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Exhibit 10.11
DATED 23RD JUNE 1999
CAMINUS ENERGY LIMITED
- AND -
FLEET BANK, N.A.
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DEBENTURE
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PINSENT--XXXXXX
GPT
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CONTENTS
1 Interpretation 1
2 Company's Obligations 4
3 Charges 4
4 Protection of Chargeholder's Rights 5
5 Covenants Etc 8
6 Demand and Enforcement 11
7 Receivers 12
8 Power of Attorney 14
9 Payment of Moneys 14
10 Consolidation 15
11 Protection of Third Parties 16
12 Protection of the Bank and the Receiver 16
13 Miscellaneous Provisions 17
14 Upstream Payments 20
SCHEDULES
1 Registered Land/Unregistered Land
2 The Account
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THIS DEED is made on 19
This Debenture is given by CAMINUS ENERGY LIMITED (No 2128860) whose registered
office is at Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxx XX0 0XX (the "COMPANY") in
favour of FLEET BANK N.A. (the"BANK")
1 INTERPRETATION
1.1 In this Debenture unless the context otherwise requires:-
"ACCOUNT" means the account referred to in Schedule 2, or
such further or other account as the Bank may at
any time stipulate
"ASSETS" means all the undertaking, property and assets of
the Company whatsoever and wheresoever, present
or future
"ASSET CONTRACTS" means all the rights of the Company, now or in
the future, arising out of or in connection with
any agreement:-
(I) for the acquisition of any property (real
or personal) by the Company (except to the
extent that such rights amount to an
interest in land effectively charged by
way of legal mortgage or fixed charge by
Clause 4.1 or 4.2) including without
limitation any option to acquire property;
(ii) for the hire, hire purchase, lease or loan
of any property (real or personal), to the
Company (except as aforesaid)
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"BANK" includes persons deriving title under the Bank
"CREDIT AGREEMENT" means the agreement dated on or about even date
herewith between the Bank and Caminus LLC
providing for the extension of credit b the Bank
to Caminus LLC in the aggregate principal sum of
US Dollars five million and includes all
amendments and supplements thereto from time to
time
"DEBTS" means all book and other debts now or in the
future becoming due to the Company (whether alone
or jointly with any other person), whenever
payable and whether liquidated or unliquidated,
certain or contingent, including without
limitation credit balances on any account at any
bank or financial institution, other than the
Account, and together with all cheques, bills of
exchange, negotiable instruments, credits and
securities at any time given in relation to, or
to secure payment of, any such debt, but "Debts"
does not include any asset or right effectively
charged by way of fixed charge under any other
heading of Clause 3
"ENCUMBRANCE" means any mortgage, charge, pledge, lien,
hypothecation or other security interest of any
kind, and any right of set-off, assignment,
trust, flawed asset or other agreement or
arrangement whatsoever for the purpose of
providing security or having a similar effect to
the provision of security, other than liens
arising by operation of law in the ordinary
course of the Company's business
"ENVIRONMENTAL LAW" means all laws, including without limitation
common law, statutes, delegated legislation,
legislation of the
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European Union or any of its institutions, and
codes of practice and guidance issued by any
relevant authority or agency, in relation to any
matter affecting the environment, human health or
the storage handling or disposal of any waste or
other substance
"FIXED PLANT AND EQUIPMENT" means all plant machinery or equipment of any
kind (including without limitation all cables,
pipes, switchgear, heating, lighting, electrical,
water and gas apparatus) which does not for any
reason constitute a fixture, but is now or at any
time directly or indirectly attached by any means
and for any purpose to any land or building,
whether or not it is removable or intended to
form part of the land or building
"FIXTURES" means all things of any kind now or at any time
affixed to land for any purpose, including
without limitation trade and tenants fixtures
"GROUP COMPANY" means any company which is at any relevant time a
subsidiary company or a holding company of the
Company, or a subsidiary of any such holding
company, or a company which is controlled by
persons who control the Company
"INSURANCES" means all the right title and interest of the
Company, now or in the future, in or under any
policy of insurance or assurance or to the
proceeds thereof
"INTELLECTUAL PROPERTY" means all the right title and interest of the
Company (now or in the future) in or to any of
the following:-
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(I) any registered intellectual property
right in any territory, including without
limitation patents, trade marks, service
marks, registered designs, and any
similar right in any territory and any
applications or right to apply for any of
the above;
(ii) any invention, copyright, design right of
performance right; and
(iii) any trade secrets, know-how and
confidential information
"LAND" means any estate, right or interest in or over
land, whether legal or equitable, and wherever
the land is situated, including any buildings and
Fixtures on land, and the benefit of any
covenants or rights owed to any person or
enforceable by him by virtue of the ownership
possession or occupation of Land, but for these
purposes "land" excludes heritable property
situated in Scotland
"LOOSE PLANT AND EQUIPMENT" means all plant, machinery, equipment and motor
vehicles now or at any time owned by the Company
as a capital asset which is not Fixed Plant and
Equipment, (including without limitation any
moulds, patterns, tools (other than hand tools
and consumable tooling) dies and jigs)
"OTHER CLAIMS" means all rights claims or obligations of any
kind whatsoever now or at any time owed to the
Company capable of being satisfied by the payment
of money, which are not effectively charged by
way of fixed charge by any other provision of
this Debenture
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"RECEIVER" means any receiver appointed under this
Debenture, and, where more than one receiver has
been appointed, each of them
"RENTS" means any sum payable to the Company (and any
right to recover any such a sum):-
(I) by way of rent, service charge or
otherwise under any lease of Land, or as
mesne profits, licence fee, or otherwise
howsoever for the use or occupation of or
trespass upon Land, or other income
arising from any Land;
(ii) by way of rent or otherwise for or in
connection with the possession or use of,
or in respect of any trespass to or
conversion of, any chattel
except insofar as the same is effectively charged
by way of fixed charge by Clause 3.1 or 3.2
"SECURED LIABILITIES" means all money liabilities and obligations now
or in the future owed or incurred by the Company
to the Bank, of any kind, however arising and in
any currency, whether or not immediately payable,
whether certain or contingent, whether sole or
joint, whether as principal or as surety,
whether or not the Bank was the original creditor
in respect thereof, and including (without
limitation) interest commission costs charges and
expenses charged by the Bank at rates agreed
between it and the Company or, in the absence of
express agreement, in accordance with the Bank's
normal practice for the time being
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"SECURITIES" means all the right title and interest of the
Company, now or in the future, in any stocks,
shares, instruments creating or acknowledging any
debt, or other securities issued by any person
1.2 In this Debenture unless the context otherwise requires:-
1.2.1 the singular includes the plural and vice versa, and reference to
any gender includes the other genders;
1.2.2 references to persons include bodies corporate, associations,
partnerships, organisations, states, state agencies and any other
entity, whether or not having separate legal personality;
1.2.3 words and phrases defined in the Companies Xxx 0000 have the same
meanings in this Agreement but the word "COMPANY" includes any
body corporate;
1.2.4 references to Clauses are to clauses or sub-clauses of this
Debenture, references to a Schedule are to a schedule to this
Debenture and references within a Schedule to paragraphs are to
paragraphs or sub-paragraphs of that Schedule;
1.2.5 references to any rate of interest shall be construed as meaning
that rate as from time to time in force, calculated from day to
day, and compounded on the Bank's usual days for charging interest
in each year, both before and after judgment; and references to a
base lending rate shall, if there is no such published or
determinable rate at the appropriate time, be construed as meaning
such reasonably equivalent rate as the Bank shall select;
1.2.6 unless the defined herein capitalised terms have the meaning
assigned thereto in the Credit Agreement.
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1.3 In this Debenture:-
1.3.1 any reference to any statute or statutory instrument or any
section or part thereof includes any enactment (present or future)
replacing or amending it or any instrument, order or regulation
made under it and also includes any past statutory provisions (as
from time to time modified or re-enacted) which such provision has
directly or indirectly replaced;
1.3.2 headings are for reference purposes only and shall not affect the
construction of anything in this Agreement;
2 COMPANY'S OBLIGATIONS
The Company covenants :-
2.1 to pay or discharge to the Bank on demand made at any time at
which the Bank is entitled to do so any or all of the Secured
Liabilities; and
2.2 to pay interest to the Bank upon any sum so demanded until payment
(both before and after any judgment) at the rate applicable to
that sum immediately before demand (or, if there was no such
applicable rate, at four per cent above the Bank's Base Rate.)
3 CHARGES
As security for payment of the Secured Liabilities the Company (with full
title guarantee) hereby charges to the Bank:-
3.1 by way of first legal mortgage all Land now owned by the Company
including (without limitation) the land which is described in the
Schedule hereto,
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3.2 by way of first fixed equitable charge all Land which the Company
acquires in the future;
3.3 by way of separate first fixed charges:-
3.3.1 all the goodwill and uncalled capital of the Company,
present or future
3.3.2 the Securities
3.3.3 the Insurances
3.3.4 the Intellectual Property
3.3.5 the Debts
3.3.6 the Rents
3.3.7 the Asset Contracts
3.3.8 the Other Claims
3.3.9 the Fixed Plant and Equipment
3.3.10 the Loose Plant and Equipment
3.4 by way of first floating charge all those Assets which are not for
any reason effectively charged by this Debenture by way of fixed
charge, including (without limitation) any heritable property of
the Company situated in Scotland.
4 PROTECTION OF CHARGEHOLDER'S RIGHTS
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4.1 The Company shall pay into the Account all moneys which it receives in
respect of any Debts and Rents and until such payment hold all moneys so
received upon trust for the Bank and shall not without the prior written
consent of the Bank charge factor discount or assign any of them in
favour of any other person, or otherwise deal with them except for the
purpose of collecting them in and paying them as required by this Clause.
4.2 The Company shall deal with any money standing to the credit of the
Account, subject to the rights of the bank at which the Account is
maintained, in accordance with any directions given in writing by the
Bank from time to time.
4.3 Any monies received by the Company in respect of Debts or Rents and paid
into the Account in accordance with Clause 4.1 at any time prior to this
Debenture becoming enforceable shall, in the absence of any prior
direction to the contrary given by the Bank, upon such payment in be
deemed released from the fixed charges created by Clause 3.3, but shall
be subject to the floating charge created by Clause 3.4. Any such release
shall not affect the continuance of the fixed charges over all other
Debts and Rents for the time being outstanding.
4.4 The Company covenants not, without the prior written consent of the
Bank:-
4.4.1 to create (otherwise than in favour of the Bank) any Encumbrance,
or to allow any Encumbrance to arise or continue, on or over any
of the Assets ; or
4.4.2 to part with or dispose of all or any of the Assets charged by way
of floating charge except in the ordinary course of carrying on
its business as a going concern.
Unless permitted by the Credit Agreement.
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4.5 The Bank may from time to time by notice in writing to the Company
convert any floating charge created by this Debenture into a fixed
charge, in respect of any Assets which are specified in any such notice.
Any such floating charge shall automatically be converted into a fixed
charge:-
4.5.1 in respect of any Assets, immediately prior to the Company
agreeing or resolving (unless the Bank has first consented to it)
to create any Encumbrance over those Assets in favour of any other
person, or to part with or dispose of them otherwise than in the
ordinary course of carrying on the Company's business as a going
concern; and
4.5.2 in respect of all the Assets if the Company ceases to carry on
business or to be a going concern or if any voluntary arrangement
or other moratorium or compromise with the Company's creditors, or
any class of them, is proposed or put into effect;
but so that this sub-Clause 4.5 shall not apply to any Assets situated in
Scotland.
4.6 The Company hereby applies to the Chief Land Registrar for a restriction
to be entered on the register of title of all registered land now or in
the future owned by the Company in the following terms:-
"Except under an order of the Registrar no disposition by the proprietor
of the land is to be registered without the consent of the proprietor for
the time being of [the charge created by this Debenture]".
4.7 The Company shall subject to the rights of any prior mortgagee deposit
with the Bank and the Bank during the continuance of this security shall
be entitled to hold all deeds and documents of title relating to the
Company's Land, the Securities (including warrants and coupons) and the
Insurances.
4.8 The Company shall, at is own expense, at any time when required by the
Bank:-
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4.8.1 execute and deliver to the Bank a valid legal mortgage of any Land
now or in the future owned by the Company;
4.8.2 execute and deliver to the Bank a legal assignment of any Debts,
Rents, or Other Claims which the Bank shall require, and give
notice of any such assignment to any person when required by the
Bank; and
4.8.3 execute and deliver all deeds and documents and do and concur in
all other acts and things which the Bank may deem necessary or
desirable to vest in the Bank the security intended to be created
by this Debenture over all or any of the Assets
4.8.4 do and concur in all such other acts or things as the Bank may
deem necessary or desirable to vest in the Bank the security
intended to be created by this Debenture over all of any of the
Assets or to facilitate the enforcement of that security, or the
exercise of any powers or discretions intended to be vested in the
Bank or the Receiver by this Debenture
in each case, in the Bank's standard form or such other form as the Bank
may require. In the case of Assets situated outside England and Wales,
references to any form of security shall be taken to refer to any form of
security available under the relevant local law which the Bank may
select.
4.9 This security shall be a continuing security to the Bank and shall remain
in force until expressly discharged in writing by the Bank
notwithstanding any intermediate settlement of account or other matter or
thing whatsoever, and shall be without prejudice and in addition to any
other right remedy or security of any kind which the Bank may have now or
at any time in the future for or in respect of any of the Secured
Liabilities.
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5 COVENANTS ETC
5.1 While this Debenture continues in force the Company shall:-
5.1.1 provide to the Bank all information, and copies of all documents
which the Bank may require relating to the financial affairs of
and its interest in the Company and any Group Company, including,
without limitation, providing not later than 21 days after the end
of each month, (or such other period as the Bank may at any time
specify in writing) copies of management accounts and financial
information in such form as the Bank may require, in respect of
the Company and each Group Company;
5.1.2 forthwith notify the Bank of the acquisition of any Land;
5.1.3 ensure that the aggregate value of the Company's good book debts
(excluding debts payable by any other Group Company, and any other
person from time to time specified by the Bank), after deducting
any provision which is (or ought to have been) made in respect of
doubtful debts in the Company's most recent management or audited
accounts ("the Debtor Value"), at all times exceeds such amount as
the Bank may from time to time specify;
5.1.4 provide to the Bank, within three days after a request by the
Bank, a certificate signed by a director of the Company of the
aggregate Debtor Value as at a stated date not more than seven
days before the date of the certificate, and such other
information in relation to the Debts as the Bank may require;
5.1.5 put and keep all its buildings in good and substantial repair and
all fixtures and fittings plant machinery and other effects in
good working order and condition;
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5.1.6 maintain all such insurances as are normally maintained by prudent
companies carrying on similar businesses and in particular
(without limitation) will insure and keep insured such of the
Assets as are insurable with an insurance office or underwriters
to be approved by the Bank in writing from time to time, (and, if
at any time so requested by the Bank) either in the name of the
Company with the interest of the Bank noted or, at the option of
the Bank, in the joint names of the Company and the Bank, against
loss or damage by fire and such other risks (on terms that the
insurer shall not avoid cancel or fail to renew any such policy
for non payment of premium without first giving not less than 21
days prior notice to the Bank, and on such other terms as the Bank
may from time to time require, in their full replacement value for
the time being);
5.1.7 pay all premiums and other moneys necessary to effect and keep up
such insurances within one week of the same becoming due, on
demand produce to the Bank the policy or policies of such
insurance and the receipt for every such payment, comply at all
times with all the requirements of any such insurance policy, and
not do or omit to do anything, or allow any thing to occur or
continue which will or may in the sole opinion of the Bank cause
any such insurance policy to become void or voidable, or allow the
insurer to refuse any indemnity under it;
5.1.8 in relation to all Land owned or occupied by the Company
(a) at all times observe and perform (and ensure that any other
person at any time occupying any such Land also observes
and performs) all restrictive and other covenants to which
the Land or any part of it may from time to time be
subject, all obligations on the part of the Company or any
such occupier in any lease or tenancy agreement and all
building regulations and all restrictions conditions and
stipulations for the time being affecting the Land or any
part of it or the use or enjoyment of the Land
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(b) within seven days deliver to the Bank any notice or
proceedings served on the Company and relating to any
alleged breach of any of the above; and
(c) at all times keep the Land in a safe condition for all
persons forseeably likely to be present on any part of it,
and where necessary or desirable for such purposes, erect
and maintain fencing, barriers, covers and other security
measures
(d) pay all rents rates taxes and outgoings payable by virtue
of its ownership or occupation, and
(e) permit the Bank at any reasonable time to enter on the
land, inspect it and any assets on it, and take copies of
any documents there.
