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EXHIBIT 10.43
Dated [Do Not Date] 1995
HORIZON EXPLORATION LIMITED (1)
AND
THE BANK OF N.T. XXXXXXXXXXX
& SONS LIMITED (2)
CHATTEL MORTGAGE
XXXXX XXXXXXXXX
0 Xxxxxxx Xxxx
Xxxxxx XX0X 255
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INDEX
(for reference purposes only)
Clause Heading Page Number
------ ------- -----------
1 COVENANT TO PAY
2 MORTGAGE
3 COVENANTS OF THE MORTGAGOR
4 DEFAULT AND BANK'S POWERS OF SALE
5 RECEIVER
6 PROTECTION OF THIRD PARTIES
7 CONTINUING SECURITY
8 SUSPENSE ACCOUNT
9 NEW ACCOUNTS
10 SET-OFF
11 COSTS AND INDEMNITY
12 TIME AND INDULGENCES
13 AVOIDANCE OF PAYMENTS
14 MISCELLANEOUS
15 NOTICES
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THIS DEED made
1995
BETWEEN
(1) HORIZON EXPLORATION LIMITED a company registered in England under
company number 2804983 whose registered office is at 0 Xxxxxxxx Xxxx
Xxxxxxxxx Xxxx XX0X 0XX ("the Mortgagor") and
(2) THE BANK OF N.T. XXXXXXXXXXX & SON LIMITED acting through its London
Branch of 00 Xxxxxxxx Xxxxxx Xxxxxx XX0X 0XX ("the Bank")
NOW THIS DEED WITNESSETH as follows:
WHEREAS:
(A) The Bank has made general banking and contract finance facilities
available to the Mortgagor;
(B) The Mortgagor has now requested the Bank to make available to the
Mortgagor a Term Loan Facility up to maximum amount of US $2,000,000
("the Term Loan Facility");
(C) As a condition precedent to the Bank making available the Term Loan
Facility the Bank requires the Mortgagor to enter into this Deed as
security for all its obligations from time to time to the Bank;
1 COVENANT TO PAY
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The Mortgagor covenants on demand to pay and discharge to the Bank all
monies obligations and liabilities whether principal interest or
otherwise which may now or at any time in the future be due owing or
incurred by the Mortgagor to the Bank whether actual or contingent and
whether alone severally or jointly as principal guarantor surety or
otherwise and in whatever name or style and whether on any current or
other account or in any other manner together with interest charges
and other expenses so that interest shall be calculated and compounded
as may be agreed from time to time between the parties or, if not
agreed, at the usual rate of interest of the Bank on such accounts as
well after as before any demand made or judgment obtained hereunder
(together hereinafter referred to as (the Secured Obligations).
2 MORTGAGE
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2.1 As security for the payment or discharge of the Secured
Obligations the Mortgagor as beneficial Owner HEREBY ASSIGNS
to the Bank by way of first ranking fixed legal mortgage ALL
the Chattels listed in the Schedule hereto ("the Chattels")
together with the benefit of all and any warranties guarantees
or indemnities or other rights relating to the Chattels and
the benefit of all maintenance agreements between the
Mortgagor and any third party insofar as the same are
assignable TO HOLD the same unto the Bank absolutely subject
only to the proviso for redemption hereinafter contained
PROVIDED that on payment and discharge of the Secured
Obligations the Bank shall at the request and cost of the
Mortgagor discharge this security.
2.2 The Mortgagor shall at any time execute such deeds and do all
such things as the Bank may from time to time require to vest
in the Bank (subject to the proviso for redemption
hereinbefore contained) full right and title in and to the
Chattels.
3 COVENANTS OF THE MORTGAGOR
--------------------------
3.1 The Mortgagor covenants with the Bank during the terms of this
Deed as follows:
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3.1.1 not without the prior written consent of the Bank to
sell transfer or dispose of or part with possession
or control of or attempt to sell lease transfer or
dispose of the Chattels (or any interest therein) nor
directly or indirectly create or permit to exist any
mortgage lien pledge charge security interest
assignment or other encumbrance of any kind
whatsoever in relation to the Chattels;
3.1.2 to use the Chattels in a careful and proper manner
and to keep tines in good working order including by
way of repair of and adjustment to the Chattels;
3.1.3 not without the prior written consent of the Bank to
make changes or alterations to the Chattels;
3.1.4 not to lease hire out or otherwise part with
possession of the Chattels or permit or procure the
Chattels to be used other than in the business of the
Mortgagor without the prior written consent of the
Bank and then only subject to such further tends as
the Bank may require;
3.1.5 to pay punctually all taxes and duties however
designated insurance premiums maintenance or
servicing charges and other outgoings in respect of
the Chattels or their use;
3.1.6 to insure and keep insured the Chattels in the joint
names of the Bank and the Mortgagor or (at the
discretion of the Bank) with the interest of the Bank
noted against such policy to the full replacement
value thereof and against accident third party and
other risks normally covered by insurance and upon
such terms and with such insurers as shall be
approved in writing by the Bank and to produce to the
Bank on demand evidence of the policy of such
insurance and the receipt for the current premium in
respect thereof. If the Mortgagor shall fall to
insure the Chattels in accordance with this clause
the Bank may do all such things as it may consider
necessary to insure the Chattels and shall be
entitled to reimbursement from the Mortgagor upon
demand of all costs involved in securing such
Insurance;
3.1.7 to procure at its own expense that the Chattels can
at all times be used Without contravening any
legislation governing or affecting the same and the
use thereof
3.1.8 not to annex the Chattels to any property and/or land
to the intent that the equipment is not and shall not
become a fixture or fitting of such property and/or
land
3.2 If the Mortgagor shall fail to satisfy the Bank that it has
performed any of its obligations under clause 3.1 then the
Bank may take such steps as it considers appropriate to
procure the performance of such obligation and shall not
thereby be deemed to be a mortgagee in possession and the
monies expended by the Bank shall be reimbursed by the
Mortgagor on demand and until so reimbursed shall carry
interest as mentioned in clause 1 from the cost of payment to
the date of reimbursement.
3.3 The Mortgagor will indemnify and keep the Bank indemnified
from and against all and any costs claims damages and any
other expenses whatsoever that the Bank may suffer sustain or
incur or be called upon to pay by reason of or consequent upon
(whether directly or indirectly) it having entered into this
Deed or as a result of the Mortgagor failing to perform any
express or implied obligations on its part herein contained or
otherwise and without prejudice to the generality of the
foregoing from and against all rates taxes duties charges
imposition assessments and outgoings whatsoever payable
charged or imposed upon or in respect of the Chattels.
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4 DEFAULT AND BANK'S POWERS OF SALE
4.1 This Deed shall become enforceable:
4.1.1 if any of the Secured Obligations shall not be paid
or discharged by the Mortgagor in accordance with
clause 1; or
4.1.2 if the Mortgagor shall be in breach of any provision
of this Deed or of any agreement containing any terms
and conditions of or applicable to the monies
obligations and liabilities secured by this Deed; or
4.1.3 upon the presentation of a petition for the
winding-up of the Mortgagor or the making of an order
for the winding up of the Mortgagor or the passing by
the Mortgagor of a resolution for voluntary
winding-up; or
4.1.4 if an encumbrancer shall take possession of or a
receiver shall be appointed over or any secures
creditor of the Mortgagor shall seek to enforce his
security in respect of all or any of the property or
assets charged by this Deed; or
4.1.5 if a petition shall be presented for an
administration order in relation to the Mortgagor; or
4.1.6 if the Mortgagor shall enter into any composition or
arrangement for the benefit of its creditors; or
4.1.7 any other event shall take place which in the opinion
of the Bank puts in jeopardy all or any part of the
security created by this Deed.
4.2 The Secured Obligations shall be deemed to have become due
within the meaning of Section 101 of the Law of Property Xxx
0000 ("the Act") and the security created by the Mortgagor by
or pursuant to this Deed shall immediately become enforceable
and the power of sale and other powers conferred by the said
Section and/or by Schedule 1 to the Insolvency Xxx 0000, in
each case as varied or extended by this Deed, and all other
powers conferred on the Bank by this Deed shall be immediately
exercisable at any time, in relation to the whole or any part
of the Chattels, after the Bank shall have validly and
effectively demented the payment or discharge by the Mortgagor
of all or any of the Secured Obligations, any demand for
payment shall be valid ant effective for the purposes of this
sub-clause 4.2 notwithstanding that the demand may contain an
inaccurate or incomplete statement of the Secured Obligations.
5 RECEIVER
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5.1 The provisions of Clause 4 above notwithstanding, at any time
after the security constituted by this Deed shall have become
enforceable the Bank may by writing appoint any person or
persons to be a receiver or receivers of the Chattels or any
of them and remove any receiver or receivers so appointed and
appoint another or others in his or their place and a receiver
or receivers so appointed shall have powers:
5.1.1 to take possession of the Chattels or any part
thereof and for that purpose to take any proceedings
in the name of the Mortgagor or otherwise as may seem
expedient;
5.1.2 to carry on manage or concur in carrying on or
managing the business of the Mortgagor in relation to
the Chattels and for any of those purposes to raise
or borrow any monies;
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that may be required upon the security of the
Chattel;
5.1.3 forthwith and without the restrictions imposed by
Section 103 of the Act to sell or concur in selling
(but where necessary with the leave of the Court) and
to lease the Chattels;
5.1.4 to make any arrangements in relation to the Chatter
which he or they shall think expedient;
5.1.5 to make and effect all repairs renewals and any
Improvements to the Chattels and to maintain or renew
all insurances;
5.1.6 to appoint managers, agents, officers, servants and
workmen for any of the aforesaid purposes at such
salaries and for such periods as he or they may
determine;
5.1.7 to do all such other acts and things as may be
considered to be incidental or conducive to any of
the matters or powers aforesaid and which he or they
lawfully ray or can do as agent for the Mortgagor
All moneys received by such receiver or receivers shall be
applied first in payment of his or their remuneration as may
be agreed between him or them and the appointor and the costs
of realization secondly in providing for the matters specified
in the first three paragraphs of Section 103(8) of the Act and
for the purposes aforesaid and thirdly in or towards
satisfaction of the Secured Obligations and all the foregoing
provisions in this Dead shall take effect as and by way of
variation and extension of the provisions of Section 99 to 109
inclusive of the Act which provisions so varied and extended
shall be regarded as incorporated herein. Any receiver or
receivers so appointed shall be deemed to be the agent or
agents of the Mortgagor and the Mortgagor shall be solely
responsible for his or their acts or defaults and for his or
their remuneration
5.2 The Mortgagor irrevocably appoints the Bank any receiver and
any person nominated by the Bank jointly and also severally to
be the attorney of the Mortgagor with the power of
substitution and in its name and otherwise on its behalf and
as its act and deed to sign or execute all deeds, instruments
and documents which the Bank or any receiver may require or
teem proper for any of the purposes of or which the Mortgagor
ought to do under this Deed.
The Mortgagor agrees to ratify and confirm anything such
attorney shall lawfully and properly do.
6 PROTECTION OF THIRD PARTIES
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No person dealing with the Bank or with any receiver of the Chattels
or any part thereof appointed by the Bank or with any delegate or
sub-delegate of the Bank shall be concerned to enquire whether any
event has happened upon which any of the posers, authorities and
discretions conferred by or pursuant to this Deed in relation to the
Chattels or any part thereof are or may be exercisable by the Bank or
by any such receiver, delegate or sub-delegate or otherwise as to the
propriety or regularity of acts purporting or intended to be in
exercise of any such powers and 611 the protection to purchasers
contained in Sections 104 and 107 of the Act and Section 42(3) of the
Insolvency Xxx 0000 shall apply to any person purchasing from or
dealing tenth the Bank or any such receiver, delegate or sub-delegate
in like manner as if the statutory powers of sale end of appointing
receiver in relation to the Chattels had not been varied or extended
by this Deed.
7 CONTINUING SECURITY
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The security created by this Deed is a continuing security for the
payment discharge and performance in
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full of all the Secured Obligations and the security so created shall
not be satisfied or otherwise prejudiced or effected by any
intermediate payment or satisfaction of any part of the said amounts
and the security so created shall be in addition to and shall not in
any way be prejudiced or effected by any collateral guarantees or
other security now or hereafter held by the Bank for any part of the
said amounts Section 93 of the Act shall not apply to this Deed. Upon
repayment in full of the Secured Obligations this security shall cease
and determine
8 SUSPENSE ACCOUNT
All monies received, recovered or realized by the Bank under this Deed
may in the discretion of the Bank be credited to any suspense or
impersonal account and may be held In such account for so long as the
Bank thinks fit (with interest accruing thereon at such rate, if any,
as the Bank may deem fit for the account of the Mortgagor) pending
their application from ff me to time (as the Bank shall be entitled to
do in its discretion) in or towards the discharge of any of the
Secured Obligations.
9 NEW ACCOUNTS
9.1 If the Bank shall at any time receive actual or constructive
notice of any charge or other interest affecting any part of
the property hereby charged then the Bank may open a new
account or accounts for the Mortgagor and if the Bank does not
do so then the Bank shall be treated as if it had in fact done
so at the time when it received or was deemed to receive
notice and as from that time all payments made by the
Mortgagor to the Bank shall be credited or treated as having
been credited to the new account and shall not operate to
reduce the amount secured by this Dead at the time when the
Bank received or was deemed to have received such notice.
10 SET-OFF
10.1 The Bank may at any time and without notice to the Mortgagor
combine or consolidate all or any of the Mortgagor's then
existing accounts with and liabilities to the Bank and set off
or transfer any sum or sums standing to the credit of any one
or more of such accounts in or towards satisfaction of any of
the liabilities of the Mortgagor to the Bank on any other
account or in any other respects. The Bank shall notify the
Mortgagor that such a transfer has been made.
11 COSTS AND INDEMNITY
11.1 All costs charges and expenses incurred by the Bank in
relation to this Deed or the monies and liabilities hereby
secured shall be reimbursed by the Mortgagor to the Bank on
demand on a full indemnity basis and until so reimbursed shell
carry interest as mentioned in clause 1 from the date of
payment to the date of reimbursement and be secured on the
property charged by this Deed.
11.2 The Bank and every receiver attorney or other person appointed
by the Bank under this Deed and their respective employees
shall be entitled to be indemnified on a full indemnity basis
out of the property charged by this Deed in respect of all
liabilities and expenses incurred by any of them in or
directly or indirectly as a result of the exercise or
purported exercise of any of the powers authorities or
discretions vested in them under this Deed and against all
actions, proceedings, losses, costs, claims and demands in
respect of any matter or thing done or omitted in any way
relating to the property charged by this Deed and the Bank and
any such receiver may retain and pay all sums in respect of
the same out of the monies received under the powers conferred
by this Deed.
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12 TIME AND INDULGENCE
12.1 The Bank may at any time or times without discharging or in
any way affecting the security created by or pursuant to this
Deed or any remedy in respect of such security, grant to the
Mortgagor time or indulgence or abstain from asserting,
calling, exercising or enforcing any remedies, securities,
guarantees or other rights which it may now or hereafter have
from or against the Mortgagor.
12.2 The Bank may in its discretion grant time or other indulgence,
or make any other arrangement, variation or release with, any
person or persons not party hereto (whether or not such person
or persons are jointly liable with the Mortgagor) in respect
of any of the Secured Obligations or of any other security
therefor or guarantee in respect thereof without prejudice
either to the security constituted by or pursuant to this Deed
or to the liability of the Mortgagor for the Secured
Obligations or the exercise by the Bank of any rights,
remedies and privileges conferred upon it by this Deed.
13 AVOIDANCE OF PAYMENTS
No assurance, security or payment which may be avoided under any law
relating to bankruptcy, insolvency or winding-up (including Sections
238, 239, 244 or 245 of the Insolvency Act 1986), and no settlement or
discharge given or made by the Bank on the faith of any such
assurance, security or payment, shall prejudice or affect the right of
the Bank to enforce the security created by or pursuant to this Deed
to the full extent of the Secured Obligations. Except in respect of
the refinancing of the Secured Obligations by a third party financier
as a result of which the Secured Obligations are repaid in full (but
not in part only) to the Bank, the Bank may in its absolute discretion
retain the security so created for the period of two Business Days
plus such statutory period within which any security or payment given
or made pursuant to this Deed can be avoided or invalidated after all
facilities from time to time made available to the Mortgagor by the
Bank shall have ceased to be available and the Secured Obligations
shall have been paid in full, notwithstanding any release, settlement,
discharge or arrangement given or made by the Bank on, or as a
consequence of, such termination of liability. If at any time within
such period after such termination a petition shall be presented to a
competent court for an order for the bankruptcy, insolvency or
winding-up of the Mortgagor shall commence to be wound up voluntarily,
or an application for an administration order shall be made to a
competent court in respect of the Mortgagor, the Bank may,
notwithstanding as aforementioned, continue to retain such security or
any part thereof far and during such further period as the Bank in its
absolute discretion shall determine. The Mortgagor agrees that such
security shall be deemed to have been and to have remained held by the
Bank as and by way of security.
14 MISCELLANEOUS
14.1 The Bank shall have a full and unfettered right to assign the
whole or any part of the benefit t of this Deed and the
expression 'the Bank' shall include its successors and assigns
and the Bank shall be entitled to disclose any informant on to
any actual or prospective assignee successor or participant.
14.2 The provisions of this Deed shall be severable and if at any
time any one or more such provisions is or becomes invalid
illegal or unenforceable the validity, legality and
enforceability of the remaining provisions shall not in any
way be impaired.
14.3 The rights and remedies of the Bank provided by this Deed are
cumulative ant are not exclusive of any rights powers or
remedies provided by law and may be exercised from time to
time and as often as the Bank may deem expedient.
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14.4 Any reference in this Deed to any statute or any section of
any statute shall be deemed to include reference to any
statutory modification or re-enactment thereof for the time
being in force.
15 NOTICES
15.1 Any demand or notice under this Deed shall be in writing
signed by any officer of the Bank and may be served personally
on any director or the secretary of the Mortgagor or may be
sent by post telex or facsimile or may be delivered to the
registered office of the Mortgagor or its last known place of
business. If such demand or notice is sent by post it shall be
deemed to have been received on the day following the day on
which it was posted and shall be effective notwithstanding
that it was not in fact delivered or was returned undelivered.
If sent by telex or facsimile it shall be deemed to have been
received (whether or not actually received) at the tine of
dispatch.
16 LAW AND JURISDICTION
This Deed shall be governed by and construed in accordance with
English law and the parties hereto irrevocably submit to the
non-exclusive jurisdiction of the English Courts.
