill, profits
or anticipated savings (however caused); and
(j) you acknowledge that we are obliged to comply with the terms of
this letter and that we have no notice of the particulars of the
charge granted to you by the Company other than as set out in the
Notice and this letter. You further acknowledge that subject to
the terms of this letter we shall not be liable to you in any
respect if the Company operates the Blocked Account in breach of
any agreement entered into by the Company with you.
We note that, for the purposes of this letter, all notices, copy notices,
advices and correspondence to be delivered to you shall be effectively delivered
if sent by facsimile to you at number 0000-000-0000 or by post at the address at
the top of this letter, in both cases marked for the attention of the Company
Secretary.
This letter is governed by and shall be construed in accordance with English
law.
Yours faithfully
......................
for and on behalf of
[BANK]
We hereby acknowledge and accept the terms of this letter
..........................
for and on behalf of
BURDALE FINANCIAL LIMITED
Part II
OTHER ACCOUNTS NOTICE
[On Headed Notepaper of the Company]
[Date]
To: [Bank name]
o Branch
[Address]
Attention: o
Dear Sirs,
We hereby give you notice that by a Deed of Debenture dated o (the "DEED"), we
have charged to Burdale Financial Limited ("BURDALE") by way of first fixed
charge all our rights, title, interest and benefit in and to the following
accounts held with yourselves and all amounts standing to the credit of such
accounts from time to time:
Account No. o, sort code oo-oo-oo
Account No. o, sort code oo-oo-oo
Account No. o, sort code oo-oo-oo
[Repeat as necessary]
(the "CHARGED ACCOUNTS").
We have also assigned (where assignable) or charged by way of first fixed charge
(where not assignable) to Burdale pursuant to the Deed all our rights, title,
interest and benefit in and to inter alia, all accounts, accounts receivable,
other receivables, book debts and other forms of obligations, with respect to
goods and services supplied by us to a customer whether now owned or hereafter
acquired by us (the "ACCOUNTS RECEIVABLE").
Please acknowledge receipt of this letter by returning a copy of the attached
letter on your own headed notepaper with a receipted copy of this notice
forthwith, to Burdale at 00 Xxxxx Xxxx Xxxxxx, Xxxxxx, X0X 0XX, Attention:
Company Secretary.
Yours faithfully
.......................
for and on behalf of
CERPLEX LIMITED
OTHER ACCOUNTS ACKNOWLEDGEMENT
[On the Headed Notepaper of Bank]
[Date]
To: Burdale Financial Limited ("BURDALE")
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Attention: Company Secretary
Dear Sirs,
CERPLEX LIMITED (THE "COMPANY")
We refer to the notice, received today from the Company (a copy of which we
attach, receipted) (the "NOTICE").
Terms not defined in this letter shall have the meanings given to them in the
Notice.
WITH RESPECT TO THE NOTICE:
1. We hereby acknowledge that:
(a) the Company has charged to Burdale by way of a first fixed charge
all of its rights, title, interest and benefit in and to the
Charged Accounts; and
(b) the Company has absolutely and legally assigned (where
assignable) or charged by way of first fixed charge (where not
assignable) to Burdale all of its rights, title, interest and
benefit in and to the Accounts Receivable.
2. We hereby irrevocably undertake to you that until receipt by us of
notice from you confirming that you no longer have any interest in
the Charged Accounts and the Accounts Receivable, we shall:
(a) not exercise any right of combination, consolidation, merger or
set-off which we may have in respect of, or otherwise exercise
any other right which we may have to apply any monies from time
to time standing or accruing to the credit of the Charged
Accounts save for fees and charges payable to us for the
operation of the Charged Accounts;
(b) promptly notify you of any renewal, renumbering or redesignation
of any and all of the Charged Accounts;
(c) promptly send to you copies with respect to all the Charged
Accounts of all statements together with copies of all credits,
debits and notices given or made by us in connection with such
account;
(d) upon receipt by us of a notice from you declaring that an event
of default has occurred under the Deed, not to permit or effect
any withdrawal or transfer from the Charged Accounts save for
withdrawals and transfers requested by you in writing to us
pursuant to the terms of this letter;
(e) comply with all instructions received by us from you from time to
time with respect to the conduct of the Charged Accounts provided
that such instructions are given in accordance with the terms of
this letter;
(f) comply with all instructions received by us from you from time to
time with respect to the movement of funds from the Charged
Accounts provided that:
(i) all instructions are received in writing, by facsimile, to
us at facsimile number o, attention: o; and
(ii) all instructions must be received by 2pm if they are to be
complied with on the same Business Day. Instructions
received outside such hours will be complied with on the
next Business Day following such receipt. Facsimile
instructions will be deemed received at the time of
transmission; and
(iii) all instructions are given in compliance with the mandate
entered into by you stipulating who may give instructions
to us.
(g) we shall not be obliged to comply with any instructions received
from you where:
(i) due to circumstances not within our direct control we are
unable to comply with such instructions; and
(ii) that to comply with such instructions will breach a Court
Order or be contrary to applicable law;
and in each case we shall give notice thereof to the Company and
Burdale as well as reasons why we cannot comply with such
instructions;
(h) in the event that we are unable to comply with any instructions
due to circumstances set out in paragraph (g) we shall not be
responsible for any loss caused to you or to the Company and in
any event we shall not be liable for any consequential, special,
secondary or indirect loss of or damage to goodwill, profits or
anticipated savings (however caused); and
(i) you acknowledge that we are obliged to comply with the terms of
this letter and that we have no notice of the particulars of the
charge granted to you by the Company other than as set out in the
Notice and this letter. You further acknowledge that subject to
the terms of this letter we shall not be liable to you in any
respect if the Company operates the Charged Accounts in breach of
any agreement entered into by the Company with you.