5.1.9 at all times comply with all applicable Environmental Law, and
obtain and comply with the terms of any licence or permit under
any Environmental Law which is necessary or desirable to carry on
any of the Company's businesses or activities.
5.1.10 take all action necessary to maintain any registered rights to
Intellectual Property in full force and effect, and to make and
pursue all applications which it is entitled to make for any such
rights.
5.2 If the Company is in default under any of the covenants set out in Clause
5.1 above (or any of its other obligations under this Debenture), the
Bank may at its sole discretion (but will not be obliged to) take any
steps which it considers necessary or desirable to remedy the default or
make good its effects in whole or in part, and in particular, without
limitation, may pay any amount which the Company ought to pay and may
authorise any person to enter, by force if necessary, on any Land or into
any building owned or occupied by the Company and perform works and may
put in place or renew any insurance. Neither the Bank, nor any person
authorised by it, shall be
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deemed to have taken possession of any Land by virtue of exercising any
power given by this Clause, irrespective of the degree of control
exercised over the Land or access to it, unless and until the Bank (or
any such person) serves notice in writing on the Company expressly
stipulating its intention to take possession.
5.3 The Bank shall be entitled to be paid the proceeds of any Insurance to
which the Company is entitled (other than any indemnity against liability
to a third party) and the Company hereby irrevocably instructs any
insurer in respect of any such policy to pay such proceeds to the Bank
and undertakes to the Bank to issue such further instructions to that
effect as the Bank may require.
5.4 All moneys received on any Insurance whatsoever (other than any indemnity
against liability to a third party) shall as the Bank in its sole
discretion requires be applied either in making good the loss or damage
in respect of which the money is received or in or towards discharge of
the Secured Liabilities.
6 DEMAND AND ENFORCEMENT
6.1 This Debenture shall become enforceable:-
6.1.1 upon any demand being made by the Bank for payment of any of the
Secured Liabilities;
6.1.2 upon any request being made by the Company to the Bank for the
appointment of a receiver or for the Bank to exercise any other
power or right available to it;
6.1.3 upon the occurrence of any event referred to in Clause 4.5.2, or
any event causing the floating charge created by this Debenture to
become fixed in relation to any Assets;
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6.1.4 upon the passing of any resolution, or the presentation of a
petition for winding up, or for an administration order in
relation to the Company
6.2 Any demand for payment, and any other notice to be given by the Bank
under this Debenture, shall be in writing and may be signed by any
official of the Bank, and may be made or given at any place of business
of the Company, or at its registered office:-
6.2.1 by delivering it to any such place, or
6.2.2 by sending it by first class post to any such place (in which case
it shall be deemed received at 10am on the next business day after
posting, and proof of posting shall be proof of delivery), or
6.2.3 by sending it by fax to any of the Company's fax numbers (in which
case it shall be deemed received when sent, and proof of sending
shall be proof of receipt).
6.3 At any time after this Debenture shall have become enforceable, the Bank
may exercise, in respect of any Asset, the power of sale given to
mortgagees by the Law of Property Xxx 0000. The restrictions imposed by
section 103 of that Act shall not apply, and the Bank may delegate the
exercise of its power of sale to any Receiver or other person.
