Exhibit 10.21
FLOATING CHARGE DEBENTURE (Scotland) (5th Revision March 1995)
THIS DEBENTURE is made by Eildon Electronics Limited (Reg No SC74971) whose
Registered Office is situate at 0 Xxxx Xxxxx Xxxxxx Xxxxxxx (the "Company") in
favour of Xxxxxx & Company whose Registered Office is situate at 00 Xxxxxxx
Xxxxxx Xxxxxx XX0X 0XX ("the Bank").
1 This Debenture shall be a continuing security to the Bank for the payment
and discharge and the Company binds and obliges itself to pay and
discharge to the Bank on demand:
i) all present and future indebtedness of the Company to the Bank on
any current or other account with interest and bank charges and
ii) all other liabilities whatsoever of the Company to the Bank present
future actual or contingent and
iii) all costs charges and expenses howsoever incurred by the Bank in
relation to this Debenture or such indebtedness or liabilities on a
full indemnity basis and
iv) interest on the foregoing day by day from demand until full payment
or discharge (as well after as before judgment) at the rate payable
or deemed to be payable by the Company and as calculated and
compounded in such manner as the Bank may from time to time
determine.
The costs and expenses referred to herein shall include (for
avoidance of doubt) all amounts the Bank may from time to time
require to compensate it for its internal management and
administrative costs and expenses incurred in connection with the
enforcement of this Debenture and recovery of the liabilities
secured by it. A certificate signed by an officer of the Bank as to
the amount of such costs and expenses incurred by the Bank from time
to time shall for all purposes be conclusive evidence against and
binding upon the Company.
2 The Company as beneficial owner and to the intent that the security
created shall rank as a continuing security for all the said indebtedness
liabilities costs charges expenses and interest hereinbefore in Clause 1
of this Debenture described Does Hereby in security thereof as aforesaid
Grant in favour of the Bank a Floating Charge over the whole of the
property which may from time to time while this security is in force be
comprised in the property and undertaking of the Company; Provided and
Declaring Always that the Floating Charge hereby created shall except as
may otherwise be previously agreed in writing by the Bank and subject to
Sub-Section (2) of Section 464 of the Companies Xxx 0000 as the same shall
from time to time be amended or re-enacted (which Act as so amended or
re-enacted is hereinafter referred to as the "the 1985 Act") rank in
priority to any fixed security within the meaning of Sub-Section (1) of
Section 486 of the 1985 Act (other than a fixed security in favour of the
Bank) which shall have been or may after the execution hereof be created
by the Company and to any other Floating Charge which shall have been or
may be so created.
3 A certificate signed by a Manager of the Bank shall be sufficient to fix
and ascertain the whole or any part of the said indebtedness liabilities
costs charges expenses and interest hereinbefore in Clause 1 hereof
described and to constitute a balance and charge against us and no
suspension of a charge or of a threatened charge for payment of the
balance
so constituted shall pass nor any ____ of execution thereon be granted
except on consignation.
4 The Company will keep all its heritable real and leasehold property in a
good state of repair and condition and insured against such risks and in
such office and for such amounts as the Bank may require or approve and
failure to do so will entitle the Bank to do so at the expense of the
Company and the Company will in addition effect and maintain such
insurances as are normally maintained by prudent companies carrying on
similar business.
5 The Company shall not be at liberty without the consent in writing of the
Bank to:
i) create any fixed security or floating charge ranking in priority to
or pari passu with the Floating Charge hereby created or
ii) sell the whole or (except in the ordinary course of business) any
part of the Company's undertaking or deal with its books or other
debts or securities for money otherwise than in the ordinary course
of getting in and realising the same which expression shall not
authorise the selling factoring or discounting by the Company of its
book debts or
iii) enter into any lease or sublease or accept the surrender of any
lease or sublease of any of the heritable real or leasehold
properties of the Company.
For the purpose of this Clause 5, it is hereby declared for the avoidance
of doubt that the date of creation of a fixed security over heritable
property in Scotland shall be the date of its recording in the Register of
Sasines or registration in the Land Register of Scotland and the date of
creation of a floating charge shall be the date of its execution by the
Company.
6 Whenever required by the Bank the Company shall grant in favour of the
Bank or as the Bank shall direct and at the expense of the Company such
specific or fixed security or charge over the whole or any part of the
property and undertaking of the Company as shall be required by the Bank.
7 Immediately upon or at any time after the presentation of a petition
applying for an administration order to be made in relation to the Company
or in the event that notice demanding payment of any moneys hereby secured
shall be served by the Bank on the Company or that the Bank shall be
requested by the Company so to do the Bank shall subject always to the
provisions of Section 51 of the Insolvency Xxx 0000 as the same shall from
time to time be amended or re-enacted (which Act as so amended or
re-enacted is hereinafter referred to as the 0000 Xxx) be entitled at any
time thereafter by instrument in writing and without further notice to the
Company to appoint any person to be a Receiver of the property hereby
charged; and in addition and without prejudice to the foregoing provisions
of this Clause in the event that any person appointed in pursuance thereof
to be a Receiver as aforesaid shall be removed by the Court or shall
otherwise cease to act as such then the Bank shall be entitled so to
appoint another person as Receiver in his place.
8 A Receiver so appointed shall have and be entitled to exercise all powers
conferred upon a Receiver by the 1986 Act.
9 The Company shall be solely responsible for the acts and defaults of any
Receiver so appointed and for his remuneration costs charges and expenses
including the costs charges and expenses of and incidental to his
appointment.
10 If the Bank receives notice of any subsequent charge or other interest
affecting any part of the property hereby charged the Bank may open a new
account or accounts with the Company; if the Bank does not open a new
account it shall nevertheless be treated as if it had done so at the time
when it received notice and as from that time all payments made by the
Company to the Bank shall be credited or be treated as having been
credited to the new account and shall not operate to reduce the amount due
from the Company to the Bank at the time when it received notice.
11 The Company hereby irrevocably appoints the Bank and any person nominated
in writing under the hand of any officer of the Bank including every
Receiver appointed hereunder as Attorney of the Company for the Company
and in its name and on its behalf as its act and deed to execute seal and
deliver and otherwise perfect any deed assurance agreement instrument or
act which may be required or deemed proper for any of the purposes of this
security.
12 In the exercise of the powers hereby conferred any Receiver may sever and
sell plant machinery or other fixtures separately from the property to
which they may be annexed.
13 The Company shall from time to time supply to the Bank such accounts or
other information concerning the assets liabilities and affairs of the
Company and its subsidiary or associated companies as the Bank may
require.
14 In case the Company shall have more than one account with the Bank it
shall be lawful for the Bank at any time and without any prior notice in
that behalf forthwith to transfer all or any part of any balance standing
to the credit of any such account to any other such account which may be
in debit but the Bank shall notify the Company of the transfer having been
made.
15 Nothing herein contained shall prejudice or affect any other securities or
charges which the Bank already holds or may hereafter hold for any sum or
sums due or which may after the date hereof become due by the Company to
the Bank over any other property belonging to the Company it being always
in the power of the Bank to allow all or any part of such securities or
charges of the property to which they relate to be disposed of sold or
abandoned without applying the same or the proceeds thereof towards
payment of any sum to be hereby secured and the whole obligations hereby
undertaken by the Company shall remain in full force and effect in the
same manner and to the same extent as if no such securities or charges had
ever existed.
16 The Bank may without prejudice to its rights under these presents and at
its discretion grant to the Company or to any other persons or person
liable with or for the Company any time or other indulgence and compound
with it or them accede to trust deeds and draw dividends and that all
without notice to the Company or to any other person concerned.
17 A demand or notice hereunder shall be in writing signed by an officer or
agent of the Bank and may be served on the Company by hand or by post and
either by delivering the same as to any officer of the Company at any
place or by addressing the same to the Company at its registered office or
a place of business last known to the Bank; 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 it be returned undelivered.
18 It is hereby certified that this Debenture does not contravene any of the
provision of the Company's Memorandum and Articles of Association and has
been executed in accordance therewith.
19 This Debenture shall be interpreted and receive effect according to the
law of Scotland; and the Company consents to the registration hereof and
of the aforesaid certificate for preservation and execution.
These presents were subscribed for and on behalf of the said
Eildon Electronics Limited
* and the Common Seal thereof was hereunto fixed
at
on the 10 day of Oct 1996
Director
Director/Secretary
Received a completed copy of the within written Debenture Dated
this 10 day of Oct 1996
Director/Secretary
* Delete if Company does not use Seal
Branch _____________________
Account ____________________
Dated _____________________
to
XXXXXX & COMPANY
Debenture (Floating Charge) for all moneys by Company incorporated in Scotland
NBW 1014 (Revised May 1995) Mortgage Debenture
This Mortgage Debenture is dated __________, 19__
and is made between
--------------------------------------------------------------------------------
XXXXXXX AND XXXXX LIMITED REGISTERED NUMBER 99209
whose registered office is at 00 XXXXXXXXXX XXXXX XXXXXXXXXX XXXXXXXXXX XXXXXX
BRAINTREE ESSEX CM7 2YN
--------------------------------------------------------------------------------
("the Company") of the one part and Xxxxxx & Company ("the Bank") of the other
part whose address for service of any documents relating to this Mortgage
Debenture is its Branch at
------------------------------------
COMMERCIAL BANKING
00 XXXXXXX XXXXXX
XXXXXX
XX0X 0XX
------------------------------------ or such other address as the Bank may
notify the Company of in writing from time to time.
1. The Company hereby covenants to pay to the Bank on demand the sum of One
pound ((pound)1) and to pay and discharge on demand all moneys obligations and
liabilities (whether present or future actual or contingent) which may now or at
any time hereafter be or become due owing or incurred by the Company to the Bank
on any account or otherwise howsoever (whether solely or jointly with any other
person and whether as principal or surety) together with interest and other bank
charges so that interest shall be calculated and compounded in accordance with
the practice of the Bank from time to time as well after as before any demand
made or judgment obtained hereunder.
2. The Company with full title guarantee and to the intent that the security
created shall rank as a continuing security hereby charges with the payment or
discharge of all moneys obligations and liabilities hereby covenanted to be paid
or discharged (together with all costs and expenses howsoever incurred by the
Bank in connection with this Mortgage Debenture on a full indemnity basis):
(i) by way of legal mortgage any property referred to in the Schedule
hereto (the legally mortgaged property) and the proceeds of sale
thereof
(ii) by way of specific equitable charge all estates or interests in any
freehold and leasehold property (except the legally mortgaged
property) now and at any time during the continuance of this
security belonging to or charged to the Company (the equitably
charged property) and the proceeds of sale thereof
(iii) by way of specific charge all plant machinery vehicles computers and
office and other equipment both present and future (excluding all
stock in trade) and the full benefit of all warrants and maintenance
contracts for any of the same
(iv) by way of specific charge all stock shares and other securities now
and at any time during the continuance of this security belonging to
the Company either in or issued by any of its subsidiary companies
or any other company and all dividends and other rights in relation
thereto
(v) by way of specific charge all book debts and other debts (including
without limitation rents) now and from time to time due or owing to
the Company
(vi) by way of specific charge its goodwill and the benefit of any
licenses and all patents patent applications inventions trade marks
trade names registered designs copyrights know-how and any other
intellectual property rights
(vii) by way of floating security its undertaking and all its property
assets and rights whatsoever and wheresoever present and/or future
including those for the time being charged by way of specific charge
pursuant to the foregoing paragraphs if and to the extent that such
charges as aforesaid shall fail as specific charges but without
prejudice to any such specific charges as shall continue to be
effective.
The costs and expenses referred to above shall include (for avoidance of doubt)
all amounts the Bank may from time to time require to compensate it for its
internal management and administrative costs and expenses incurred in connection
with the enforcement of this Mortgage Debenture and recovery of the liabilities
secured by it. A certificate signed by an officer of the Bank as to the amount
of such costs and expenses incurred by the Bank from time to time shall for all
purposes be conclusive evidence against and binding upon the Company.
