Dated March 28, 2007 DEBENTURE between Advance Homeland Security PLC and Conquistador Investments Limited
Dated
March
28,
2007
between
Advance
Homeland Security PLC
and
Conquistador
Investments Limited
THIS
AGREEMENT
is dated
March 28, 2007
Parties
|
(1)
|
ADVANCE
HOMELAND SECURITY PLC, a Public Limited Company registered in England
with
company number 5916772 whose registered office is at Xxxxxxxx Xxxxx,
0xx
Xxxxx, 00 Xxxxxxx XX Xxxxxx, Xxxxxx XX0X 0XX (Borrower).
|
|
(2)
|
CONQUISTADOR
INVESTMENTS LIMITED, a company incorporated in Gibraltar with a place
of
business at Xxxxx X0, Xxxxxxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxx (Lender).
|
Background
|
The
Lender has agreed pursuant to the Facility Agreement to provide the
Borrower with loan facilities on a secured
basis.
|
|
This
debenture provides the security which the Borrower has agreed to
give the
Lender for the loan facilities.
|
Agreed
terms
|
Definitions
and interpretation
|
|
1.1
|
Definitions
|
In
this
agreement the definitions and rules of interpretation in this clause
apply.
Administrator:
an
administrator appointed to manage the affairs, business and property of the
Borrower pursuant to paragraph 15
of
Schedule
4.
Business
Day:
a day
(other than a Saturday or Sunday) on which banks are open for general business
both in London and New York.
Charged
Property:
all the
assets, property and undertaking legally and beneficially owned in their
entirety for the time being subject to the security interests created by this
debenture (and references to the Charged Property include references to any
part
of it).
Costs:
all
costs, charges, expenses and liabilities of any kind including, without
limitation, costs and damages in connection with litigation, professional fees,
disbursements and any value added tax charged on Costs.
Encumbrance:
any
mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien,
assignment by way of security, or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.
Equipment:
all
present and future equipment, plant, machinery, tools, vehicles, furniture,
fittings, installations and apparatus and other tangible moveable property
for
the time being owned by the Borrower, including any part of it and all spare
parts, replacements, modifications and additions.
1
Facility
Agreement:
the term
facility agreement dated [DATE] between the Borrower and the Lender for the
provision of loan facilities secured by this debenture.
Properties:
all
freehold and leasehold properties (whether registered or unregistered) and
all
commonhold properties, now or in the future (and from time to time) legally
and
beneficially owned in their entirety by the Borrower and Property
means
any of them.
Receiver:
a
receiver and/or manager of any or all of the Charged Property appointed pursuant
to paragraph 6
of
Schedule
4.
Secured
Liabilities:
all
present and future monies, obligations and liabilities owed by the Borrower
to
the Lender, whether actual or contingent and whether owed jointly or severally,
as principal or surety and/or in any other capacity whatsoever, under or in
connection with the Facility Agreement and for the avoidance of doubt such
monies, obligations and liabilities include all interest accruing on them and
those arising under to clause 12.3.
Security
Period:
the
period starting on the date of this debenture and ending on the date on which
all the Secured Liabilities have been unconditionally and irrevocably paid
and
discharged in full.
|
1.2
|
Interpretation
|
In
this
debenture:
|
(a)
|
any
reference to any statute or statutory provision includes a reference
to
any subordinate legislation made under that statute or statutory
provision, to any modification, re-enactment or extension of that
statute
or statutory provision and to any former statute or statutory provision
which it consolidated or re-enacted before the date of this
debenture;
|
|
(b)
|
a
reference to one gender includes a reference to the other
gender;
|
|
(c)
|
words
in the singular include the plural and in the plural include the
singular;
|
|
(d)
|
a
reference to a clause or schedule is to a clause or schedule of or
to this
debenture unless the context requires
otherwise;
|
|
(e)
|
a
reference to this
debenture
(or any specified provision of it) or any other document shall be
construed as a reference to this debenture, that provision or that
document as in force for the time being and as amended, varied or
supplemented from time to time in accordance with its terms, or,
as the
case may be, with the agreement of the relevant parties and (where
such
consent is, by the terms of this debenture or the relevant document,
required to be obtained as a condition to such amendment being permitted)
the prior written consent of the
Lender;
|
2
|
(f)
|
a
reference to a person
shall be construed as including a reference to an individual, firm,
corporation, unincorporated body of persons or any state or any agency
of
a person;
|
|
(g)
|
a
reference to an amendment
includes a supplement, variation, novation or re-enactment (and
amended
shall be construed accordingly);
|
|
(h)
|
a
reference to assets
includes present and future properties, undertakings, revenues, rights
and
benefits of every description;
|
|
(i)
|
a
reference to an authorisation
includes an authorisation, consent, licence, approval, resolution,
exemption, filing, registration and
notarisation;
|
|
(j)
|
a
reference to a regulation
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
and
|
|
(k)
|
the
headings do not form part of this debenture or any part of it and
do not
affect its interpretation.
|
|
1.3
|
Clawback
|
If
the
Lender considers that an amount is capable of being avoided or otherwise set
aside on liquidation or administration of the Borrower or otherwise, then that
amount shall not be considered to have been irrevocably paid for the purposes
of
this debenture.
|
1.4
|
Nature
of security over real
property
|
A
reference in this debenture to a charge or mortgage of any freehold, leasehold
or commonhold property includes:
|
(a)
|
all
buildings and fixtures (including trade and tenant's fixtures) which
are
at any time situated on that
property;
|
|
(b)
|
the
proceeds of sale of any part of that property;
and
|
|
(c)
|
the
benefit of any covenants for title given or entered into by any
predecessor in title of the Borrower in respect of that property
or any
monies paid or payable in respect of those
covenants.
|
|
1.5
|
Law
of Property (Miscellaneous Provisions) Xxx
0000
|
For
the
purposes of section 2 of the Law of Property (Miscellaneous Provisions) Xxx
0000
the terms of the Facility Agreement and of any side letters between any parties
in relation to the Facility Agreement are incorporated in this
debenture.
3
|
1.6
|
Land
Registration Rules 1925
|
For
the
purposes only of Rule 139 of the Land Registration Rules 1925 (as amended)
the
Facility Agreement does not form part of the terms and conditions of this
debenture.
|
1.7
|
Insolvency
Xxx 0000
|
Paragraph
14 of Schedule B1 to the Insolvency Xxx 0000 (as inserted by section 248 of,
and
Schedule 16 to, the Enterprise Act 2002) applies to the floating charge created
by this debenture.
|
Covenant
to pay
|
The
Borrower shall on demand pay to the Lender and discharge the Secured Liabilities
when they become due.
|
Grant
of security
|
|
3.1
|
Charging
clause
|
As
a
continuing security for the payment and discharge of the Secured Liabilities,
the Borrower with full title guarantee:
|
charges
to the Lender, by way of first fixed
charge:
|
|
charges
to the Lender, by way of first floating charge, all the undertaking,
property, assets and rights of the Borrower at any time not effectively
mortgaged, charged or assigned pursuant to clause 3.1(a).
|
4
|
3.2
|
Automatic
conversion of floating
charge
|
The
floating charge created by clause 3.1(b)
shall
automatically and immediately (without notice) be converted into a fixed charge
over the relevant Charged Property if:
|
(a)
|
the
Borrower:
|
|
(b)
|
a
receiver is appointed over all or any of the Charged Property that
is
subject to the floating charge; or
|
|
(c)
|
any
person levies or attempts to levy any distress, attachment, execution
or
other process against all or any part of the Charged Property;
or
|
|
(d)
|
the
Lender receives notice of the appointment of, or a proposal or an
intention to appoint, an administrator of the
Borrower.
|
|
Liability
of Borrower
|
|
4.1
|
Liability
not discharged
|
The
liability of the Borrower under this debenture in respect of any of the Secured
Liabilities shall not be discharged, prejudiced or affected by:
|
(a)
|
any
security, guarantee, indemnity, remedy or other right held by or
available
to the Lender being or becoming wholly or partially illegal, void
or
unenforceable on any ground; or
|
|
(b)
|
the
Lender renewing, determining, varying or increasing any facility
or other
transaction in any manner or concurring in, accepting or varying
any
compromise, arrangement or settlement or omitting to claim or enforce
payment from any other person; or
|
|
(c)
|
any
other act or omission which but for this provision might have discharged
or otherwise prejudiced or affected the liability of the
Borrower.
|
|
Representations
and Warranties
|
The
Borrower represents and warrants to the Lender in the terms set out in
Schedule
1.
5
|
Covenants
|
The
Borrower covenants with the Lender during the continuance of the security
constituted by this debenture in the terms set out in Schedule
2.
|
Powers
of the Lender
|
The
Lender shall have the powers set out in Schedule
3.
|
Enforcement
|
The
security constituted by this debenture shall be immediately enforceable in
any
of the circumstances set out in Schedule
4.
A
Receiver shall have, in addition to the powers conferred on receivers by
statute, the further powers set out in Schedule
5.
|
Costs
and indemnity
|
The
Borrower shall pay to or reimburse the Lender and any Receiver on demand, on
a
reasonable and proportionate basis, all Costs incurred by the Lender and any
Receiver in relation to:
|
(a)
|
this
debenture or the Charged Property;
or
|
|
protecting,
perfecting, preserving or enforcing (or attempting to do so) any
of the
Lender's rights under this debenture;
or
|
|
suing
for or recovering any of the Secured
Liabilities,
|
(including,
without limitation, the Costs of any proceedings in relation to this debenture
or the Secured Liabilities) together with, in the case of clause 9(b)
and
clause 9(c),
interest on the amount due at the rate for default interest under clause 7.1
of
the Facility Agreement.
The
Lender and any Receiver and their respective employees and agents shall be
indemnified out of the Charged Property in respect of all actions, liabilities
and Costs incurred or suffered in or as a result of:
|
(d)
|
the
exercise or purported exercise of any of the powers, authorities
or
discretions vested in them under this debenture;
and
|
|
(e)
|
any
matter or thing done or omitted to be done in relation to the Charged
Property under those powers.
|
6
|
Release
|
Subject
to clause 12.3,
upon
the expiry of the Security Period (but not otherwise) the Lender shall, at
the
request and cost of the Borrower, take whatever action is necessary to release
the Charged Property from the security constituted by this
debenture.
|
Assignment
and transfer
|
|
11.1
|
Assignment
by Lender
|
The
Lender may at any time, with the consent of the Borrower, assign or transfer
the
whole or any part of the Lender's rights under this debenture to any
person.
|
11.2
|
Assignment
by Borrower
|
The
Borrower may not assign any of its rights or transfer any of its obligations
under this debenture or enter into any transaction, which would result in any
of
these rights or obligations passing to another person, without the consent
of
the Lender, such consent not to be unreasonably withheld.
|
Further
provisions
|
|
12.1
|
Independent
security
|
This
debenture shall be in addition to and independent of every other security or
guarantee which the Lender may at any time hold for any of the Secured
Liabilities and no prior security held by the Lender over the whole or any
part
of the Charged Property shall merge in the security created by this
debenture.
|
12.2
|
Continuing
security
|
This
debenture shall remain in full force and effect as a continuing security for
the
Secured Liabilities, notwithstanding any settlement of account or intermediate
payment or other matter or thing whatsoever, unless and until the Lender
discharges this debenture in writing.
|
Discharge
conditional
|
Any
release, discharge or settlement between the Borrower and the Lender shall
be
deemed conditional upon no payment or security received by the Lender in respect
of the Secured Liabilities being avoided or reduced or ordered to be refunded
pursuant to any provision of any enactment relating to insolvency, bankruptcy,
winding-up, administration or receivership and, notwithstanding any such
release, discharge or settlement:
7
|
(a)
|
the
Lender or its nominee shall be at liberty to retain this debenture
and the
security created by or pursuant to this debenture, including all
certificates and documents relating to the whole or any part of the
Charged Property, for such period as the Lender shall deem necessary
to
provide the Lender with security against any such avoidance or reduction
or order for refund; and
|
|
(b)
|
the
Lender shall be entitled to recover the value or amount of such security
or payment from the Borrower subsequently as if such settlement,
discharge
or release had not occurred and the Borrower agrees with the Lender
accordingly and charges the Charged Property and the proceeds of
any sale
of it with any liability under this
paragraph.
|
|
12.4
|
Certificates
|
A
certificate or determination by the Lender as to any amount for the time being
due to it from the Borrower shall (in the absence of any manifest error) be
conclusive evidence of the amount due.
|
12.5
|
Rights
cumulative
|
The
rights and powers of the Lender conferred by this debenture are cumulative,
may
be exercised as often as the Lender considers appropriate, and are in addition
to its rights and powers under the general law.
|
12.6
|
Waivers
|
Any
waiver or variation of any right by the Lender (whether arising under this
debenture or under the general law) is only effective if it is in writing and
signed by the Lender and applies only in the circumstances for which it was
given and shall not prevent the Lender from subsequently relying on the relevant
provision.
|
12.7
|
Further
exercise of rights
|
No
act or
course of conduct or negotiation by or on behalf of the Lender shall in any
way
preclude the Lender from exercising any right or power under this debenture
or
constitute a suspension or variation of any such right or power.
|
12.8
|
Delay
|
No
delay
or failure to exercise any right or power under this debenture shall operate
as
a waiver.
8
|
12.9
|
Single
or partial exercise
|
No
single
or partial exercise of any right under this debenture shall prevent any other
or
further exercise of that or any other such right.
|
12.10
|
Consolidation
|
The
restriction on the right of consolidating mortgages contained in section 93
of
the Law of Property Act 1925 shall not apply to this debenture.
|
12.11
|
Partial
invalidity
|
The
invalidity, unenforceability or illegality of any provision (or part of a
provision) of this debenture under the laws of any jurisdiction shall not affect
the validity, enforceability or legality of the other provisions.
|
12.12
|
Counterparts
|
This
debenture may be executed and delivered in any number of counterparts, each
of
which is an original and which together have the same effect as if each party
had signed the same document.
|
12.13
|
Third
party rights
|
A
third
party (being any person other than the Borrower and the Lender [and its
permitted successors and assigns]) has no right under the Contracts (Rights
of
Third Parties) Xxx 0000 to enforce, or to enjoy the benefit of, any term of
this
debenture.
|
12.14
|
Perpetuity
period
|
The
perpetuity period applicable to all trusts declared by this debenture shall
be
80 years.
|
Notices
|
Any
notice or other communication given under this debenture shall be in writing
and
shall be served by delivering it personally or by sending it by pre-paid
first-class post or by fax to the address and for the attention of the relevant
party as set out in Schedule
6
or such
other address or fax number as may be notified in writing from time to time
by
the relevant party to the other party.