7 RECEIVERS
7.1 At any time after this Debenture has become enforceable the Bank may
appoint any person or persons to be a receiver or receivers of all or any
part of the Assets hereby charged. An appointment over part only of the
Assets shall not preclude the Bank from making any subsequent appointment
over any other part of the Assets.
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7.2 The appointment of a Receiver shall be in writing, and may be signed by
any officer of the Bank. Where more than one person is acting at any time
as Receiver, they shall have power to act severally as well as jointly.
7.3 The Bank may from time to time determine the remuneration of the Receiver
(which shall not be subject to the limit in section 109(6) of the Law of
Property Act 1925) and may (subject to the application of Section 45 of
the Insolvency Act 1986) remove any person from office in relation to all
or any part of the Assets of which he is the Receiver and at any time
(before or after any person shall have vacated office or ceased to act as
Receiver in respect of any of the Assets) appoint a further or other
receiver or receivers over all or any part of the Assets.
7.4 The Receiver shall be the agent of the Company (which shall be solely
liable for his acts defaults and remuneration) unless and until the
Company goes into liquidation whereafter he shall act as principal and
shall not become the agent of the Bank, and the Receiver shall have and
be entitled to exercise in relation to the Company all the powers set out
in Schedule 1 to the Insolvency Xxx 0000 (whether or not he is an
administrative receiver) and in applying that Schedule:-
7.4.1 the words "he" and "him" refer to the Receiver; and
7.4.2 references to the property of the company are to the Assets over
which the Receiver is appointed
and in particular by way of addition to but without hereby limiting such
powers (and without prejudice to the Bank's powers) the Receiver shall
have power to do the following things namely:-
7.4.3 power to carry on or join with any person in carrying on any
business (whether or not carried on by the Company prior to his
appointment) and;
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7.4.4 power to maintain, repair, make safe, improve and develop any Land
or other Asset and to do all such other things as may in his
opinion be necessary or desirable for maintaining or enhancing the
value or marketability of any Asset.
8 POWER OF ATTORNEY
The Company hereby irrevocably appoints the Bank (whether or not a
Receiver has been appointed) and also (as a separate appointment) each
Receiver severally as the attorney and attorneys of the Company with
power to do any act, and execute and deliver any deed or other document,
on behalf of and in the name of the Company, which the Company could be
required to do or execute under any provision of this Debenture, or which
the Bank in its sole opinion may consider necessary or desirable for
perfecting the Bank's title to any of the Assets or enabling the Bank or
the Borrower to exercise any of its or his rights or powers under this
Debenture
9 PAYMENT OF MONEYS
9.1 Any moneys received by the Receiver shall, subject to the repayment as
far as necessary of any claims having priority to this Debenture, be paid
or applied in the following order of priority:-
9.1.1 in satisfaction of all costs charges and expenses properly
incurred and payments properly made by the Receiver and of the
remuneration of the Receiver;
9.1.2 in or towards satisfaction of the Secured Liabilities in such
order as the Bank may at its discretion require;
9.1.3 as to the surplus (if any) to the person or persons entitled
thereto.
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9.2 The Bank may, without prejudice to any other rights it may have, at any
time and from time to time place (and keep for such time as it may think
prudent) any moneys received recovered or realised under or by virtue of
this Debenture on a separate or suspense account to the credit either of
the Company or of the Bank as the Bank shall think fit without any
intermediate obligation on the Bank's part to apply the same or any part
thereof in or towards the discharge of the Secured Liabilities.
10 CONSOLIDATION
10.1 In addition to any general lien, right to combine accounts, right to set
off or other right which it may at any time have, the Bank shall have the
right at any time or times, without notice to the Company, to combine or
consolidate all or any accounts which it then has in relation to the
Company (in whatever name) and any liabilities owed by the Company to the
Bank, and/or to set off or transfer any amounts standing to the credit of
one or more accounts of the Company in or towards satisfaction of any
amount owed to the Bank on any other account or otherwise
10.2 The Bank's rights under Clause 10.1 apply:-
10.2.1 whether or not any demand has been made hereunder, or any
liability concerned has fallen due for payment
10.2.2 whether or not any credit balance is immediately available or
subject to any restriction
10.2.3 irrespective of the currencies in which any balance or liability
is denominated, and the Bank may for the purpose of exercising its
rights elect to convert any sum or liability in one currency into
any other of its spot rate applying at or about 11am on the date
of conversion
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10.2.4 in respect of any liabilities owed to the Bank by the Company,
whether owed solely or jointly, certainly or contingently,
presently or in the future, as principal or surety, and howsoever
arising.
11 PROTECTION OF THIRD PARTIES
11.1 In favour of any purchaser, the statutory powers of sale and of
appointing a receiver which are conferred upon the Bank, as varied and
extended by this Debenture, and all other powers of the Bank, shall be
deemed to arise and be exercisable immediately after the execution of
this Debenture
11.2 No purchaser from or other person dealing with the Bank, any person to
whom it has delegated any of its powers, or the Receiver shall be
concerned to enquire whether any of the powers which they have exercised
has arisen or become exercisable, or whether the Secured Liabilities
remain outstanding or whether any event has happened to authorise the
Receiver to act or as to the propriety or validity of the exercise of any
such power; and the title and position of a purchaser or such person
shall not be impeachable by reference to any of those matters
11.3 The receipt of the Bank or the Receiver shall be an absolute and
conclusive discharge to a purchaser or such person and shall relieve him
of any obligation to see to the application of any moneys paid to or by
the direction of the Bank or the Receiver.
12 PROTECTION OF THE BANK AND THE RECEIVER
12.1 Neither the Bank nor any Receiver shall be liable in respect of any loss
or damage which arises out of the exercise, or attempted or purported
exercise of, or the failure to exercise any of their respective powers
under this Debenture
12.2 Without prejudice to any other provision of this Debenture, entry into
possession of any Asset shall not render the Bank or the Receiver liable
to account as mortgagee in possession or to be liable for any loss on
realisation or for any default or omission for
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which a mortgagee in possession might be liable and if and whenever the
Bank or the Receiver enters into possession of any Asset it shall be
entitled at any time it or he thinks fit to go out of such possession
12.3 The Company shall indemnify and keep indemnified the Bank, every
Receiver, and any person who acts as the servant, agent, delegate or
attorney of any of them, against all claims costs expenses and
liabilities which they may suffer or incur arising in any way out of the
taking or holding of this Debenture, the exercise or purported exercise
of any right power authority or discretion given by it, or any other act
or omission in relation to this Debenture or the Assets. The provisions
of this Clause 12 shall continue in full force and effect notwithstanding
any release or discharge of this Debenture, or the discharge of any
Receiver from office.
13 MISCELLANEOUS PROVISIONS
13.1 While this Debenture continues in force:-
13.1.1 no statutory or other power of granting or agreeing to grant or of
accepting or agreeing to accept surrenders of leases or tenancies
of the Land hereby charged or any part of it shall be capable of
being exercised by the Company;
13.1.2 the Company shall not be entitled to part with possession
(otherwise than on the termination of any lease tenancy or licence
to it) of any Land, or to share occupation of any Land with any
other person or persons, or to surrender any lease of Land or
permit such a lease to be assigned or forfeited;
without the prior written consent of the Bank;
13.2 Section 93 of the Law of Property Xxx 0000 dealing with the consolidation
of mortgages shall not apply to this security.
24
13.3 The statutory powers of sale, leasing and accepting surrenders
exercisable by the Bank are hereby extended so that the Bank may, either
in its own name or in that of the Company,
13.3.1 grant a lease or leases (whether or not at a premium) of the whole
or any part or parts of any Land owned by the Company, with such
rights relating to other Land and containing such covenants on the
part of the Company and generally on such terms and conditions as
the Bank shall think fit (including the payment of money to a
lessee or tenant on a surrender);
13.3.2 accept a surrender of any lease on such terms as the Bank may
think fit in either case, without any of the restrictions on such
powers contained in section 99 and 100 of the Law of Property Xxx
0000.