Page 1
3. With reference to the equitably charged property and the property charged
pursuant to Clause 2(iv):
(a) The Company undertakes
(i) to deposit with the Bank the deeds and documents of title or share
certificates relating thereto
(ii) at any time upon request to execute over all or any part thereof a
charge by way of legal mortgage and any appropriate transfer or
other forms instruments or instructions in the case of the stocks
and shares in favour of the Bank or its nominee in such form as the
Bank shall require
(b) The Bank shall not be entitled to exercise or control the exercise of any
voting rights of any relevant shares (as defined below) comprised therein
unless and until notice demanding payment of any moneys hereby secured
shall have been served by the Bank on the Company. "Relevant shares" are
any shares which are comprised in a public company's relevant share
capital within the meaning of Section 198 of the Companies Xxx 0000. This
restriction shall also apply to any relevant shares forming part of this
security which may be registered in the name of the Bank or any nominee.
4. With reference to the legally mortgaged property and the equitably charged
property the Company agrees:
(i) to keep it in a good state of repair and condition and insured
against such risks and in such office and for such amounts as the
Bank may require or approve and that failure to do so will entitle
the Bank to do so at the expense of the Company and as agent of the
Company without thereby becoming a mortgagee in possession
(ii) that the statutory power of leasing and/or accepting surrenders of
leases conferred on mortgagors shall not be exercised by the Company
without the consent in writing of the Bank but the Bank may grant or
accept surrenders of leases without restriction
(iii) not to part with the possession of it or any part thereof nor confer
upon any person firm company or body whatsoever any license right or
interest to occupy it or any part thereof without the consent in
writing of the Bank.
5. With reference to the book debts and other debts hereby specifically charged
the Company shall pay into the Company's account with the Bank all moneys which
it may receive in respect to such debts and shall not without the prior consent
in writing of the Bank sell factor discount or otherwise charge or assign the
same in favour of any other person or purport to do so and the Company shall if
called upon to do so by the Bank from time to time exercise legal assignments of
such book debts and other debts to the Bank.
6. With reference to the property assets and rights subject to the floating
charge:
(i) the Company shall not be at liberty without the consent in writing
of the Bank to:
(a) create any mortgage or charge ranking in priority to or pari
passu with that charge and/or
(b) sell the whole or except in the ordinary course of business
any part of the Company's undertaking; and
(ii) the Company agrees to effect and maintain such insurances as are
normally maintained by prudent companies carrying on similar
businesses; and
(iii) the Bank may by notice to the Company convert the floating charge
into a specific charge as regards any assets specified in the notice
which the Bank shall consider to be in danger of being seized or
sold under any form of distress or execution levied or threatened
and may appoint a receiver thereof.
7. Section 103 of the Law of Property Xxx 0000 ("the 1925 Act") shall not apply
to this security which shall immediately become enforceable and the power of
sale and other powers conferred by section 101 of the 1925 Act as varied or
extended by this security shall be immediately exercisable at any time after
notice demanding payment of any moneys hereby secured shall have been served by
the Bank on the Company.
8. At any time after this security shall have become enforceable and in any
event immediately upon or at any time after the presentation of a petition
applying for an administration order to be made in relation to the Company the
Bank may by writing under the hand of any Manager of the Bank appoint any person
(or persons) to be receiver of the property hereby charged or any part thereof.
Where two or more persons are appointed to be receivers the Bank will in the
appointment declare whether any act required or authorised to be done by such
receivers is to be done by any one or more of such receivers for the time being
holding office. Any receiver shall be the agent of the Company and the Company
shall be solely responsible for his acts or defaults and for his remuneration.
Where any receiver is appointed by the Bank as an administrative receiver (as
that term is used in the Insolvency Act 1986) such administrative receiver shall
have all the powers of an administrative receiver specified in Schedule 1 of the
Insolvency Act 1986 or any statutory modification or re-enactment thereof. Any
references in this security to receiver shall, except where the context does not
permit include a reference to any such administrative receiver. Where any
receiver is appointed by the Bank to be a receiver of part only of the property
hereby charged and is not therefore an administrative receiver (as that term is
used in the Insolvency Act 1986) such receiver shall have all the powers
specified in Schedule 1 to the Insolvency Xxx 0000 which he would have were he
an administrative receiver insofar as such powers are or might be appropriate to
the receivership of the property of the Company in respect of which he has been
appointed.
Page 2
9. All moneys received by any receiver shall be applied by him in the following
order:
(i) in payment of the 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
(ii) in payment of remuneration of the receiver at such rates as may be
agreed between him and the Bank at or at any time after his
appointment
(iii) in or towards discharge of the liabilities hereby secured in such
order as the Bank may from time to time require
(iv) the surplus (if any) shall be paid to the Company or other person
entitled to it.
10. The powers conferred on mortgagees or receivers by the 1925 Act shall apply
to this security except in so far as they are expressly or impliedly excluded
and where there is any ambiguity or conflict between the powers contained in the
1925 Act and those contained in this security the terms of this security shall
prevail.
11. If the Bank receives or is deemed to be affected by notice whether actual or
constructive of any subsequent charge or other interest affecting any part of
the property hereby charged or the proceeds of sale thereof the Bank may open a
new account or accounts with any person for whose liabilities this Mortgage
Debenture is available as security. If the Bank 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 and as from that time all payments made to
the Bank shall be credited or be treated as having been credited to the new
account and shall not operate to reduce the amount for which this Mortgage
Debenture is security.
12. The Company hereby irrevocably appoints each of the Bank and any person
nominated in writing under the hand of any officer of the Bank including every
receiver hereunder as Attorney of the Company with full power of substitution
for the Company and in its name and on its behalf and its act and deed to
execute seal and deliver and otherwise perfect or do any deed assurance
agreement instrument or act which may be required or deemed proper for any of
the purposes of this security.
13. In the exercise of the powers hereby conferred the Bank or any receiver may
sever and sell plant machinery or other fixtures separately from the property to
which they may be annexed.