We note that, for the purposes of this letter, all notices, copy notices,
advices and correspondence to be delivered to you shall be effectively delivered
if sent by facsimile to you at number 0000-000-0000 or by post at the address at
the top of this letter, in both cases marked for the attention of the Company
Secretary.
This letter is governed by and shall be construed in accordance with English
law.
Yours faithfully
.......................
for and on behalf of
[BANK]
We hereby acknowledge and accept the terms of this letter
.........................
for and on behalf of
BURDALE FINANCIAL LIMITED
SCHEDULE 3
GROUP SHARES
COMPANY NAME TYPE OF SHARE NO. OF SHARES NOMINEE (IF ANY)
NONE AS AT THE DATE OF THIS DEED
SCHEDULE 4
DETAILS OF CREDIT INSURANCE POLICIES
ACCOUNT DEBTOR INSURER POLICY NO. AGGREGATE INSURED AMOUNT
NONE AS AT THE DATE OF THIS DEED
SCHEDULE 5
FORM OF NOTICE TO INSURER
[On the Headed Notepaper of the Company]]
[Date]
To: [Insurer]
[Address]
Attention: o
Dear Sirs,
We hereby give you notice that by a Deed of Debenture dated o, we have
absolutely and legally assigned to Burdale Financial Limited ("Burdale") all our
rights, title, interest and benefit in and to the following insurance policies
held with yourselves:
1. Policy No. o re account debtor o in an insured amount of (pounds)o, dated o;
2. Policy No. o re account debtor o in an insured amount of (pounds)o, dated o;
3. Policy No. o re account debtor o in an insured amount of (pounds)o, dated o;
(together the "POLICIES").
Please acknowledge receipt of this letter by returning a copy of the attached
letter on your own headed notepaper with a receipted copy of this notice
forthwith, to Burdale at 00 Xxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX, attention: the
Company Secretary.
Yours faithfully
.........................
for and on behalf of
CERPLEX LIMITED
FORM OF ACKNOWLEDGEMENT FROM INSURER
[On the Headed Notepaper of the Insurer]
[Date]
To: Burdale Financial Limited ("BURDALE")
00 Xxxxx Xxxx Xxxxxx,
Xxxxxx X0X 0XX
Attention: Company Secretary
Dear Sirs,
Re: CERPLEX LIMITED (THE "COMPANY")
We refer to the notice, received today from the Company (a copy of which we
attach, receipted) (the "NOTICE").
Terms not defined in this letter shall have the meanings given to them in the
Notice.
WITH RESPECT TO THE NOTICE:
We hereby acknowledge that the Company has assigned to Burdale all of its
rights, title, interest and benefit in and to the Policies.
We note and accept that the Company is not entitled to agree to cancel or modify
the Policies in any way except with your prior written consent.
We agree that if the Company is in breach of any provision under any of the
Policies whether by failure to pay the premiums or otherwise, we shall before
terminating any of the Policies or otherwise enforcing our rights against the
Company, notify you in writing of the breach and allow you 14 (fourteen) days to
remedy the breach.
We hereby acknowledge that you are under no obligation or liability to remedy
any breach or otherwise to comply with any obligations on the part of the
Company under the Policies.
We note that for the purposes of this letter all notices, copy notices, advices
and correspondence to be delivered to you shall be effectively delivered if sent
by facsimile to you at number 0000-000 0000 or by post at the address at the top
of this letter, in both cases marked for the attention of the Company Secretary.
This letter is governed by and shall be construed in accordance with English
Law.
Yours faithfully
..........................
for and on behalf of
[INSURER]
SCHEDULE 6
NOTICE TO BE AFFIXED TO INVOICES AND SENT TO ACCOUNT DEBTORS
PART I
Please note that all our rights to the debt owed by you under this
invoice/invoice no. o have (if assignable) been assigned by us outright to
Burdale Financial Limited ("BURDALE"). If this debt is not assignable for any
reason, we have granted Burdale a fixed charge over all our rights in this debt.
Payment must be made (i) by cheque to us, PO Box o or (ii) by funds transfer to
account number o at [Bank], o Branch, Sort Code oo-oo-oo, otherwise, if it has
been assigned, you will not be discharged from this debt.
If you intend to withhold payment of this debt as a result of alleged default by
us, you must first notify Burdale at 00 Xxxxx Xxxx Xxxxxx, Xxxxxx, X0X 0XX,
Attention: Company Secretary.
Unless and until we give you notice to the contrary, we are not entitled to
transfer any of our interest or rights in this debt to any party (other than
Burdale).
PART II
Please note that now we have received your formal consent to our assigning all
our rights to the debt owed by you invoice no. o (the "DEBT") we have assigned
the Debt to Burdale Financial Limited ("BURDALE").
Payment must be made (i) by cheque, to us, PO Box o or (ii) by funds transfer,
to account no. o at [Bank], o Branch, sort code oo-oo-oo. You will not be
discharged from the Debt unless you make payment in this way.
SCHEDULE 7
OTHER ACCOUNTS
BANK BRANCH SORT CODE ACCOUNT NO.
SIGNATORIES
THE COMPANY
Signed on behalf of
CERPLEX LIMITED /s/ TE XXXXXXX XXXXXXX
by its attorney for -----------------------
delivery as a deed in the TE XXXXXXX XXXXXXX as attorney
presence of :
WITNESS:
ADDRESS:
OCCUPATION:
BURDALE
BURDALE FINANCIAL LIMITED
By:
By:
