DATED 10 MARCH 1997
INTERFACE SYSTEMS INTERNATIONAL LIMITED (1)
and
THE FIRST NATIONAL BANK OF CHICAGO (2)
DEBENTURE
CONTENTS
Clause Heading Page
1 Interpretation 1
2 Covenant to Pay 4
3 Charges 5
4 Set-off 7
5 Undertakings 8
6 Further Assurance 13
7 Certain powers of the Bank: Enforcement 14
8 Appointment and Powers of Receiver 15
9 Application of Proceeds; Purchasers 18
10 Indemnities; Costs and Expenses 18
11 Power of Attorney 19
12 Continuing Security and Other Matters 20
13 Currencies 21
14 Representations and Warranties 21
15 Miscellaneous 24
16 Notices 25
17 Law 25
THIS DEBENTURE dated March 30, 1997 and made BETWEEN:
(1) INTERFACE SYSTEMS INTERNATIONAL LIMITED (No. 3253366) whose
registered office is at Halcyon House, 5 London Road,
Bicester, Oxfordshire, OX6 7BY (the "Company"); and
(2) THE FIRST NATIONAL BANK OF CHICAGO acting through its office
at First Chicago House, 90 Long Acre, London WC2E 9RB (the
"Bank")
WITNESSES as follows:
1 Interpretation
1.1 Definitions: In this Deed, unless the context otherwise
requires
"Charged Assets" means all the undertaking, goodwill,
property, assets and rights of the Company described in
clauses 3.1 and 3.2;
"Collateral Instruments" means negotiable and non-negotiable
instruments, guarantees, indemnities and other assurances
against financial loss and any other documents or instruments
which contain or evidence an obligation (with or without
security) to pay, discharge or be responsible directly or
indirectly for, any liabilities of any person and includes
any document or instrument creating or evidencing an
Encumbrance;
"Debts" means the assets of the Company described in clause
3. 1 (d);
"Default Rate" means 3 per cent. per annum over the Bank's
base, rate for sterling overdrafts from time to time, such
interest to be compounded by reference to such periods as the
Bank shall in its absolute discretion determine;
"disposal" includes any sale, lease, sub-lease, assignment or
transfer, the grant of an option or similar right, the grant
of any easement, right or privilege, the creation of a trust
or other equitable interest in favour of a third party, a
sharing or parting with possession or occupation whether by
way of licence or otherwise and the granting of access to any
other person over any intellectual property, and "dispose"
and "disposition" shall be construed accordingly;
"Encumbrance" means any mortgage, charge (whether fixed or
floating), pledge, lien, hypothecation, standard security,
assignment by way of security or other security interest of
any kind;
"Enforcement Date" means the date on which the Bank demands
the payment or discharge of all or any part of the Secured
Obligations or, if earlier, the date on which a petition for
an administration order is presented in relation to the
Company;
"Environmental Claim" means any claim, notice of violation,
prosecution, demand, action, official warning, abatement or
other order (conditional or otherwise) relating to
Environmental Matters and any notification or order requiring
compliance with the terms of any Environmental Licence or
Environmental Law;
"Environmental Laws" includes all or any laws, statutes,
rules, regulations, treaties, directives, directions, by-
laws, codes of practice, circulars, guidance notes, orders,
notices, demands, decisions of the courts or anything like
any of the foregoing of any governmental authority or agency
or any regulatory body or any other body whatsoever in any
Jurisdiction or the European Community relating to
Environmental Matters applicable to the Company, the business
carried on at any time by the Company, the Properties, the
operation of any business from or using any of the Properties
or the occupation or use of any of the Properties;
"Environmental Licence" means any permit, licence,
authorisation, consent or other approval required at any time
by any Environmental Law in relation to the Company, the
business carried on by the Company, the Properties or the
occupation or use of, or the operation of any business from
or using, any of the Properties;
"Environmental Matters" means (a) the generation, deposit,
disposal, keeping, treatment, transportation, transmission,
handling, importation, exportation, processing, collection,
sorting, presence or manufacture of any waste (as defined in
the Environmental Protection Act 1990) or any Relevant
Substance; (b) nuisance, noise, defective premises, health
and safety at work or elsewhere; (c) the carrying out of any
development (as defined In section 55(l) Town and Country
Planning Act 1990); and (d) the pollution, conservation or
protection of the environment (both natural and built) or of
man or any living organisms supported by the environment or
any other matter whatsoever affecting the environment or any
part of it;
"Floating Charge Assets' means the assets of the Company from
time to time expressed to be charged by this Deed by way of
floating charge;
"Insurances" means all present and future contracts or
policies of insurance (including life policies) in which the
Company from time to time has an interest;
"Intellectual Property Rights" means the assets of the
Company described in clause 3. 1 (g);
"Material Environmental Effect" means a material adverse
effect in the opinion of the Bank on (i) the financial
condition of the Company or any of its Subsidiaries or (ii)
the ability of the Company to perform Its obligations under
or otherwise comply with the terms of this Deed or (iii) the
value or marketability of any premises owned, leased or
occupied by the Company;
"Permitted Encumbrance" means any Encumbrance arising by way
of retention of title of goods by the, supplier of such goods
where such goods are supplied on credit and are acquired in
the ordinary course of trading of the Company;
"Properties" means the assets of the Company described in
clause 3. 1 (a) and all present and future heritable and
leasehold property of the Company situate in Scotland and all
liens, charges, options, agreements, rights and interests in
or over land or the proceeds of sale of land situate in
Scotland and all buildings, fixtures (including trade
fixtures) and fixed plant and machinery from time to time on
such property or land together with all rights, easements,
servitudes and privileges appurtenant to, or benefitting, the
same, in all cases both present and future;
"Receiver" means any one or more receivers and/or managers or
administrative receivers appointed by the Bank pursuant to
this Deed in respect of the Company or over all or any of the
Charged Assets;
"Relevant Substance" means any substance whatsoever (whether
in a solid or liquid form or in the form of a gas or vapour
and whether alone or in combination with any other substance)
or waste (as defined in the Environmental Protection Act
1990) which is capable of causing harm to man or any other
living organism supported by the Environment, or damaging the
Environment or public health or welfare;
"Secured Obligations" means all moneys,, obligations and
liabilities covenants to be paid or discharged by the Company
under or pursuant to clause 2;
"Securities" means the assets of the Company described in
clause 3. 1 (c);
"Subsidiary" shall have the meaning given to it by section
736 Companies Act 1985; and
"Supplemental Facility Letter" means the supplemental
facility letter from the Bank to the Company dated on or
about the date of this Deed.
1.2 Successors and assigns: The expressions "Bank", and "Company"
include, where the context admits, their respective
successors, and, in the case of the Bank, its transferees and
assignees, whether immediate or derivative.
1.3 Headings: Clause headings and the contents page are inserted
for convenience of reference only and shall be ignored in the
interpretation of this Deed.
1.4 Construction of certain terms: In this Deed, unless the
context otherwise requires:
(a) references to clauses are to be construed as
references to the clauses of this Deed;
(b) reference to (or to any specified provision of)
this Deed or any other document shall be construed
as references to this Deed, that provision or that
document as in force for the time being and as
amended in accordance with the terms thereof or,
as the case may be, with the agreement of the
relevant parties and (where such consent is, by
the terms of this Deed or the relevant document,
required to be obtained as a condition to such
amendment being permitted) the prior written
consent of the Bank;
(c) words importing the plural shall include the
singular and vice versa;
(d) references to a person shall be construed as
including references to an individual, firm,
company, corporation, unincorporated body of
persons or any State or any agency thereof; and
(e) references to statutory provisions shall be
construed as references to those provisions as
replaced, amended or re- enacted from time to
time.
1.5 Effect as a deed: This deed is intended to take effect as a
deed notwithstanding that the Bank may have executed it under
hand only.
2. Covenant to Pay
2.1 Secured obligations: The Company hereby covenants that it win
on demand pay to the Bank all moneys and discharged all
obligations and liabilities now or hereafter due, owing or
incurred to the Bank when the same become due for payment or
discharge whether by acceleration or otherwise, and whether
such moneys, obligations or liabilities are express or
implied; present, future or contingent; joint or several;
incurred as principal or surety; originally owing to the Bank
or purchased or otherwise acquired by it; denominated in
sterling or in any other currency; or incurred on any banking
account or in any other manner whatsoever.
2.2 Certain liabilities: The liabilities referred to in clause
2.1 shall, without limitation, include:
(a) all liabilities under or in connection with
foreign exchange transactions, interest rate swaps
and other arrangements entered into for the
purpose of limiting exposure to fluctuations in
interest or exchange rates;
(b) all liabilities arising from the issue,
acceptance, endorsement, confirmation or discount
of any negotiable or non-negotiable instruments,
documentary or other credits, bonds, guarantees,
indemnities or other instruments of any kind; and
(c) interest (both before and after judgment) to date
of payment at such rates and upon such terms as
may from time to time be agreed, commission, fees
and other charges and all legal and other costs,
charges and expenses on a full and unqualified
indemnity basis which may be incurred by the Bank
in relation to any such moneys, obligations or
liabilities or generally in respect of the
Company.
3 Charges
3.1 Fixed Charge: The Company hereby charges to the Bank by way
of first fixed charge (and as regards all those parts of the
freehold and leasehold property in England and Wales now
vested in the Company by way of first legal mortgage) with
full title guarantee and as a continuing security for the
payment and discharge of the Secured Obligations the
following assets, both present and future, from time to time
owned by the Company or in which the Company may from time to
time have an interest:
(a) Properties: all freehold and leasehold property of
the Company situate in England and Wales and all
liens, charges, options, agreements, rights and
interests in or over land or the proceeds of sale
of land situate in England and Wales and all
buildings, fixtures (including trade fixtures) and
fixed plant and machinery from time to time on
such property or land together with all rights,
easements and privileges appurtenant to, or
benefitting, the same;
(b) Plant and Machinery: all plant, machinery,
vehicles, computers and office and other equipment
and the benefit of all contracts and warranties
relating to the same;
(c) Securities: all stocks, shares, bonds and
securities of any kind whatsoever whether
marketable or otherwise and all other interests
(including but not limited to loan capital) in any
person, including all allotments, rights, benefits
and advantages whatsoever at any time accruing,
offered or arising in respect of or incidental to
the same and all money or property accruing or
offered at any time by way of conversion,
redemption, bonus, preference, option, dividend,
distribution, interest or otherwise in respect
thereof;
(d) Debts: all book and other debts, revenues and
claims, whether actual or contingent, whether
arising under contracts or in any other manner
whatsoever and whether originally owing to the
Company or purchased or otherwise acquired by it
including, without limitation, any amount from
time to time standing to the credit of any bank or
other account with the Bank or with any other
person and all things in action which may give
rise to any debt, revenue or claim, together with
the full benefit of any Encumbrances, Collateral
Instruments and any other rights relating thereto
including, without limitation, reservations of
proprietary rights, rights of tracing and unpaid
vendor's liens and associated rights;
(e) Insurances: all moneys from time to time payable
to the Company under pursuant to the Insurances
including without limitation the refund of any
premiums;
(f) Goodwill and uncalled capital: all goodwill and
uncalled capital;
(g) Intellectual Property Rights: all patents, patent
applications, trade marks and service
marks(whether registered or not), trade mark
applications, service mark applications, trade
names, registered designs, design rights,
copyrights, computer programmes, know- how and
trade secrets and all other industrial or
intangible property or rights and all licences,
agreements and ancillary and
connected rights relating to, intellectual and
intangible property.
3.2 Floating Charge: The Company hereby charges to the Bank by
way of first floating charge with full title guarantee and as
a continuing security for the payment and discharge of the
Secured Obligations its undertaking and all its property,
assets and rights whatsoever and wheresoever both present and
future, other than any property or assets from time to time
effectively charged by way of legal mortgage or fixed charge
or assignment pursuant to clause 3.1 or otherwise pursuant to
this Deed but including (without limitation and whether or
not so effectively charged) any of its property and assets
situated in Scotland.
3.3 Restrictions on dealing with Charged Assets: The Company
hereby covenants that it win not without the prior written
consent in writing of the Bank:
(a) dispose of, or create or attempt to create or
permit to subsist or arise any Encumbrance on or
over, the Debts or any part thereof or release,
set off or compound or deal with the same
otherwise than in accordance with clause 5. 1 (a);
(b) create or attempt to create or permit to subsist
in favour of any person other than the Bank any
Encumbrance (except a Permitted Encumbrance and a
lien arising by operation of law in the ordinary
course of trading over property other than land)
on or affecting the Charged Assets or any part
thereof; or
(c) dispose of the Charged Assets or any part thereof
or attempt or agree so to do except in the case
of:
(i) stock-in-trade, which may, subject to the other
provisions of this Deed, be sold at full market
value in the usual course of trading as now
conducted and for the purpose of carrying on the
Company's business; and
(ii) other Floating Charge Assets which may, subject to
the other provisions of this Deed, be disposed of
in the ordinary course of business.
3.4 Credit balances: The Company irrevocably and unconditionally
agrees that if there shall from time to time be any credit
balance on any of its accounts with the Bank, the Bank shall
leave the absolute right to refuse to permit such credit
balance to be utilised or withdrawn by the Company whether in
whole or in part if at that time there are outstanding any of
the Secured Obligations.
3.5 Automatic conversion of floating charge: Notwithstanding
anything expressed or implied in this Deed, if the Company
creates or attempts to create any Encumbrance over all or any
of the Floating Charge Assets without the prior consent in
writing of the Bank or if any person levies or attempts to
levy any distress, execution, sequestration or other process
or does or attempts to do any diligence in execution against
any of the Floating Charge Assets, the floating charge
created by clause 3.2 over the property or asset concerned
shall thereupon automatically without notice be converted
into a fixed charge.
3.6 Conversion of floating charge by notice: Notwithstanding
anything expressed or implied in this Deed but without
prejudice to clause 3.5, the Bank shall be entitled at any
time by giving notice in writing to that effect to the
Company to convert the floating charge over all or any part
of the Floating Charge Assets into a fixed charge as regards
the assets specified in such notice.
3.7 H.M. Land Registry: The Company hereby applies to the Chief
Land Registrar for the registration of the following
restriction against each of the registered titles to any
Property (and against any title to any unregistered property
which is or ought to be the subject of a first registration
of title at H.M. Land Registry at the date of this Deed):
"Except under an Order of the Registrar no disposition or
charge or other security interest is to be registered or
noted without the consent of the proprietor for the time
being of Charge No."
4 Set-off
4.1 Set-off: The Company hereby agrees that the Bank may at any
time without notice, notwithstanding any settlement of
account or other matter whatsoever, combine or consolidate
all or any of its then existing accounts wheresoever situate
(including accounts in the name of the Bank or of the Company
jointly with others), whether such accounts are current,
deposit, loan or of any other nature whatsoever, whether they
are subject to notice or not and whether they are denominated
in sterling or in any other currency, and set-off or transfer
any sum standing to the credit of any one or more such
accounts in or towards satisfaction of the Secured
Obligations which, to the extent not then payable, shall
automatically become payable to the extent necessary to
effect such set-off.
4.2 Purchase of currencies: For the purpose of clause 4. 1, the
Company authorises the Bank to purchase with the moneys
standing to the credit of such accounts such other currencies
as may be necessary to effect such applications.
5 Undertakings
5.1 The Company hereby undertakes with the Bank that during the
continuance of this security the Company win:
(a) Debts: collect in the ordinary course of its
business in a proper and efficient manner and pay
into its account with the Bank or such other
account as the Bank may from time to time specify
all moneys which it may receive in respect of the
Debts forthwith on receipt and not, without the
prior written consent of the Bank, seek to
compromise, compound, vary, discharge, postpone or
release any of the Debts or waive its right of
action in connection therewith or do or omit to do
anything which may delay or prejudice the full
recovery thereof;
(b) Deposit of deeds: deposit with the Bank (to be
held at the risk of the Company):
(i) all deeds and documents of title relating to the
Properties and to any subordinate interest in any
of them and the insurance policies relating
thereto;
(ii) all certificates and documents of title relating
to the Securities and such deeds of transfer in
blank and other documents as the Bank may from
time to time require for perfecting the title of
the Bank to the Securities (duly executed by or
signed on behalf of the registered holder) or for
vesting or enabling it to vest the same in itself
or its nominees or in any purchaser; and
(iii) all such other documents relating to the Charged
Assets as the Bank may from time to time require;
(c) Calls etc: duly and promptly pay all calls,
instalments or other moneys which may from time to
time become due in respect of any of its
Securities, it being acknowledged by the Company
that the Bank shall not in any circumstances incur
any liability whatsoever in respect of any such
calls, instalments or other moneys;
(d) Provision of information: provide the Bank with
such financial and other information relating to
the Company and its business as the Bank may from
time to time require;
(e) Conduct of business: conduct and carry on its
business, and procure that each of its
Subsidiaries conducts and carries on its business,
in a proper and efficient manner and keep or cause
or procure to be kept proper books of account
relating to such business and not make any
material alteration in the nature or mode of
conduct of any such business;
(f) Compliance with covenants etc: observe and perform
all covenants, burdens, stipulations, requirements
and obligations from time to time affecting the
Charged Assets and/or the use, ownership,
occupation, possession, operation, repair,
maintenance or other enjoyment or exploitation of
the Charged Assets whether Imposed by statute, law
or regulation, contract, lease, licence, grant or
otherwise, carry out all registrations or renewals
and generally do all other acts and things
(Including the taking of legal proceedings)
necessary or desirable to maintain, defend or
preserve its right, title and interest to and in
the Charged Assets without infringement by any
third party and not without the prior consent in
writing of the Bank (such consent not to be
unreasonably withheld or delayed) enter into any
onerous or restrictive obligations affecting any
of the same or agree any rent review relating to
any interest in any of the Properties;
(g) Alteration or development of Properties: not make
any structural or material alteration to or to the
user of any of its Properties or do or permit to
be done anything which is a "development" within
the meaning of the Town and Country Planning Acts
from time to time or any orders or regulations
under such Acts or do or permit or omit to be done
any act, matter or thing as a consequence of which
any provision of any statute, bylaw, order or
regulation or any condition of any consent,
licence, permission or approval (whether of a
public or private nature) from time to time in
force affecting any of the Properties is or may be
infringed;
(h) Maintenance of buildings, machinery and plant:
keep, and procure that each of its Subsidiaries
win keep, all its buildings, machinery, plant,
fixtures, vehicles, computers and office and other
equipment in good and substantial repair and in
good working order and condition and permit the
Bank and its agents or representatives to enter
and view their state and condition;
(j) Insurance:
(i) (subject to clause 5.1(i)(iv)) insure and keep
insured, and procure that each of its Subsidiaries
win insure and keep insured, at its own expense to
the full replacement or reinstatement value
thereof from time to time (including, where
applicable, the cost of demolition and site
clearance, architects', surveyors' and other
professional fees and incidental expenses in
connection with replacement or reinstatement) all
its assets of an insurable nature with insurers
previously approved by the Bank in writing against
loss or damage (including loss of rent and
profits) by fire, storm, lightning, explosion,
riot, civil commotion, malicious damage, impact,
flood, burst pipes, aircraft and other aerial
devices or articles dropped therefrom (other than
war risk), third party and public liability and
liability under the Defective Premises Act 1972
and such other risks and contingencies as the Bank
shall from time to time request, such insurances
to be effected with the interest of the Bank noted
on the policy and with the policy containing such
provisions for the protection of the Bank as the
Bank may reasonably require;
(ii) maintain such other insurance policies (with the
interest of the Bank noted thereon) containing
like provisions for the protection of the Bank as
are normally maintained by prudent companies
carrying on businesses similar to those of the
Company;
(iii) duly and promptly pay all premiums and other
moneys necessary for effecting and keeping up such
insurances and on demand produce to the Bank the
policies of such insurance and evidence of such