Receipt
of any notice, given under this clause 13
, shall
be deemed to be:
9
|
(a)
|
if
delivered personally, at the time of delivery;
or
|
|
(b)
|
in
the case of pre-paid first-class letter, 48 hours from the date of
posting; or
|
|
(c)
|
in
the case fax, at the time of
transmission,
|
but
if
deemed receipt occurs:
In
proving service of a notice, it shall be sufficient to prove that
either:
|
(d)
|
the
envelope containing such notice was addressed to the address of the
relevant party as set out in Schedule
6
(or to the address as notified by that party to the other in writing
) and
delivered either:
|
|
(e)
|
that
the notice was transmitted by facsimile to the fax number of the
relevant
party set out in Schedule
6
((or to the fax number as notified by that party to the other in
writing
)).
|
Notice
given under this debenture shall not be validly served if sent by
e-mail.
|
Governing
law
|
This
debenture shall be governed by and construed according to the law of England
and
Wales.
|
Jurisdiction
|
Each
party irrevocably agrees to submit to the exclusive jurisdiction of the courts
of England and Wales over any claim or matter arising out of or in connection
with this debenture.
The
Borrower irrevocably and unconditionally:
|
(a)
|
appoints
ADVANCE
NANOTECH LIMITED
of
Xxxxxxxx Xxxxx, 0xx
Xxxxx, 00 Xxxxxxx XX Xxxxxx, Xxxxxx XX0X 0XX as its agent to receive
on
its behalf in England or Wales service of any proceedings arising
out of
or in connection with this
debenture;
|
|
(b)
|
agrees
that the failure of such agent to forward any process served on it
to the
Borrower shall not impair the validity of such service or any judgment
based on such service; and
|
10
|
(c)
|
consents
to the service of process in any proceedings being served on it in
accordance with the provisions of this debenture relating to the
service
of notices.
|
If
for
any reason such agent ceases to be able to act as agent or no longer has an
address in England or Wales, the Borrower shall forthwith appoint a substitute
agent acceptable to the Lender and deliver to the Lender the new agent's name,
address and fax number.
Nothing
contained in this debenture shall affect the right to serve process in any
other
manner permitted by law.
This
agreement has been entered into on the date stated at the beginning of
it.
11
|
Ownership
of Charged Property
|
The
Borrower is the only legal and beneficial owner of the Charged Property free
from any Encumbrance other than the Encumbrances created by this
debenture.
|
Adverse
claims
|
The
Borrower has not received or acknowledged notice of any adverse claim by any
person in respect of the Charged Property or any interest in it.
|
Adverse
covenants
|
There
are
no covenants, agreements, reservations, conditions, interests, rights or other
matters whatever, which materially adversely affect the Charged
Property.
|
No
breach of laws
|
There
is
no breach of any law or regulation, which materially adversely affects the
Charged Property.
|
No
interference in enjoyment
|
No
facility necessary for the enjoyment and use of the Charged Property is subject
to terms entitling any person to terminate or curtail its use.
|
No
overriding interests
|
Nothing
has arisen or has been created or is subsisting, which would be an overriding
interest in any Property.
|
Avoidance
of security
|
No
Encumbrance expressed to be created pursuant to this debenture is liable to
be
avoided or otherwise set aside on the liquidation or administration of the
Borrower or otherwise.
12
|
Trading
and preservation of Charged
Property
|
The
Borrower shall:
|
(a)
|
carry
on its trade and business in accordance with the standards of good
management from time to time current in such trade or business on
those
parts (if any) of the Properties as are, or may be, used for the
purposes
of trade or business; and
|
|
(b)
|
not
do, or permit to be done, any act or thing, which will or might
depreciate, jeopardise or otherwise prejudice the security held by
the
Lender or materially diminish the value of any of the Charged Property
or
the effectiveness of the security created by this
debenture.
|
|
Statutory
compliance
|
The
Borrower shall comply with any statute and all byelaws and regulations relating
to its trade or business or the whole or any part of the Charged
Property.
|
Provision
of information
|
The
Borrower shall:
|
(a)
|
promptly
provide to the Lender whatever information, documents or papers relating
to the Charged Property as the Lender may from time to time request;
and
|
|
(b)
|
inform
the Lender promptly of any acquisition by the Borrower of, or contract
made by the Borrower to acquire, any freehold, leasehold or other
interest
in Property.
|
|
Insurance
|
|
4.1
|
The
Borrower shall:
|
|
(a)
|
insure
and keep insured all of its undertaking and assets with reputable
and
responsible insurers previously approved by the Lender in such manner
and
to such extent as is reasonable and customary for an enterprise engaged
in
the same or similar business and in the same or similar localities
against
such risks and contingencies as the Lender shall from time to time
request;
|
|
(b)
|
procure
that the interest of the Lender is noted on all its policies of insurance
in such manner as the Lender may in its absolute discretion require;
and
|
13
|
(c)
|
duly
and punctually pay all premiums and any other monies necessary for
maintaining its insurance in full force and
effect.
|
|
4.2
|
The
Borrower shall apply all monies received by virtue of any insurance
of the
whole or any part of the Charged Property:
|
|
(a)
|
in
making good or in recouping expenditure incurred in making good any
loss
or damage: or
|
|
(b)
|
if
the Lender in its discretion so requires, towards the discharge of
the
Secured Liabilities.
|
|
Repair
|
The
Borrower shall:
|
(a)
|
at
all times keep in good and substantial repair and condition all the
Charged Property including, without limitation, all buildings, erections,
structures and fixtures and fittings on and in the
Property;
|
|
(b)
|
keep
all Equipment in good repair, working order and condition and fit
for its
purpose; and
|
|
(c)
|
where
it is uneconomic to repair any part of the Charged Property, replace
such
part by another similar asset of equal or greater quality and
value.
|
|
Notice
of breach
|
The
Borrower shall promptly upon becoming aware of all the same give the Lender
notice in writing of any breach of:
|
(a)
|
any
representation or warranty set out in Schedule
1,
and
|
|
(b)
|
any
covenant set out in this Schedule
2.
|
|
Inspection
|
The
Borrower shall permit the Lender and any Receiver and any person appointed
by
either of them to enter upon and inspect any Property during normal business
hours upon reasonable prior notice.
|
Borrower's
waiver of set-off
|
The
Borrower waives any present or future right of set-off it may have in respect
of
the Secured Liabilities (including sums payable by the Borrower under this
debenture).
14
|
Power
to remedy
|
The
Lender shall be entitled (but shall not be bound) to remedy a breach at any
time
by the Borrower of any of its obligations contained in this debenture and the
Borrower irrevocably authorises the Lender and its agents to do all such things
as are necessary or desirable for that purpose.
|
Exercise
of rights
|
The
rights of the Lender under paragraph 1
of this
Schedule
3
are
without prejudice to any other rights of the Lender under this debenture and
the
exercise of those rights shall not make the Lender liable to account as a
mortgagee in possession.
|
Power
to dispose of chattels
|
At
any
time after the security constituted by this debenture shall have become
enforceable, the Lender or any Receiver:
|
(a)
|
may
dispose of any chattels or produce found on any Property as agent
for the
Borrower; and
|
|
(b)
|
without
prejudice to any obligation to account for the proceeds of any sale
of
such chattels or produce, shall be indemnified by the Borrower against
any
liability arising from such
disposal.
|
|
Prior
Encumbrances
|
At
any
time after the security constituted by this debenture shall have become
enforceable or after any powers conferred by any Encumbrance having priority
to
this debenture shall have become exercisable, the Lender may:
|
(a)
|
redeem
such or any other prior Encumbrance or procure its transfer to itself;
and
|
|
(b)
|
settle
any account of that encumbrancer.
|
The
settlement of any such account shall be conclusive and binding on the Borrower
and all monies paid by the Lender to an encumbrancer in settlement of such
an
account shall, as from its payment by the Lender, be due from the Borrower
to
the Lender on current account and shall bear interest and be secured as part
of
the Secured Liabilities.
15
|
Currencies
of denomination
|
For
the
purpose of or pending the discharge of any of the Secured Liabilities the Lender
may convert any monies received, recovered or realised by the Lender under
this
debenture (including the proceeds of any previous conversion under this
paragraph 5)
from
their existing currencies of denomination into such other currencies of
denomination as the Lender may think fit and any such conversion shall be
effected at the Lender's then prevailing spot selling rate of exchange for
such
other currency against the existing currency. Each previous reference in this
paragraph 5
to a
currency extends to funds of that currency and for the avoidance of doubt funds
of one currency may be converted into different funds of the same
currency.
|
New
accounts
|
|
If
the Lender receives notice of any subsequent charge or other interest
affecting all or part of the Charged Property, the Lender may open
a new
account or accounts for the Borrower in the Lender's books and (without
prejudice to the Lender's right to combine accounts) no money paid
to the
credit of the Borrower in any such new account will be appropriated
towards or have the effect of discharging any part of the Secured
Liabilities.