14. The Company shall from time to time supply to the Bank such accounts or
other information concerning the assets liabilities and affairs of the Company
its subsidiary or associated companies as the Bank may require.
15. In case the Company shall have more than one account with the Bank it shall
be lawful for the Bank at any time and without any prior notice forthwith to
transfer all or any part of any balance standing to the credit of any such
account (whether current or otherwise or subject to notice or not) to any other
such account which may be in debit but the Bank shall notify the Company of the
transfer having been made. If any credit balance is in a different currency from
any debit balance the Bank shall be entitled to utilise currency of the credit
balance for the purchase at its spot rate of exchange of an amount in the
currency of the debit balance not exceeding the amount of such debit balance and
also to pay out of the credit balance any additional sum which the Bank may be
required to pay for such currency.
16. The security from time to time constituted by or pursuant to this Mortgage
Debenture shall be in addition to and shall be independent of any other security
which the Bank may now or at any time hold on all or any part of the assets of
the Company for or in respect of all or any part of the moneys obligations and
liabilities hereby covenanted to be paid or discharged and it is hereby declared
that no prior security held by the Bank over the property hereby charged or any
part of it shall merge in the security created hereby or pursuant hereto.
17. A demand or notice hereunder shall be in writing signed by an officer or
agent of the Bank and may be served on the Company by hand or by post or by
facsimile machine (fax) and in the case of service by hand either by delivering
the same to any officer of the Company at any place or leaving the same
addressed to the Company at its registered office or a place of business last
known to the Bank. If such demand or notice is sent by post or by fax it shall
be deemed to have been received if posted on the day following the day on which
it was posted and if sent by fax at the time of transmission and shall be
effective notwithstanding it be returned undelivered. The Bank may use the last
fax number of the Company known to it and transmission may be proved by
production of an activity or transmission report which purports to indicate the
transmission of a message to such a number.
18. It is hereby certified that this Mortgage Debenture does not contravene any
of the provisions of the Company's Memorandum and Articles of Association and
has been executed in accordance therewith.
19. This Mortgage Debenture shall be governed by and construed in accordance
with the Laws of England.
In Witness whereof this Deed has been executed by the Company the day and year
first before written.
Page 3
The Schedule
--------------------------------------------------------------------------------
LAND CERTIFICATE OF THE FOLLOWING PROPERTY:
DISTRICT OF
LONDON BOROUGH: BRAINTREE
TITLE NUMBERS: EX 378685
EX 392996
PROPERTY: XXXX 00 XXXXXXXXXX XXXXXXXXXX XXXXXX BRAINTREE (ALSO KNOWN AS 00
XXXXXXXXXX XXXXX) AND LAND LYING SOUTH EAST OF SPRINGWOOD DRIVE
BRAINTREE
--------------------------------------------------------------------------------
Page 4
--------------------------------------------------------------------------------
Executed as a Deed by the Company acting by
_______________________________________________ Director
Name in full
(in block letters)____________________________
______________________________________________ *Director/Secretary
Name in full
(in block letters)____________________________
*delete as applicable
or alternatively:
The Common Seal of
XXXXXXX AND XXXXX LIMITED
was hereunto affixed
in the presence of
______________________________________________ Director
______________________________________________ Secretary
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
For and on behalf of the Bank
Authorised Signatory
-------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
We acknowledge receipt of a complete copy of this document
-----------------------------------
Signature
--------------------------------------------------------------------------------
Page 5
This Mortgage Debenture is dated __________, 19__
and is made between
--------------------------------------------------------------------------------
FOREST NEEDLE COMPANY LIMITED REGISTERED NUMBER 2322017
whose registered office is at 00 XXXXXXXXXX XXXXX XXXXXXXXXX XXXXXXXXXX XXXXXX
BRAINTREE ESSEX CM7 2YN
--------------------------------------------------------------------------------
("the Company") of the one part and Xxxxxx & Company ("the Bank") of the other
part whose address for service of any documents relating to this Mortgage
Debenture is its Branch at
----------------------------------------
COMMERCIAL BANKING
00 XXXXXXX XXXXXX
XXXXXX
XX0X 0XX
----------------------------------------or such other address as the Bank may
notify the Company of in writing from time to time.
1. The Company hereby covenants to pay to the Bank on demand the sum of One
pound ((pound)1) and to pay and discharge on demand all moneys obligations and
liabilities (whether present or future actual or contingent) which may now or at
any time hereafter be or become due owing or incurred by the Company to the Bank
on any account or otherwise howsoever (whether solely or jointly with any other
person and whether as principal or surety) together with interest and other bank
charges so that interest shall be calculated and compounded in accordance with
the practice of the Bank from time to time as well after as before any demand
made or judgment obtained hereunder.
2. The Company with full title guarantee and to the intent that the security
created shall rank as a continuing security hereby charges with the payment or
discharge of all moneys obligations and liabilities hereby covenanted to be paid
or discharged (together with all costs and expenses howsoever incurred by the
Bank in connection with this Mortgage Debenture on a full indemnity basis):
(i) by way of legal mortgage any property referred to in the Schedule
hereto (the legally mortgaged property) and the proceeds of sale
thereof
(ii) by way of specific equitable charge all estates or interests in any
freehold and leasehold property (except the legally mortgaged
property) now and at any time during the continuance of this
security belonging to or charged to the Company (the equitably
charged property) and the proceeds of sale thereof
(iii) by way of specific charge all plant machinery vehicles computers and
office and other equipment both present and future (excluding all
stock in trade) and the full benefit of all warrants and maintenance
contracts for any of the same
(iv) by way of specific charge all stock shares and other securities now
and at any time during the continuance of this security belonging to
the Company either in or issued by any of its subsidiary companies
or any other company and all dividends and other rights in relation
thereto
(v) by way of specific charge all book debts and other debts (including
without limitation rents) now and from time to time due or owing to
the Company
(vi) by way of specific charge its goodwill and the benefit of any
licenses and all patents patent applications inventions trade marks
trade names registered designs copyrights know-how and any other
intellectual property rights
(vii) by way of floating security its undertaking and all its property
assets and rights whatsoever and wheresoever present and/or future
including those for the time being charged by way of specific charge
pursuant to the foregoing paragraphs if and to the extent that such
charges as aforesaid shall fail as specific charges but without
prejudice to any such specific charges as shall continue to be
effective.
The costs and expenses referred to above shall include (for avoidance of doubt)
all amounts the Bank may from time to time require to compensate it for its
internal management and administrative costs and expenses incurred in connection
with the enforcement of this Mortgage Debenture and recovery of the liabilities
secured by it. A certificate signed by an officer of the Bank as to the amount
of such costs and expenses incurred by the Bank from time to time shall for all
purposes be conclusive evidence against and binding upon the Company.
Page 1
3. With reference to the equitably charged property and the property charged
pursuant to Clause 2(iv):
(a) The Company undertakes
(i) to deposit with the Bank the deeds and documents of title or share
certificates relating thereto
(ii) at any time upon request to execute over all or any part thereof a
charge by way of legal mortgage and any appropriate transfer or
other forms instruments or instructions in the case of the stocks
and shares in favour of the Bank or its nominee in such form as the
Bank shall require.
(b) The Bank shall not be entitled to exercise or control the exercise of any
voting rights of any relevant shares (as defined below) comprised therein
unless and until notice demanding payment of any moneys hereby secured
shall have been served by the Bank on the Company. "Relevant shares" are
any shares which are comprised in a public company's relevant share
capital within the meaning of Section 198 of the Companies Xxx 0000. This
restriction shall also apply to any relevant shares forming part of this
security which may be registered in the name of the Bank or any nominee.
4. With reference to the legally mortgaged property and the equitably charged
property the Company agrees:
(i) to keep it in a good state of repair and condition and insured
against such risks and in such office and for such amounts as the
Bank may require or approve and that failure to do so will entitle
the Bank to do so at the expense of the Company and as agent of the
Company without thereby becoming a mortgagee in possession
(ii) that the statutory power of leasing and/or accepting surrenders of
leases conferred on mortgagors shall not be exercised by the Company
without the consent in writing of the Bank but the Bank may grant or
accept surrenders of leases without restriction
(iii) not to part with the possession of it or any part thereof nor confer
upon any person firm company or body whatsoever any license right or
interest to occupy it or any part thereof without the consent in
writing of the Bank.
5. With reference to the book debts and other debts hereby specifically charged
the Company shall pay into the Company's account with the Bank all moneys which
it may receive in respect to such debts and shall not without the prior consent
in writing of the Bank sell factor discount or otherwise charge or assign the
same in favour of any other person or purport to do so and the Company shall if
called upon to do so by the Bank from time to time exercise legal assignments of
such book debts and other debts to the Bank.
6. With reference to the property assets and rights subject to the floating
charge:
(i) the Company shall not be at liberty without the consent in writing
of the Bank to:
(a) create any mortgage or charge ranking in priority to or pari
passu with that charge and/or
(b) sell the whole or except in the ordinary course of business
any part of the Company's undertaking; and
(ii) the Company agrees to effect and maintain such insurances as are
normally maintained by prudent companies carrying on similar
businesses; and
(iii) the Bank may by notice to the Company convert the floating charge
into a specific charge as regards any assets specified in the notice
which the Bank shall consider to be in danger of being seized or
sold under any form of distress or execution levied or threatened
and may appoint a receiver thereof.
7. Section 103 of the Law of Property Xxx 0000 ("the 1925 Act") shall not apply
to this security which shall immediately become enforceable and the power of
sale and other powers conferred by section 101 of the 1925 Act as varied or
extended by this security shall be immediately exercisable at any time after
notice demanding payment of any moneys hereby secured shall have been served by
the Bank on the Company.
8. At any time after this security shall have become enforceable and in any
event immediately upon or at any time after the presentation of a petition
applying for an administration order to be made in relation to the Company the
Bank may by writing under the hand of any Manager of the Bank appoint any person
(or persons) to be receiver of the property hereby charged or any part thereof.
Where two or more persons are appointed to be receivers the Bank will in the
appointment declare whether any act required or authorised to be done by such
receivers is to be done by any one or more of such receivers for the time being
holding office. Any receiver shall be the agent of the Company and the Company
shall be solely responsible for his acts or defaults and for his remuneration.
Where any receiver is appointed by the Bank as an administrative receiver (as
that term is used in the Insolvency Act 1986) such administrative receiver shall
have all the powers of an administrative receiver specified in Schedule 1 of the
Insolvency Act 1986 or any statutory modification or re-enactment thereof. Any
references in this security to receiver shall, except where the context does not
permit include a reference to any such administrative receiver. Where any
receiver is appointed by the Bank to be a receiver of part only of the property
hereby charged and is not therefore an administrative receiver (as that term is
used in the Insolvency Act 1986) such receiver shall have all the powers
specified in Schedule 1 to the Insolvency Xxx 0000 which he would have were he
an administrative receiver insofar as such powers are or might be appropriate to
the receivership of the property of the Company in respect of which he has been
appointed.
Page 2
9. All moneys received by any receiver shall be applied by him in the following
order:
(i) in payment of the 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
(ii) in payment of remuneration of the receiver at such rates as may be
agreed between him and the Bank at or at any time after his
appointment
(iii) in or towards discharge of the liabilities hereby secured in such
order as the Bank may from time to time require
(iv) the surplus (if any) shall be paid to the Company or other person
entitled to it.
10. The powers conferred on mortgagees or receivers by the 1925 Act shall apply
to this security except in so far as they are expressly or impliedly excluded
and where there is any ambiguity or conflict between the powers contained in the
1925 Act and those contained in this security the terms of this security shall
prevail.
11. If the Bank receives or is deemed to be affected by notice whether actual or
constructive of any subsequent charge or other interest affecting any part of
the property hereby charged or the proceeds of sale thereof the Bank may open a
new account or accounts with any person for whose liabilities this Mortgage
Debenture is available as security. If the Bank 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 and as from that time all payments made to
the Bank shall be credited or be treated as having been credited to the new
account and shall not operate to reduce the amount for which this Mortgage
Debenture is security.