payments and comply in all other respects with the
terms and conditions of the relevant policies
including without limitation any stipulations or
restrictions as to the use and/or operation of any
asset;
(iv) (in the case of any leasehold property where the
Company is prohibited by the terms of the relevant
lease from complying with the obligations referred
to in clause 5.1(i)(i)) procure (where it is
empowered to do so) or otherwise use all
reasonable efforts to procure the maintenance by
the landlord (or other third party) of such
insurance obligations in accordance with the
provisions of the relevant lease;
(j) Property outgoings: punctually pay, or cause to be
paid, and indemnify the Bank and any Receiver (on
a several basis) against, all present and future
rent, rates, taxes, duties, charges, assessments,
impositions and outgoings whatsoever (whether
imposed by agreement, statute or otherwise) now or
at any time during the continuance of this
security payable in respect of the Properties or
any part thereof or by the owner or occupier
thereof;
(k) Possession of Properties: without prejudice to
the generality of clause 3.3(c), not without the
prior consent in writing of the Bank grant any
lease, part with possession or share occupation of
the whole or any part of any of the Properties or
confer any licence, right or interest to occupy or
grant any licence or permission to assign,
underlet or part with possession of the same or
any part thereof or permit any person:
(i) to be registered (jointly with the Company or
otherwise) as proprietor under the Land
Registration Acts of any of the Properties nor
create or permit to arise any overriding interest
affecting the same within the definition in those
Acts or within the meaning of the Land
Registration (Scotland) Act 1979; or
(ii) to become entitled to any right, easement,
covenant, interest or other title encumbrance
which might adversely affect the value or
marketability of any of the Properties;
(l) Variation of leasehold interests: not without the
prior consent in writing of the Bank vary,
surrender, cancel or dispose of, or permit to be
forfeit, any leasehold interest in any of the
Properties;
(m) Equipment leases etc.: not without the prior
consent in writing of the Bank surrender, cancel
or dispose of, any credit sale, hire purchase,
leasing, rental, licence or like agreement for any
equipment used in its business or agree to any
material variation of the same except in relation
to equipment which has an aggregate fair market
value no greater than $20,000;
(n) Acquisition of property: immediately inform the
Bank before contracting to purchase any estate or
interest in freehold, leasehold or heritable
property and supply the Bank with such details of
the purchase as the Bank may from time to time
request;
(o) Environmental Claims: promptly on becoming aware
of it inform the Bank of any Environmental Claim
which has been made or threatened against the
Company or any occupier of any of the Properties
or of any property owned, leased, occupied or
otherwise used by the Company or any of the
officers of the Company in their capacity as such
or any requirement by any Environmental Licence or
applicable Environmental Laws to make any
investment or expenditure or take or desist from
taking any action which might, if substantiated,
have a Material Environmental Effect;
(p) Access: procure that representatives designated by
the Bank and its representatives win be allowed
access at reasonable times to inspect the
Properties and, where the Bank reasonably believes
it to be necessary, to require testing or the
taking of samples at the expense, of the Company
to verify compliance with Environmental Law and
Environmental Licences;
(q) Relevant Substances: notify the Bank forthwith
upon becoming aware of any Relevant Substance at
or brought on to any of the Properties which might
give rise to any Environmental Claim, and take or
procure the taking of all necessary action to deal
with, remedy or remove from such Property or
prevent the incursion of (as the case may be) that
Relevant Substance in order to prevent an
Environmental Claim and in a manner that complies
with all requirements of Environmental Law;
(r) Intellectual Property Rights: without prejudice to
the generality of clause 5.1(f):
(i) take all necessary action to safeguard and
maintain its rights, present and future, in or
relating to all Intellectual Property Rights
including, without limitation, observing all
covenants and stipulations relating thereto,
paying all renewal fees and taking all other steps
necessary to maintain all registered design,
patent, trade mark and service mark registrations
held by it;
(ii) use all reasonable efforts to effect registration
of applications for registration of any registered
design, patent, trade mark and service mark and
keep the Bank informed of events relevant to any
such application and not without the prior consent
in writing of the Bank permit any Intellectual
Property Rights to be abandoned or canceled, to
lapse or to be liable to any claim of abandonment
for non-use or otherwise;
(iii) notify the Bank forthwith of any infringement or
suspected infringement or any challenge to the
validity of any of its present or future
Intellectual Property Rights which may come to its
notice, supply the Bank with all information in
its possession relating thereto and take all steps
necessary to prevent or bring to an end any such
infringement and to defend any challenge to the
validity of any such rights;
(s) Disposals to connected persons: without prejudice
to the generality of clause 3.3(c), not (without
the prior consent in writing of the Bank) dispose
of any Charged Assets to any person who is
connected (within the meaning of section 249
Insolvency Act 1986) with the Company save on
terms previously approved in writing by the Bank;
(t) Report on title: forthwith on request by the Bank,
provide the Bank with a report from solicitors
approved by the Bank in such form as the Bank may
require as to the title of the Company to such of
the Properties as the Bank shall specify;
(u) Jeopardy: not do or cause or permit to be done
anything which may in any way depreciate,
jeopardise or otherwise prejudice the value to the
Bank of any of the Charged Assets;
(v) No Subsidiaries to be formed or acquired: not
(without the prior consent in writing of the Bank)
form or acquire any Subsidiary; and
5.2 Power to remedy: If the Company at any time defaults in
complying with any of its obligations contained in this Deed,
the Bank shall, without prejudice to any other rights arising
as a consequence of such default, be entitled (but not bound)
to make good such default and the Company hereby irrevocably
authorises the Bank and its employees and agents by way of
security to do all such things (including, without
limitation, entering the Company's property) necessary or
desirable in connection therewith. Any moneys so expended by
the Bank shall be repayable by the Company to the Bank oil
demand together with interest at the Default Rate from the
date of payment by the Bank until such repayment, both before
and after judgment. No exercise by the Bank of its powers
under this clause 5.2 shall make it liable to account as a
mortgagee in possession.
6 Further Assurance
6.1 Further assurance: The Company shall if and when at any time
required by the Bank execute such further Encumbrances and
assurances in favour of the Bank and the Bank and do all such
acts and things as the Bank shall from time to time require
over or in relation to all or any of the Charged Assets to
secure the Secured Obligations or to perfect or protect the
security intended to be created by this Deed over the Charged
Assets or any part thereof or to facilitate the realisation
of the same.
6.2 Certain documentary requirements: Such further Encumbrances
and assurances shall by or on behalf of the Bank at the
expense of the Company and shall contain (a) an immediate
power of sale without notice, (b) a clause excluding section
93 Law of Property Act 1925 and the restrictions contained in
section 103 Law of Property Act 1925 and (c) such other
clauses for the benefit of the Bank as the Bank may
reasonably require (but so that in relation to property in
Northern Ireland such references shall be deemed to be
references to sections 17 and 20 respectively of the
Conveyancing and Law of Property Act 1881).
6.3 Specific security documents required: Without prejudice to
the generality of the provisions of clauses 6.1 and 6.2 the
Company shall execute as and when so required by the Bank:
(a) a mortgage, charge, standard security or
hypothecation (as specified by the Bank) over any
heritable property in Scotland owned, or any
recorded lease of heritable property in Scotland
held, by it at the date of this Deed, any
leasehold or freehold property in Northern Ireland
or the Republic of Ireland owned by it at the date
of this Deed, and any and all heritable fixtures
and fittings and fixed plant and machinery at any
time situate thereon including (without prejudice
to the generality of the foregoing) tenants
fixtures and fittings in and upon any such leased
property; and/or
(b) a legal mortgage, legal charge, standard security
or hypothecation (as specified by the Bank) over
any freehold, leasehold and heritable properties
acquired by it after the date of this Deed
(including all or any of the Properties as and
when the same are conveyed, transferred, or let to
it) and over any and all fixtures, trade fixtures
and fixed plant and machinery at any time and from
time to time situate thereon.
7 Certain powers of the Bank: Enforcement
7.1 The Securities:
(a) The Bank and its nominees at the discretion of the
Bank may exercise in the name of the Company or
otherwise at any time whether before or after
demand for payment and without any further consent
or authority on the part of the Company (but
subject to clause 7.1(d)) in respect of the
Securities any voting rights and all powers given
to trustees by section 10(3) and (4) Trustee Act,
1925 (as amended by section 9 Trustee Investments
Act, 1961) in respect of securities or property
subject to a trust and any powers or rights which
may be exercisable by the person in whose name any
of the Securities is registered or by the bearer
thereof.
(b) The Company win if so requested by the Bank
transfer all or any of the Securities to such
nominees or agents as the Bank may select.
(c) Until the Enforcement Date the Bank win hold all
dividends, distributions, interest and other
moneys paid on and received by it in respect of
the Securities for the account of the Company and
win, subject to any right of set-off and to clause
3.4, pay such dividends, interest and other moneys
to the Company upon request.
(d) Until the Enforcement Date the Bank win exercise
all voting and other rights and powers attached to
the Securities as the Company may from time to
time in writing reasonably direct provided that
the Bank shall be under no obligation to comply
with any such direction where compliance would, in
the Bank's opinion, be prejudicial to the security
created by this Deed.
7.2 Powers on enforcement: At any time on or after the
Enforcement Date or if requested by the Company, the Bank
may, without further notice, without the restrictions
contained in section 103 Law of Property Act 1925 (or in the
case of property in Northern Ireland section 20 of the
Conveyancing and Law of Property Act 1881) and whether or not
a Receiver shall have been appointed, exercise all the powers
conferred upon mortgagees by the Law of Property Act 1925 (or
in the case of property in Northern Ireland the Conveyancing
and Law of Property Act 1881) as varied or extended by this
Deed and all the powers and discretions conferred by this
Deed on a Receiver either expressly or by reference.
7.3 Subsequent Encumbrances: If the Bank receives notice of any
subsequent Encumbrance affecting the Charged Assets or any
part thereof, the Bank may open a new account for the
Company. If it does not do so then, unless the Bank gives
express written notice to the contrary to the Company, it
shall nevertheless be treated as if it had opened a new
account at the time when it received such notice and as from
that time all payments made by or on behalf of the Company to
the Bank shall be credited or be treated as having been
credited to the new account and shall not operate to reduce
the amount due from the Company to the Bank at the time when
it received such notice.
7.4 Statutory power of leasing: The Bank shall have the power to
lease and make agreements for leases at a premium or
otherwise, to accept surrenders of leases and to grant
options on such terms as the Bank shall consider expedient
and without the need to observe any of the provisions of
sections 99 and 100 Law of Property Act 1925 (or In the case
of property in Northern Ireland section 18 of the
Conveyancing and Law of Property Act 1881).
7.5 Contingencies: If the Bank enforces the security constituted
by this Deed at a time when no amount In respect of the
Secured Obligations is due and payable, the Bank (or the
Receiver) may pay the proceeds of any recoveries effected by
it into an interest-bearing suspense account. The Bank may
(subject to the payment of any claims having priority to this
security) withdraw amounts standing to the credit of such
suspense account for application as follows:
(a) paying all costs, charges and expenses incurred
and payments made by the Bank (or the Receiver) in
the course of such enforcement;
(b) paying remuneration to the Receiver as and when
the same becomes due and payable; and
(c) paying amounts due and payable in respect of the
Secured Obligations as and when the same become
due and payable.
8 Appointment and Powers of Receiver
8.1 Appointment: At any time on or after the Enforcement Date or
if requested by the Company, the Bank may by instrument in
writing executed as a deed or under the hand of any director
or other duly authorised officer appoint any qualified person
to be a Receiver of the Charged Assets or any part thereof.
Where more than one Receiver is appointed, each joint
Receiver shall have power to act severally, independently of
any other joint Receivers, except to the extent that the Bank
may specify to the contrary in the appointment. The Bank may
(subject, where relevant, to section 45 Insolvency Act 1986)
remove any Receiver so appointed and appoint another in his
place. In this clause 8 a "qualified person" is a person
who, under the Insolvency Act 1986, is qualified to act as a
receiver of the property of any company with respect to which
he is appointed or, as the case may be, an administrative
receiver of any such company.
8.2 Receiver as agent: A Receiver shall be the agent of the
Company and the Company shall be solely responsible for his
acts or defaults and for his remuneration.
8.3 Powers of Receiver: A Receiver shall have all the powers
conferred from time to time oil receivers and administrative
receivers by statute (in the case of powers conferred by the
Law of Property Act 1925, without the restrictions contained
in section 103 of that Act) and power on behalf and at the
expense of the Company (notwithstanding liquidation of the
Company) to do or omit to do anything which the Company could
do or omit to do in relation to the Charged Assets or any
part thereof. In particular (but without limitation) a
Receiver shall have power to do all or any of the following
acts and things:
(a) Take possession: take possession of, collect and
get in all or any of the Charged Assets and
exercise In respect of the Securities all voting
or other powers or rights available to a
registered holder thereof in such manner as he may
think fit;
(b) Carry on business: carry on, manage, develop,
reconstruct, amalgamate or diversify the business
of the Company or any part thereof or concur in so
doing; lease or otherwise acquire and develop or
improve properties or other assets without being
responsible for loss or damage;
(c) Borrow money: raise or borrow any money from or
incur any other liability to the Bank or others on
such terms with or without security as he may
think fit and so that any such security may be or
include a charge on the whole or any part of the
Charged Assets ranking in priority to this
security or otherwise;
(d) Dispose of assets: without the restrictions
imposed by section 103 Law of Property Act 1925
(or in the case of property in Northern Ireland
section 20 of the Conveyancing and Law of Property
Act 1881) or the need to observe any of the
provisions of sections 99 and 100 of such Act (or
section 18 of the Conveyancing and Law of Property
Act 1881 in the case of Northern Ireland), sell by
public auction or private contract, let, surrender
or accept surrenders, grant licences or otherwise
dispose of or deal with all or any of the Charged
Assets or concur in so doing in such manner for
such consideration and generally on such terms and
conditions as he may think fit with full power to
convey, let, surrender, accept surrenders or
otherwise transfer or deal with such Charged
Assets in the name and on behalf of the Company or
otherwise and so that covenants and contractual
obligations may be granted and assumed in the name
of and so as to bind the Company (or other the
estate owner) if he shall consider it necessary or
expedient so to do; any such sale, lease or
disposition may be for cash, debentures or other
obligations, shares, stock, securities or other
valuable consideration and be payable immediately
or by instalments spread over such period as he
shall think fit and so that any consideration
received or receivable shall ipso facto forthwith
be and become charged with the payment of all the
Secured Obligations; plant, machinery and other
fixtures may be severed and sold separately from
the premises containing them and the Receiver may
apportion any rent and the performance of any
obligations affecting the premises sold without
the consent of the Company;
(e) Form subsidiaries: promote the formation of
companies with a view to the same becoming a
subsidiary of the Company and purchasing, leasing,
licensing or otherwise acquiring interests in all
or any of the Charged Assets or otherwise, arrange
for such companies to trade or cease to trade and
to purchase, lease, license or otherwise acquire
all or any of the Charged Assets on such terms and
conditions whether or not including payment by
instalments secured or unsecured as he may think
fit;
(f) Compromise contracts: make any arrangement or
compromise or enter into or cancel any contracts
which he shall think expedient;
(g) Repair and maintain assets: make and effect such
repairs, renewals and improvements to the Charged
Assets or any part thereof as he may think fit and
maintain, renew, take out or increase insurances;
(h) Appoint employees: appoint managers, agents,
officers and employees for any of the purposes
referred to in this clause 8.3 or to guard or
protect the Charged Assets at such salaries and
commissions and for such periods and on such terms
as he may determine and may dismiss the same;
(1) Make calls: make calls conditionally or
unconditionally on the members of the Company in
respect of uncalled capital;
Exercise statutory leasehold powers: without any
further consent by or notice to the Company
exercise for and on behalf of the Company all the
powers and provisions conferred on a landlord or a
tenant by the Landlord and Tenant Acts, the Rent
Acts, the Housing Acts or the Agricultural
Holdings Act or any other legislation from time to
time in force in any relevant jurisdiction
relating to rents or agriculture in respect of any
part of the Properties but without any obligation
to exercise any of such powers and without any
liability in respect of powers so exercised or
omitted to be exercised;
(k) Legal proceedings: institute, continue, enforce,
defend, settle or discontinue any actions, suits
or proceedings in relation to the Charged Assets
or any part thereof or submit to arbitration as he
may think fit;
(1) Execute documents: sign any document, execute any
deed and do all such other acts and things as may
be considered by him to be incidental or conducive
to any of the matters or powers aforesaid or to
the realisation of the security created by or
pursuant to this Deed and to use the name of the
Company for all the purposes aforesaid; and
(m) Insolvency Act powers: do all the acts and things
described in Schedule I to the Insolvency Act 1986
as if the words "he" and "him" referred to the
Receiver and "company" referred to the Company.
8.4 Remuneration: The Bank may from time to time determine the
remuneration of any Receiver and section 109(6) Law of
Property Act 1925 (or in the case of property in Northern
Ireland section 24(6) of the Conveyancing and Law of Property
Act 1881) shall be varied accordingly. A Receiver shall be
entitled to remuneration appropriate to the work and
responsibilities involved upon the basis of charging from
time to time adopted by the Receiver in accordance with the
current practice of his firm.
9 Application of Proceeds; Purchasers
9.1 Application of proceeds: All moneys received by the Bank or
by any Receiver shall be applied, after the discharge of the
remuneration and expenses of the Receiver and all liabilities
having priority to the Secured Obligations, in or towards
satisfaction of such of the Secured Obligations and in such
order as the Bank in its absolute discretion may from time to
time conclusively determine, except that the Bank may credit
the same to a suspense account for so long and in such manner
as the Bank may from time to time determine and the Receiver
may retain the same for such period as he and the Bank
consider expedient.
9.2 Insurance proceeds: All moneys receivable by virtue of any of
the Insurances shall be paid to the Bank (or if not paid by
the insurers directly to the Bank shall be held on trust for
the Bank) and shall at the option of the Bank be applied in
replacing, restoring or reinstating the property or assets
destroyed, damaged or lost (any deficiency being made good by
the Company) or (except where the Company is obligated (as
landlord or tenant) to lay out such insurance moneys under
the provisions of any lease of any of the Charged Assets) in
reduction of the Secured Obligations.
9.3 Protection of purchasers: No purchaser or other person shall
be bound or concerned to see or enquire whether the right of
the Bank or any Receiver to exercise any of the powers
conferred by this Deed has arisen or be concerned with notice
to the contrary or with the propriety of the exercise or
purported exercise of such powers.
10 Indemnities; Costs and Expenses
10.1 Enforcement costs: The Company hereby undertakes with the
Bank to pay on demand all costs, charges and expenses
incurred by the Bank or by any Receiver in or about the
enforcement, preservation or attempted preservation of any of
the security created by or pursuant to this Deed or any of
the Charged Assets on a full indemnity basis, together with
interest at the Default Rate from the date on which such
costs, charges or expenses are so incurred until the date of
payment by the Company (both before and after judgment).
10.2 No liability as mortgagee in possession: Neither the Bank nor
any Receiver shall be liable to account as mortgagee or
heritable creditor in possession in respect of all or any of
the Charged Assets or be liable for any loss upon realisation
or for any neglect or default of any nature whatsoever for
which a mortgagee or heritable creditor in possession may be
liable as such.
10.3 Indemnity from Charged Assets: The Bank and any Receiver,
attorney, agent or other person appointed by the Bank under
this Deed and the Bank's officers and employees (each an
"Indemnified Party") shall be entitled to be indemnified out
of the Charged Assets in respect of all costs, losses,
actions, claims, expenses, demands or liabilities whether in
contract, tort, delict or otherwise and whether arising at
common law, in equity or by statute which may be incurred by,
or made against, any of them (or by or against any manager,
agent, officer or employee for whose liability, act or
omission any of them may be answerable) at any time relating
to or arising directly or indirectly out of or as a
consequence of:
(a) anything done or omitted in the exercise or
purported exercise of the powers contained in this
Deed; or
(b) any breach by the Company of any of its
obligations under this Deed; or
(c) an Environmental Claim made or asserted against an
indemnified Party which would not have arisen if
this Deed had not been executed and which was not
caused by the negligence or wilful default of the
relevant Indemnified Party.
11 Power of Attorney
11.1 Power of attorney: The Company by way of security hereby
irrevocably appoints each of the Bank and any Receiver
severally to be its attorney in its name and on its behalf:
(a) to execute and complete any documents or
instruments which the Bank or such Receiver may
require for perfecting the title of the Bank to
the Charged Assets or for vesting the same in the
Bank, its nominees or any purchaser;
(b) to sign, execute, seal and deliver and otherwise
perfect any further security document referred to
in clause 6; and
(c) otherwise generally to sign, seal, execute and
deliver all deeds, assurances, agreements and
documents and to do all acts and things which may
be required for the full exercise of all or any of
the powers conferred on the Bank or a Receiver
under this Deed or which may be deemed expedient
by the Bank or a Receiver in connection with any
disposition, realisation or getting in by the Bank
or such Receiver of the Charged Assets or any part
thereof or in connection with any other exercise
of any power under this Deed.
11.2 Recovery of Debts: The Bank and any manager or officer of the
Bank or of any branch irrevocably empowered to receive all
Debts and on payment to give an effectual discharge therefor
and on non-payment to take (if the Bank in its sole
discretion so decides) all steps and proceedings either in
the name of the Company or in the name of the Bank for the
recovery thereof and also to agree accounts and to make
allowances and to give time to any surety. The Bank shall
have no liability or responsibility of any kind to the
Company arising out of the exercise or non-exercise of such
rights and shall not be obliged to make any enquiry as to the
sufficiency of any sums received by it in respect of any
Debts or to make any claims or take any other action to
collect or enforce the same.
11.3 Ratification: The Company ratifies and confirms and agrees to
ratify and confirm all acts and things which any attorney as
is mentioned in clause 11.1 shall do or purport to do in the
exercise of his powers under such clause.
12 Continuing Security and Other Matters
12.1 Continuing security: This Deed and the obligations of the
Company under this Deed
(a) secure the ultimate balance from time to time
owing to the Bank by the Company and shall be a
continuing security notwithstanding any settlement
of account or other matter whatsoever;
(b) be in addition to, and not prejudice or affect,
any present or future Collateral Instrument,
Encumbrance, right or remedy held by or available
to the Bank; and
(c) not merge with or be in any way prejudiced or
affected by the existence of any such Collateral
Instruments, Encumbrance, rights or remedies or by
the same being or becoming wholly or in part void,
voidable or unenforceable on any ground whatsoever
or by the Bank dealing with, exchanging,
releasing, varying or failing to perfect or
enforce any of the same, or giving time for
payment or indulgence or compounding with any
other person liable.
12.2 Collateral Instruments: The Bank shall not be obliged to
resort to any Collateral Instrument or other means of payment
now or hereafter held by or available to it before enforcing
this Deed and no action taken or omitted by the Bank in
connection with any such Collateral Instrument or other means
of payment shall discharge, reduce, prejudice or affect the
liability of the Company nor shall the Bank be obliged to
account for any money or other property received or recovered
in consequence of any enforcement or realisation of any such
Collateral Instrument or other means of payment.
12.3 Settlements Conditional: Any release, discharge or settlement
between the Company and the Bank shall be Conditional upon no
security, disposition or payment to the Bank by the Company
or any other person being void, set aside or ordered to be
refunded pursuant to any enactment or law relating to
liquidation, administration or Insolvency or for any other
reason whatsoever and if such condition shall not be
fulfilled the Bank shall be entitled to enforce this Deed
subsequently as if such release, discharge or settlement had
not occurred and any such payment had not been made.
13 Currencies
13.1 Conversion of Currencies: All moneys received or held by the
Bank or by a Receiver under this Deed at any time on or after
the Enforcement Date in a currency other than a currency in
which the Secured Obligations are denominated may from time
to time be sold for such one or more of the currencies in
which the Secured Obligations are denominated as the Bank or
Receiver considers necessary or desirable and the Company
shall indemnify the Bank against the full sterling cost
(including all costs, charges and expenses) incurred in
relation to such sale. Neither the Bank nor any Receiver
shall have any liability to the Company in respect of any
loss resulting from any fluctuation in exchange rates after
any such sale.
13.2 Currency Indemnity: No payment to the Bank (whether under any
judgment or court order or otherwise) shall discharge the
obligation or liability of the Company in respect of which it
was made unless and until the Bank shall have received
payment in full in the currency in which such obligation or
liability was incurred. To the extent that the amount of any
such payment shall on actual conversion into such currency
fall short of such obligation or liability expressed in that
currency the Bank shall have a further separate cause of
action against the Company and shall be entitled to enforce
the charges hereby created to recover the amount of the
shortfall.
14 Representations and Warranties
14.1 Representations: The Company represents and warrants to the
Bank that:
(a) Due incorporation: it is duly incorporated and
validly existing under the laws of England and
Wales and has power to carry on its business as it
is now being conducted and to own its property and
other assets;
(b) Corporate Power: it has power to execute, deliver
and perform its obligations under this Deed; all
necessary corporate, shareholder and other action
has been taken to authorise the execution,
delivery and performance of the same and no
limitation on the powers of the Company win be
exceeded as a result of the execution and delivery
of this Deed or the performance of its obligations
under this Deed;
(c) Binding obligations: this Deed constitutes valid
and legally binding obligations of the Company
enforceable in accordance with its terms;
(d) No conflict with other obligations: the execution
and delivery of the performance of obligations
under, and compliance with the provisions of, this
Deed by the Company win not (i) contravene any
existing applicable law, statute, rule or
regulation or any judgment or permit to which it
is subject, (ii) conflict with, or result in any
breach of any of the terms of, or constitute a
default under, any agreement or other instrument
to which it is a party or is subject or by which
it or any of its property is bound, (iii)
contravene or conflict with any provision of its
Memorandum and Articles of Association, or (iv)
result in the creation of or oblige the Company to
create an Encumbrance In favour of any person
other than the Bank;
(e) No Litigation: no litigation, arbitration or
administrative proceeding is taking place, pending
or, to the knowledge of the officers of the
Company, threatened against it which could have a
material adverse effect on the business, assets or
financial condition of the Company;
(f) No default in relation to other indebtedness: the
Company is not (nor would win the giving of notice
of time or both be) in breach of or in default
under any agreement relating to Indebtedness to
which it is a party or by which it may be bound;
(g) Title to Charged Assets: it has good and
marketable title to its Charged Assets and has
full power and authority to grant to the Bank the
security interest in its Charged Assets created
pursuant to this Deed and to execute, deliver and
perform its obligations in accordance with the
terms of this Deed without the consent or approval
of any other person other than any consent or
approval which has been obtained;
(h) Ownership of Charged Assets: the Charged Assets
are beneficially owned by it free and clear of any
Encumbrance other than Encumbrances created by
this Deed;
(i) Financial statements correct and complete: the
audited financial statements of the Company in
respect of the financial year ended on 30th
September, 1996 have been prepared in accordance
with generally accepted accounting principles and
bases in England and Wales which have been
consistently applied and present fairly and
accurately the financial position of the Company
as at such date and the results of the operations
of the Company for the financial period ended on
such date and, as at such date, the Company did
not have any significant liabilities (whether
actual or contingent) or any unrealised or
anticipated losses which are not disclosed by, or
reserved against or provided for in, such
financial statements;
(j) No material adverse change: there has been no
material adverse change in the financial position
of the Company from that set forth in the
financial statements referred to in clause
14.l(l);
(k) Information accurate: the information and reports
furnished by the Company to the Bank in connection
with the negotiation and preparation of the
Supplemental Facility Letter and this Deed are
true and accurate in all material respects, are
not misleading and do not omit material facts and
all reasonable enquiries have been made to verify
the facts and statements contained therein; there
are no other facts the omission of which would
make any fact or statement therein misleading;
(1) Compliance with Environmental Laws: the Company
complies and has at all times complied with all
Environmental Laws and Environmental Licences and
has obtained and maintained in full force and
effect all Environmental Licences, and there are
no facts or circumstances entitling any such
Environmental Licences to be revoked, suspended,
amended, varied, withdrawn or not renewed where
such revocation, suspension, amendment, variation,
withdrawal or non-renewal might have a Material
Environmental Effect;
(m) No Environmental Claims: no Environmental Claim is
pending or has been made or threatened against the
Company or any occupier of any of the Properties
or any of their respective officers their capacity
as such and the Company has no reason to believe
that it has or is likely to have any liability in
relation to Environmental Matters which, in either
case, might have a Material Environmental Effect;
(n) No Relevant Substances: no Relevant Substance has
been deposited, disposed of, kept, treated,
imported, exported, transported, processed,
manufactured, used, collected, sorted or produced
at any time, or is present in the environment
(whether or not on property owned, leased,
occupied or controlled by the Company) in
circumstances which are likely to result in an
Environmental Claim against the Company which, in
either case, might have a Material Environmental
Effect;
(o) Details of environmental audits: full details have
been given to the Bank of any inspections,
investigations, studies, audits, tests, reviews or
other analyses In relation to Environmental
Matters relating to the Company or to the best of
the Company's knowledge any property now or
previously owned, leased or occupied by the
Company and of all Environmental Licences;
14.2 Repetition: The representations and warranties in clause 14.1
(which in the case of clause 14.1(i) and 14.1(j) (accounts)
shall refer for this purpose to the then latest audited
financial statements of the Company) shall be deemed to be
repeated by the Company on each day until all the Secured
Obligations have been paid or discharged in full as if made
with reference to the facts and circumstances existing on
each such day.
15 Miscellaneous
15.1 Remedies Cumulative: No failure or delay on the part of the
Bank to exercise any power, right or remedy shall operate as
a waiver thereof nor shall any single or any partial exercise
or waiver of any power, right or remedy preclude its further
exercise or the exercise of any other power, right or remedy.
15.2 Statutory power of leasing: During the continuance of this
security the statutory and any other powers of leasing,
letting, entering into agreements for leases or lettings and
accepting or agreeing to accept surrenders of leases or
tenancies shall not be exercisable by the Company in relation
to the Charged Assets or any part thereof.
15.3 Successors and assigns: Any appointment or removal of a
Receiver under clause 8 and any consents under this Deed may
be made or given in writing signed or sealed by any
successors or assigns of the Bank and accordingly the Company
hereby irrevocably appoints each successor and assign of the
Bank to be its attorney in the terms and for the purposes set
out in clause 11.
15.4 Consolidation: Section 93 Law of Property Act 1925 shall not
apply to the security created by this Deed or to any security
given to t he Bank pursuant to this is Deed.
15.5 Reorganisation of the Bank: This Deed shall remain binding on
the Company notwithstanding any change in the constitution of
the Bank or its absorption in, or amalgamation with, or the
acquisition of all or part of its undertaking by, any other
person, or any reconstruction or reorganisation of any kind.
The security granted by this Deed shall remain valid and
effective in all respects in favour of any assignee,
transferee or other successor in title of the Bank in the
same manner as if such assignee, transferee or other
successor in title had been named in this Deed as a party
instead of, or in addition to, the Bank.
15.6 Unfettered discretion: Any liability or power which may be
exercised or any determination which may be made under this
Deed by the Bank may be exercised or made in its absolute and
unfettered discretion and it shall not be obliged to give
reasons therefor.
15.7 Provisions severable: Each of the provisions of this Deed is
severable and distinct from the others and if any time one or
more of such provisions is or becomes invalid, illegal or
unenforceable the validity, legality and enforceability of
the remaining provisions of this Deed shall not in any way be
affected or impaired thereby.
16 Notices
16.1 Mode of service: Any notice or demand for payment by the Bank
under this Deed shall, without prejudice to any other
effective mode of making the same, be deemed to have been
properly served on the Company if served on any one of its
Directors or on its Secretary or delivered or sent by letter,
telex or telefax to the Company at its registered office or
any of its principal places of business for the time being.
16.2 Time of service: Any such notice or demand shall be deemed to
have been served (in the case of a letter) when delivered,
(in the case of a telex) at the time of despatch with the
correct answer back appearing at the beginning and end of the
transmission and (in the case of a telefax) when received in
complete and legible form.
16.3 Notices conclusive: Any such notice or demand or any
certificate as to the amount at any, time secured by the Deed
shall, save for manifest error be conclusive and binding upon
the Company if signed by an officer of the Bank.
17 Law
17.1 This Deed shall be governed by and shall be-construed in
accordance with English law.
IN WITNESS whereof this Deed has been executed and delivered by or on behalf
of the parties on the date stated at the beginning of this Deed.
EXECUTED and DELIVERED )
as a DEED by )
INTERFACE SYSTEMS INTERNATIONAL LIMITED )
acting by: )
Director
Director/Secretary
SIGNED for and on behalf )
of THE FIRST NATIONAL BANK OF CHICAGO by )
Authorised
Signatory
CERTIFICATE OF THE REGISTRATION
OF A MORTGAGE OR CHARGE
Pursuant to section 401(s) of the Companies Act 1985
COMPANY No. 03253366
THE REGISTRAR OF COMPANIES FOR ENGLAND AND WALES HEREBY CERTIFIES THAT A
DEBENTURE DATED THE 10TH MARCH 1997 AND CREATED BY INTERFACE INTERNATIONAL
LIMITED FOR SECURING ALL MONIES DUE OR TO BECOME DUE FROM THE COMPANY TO THE
FIRST NATIONAL BANK OF CHICAGO ON ANY ACCOUNT WHATSOEVER WAS REGISTERED
PURSUANT TO CHAPTER 1 PART XII OF THE COMPANIES ACT 1985 ON THE 26TH MARCH
1997.
GIVEN AT COMPANIES HOUSE, CARDIFF THE 2ND APRIL 1997.
for the Registrar of Companies