|
|
6.2
|
If
the Lender does not open a new account or accounts immediately on
receipt
of notice under paragraph 6.1,
then, unless the Lender gives express written notice to the contrary
to
the Borrower, as from the time of receipt of the relevant notice
by the
Lender all payments made by the Borrower to the Lender, in the absence
of
any express appropriation by the Borrower to the contrary, shall
be
treated as having been credited to a new account of the Borrower
and not
as having been applied in reduction of the Secured
Liabilities.
|
|
Lender's
set-off rights
|
If
the
Lender shall have more than one account for the Borrower in its books the Lender
may at any time after:
|
(a)
|
the
security constituted by this debenture has become enforceable;
or
|
|
(b)
|
the
Lender has received notice of any subsequent charge or other interest
affecting all or any part of the Charged
Property,
|
transfer,
without prior notice, all or any part of the balance standing to the credit
of
any account to any other account which may be in debit but the Lender shall
notify the Borrower of the transfer once made.
16
|
Indulgence
|
The
Lender may in its discretion grant time or other indulgence or make any other
arrangement, variation or release with any person or persons not being a party
to this debenture (whether or not such person or persons are jointly liable
with
the Borrower) in respect of any of the Secured Liabilities or of any other
security for them without prejudice either to this debenture or to the liability
of the Borrower for the Secured Liabilities.
17
|
Enforcement
events
|
This
debenture shall be enforceable if:
|
(a)
|
any
of the Secured Liabilities shall not be paid or discharged when the
same
ought to be paid or discharged by the Borrower (whether on demand
or at
scheduled maturity or by acceleration or otherwise, as the case may
be);
or
|
|
(b)
|
the
Borrower shall be in breach of any of its obligations under this
debenture
or under any other agreement between the Borrower and the Lender
and that
breach (if capable of remedy) has not been remedied to the satisfaction
of
the Lender within 28 days of notice by the Lender to the Borrower
to
remedy the breach; or
|
|
(c)
|
the
Borrower:
|
|
(d)
|
the
Borrower passes any resolution or takes any corporate action or a
petition
is presented or proceedings are commenced or any action is taken
by any
person for its winding-up, dissolution, administration or re-organisation
or for the appointment of a receiver, administrative receiver,
administrator, trustee or similar officer of it or of any or all
of its
revenues and assets; or
|
|
(e)
|
a
distress, execution, attachment or other legal process is levied
or
enforced upon or sued against all or any part of the assets of the
Borrower and remains undischarged for seven days;
or
|
|
(f)
|
an
Event of Default (as defined in the Facility Agreement)
occurs,
|
and
in
any such event (whether or not the event is continuing), without prejudice
to
any other rights of the Lender, the powers of sale under the Law of Property
Xxx
0000 shall immediately be exercisable and the Lender may in its absolute
discretion enforce all or any part of the security created by this debenture
as
it sees fit.
18
|
Statutory
power of sale
|
The
statutory power of sale shall, as between the Lender and a purchaser from the
Lender, arise on and be exercisable at any time after the execution of this
debenture, but the Lender shall not exercise such power of sale until the
security constituted by this debenture has become enforceable under paragraph
1
of this
Schedule
4.
|
Extension
of statutory powers
|
The
statutory powers of sale, leasing and accepting surrenders exercisable by the
Lender under this debenture are extended so as to authorise the Lender whether
in its own name or in that of the Borrower to grant a lease or leases of the
whole or any part or parts of the freehold and leasehold property of the
Borrower with whatever rights relating to other parts of it and containing
whatever covenants on the part of the Borrower and generally on such terms
and
conditions (including the payment of money to a lessee or tenant on a surrender)
and whether or not at a premium as the Lender thinks fit.
|
Protection
of third parties
|
No
purchaser, mortgagee or other person dealing with the Lender or any Receiver
shall be concerned:
|
(a)
|
to
enquire whether any of the Secured Liabilities have become due or
payable
or remain unpaid or undischarged, or whether the power the Lender
or a
Receiver is purporting to exercise has become exercisable;
or
|
|
(b)
|
to
see to the application of any money paid to the Lender or any
Receiver.
|
|
No
liability as mortgagee in
possession
|
Neither
the Lender nor any Receiver nor any Administrator shall be liable to account
as
mortgagee in possession in respect of all or any of the Charged Property nor
shall any of them be liable for any loss upon realisation of, or for any neglect
or default of any nature whatsoever in connection with, all or any of the
Charged Property for which a mortgagee in possession might as such be
liable.
|
Appointment
of Receiver
|
At
any
time after the security constituted by this debenture becomes enforceable,
or at
the request of the Borrower, the Lender may without further notice:
|
(a)
|
appoint
under seal or in writing by a duly authorised officer of the Lender
any
one or more person or persons to be a receiver or a receiver and
manager
of all or any part of the Charged Property;
and
|
|
(b)
|
(subject
to Section 45 of the Insolvency Act 1986) from time to time under
seal or
in writing by a duly authorised officer of the Lender remove any
person
appointed to be Receiver and may in like manner appoint another in
his
place.
|
19
Where
more than one person is appointed Receiver, they will have power to act
separately (unless the appointment by the Lender specifies to the
contrary).
|
Powers
additional
|
|
7.1
|
The
powers of sale and appointing a Receiver conferred by this debenture
shall
be in addition to all statutory and other powers of the Lender under
the
Insolvency Xxx 0000 and the Law of Property Xxx 0000 or otherwise
and
shall be exercisable without the restrictions contained in Sections
103
and 109 of the Law of Property Xxx 0000 or
otherwise.
|
|
7.2
|
The
power to appoint a Receiver (whether conferred by this debenture
or by
statute) shall be and remain exercisable by the Lender notwithstanding
any
prior appointment in respect of all or any part of the Charged
Property.
|
|
Agent
of the Borrower
|
Any
Receiver appointed by the Lender under this debenture shall be the agent of
the
Borrower and the Borrower shall be solely responsible for his acts and
remuneration as well as for any defaults committed by him.
|
Powers
of Receiver
|
Any
Receiver appointed by the Lender under this debenture shall in addition to
the
powers conferred on him by the Law of Property Xxx 0000 and the Insolvency
Xxx
0000 have power to do all such acts and things as an absolute owner could do
in
the management of such of the Charged Property over which the Receiver is
appointed and in particular the powers set out in Schedule
5.
|
Order
of application of proceeds
|
All
monies received by the Lender or a Receiver (other than insurance monies) shall
be applied:
|
(a)
|
first
in paying all rents, taxes, rates and outgoings whatever affecting
any
Charged Property;
|
|
(b)
|
second
in paying all costs, charges and expenses of and incidental to the
appointment of any Receiver and the exercise of his powers and all
outgoings paid by him;
|
|
(c)
|
third
in paying the remuneration of any Receiver (as agreed between him
and the
Lender);
|
20
|
(d)
|
fourth
in or towards discharge of the Secured Liabilities in such order
and
manner as the Lender shall determine;
and
|
|
(e)
|
finally
in paying any surplus to the Borrower or any other person entitled
to
it.
|
|
Section
109(8) Law of Property Xxx
0000
|
Neither
the Lender nor any Receiver shall be bound (whether by virtue of section 109(8)
of the Law of Property Xxx 0000, which is varied accordingly, or otherwise)
to
pay or appropriate any receipt or payment first towards interest rather than
principal or otherwise in any particular order as between any of the Secured
Liabilities.
|
Suspense
account
|
All
monies received by the Lender or a Receiver under this debenture may, at the
discretion of the Lender or Receiver, be credited to any suspense or securities
realised account and shall bear interest at such rate, if any, as may be agreed
in writing between the Lender and the Borrower and may be held in such account
for so long as the Lender or Receiver thinks fit.
|
Power
of attorney
|
By
way of
security the Borrower irrevocably appoints the Lender and every Receiver
separately to be the attorney of the Borrower and in its name and on its behalf
and as its act and deed to execute any documents, and do any acts and things
which:
|
(a)
|
the
Borrower is required to execute and do under this debenture;
and
|
|
(b)
|
any
attorney may deem proper or desirable in exercising any of the powers,
authorities and discretions conferred by this debenture or by law
on the
Lender or any Receiver.
|
|
Ratification
of acts of attorney
|
By
this
debenture the Borrower ratifies and confirms and agrees to ratify and confirm
anything which any of its attorneys may do in the proper and lawful exercise
or
purported exercise of all or any of the powers, authorities and discretions
referred to in paragraph 13.
|
Appointment
of an Administrator
|
|
15.1
|
The
Lender may without notice to the Borrower appoint any one or more
persons
to be an administrator of the Borrower pursuant to paragraph 14 Schedule
B1 of the Insolvency Xxx 0000 if this debenture becomes
enforceable.
|
21
|
15.2
|
Any
appointment under this paragraph 15
shall:
|
|
(a)
|
be
in writing signed by a duly authorised signatory of the Lender,
and
|
|
(b)
|
take
effect, in accordance with paragraph 19 of Schedule B1 of the Insolvency
Xxx 0000, when the requirements of paragraph 18 of that Schedule
B1 are
satisfied.
|
|
15.3
|
The
Lender may (subject to any necessary approval from the court) end
the
appointment of an Administrator by notice in writing in accordance
with
this paragraph 15
and appoint under that paragraph a replacement for any Administrator
whose
appointment ends for any reason.
|
22
|
1.
|
To
repair and develop
Properties
|
To
undertake or complete any works of repair, building or development on the
Properties.
|
To
surrender leases
|
To
grant
or to accept surrenders of any leases or tenancies affecting the Properties
upon
such terms and subject to such conditions as he thinks fit.
|
To
employ personnel and
advisors
|
To
provide services and employ, or engage, such managers contractors and other
personnel and professional advisors on such terms as he deems
expedient.
|
To
make VAT elections
|
To
make
such elections for value added tax purposes as he thinks fit.
|
To
charge remuneration
|
To
charge
and receive such sum by way of remuneration (in addition to all costs, charges
and expenses incurred by him) as the Lender may prescribe or agree with
him.
|
To
realise Charged Property
|
To
collect and get in the Charged Property in respect of which he is appointed
or
any part thereof and for that purpose to make such demands and take any
proceedings as may seem expedient and to take possession of the Charged Property
with like rights.
|
To
manage or reconstruct the Borrower's
business
|
To
carry
on, manage, develop, reconstruct, amalgamate or diversify or concur in carrying
on, managing, developing, reconstructing, amalgamating or diversifying the
business of the Borrower.
23
|
To
dispose of Charged
Property
|
To
grant
options and licences over all or any part of the Charged Property, sell or
concur in selling, assign or concur in assigning, lease or concur in leasing
and
accept or concur in accepting surrenders of leases of, all or any of the
property of the Borrower in respect of which he is appointed in such manner
and
generally on such terms and conditions as he thinks fit (fixtures and plant
and
machinery may be severed and sold separately from the premises in which they
are
contained without the consent of the Borrower) and to carry any such sale,
assignment, leasing or surrender into effect. Any such sale may be for such
consideration as he shall think fit and he may promote or concur in promoting
a
Borrower to purchase the property to be sold.
|
To
make settlements
|
To
make
any arrangement, settlement or compromise between the Borrower and any other
person which he may think expedient.
|
To
improve Equipment
|
To
make
substitutions of, or improvements to, the Equipment as he may think
expedient.
|
To
make calls on Borrower
members
|
To
make
calls conditionally or unconditionally on the members of the Borrower in respect
of the uncalled capital with such and the same powers for that purpose and
for
the purpose of enforcing payments of any calls so made as are conferred by
the
Articles of Association of the Borrower on its directors in respect of calls
authorised to be made by them.
|
To
appoint staff and agents
|
To
appoint managers, officers, servants, workmen and agents for the aforesaid
purposes at such salaries and for such periods and on such terms as he may
determine.
|
To
insure
|
If
he
thinks fit, but without prejudice to the indemnity contained in clause
9,
to
effect with any insurer any policy or policies of insurance either in lieu
or
satisfaction of, or in addition to, such insurance.
24
|
Law
of Property Xxx 0000
|
To
exercise all powers provided for in the Law of Property Xxx 0000 in the same
way
as if he had been duly appointed under that act and to exercise all powers
provided for an administrative receiver in Schedule 1 of the Insolvency Xxx
0000.
|
To
borrow
|
For
any
of the purposes authorised by this Schedule
5
to raise
money by borrowing from the Lender or from any other person on the security
of
all or any of the Charged Property in respect of which he is appointed upon
such
terms (including if the Lender shall consent to terms under which such security
ranks in priority to this debenture) as he shall think fit.
|
To
redeem prior Encumbrances
|
To
redeem
any prior Encumbrance and to settle and pass the accounts to which the
Encumbrance relates and any accounts so settled and passed will be conclusive
and binding on the Borrower and the monies so paid will be deemed to be an
expense properly incurred by him.
|
Incidental
powers
|
To
do all
such other acts and things as he may consider incidental or conducive to any
of
the matters or powers in this Schedule
5
or which
he lawfully may or can do as agent for the Borrower.
|
Scope
of powers
|
Any
exercise of any of these powers may be on behalf of the Borrower, the directors
of the Borrower (in the case of the power contained in paragraph 11)
or
himself.
25
|
The
Borrower:
|
Advance
Homeland Security PLC
Xxxxxxxx
Xxxxx
0xx
Xxxxx
00
Xxxxxxx XX Xxxxxx
Xxxxxx
XX0X 0XX
|
|
The
Lender:
|
Conquistador
Investments Limited
Xxxxx
X0, Xxxxxxxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxx
Xxxx, Xxxxxxxxx
|
26
|
Executed
as a deed by
ADVANCE
HOMELAND SECURITY PLC
acting by
Xxxxxx
Xxxxxxx and
Xxxx
Xxxxxxxxx
|
.......................................
Director
.......................................
Director/Secretary
|
|
Executed
as a deed on behalf of
CONQUISTADOR
INVESTMENTS LIMITED,
a
company incorporated
in
Gibraltar acting by
[Xxxx
Xxxxxx] [and]
[Xxxxxxx
Xxxxxx], being [a] person[s] who, in accordance with the laws
of
that territory,
[is][are] acting under the authority of the company
|
Signature[s]:
.......................................
.......................................
Authorsied
[signatory][Signatories]
|
27