12. The Company hereby irrevocably appoints each of the Bank and any person
nominated in writing under the hand of any officer of the Bank including every
receiver hereunder as Attorney of the Company with full power of substitution
for the Company and in its name and on its behalf and its act and deed to
execute seal and deliver and otherwise perfect or do any deed assurance
agreement instrument or act which may be required or deemed proper for any of
the purposes of this security.
13. In the exercise of the powers hereby conferred the Bank or any receiver may
sever and sell plant machinery or other fixtures separately from the property to
which they may be annexed.
14. The Company shall from time to time supply to the Bank such accounts or
other information concerning the assets liabilities and affairs of the Company
its subsidiary or associated companies as the Bank may require.
15. In case the Company shall have more than one account with the Bank it shall
be lawful for the Bank at any time and without any prior notice forthwith to
transfer all or any part of any balance standing to the credit of any such
account (whether current or otherwise or subject to notice or not) to any other
such account which may be in debit but the Bank shall notify the Company of the
transfer having been made. If any credit balance is in a different currency from
any debit balance the Bank shall be entitled to utilise currency of the credit
balance for the purchase at its spot rate of exchange of an amount in the
currency of the debit balance not exceeding the amount of such debit balance and
also to pay out of the credit balance any additional sum which the Bank may be
required to pay for such currency.
16. The security from time to time constituted by or pursuant to this Mortgage
Debenture shall be in addition to and shall be independent of any other security
which the Bank may now or at any time hold on all or any part of the assets of
the Company for or in respect of all or any part of the moneys obligations and
liabilities hereby covenanted to be paid or discharged and it is hereby declared
that no prior security held by the Bank over the property hereby charged or any
part of it shall merge in the security created hereby or pursuant hereto.
17. A demand or notice hereunder shall be in writing signed by an officer or
agent of the Bank and may be served on the Company by hand or by post or by
facsimile machine (fax) and in the case of service by hand either by delivering
the same to any officer of the Company at any place or leaving the same
addressed to the Company at its registered office or a place of business last
known to the Bank. If such demand or notice is sent by post or by fax it shall
be deemed to have been received if posted on the day following the day on which
it was posted and if sent by fax at the time of transmission and shall be
effective notwithstanding it be returned undelivered. The Bank may use the last
fax number of the Company known to it and transmission may be proved by
production of an activity or transmission report which purports to indicate the
transmission of a message to such a number.
18. It is hereby certified that this Mortgage Debenture does not contravene any
of the provisions of the Company's Memorandum and Articles of Association and
has been executed in accordance therewith.
19. This Mortgage Debenture shall be governed by and construed in accordance
with the Laws of England.
In Witness whereof this Deed has been executed by the Company the day and year
first before written.
Page 3
The Schedule
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page 4
--------------------------------------------------------------------------------
Executed as a Deed by the Company acting by
_______________________________________________ Director
Name in full
(in block letters)____________________________
______________________________________________ *Director/Secretary
Name in full
(in block letters)____________________________
*delete as applicable
or alternatively:
The Common Seal of
FOREST NEEDLE COMPANY LIMITED
was hereunto affixed
in the presence of
______________________________________________ Director
______________________________________________ Secretary
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
For and on behalf of the Bank
Authorised Signatory
-------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
We acknowledge receipt of a complete copy of this document
-----------------------------------
Signature
--------------------------------------------------------------------------------
Page 5
Certificate of the Registration of a Mortgage or Charge
Pursuant to Section 401 (2) of the Companies Xxx 0000
I hereby certify that a Mortgage or Charge dated the __________ day of
__________________ One Thousand nine hundred and __________ and enacted by
___________________________ ______________________________________________ for
securing all moneys now due, or hereafter to become due, or from time to time
accruing due from the Company to Xxxxxx & Company on any account whatsoever was
registered pursuant to Section 395 of the
Companies Xxx 0000 on the __________ day of ___________________________________
One thousand nine hundred and ________________________________
Given under my hand at Cardiff this ______________ day of _____________________
One Thousand nine hundred and ________________________________
Registrar of Companies
This Release made the _____________________ day of ____________________________
One thousand nine hundred and __________________________________________ between
the within-named Xxxxxx & Company ("the Bank") of the one part and the
within-named
of the other part Witnesses that the Bank as Mortgagee hereby releases all and
singular the property now comprised in or charged by the within-written Deed
from all moneys secured by and from all claims and demands under the within
written Deed.
In Witness whereof this Deed has been executed by the Bank the day and year
first before written.
The Common Seal of
Xxxxxx & Company
was hereunto affixed
in the presence of
Authorised Sealing Officer
Page 6
This Mortgage Debenture is dated __________, 19__
and is made between
--------------------------------------------------------------------------------
XXXXXX & XXXXXX (TEXTILES) LIMITED REGISTERED NUMBER 2728664
whose registered office is at 00 XXXXXXXXXX XXXXX XXXXXXXXXX XXXXXXXXXX XXXXXX
BRAINTREE ESSEX CM7 2YN
--------------------------------------------------------------------------------
("the Company") of the one part and Xxxxxx & Company ("the Bank") of the other
part whose address for service of any documents relating to this Mortgage
Debenture is its Branch at
-----------------------------------------
COMMERCIAL BANKING
00 XXXXXXX XXXXXX
XXXXXX
XX0X 0XX
----------------------------------------- or such other address as the Bank may
notify the Company of in writing from time to time.
1._______The Company hereby covenants to pay to the Bank on demand the sum of
One pound ((pound)1) and to pay and discharge on demand all moneys obligations
and liabilities (whether present or future actual or contingent) which may now
or at any time hereafter be or become due owing or incurred by the Company to
the Bank on any account or otherwise howsoever (whether solely or jointly with
any other person and whether as principal or surety) together with interest and
other bank charges so that interest shall be calculated and compounded in
accordance with the practice of the Bank from time to time as well after as
before any demand made or judgment obtained hereunder.
2._______The Company with full title guarantee and to the intent that the
security created shall rank as a continuing security hereby charges with the
payment or discharge of all moneys obligations and liabilities hereby covenanted
to be paid or discharged (together with all costs and expenses howsoever
incurred by the Bank in connection with this Mortgage Debenture on a full
indemnity basis):
(i) by way of legal mortgage any property referred to in the Schedule
hereto (the legally mortgaged property) and the proceeds of sale
thereof
(ii) by way of specific equitable charge all estates or interests in any
freehold and leasehold property (except the legally mortgaged
property) now and at any time during the continuance of this
security belonging to or charged to the Company (the equitably
charged property) and the proceeds of sale thereof
(iii) by way of specific charge all plant machinery vehicles computers and
office and other equipment both present and future (excluding all
stock in trade) and the full benefit of all warrants and maintenance
contracts for any of the same
(iv) by way of specific charge all stock shares and other securities now
and at any time during the continuance of this security belonging to
the Company either in or issued by any of its subsidiary companies
or any other company and all dividends and other rights in relation
thereto
(v) by way of specific charge all book debts and other debts (including
without limitation rents) now and from time to time due or owing to
the Company
(vi) by way of specific charge its goodwill and the benefit of any
licenses and all patents patent applications inventions trade marks
trade names registered designs copyrights know-how and any other
intellectual property rights
(vii) by way of floating security its undertaking and all its property
assets and rights whatsoever and wheresoever present and/or future
including those for the time being charged by way of specific charge
pursuant to the foregoing paragraphs if and to the extent that such
charges as aforesaid shall fail as specific charges but without
prejudice to any such specific charges as shall continue to be
effective.
The costs and expenses referred to above shall include (for avoidance of doubt)
all amounts the Bank may from time to time require to compensate it for its
internal management and administrative costs and expenses incurred in connection
with the enforcement of this Mortgage Debenture and recovery of the liabilities
secured by it. A certificate signed by an officer of the Bank as to the amount
of such costs and expenses incurred by the Bank from time to time shall for all
purposes be conclusive evidence against and binding upon the Company.
Page 1
3. With reference to the equitably charged property and the property charged
pursuant to Clause 2(iv):
(a) The Company undertakes
(i) to deposit with the Bank the deeds and documents of title or share
certificates relating thereto
(ii) at any time upon request to execute over all or any part thereof a
charge by way of legal mortgage and may appropriate transfer or
other forms instruments or instructions in the case of the stocks
and shares in favour of the Bank or its nominee in such form as the
Bank shall require.
(b) The Bank shall not be entitled to exercise or control the exercise of any
voting rights of any relevant shares (as defined below) comprised therein
unless and until notice demanding payment of any moneys hereby secured
shall have been served by the Bank on the Company. "Relevant shares" are
any shares which are comprised in a public company's relevant share
capital within the meaning of Section 198 of the Companies Xxx 0000. This
restriction shall also apply to any relevant shares forming part of this
security which may be registered in the name of the Bank or any nominee.
4. With reference to the legally mortgaged property and the equitably charged
property the Company agrees:
(i) to keep it in a good state of repair and condition and insured
against such risks and in such office and for such amounts as the
Bank may require or approve and that failure to do so will entitle
the Bank to do so at the expense of the Company and as agent of the
Company without thereby becoming a mortgagee in possession
(ii) that the statutory power of leasing and/or accepting surrenders of
leases conferred on mortgagors shall not be exercised by the Company
without the consent in writing of the Bank but the Bank may grant or
accept surrenders of leases without restriction
(iii) not to part with the possession of it or any part thereof nor confer
upon any person firm company or body whatsoever any license right or
interest to occupy it or any part thereof without the consent in
writing of the Bank.
5. With reference to the book debts and other debts hereby specifically charged
the Company shall pay into the Company's account with the Bank all moneys which
it may receive in respect to such debts and shall not without the prior consent
in writing of the Bank sell factor discount or otherwise charge or assign the
same in favour of any other person or purport to do so and the Company shall if
called upon to do so by the Bank from time to time exercise legal assignments of
such book debts and other debts to the Bank.
6. With reference to the property assets and rights subject to the floating
charge:
(i) the Company shall not be at liberty without the consent in writing
of the Bank to:
(a) create any mortgage or charge ranking in priority to or pari
passu with that charge and/or
(b) sell the whole or except in the ordinary course of business
any part of the Company's undertaking; and
(ii) the Company agrees to effect and maintain such insurances as are
normally maintained by prudent companies carrying on similar
businesses; and
(iii) the Bank may by notice to the Company convert the floating charge
into a specific charge as regards any assets specified in the notice
which the Bank shall consider to be in danger of being seized or
sold under any form of distress or execution levied or threatened
and may appoint a receiver thereof.
7. Section 103 of the Law of Property Xxx 0000 ("the 1925 Act") shall not apply
to this security which shall immediately become enforceable and the power of
sale and other powers conferred by section 101 of the 1925 Act as varied or
extended by this security shall be immediately exercisable at any time after
notice demanding payment of any moneys hereby secured shall have been served by
the Bank on the Company.
8. At any time after this security shall have become enforceable and in any
event immediately upon or at any time after the presentation of a petition
applying for an administration order to be made in relation to the Company the
Bank may by writing under the hand of any Manager of the Bank appoint any person
(or persons) to be receiver of the property hereby charged or any part thereof.
Where two or more persons are appointed to be receivers the Bank will in the
appointment declare whether any act required or authorised to be done by such
receivers is to be done by any one or more of such receivers for the time being
holding office. Any receiver shall be the agent of the Company and the Company
shall be solely responsible for his acts or defaults and for his remuneration.
Where any receiver is appointed by the Bank as an administrative receiver (as
that term is used in the Insolvency Act 1986) such administrative receiver shall
have all the powers of an administrative receiver specified in Schedule 1 of the
Insolvency Act 1986 or any statutory modification or re-enactment thereof. Any
references in this security to receiver shall, except where the context does not
permit include a reference to any such administrative receiver. Where any
receiver is appointed by the Bank to be a receiver of part only of the property
hereby charged and is not therefore an administrative receiver (as that term is
used in the Insolvency Act 1986) such receiver shall have all the powers
specified in Schedule 1 to the Insolvency Xxx 0000 which he would have were he
an administrative receiver insofar as such powers are or might be appropriate to
the receivership of the property of the Company in respect of which he has been
appointed.
Page 2
9. All moneys received by any receiver shall be applied by him in the following
order:
(i) in payment of the 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
(ii) in payment of remuneration of the receiver at such rates as may be
agreed between him and the Bank at or at any time after his
appointment
(iii) in or towards discharge of the liabilities hereby secured in such
order as the Bank may from time to time require
(iv) the surplus (if any) shall be paid to the Company or other person
entitled to it.
10. The powers conferred on mortgagees or receivers by the 1925 Act shall apply
to this security except in so far as they are expressly or impliedly excluded
and where there is any ambiguity or conflict between the powers contained in the
1925 Act and those contained in this security the terms of this security shall
prevail.
11. If the Bank receives or is deemed to be affected by notice whether actual or
constructive of any subsequent charge or other interest affecting any part of
the property hereby charged or the proceeds of sale thereof the Bank may open a
new account or accounts with any person for whose liabilities this Mortgage
Debenture is available as security. If the Bank 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 and as from that time all payments made to
the Bank shall be credited or be treated as having been credited to the new
account and shall not operate to reduce the amount for which this Mortgage
Debenture is security.
12. The Company hereby irrevocably appoints each of the Bank and any person
nominated in writing under the hand of any officer of the Bank including every
receiver hereunder as Attorney of the Company with full power of substitution
for the Company and in its name and on its behalf and its act and deed to
execute seal and deliver and otherwise perfect or do any deed assurance
agreement instrument or act which may be required or deemed proper for any of
the purposes of this security.
13. In the exercise of the powers hereby conferred the Bank or any receiver may
sever and sell plant machinery or other fixtures separately from the property to
which they may be annexed.
14. The Company shall from time to time supply to the Bank such accounts or
other information concerning the assets liabilities and affairs of the Company
its subsidiary or associated companies as the Bank may require.
15. In case the Company shall have more than one account with the Bank it shall
be lawful for the Bank at any time and without any prior notice forthwith to
transfer all or any part of any balance standing to the credit of any such
account (whether current or otherwise or subject to notice or not) to any other
such account which may be in debit but the Bank shall notify the Company of the
transfer having been made. If any credit balance is in a different currency from
any debit balance the Bank shall be entitled to utilise currency of the credit
balance for the purchase at its spot rate of exchange of an amount in the
currency of the debit balance not exceeding the amount of such debit balance and
also to pay out of the credit balance any additional sum which the Bank may be
required to pay for such currency.
16. The security from time to time constituted by or pursuant to this Mortgage
Debenture shall be in addition to and shall be independent of any other security
which the Bank may now or at any time hold on all or any part of the assets of
the Company for or in respect of all or any part of the moneys obligations and
liabilities hereby covenanted to be paid or discharged and it is hereby declared
that no prior security held by the Bank over the property hereby charged or any
part of it shall merge in the security created hereby or pursuant hereto.
17. A demand or notice hereunder shall be in writing signed by an officer or
agent of the Bank and may be served on the Company by hand or by post or by
facsimile machine (fax) and in the case of service by hand either by delivering
the same to any officer of the Company at any place or leaving the same
addressed to the Company at its registered office or a place of business last
known to the Bank. If such demand or notice is sent by post or by fax it shall
be deemed to have been received if posted on the day following the day on which
it was posted and if sent by fax at the time of transmission and shall be
effective notwithstanding it be returned undelivered. The Bank may use the last
fax number of the Company known to it and transmission may be proved by
production of an activity or transmission report which purports to indicate the
transmission of a message to such a number.
18. It is hereby certified that this Mortgage Debenture does not contravene any
of the provisions of the Company's Memorandum and Articles of Association and
has been executed in accordance therewith.
19. This Mortgage Debenture shall be governed by and construed in accordance
with the Laws of England.
In Witness whereof this Deed has been executed by the Company the day and year
first before written.
The Schedule
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page 4
--------------------------------------------------------------------------------
Executed as a Deed by the Company acting by
_______________________________________________ Director
Name in full
(in block letters)____________________________
______________________________________________ *Director/Secretary
Name in full
(in block letters)____________________________
*delete as applicable
or alternatively:
The Common Seal of
XXXXXX & XXXXXX (TEXTILES) LIMITED
was hereunto affixed
in the presence of
______________________________________________ Director
______________________________________________ Secretary
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
For and on behalf of the Bank
Authorised Signatory
-------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
We acknowledge receipt of a complete copy of this document
-----------------------------------
Signature
--------------------------------------------------------------------------------
Page 5
Certificate of the Registration of a Mortgage or Charge
Pursuant to Section 401 (2) of the Companies Xxx 0000
I hereby certify that a Mortgage or Charge dated the __________ day of
__________________ One Thousand nine hundred and __________ and enacted by
___________________________ ______________________________________________ for
securing all moneys now due, or hereafter to become due, or from time to time
accruing due from the Company to Xxxxxx & Company on any account whatsoever was
registered pursuant to Section 395 of the
Companies Xxx 0000 on the __________ day of ___________________________________
One Thousand nine hundred and ________________________________
Given under my hand at Cardiff this ______________ day of _____________________
One thousand nine hundred and ________________________________
Registrar of Companies
This Release made the _____________________ day of ____________________________
One Thousand nine hundred and __________________________________________ between
the within-named Xxxxxx & Company ("the Bank") of the one part and the
within-named
of the other part Witnesses that the Bank as Mortgagee hereby releases all and
singular the property now comprised in or charged by the within-written Deed
from all moneys secured by and from all claims and demands under the within
written Deed.
In Witness whereof this Deed has been executed by the Bank the day and year
first before written.
The Common Seal of
Xxxxxx & Company
was hereunto affixed
in the presence of
Authorised Sealing Officer
Page 6