13.4 The rights powers and discretions given to the Bank in this Debenture:-
13.4.1 may be exercised as often as and in such manner as, the Bank
thinks fit;
13.4.2 are cumulative, and are not exclusive of any of its rights under
the general law;
13.4.3 may only be waived in writing and specifically, and any delay in
exercising, or non-exercise of, any right, is not a waiver of it.
13.5 If any provision of this Debenture is illegal invalid or unenforceable in
any jurisdiction, that shall not affect:-
13.5.1 the validity or enforceability of any other provision, in any
jurisdiction, or
13.5.2 the validity or enforceability of that particular provision, in
any other jurisdiction.
25
13.6 All costs charges and expenses incurred or paid by the Bank or by the
Receiver in the exercise of any power or right given by this Debenture or
in relation to any consent requested by the Company, or in perfecting or
otherwise in connection with this Debenture or the Assets, including
(without limitation) all moneys expended by the Bank under Clause 5.2,
all sums recoverable under Clause 12.3 and all costs of the Bank (on an
indemnity basis) of all proceedings for the enforcement of this Debenture
or for obtaining payment of moneys hereby secured, shall be recoverable
from the Company as debts, may be debited by the Bank at any time to any
account of the Company and shall bear interest until payment at the rate
or rates applicable to the account to which they are debited, or, if
there is no such rate, at 4% over the Bank's base rate.
13.7 If the Bank receives notice of any subsequent charge or other security
interest affecting any of the Assets the Bank shall be entitled to close
the Company's then current account or accounts and to open a new account
or accounts for the Company; if the Bank does not open a new account or
accounts immediately on receipt of such notice it shall nevertheless be
treated as if it had done so at the time when it received such notice,
and as from that time all payments made for the credit of the Company to
the Bank shall be credited or be treated as having been credited to such
new account or accounts and shall not operate to reduce the amount due
from the Company to the Bank at the time when it received such notice.
13.8 The Bank may from time to time seek from any other person having dealings
with the Company such information about the Company and its affairs as
the Bank may think fit and the Company hereby authorises and requests any
such person to provide any such information to the Bank and agrees to
provide such further authority in this regard as the Bank may from time
to time require. The Company shall at its own cost at any time if so
requested by the Bank appoint an accountant or firm of accountants
nominated by the Bank to investigate the financial affairs of the Company
and/or any subsidiary of the Company and report to the Bank, and
authorises the Bank itself at any time to make such appointment on behalf
of the Company or on its own account as it shall think fit, and in every
such case the fees and expenses of such accountant or
26
firm shall be payable by the Company and may be paid by the Bank on
behalf of the Company.
13.9 The Bank may assign this Debenture to any successor in title to any of
the Secured Liabilities, and may disclose any information in its
possession relating to the Company, its affairs or the Secured
Liabilities to any actual or prospective assignee.
14 UPSTREAM PAYMENTS
Nothing in this Debenture shall prohibit the payment by the Company of
dividends or distributors or the making of other payments or transfers to
its parent company which dividend distribution payments or transfers are
not prohibited by the Credit Agreement
EXECUTED AND DELIVERED AS A DEED by the Company, and executed by the Bank, on
the date hereof
27
SCHEDULE 1
REGISTERED LAND
TITLE NUMBER DESCRIPTION
UNREGISTERED LAND
28
SCHEDULE 2
THE ACCOUNT
The Company's current account detailed below:
Bank: [ ]
Branch: [ ]
Sort Code: [ ]
Account Number: [ ]
29
EXECUTED (but not delivered until ) Director /s/ Xxxxx X. Xxxxx
the date hereof) AS A DEED by ) Xx. X. X. Xxxxx
CAMINUS ENERGY LIMITED ) Secretary /s/ XX Xxxxxxxxxx
Xxx. X. X. Xxxxxxxxxx
SIGNED by a duly authorised officer )
for and on behalf of FLEET BANK N.A. ) /s/ Xxxxxxx Twist
in the presence of:- ) ------------------------------
Signature of Witness: /s/ Xxxxx X. Xxxxxx
Name of Witness: Xxxxx X. Xxxxxx
Address:
