Exhibit 10.4
[LOGO] NatWest
Legal Charge
Secs 3 Commercial (7/95)
THIS IS AN IMPORTANT DOCUMENT. YOU SHOULD TAKE INDEPENDENT LEGAL ADVICE BEFORE
SIGNING AND SIGN ONLY IF YOU WANT TO BE LEGALLY BOUND. IF YOU SIGN AND THE BANK
IS NOT PAID YOU MAY LOSE THE ASSET(S) CHARGED.
Date: 17th December 2001
Definitions
Mortgagor: Bottomline Technologies Europe Limited
Company Number: 01911956
Bank: National Westminster Bank Plc
Interest: Interest at the rate(s) charged to the Mortgagor by the
Bank for time to time
Property: Administrative Area : Reading
Description : 115 Chatham Street
Tenure : Freehold
Title Number : BK110384
Charged Assets: The assets charged by Clause 1.2
Goodwill: The present and future goodwill of any business carried
on at the Property by or on behalf of the Mortgagor
Mortgagor's Obligations: All the Mortgagor's liabilities to the
Bank of any kind and in any currency (whether present
or future actual or contingent and whether incurred
alone or jointly with another) together with the Bank's
charges and commission Interest and Expenses
Expenses: All expenses (on a full indemnity basis) incurred by
the Bank or any Receiver at any time in connection with
the Property the Charged Assets the Goodwill or the
Mortgagor's Obligations or in taking or perfecting this
deed or in preserving defending or enforcing the
security created by this deed or in exercising any
power under this deed or otherwise with Interest from
the date they are incurred.
Required Currency: The currency or currencies in which the Mortgagor's
Obligations are expressed from time to time
Charge
1 The Mortgagor covenants to discharge on demand the Mortgagor's
Obligations and as a continuing security for such discharge and with
full title guarantee charges to the Bank:-
1.1 By way of legal mortgage of all legal interests and otherwise by way of
fixed charge the Property (to the full extent of the Mortgagor's
interest in the Property or its proceeds of sale)
1.2 By way of fixed charge if the Mortgagor is a company:-
1.2.1 All the plant machinery and fixtures and fittings of the Mortgagor now
and in the future at the Property
1.2.2 All furniture furnishings equipment tools and other chattels of the
Mortgagor now and in the future at the Property and not regularly
disposed of in the ordinary course of business
1.3 By way of fixed charge the Goodwill and the proceeds of any insurance
from time to time affecting the Property or the Charged Asset
Repair Alteration and Insurance
2.1 The Mortgagor will keep the Property and the Charged Assets in good
condition and comprehensively insured to the Bank's reasonable
satisfaction for their full reinstatement cost and in default the Bank
(without becoming liable to account as mortgagee in possession) may
enter and repair or insure the Property and the Charged Assets. The
Mortgagor will deposit with the Bank the insurance policy or where the
Bank agrees a copy of it
2.2 The Mortgagor will not without the prior written consent of the Bank
make any alteration to the Property which would require Planning
Permission or approval under any Building Regulations
2.3 The Mortgagor will hold in trust for the Bank all money received under
any insurance of the Property or the Charged Assets and at the Bank's
option will apply the same in making good the relevant loss or damage or
in or towards discharge of the Mortgagor's Obligations
Restrictions on Charging Leasing Disposing and Parting with possession
3.1 The mortgagor will not without the Bank's prior written consent:-
3.1.1 Create or permit to arise any mortgage charge or lien on the Property
the Charged Assets or the Goodwill
3.1.2 Grant or accept a surrender of any lease or licence of the Property the
Charged Assets or the Goodwill
3.1.3 Dispose of or part with or share possession or occupation of the
Property the Charged Assets or the Goodwill
3.2 The Mortgagor requests the Chief Land Registrar to enter a restriction
on the Register of any Registered Land that except under an order of the
Registrar no disposition by the proprietor(s) of the land is to be
registered without the consent of the registered proprietor of this deed
Powers of the Bank
4.1 The Bank may without restriction grant or accept surrenders of leases of
the Property and the Charged Assets
4.2 Section 103 of the Law of Property Act 1925 shall not apply and the Bank
may exercise its power of sale and other powers under that or any other
Act or this deed at any time after the date of this deed
4.3 The Bank may under the hand of any official or manager or by deed
appoint or remove a Receiver or Receivers of the Property the Charged
Assets and the Goodwill and may fix and pay the fees of a Receiver but
any Receiver shall be deemed to be the agent of the Mortgagor and the
Mortgagor shall be solely responsible for the Receiver's acts defaults
and remuneration
4.4 All or any of the powers conferred on a Receiver by Clause 5 may be
exercised by the Bank without first appointing a Receiver or
notwithstanding any appointment
4.5 The Bank will not be liable to account to the Mortgagor as mortgagee in
possession for any money not actually received by the Bank
4.6 Section 93(1) of the Law of Property Act 1925 shall not apply to this
deed
4.7 In addition to any lien or right to which the Bank may be entitled by
law the Bank may from time to time without notice and both before and
after demand set off the whole or any part of the Mortgagor's
Obligations against any deposit or credit balance on any account of the
Mortgagor with the Bank (whether or not that deposit or balance is due
to the Mortgagor)
4.8 Despite any term to the contrary in relation to any deposit or credit
balance on any account of the Mortgagor with the Bank that deposit or
balance will not be capable of being assigned dealt with mortgaged or
charged and will not be repayable to the Mortgagor before all the
Mortgagor's Obligations have been discharged but the Bank may without
prejudice to this deed permit the Mortgagor to make withdrawals from
time to time
4.9 The Bank may exchange or convert to the Required Currency any currency
held or received
Receivers
5.1 Any Receiver appointed by the Bank shall (in addition to all powers
conferred on him by law) have the following powers which in the case of
Joint Receivers may be exercised jointly or severally:-
5.1.1 To take possession of and generally manage the Property and the Charged
Assets and any business carried on at the Property
5.1.2 To carry out on the Property any new works or complete any unfinished
works of building reconstruction maintenance furnishing or equipment
5.1.3 To purchase or acquire any land or other property and purchase acquire
grant or release any interest in or right over land or the benefit of
any covenants (positive or restrictive) affecting land
5.1.4 To sell lease surrender or accept surrenders of leases charge or
otherwise deal with and dispose of the Property the Charged Assets and
the Goodwill without restriction including (without limitation) power to
dispose of any fixtures separately from the Property
5.1.5 To carry into effect and complete any transaction by executing deeds or
documents in the name of or on behalf of the Mortgagor
5.1.6 To take continue or defend any proceedings and enter into any
arrangement or compromise
5.1.7 To insure the Property and the Charged Assets and any works and effect
indemnity insurance or other similar insurance and obtain bonds and give
indemnities and security to any bondsmen
5.1.8 To employ advisers consultants managers agents workmen and others and
purchase or acquire materials tools equipment goods or supplies
5.1.9 To borrow any money and secure the payment of any money in priority to
the Mortgagor's Obligations for the purpose of the exercise of any of
his powers
5.1.10 To do any other acts which the Receiver may consider to be incidental or
conductive to any of his powers or to the realization of the Property
the Charge Assets and the Goodwill
5.2 If the Mortgagor is not a company the Mortgagor grants to such Receiver
an irrevocable licence and power to use in connection with any business
carried on at the Property all property of the Mortgagor at the Property
when the Receiver is appointed and to remove store sell and/or dispose
of any such property. The Receiver will account to the Bank for the
proceeds of any sale of such property after deducting all costs and
expenses incurred in the sale and that amount shall be a debt due from
the Bank to the Mortgagor
5.3 A Receiver shall apply all money he receives first in repayment of all
money borrowed by him and his expenses and liabilities and in payment of
his fees and secondly towards the remaining matters specified in Section
109(8) of the Law of Property Act 1925
Power of Attorney
6 The Mortgagor irrevocably appoints the Bank and any Receiver severally
to be the Attorney of the Mortgagor (with full power of substitution and
delegation) in the Mortgagor's name and on the Mortgagor's behalf and as
the Mortgagor's act and deed to sign or execute all deeds instruments
and documents or take continue or defend any proceedings which may be
required by the Bank or any Receiver pursuant to this deed or the
exercise of any of their powers
Appropriation
7.1 Subject to Clause 7.2 the Bank may appropriate all payments received for
the account of the Mortgagor in reduction of any part of the Mortgagor's
Obligations as the Bank decides
7.2 The Bank may open a new account or accounts upon the Bank receiving
actual or constructive notice of any charge or interest affecting the
Property the Charged Assets or the Goodwill. Whether or not the Bank
opens any such account no payment received by the Bank after receiving
such notice shall (if followed by any payment out of or debit to the
relevant account) be appropriated towards or have the effect of
discharging any part of the Mortgagor's Obligations outstanding at the
time of receiving such notice
Preservation of other Security and Rights and Further Assurance
8.1 This deed is in addition to any other security present or future held by
the Bank for the Mortgagor's Obligations and shall not merge with or
prejudice such other security or any contractual or legal rights of the
Bank
8.2 The Mortgagor will at the Mortgagor's own cost at the Bank's request
execute any deed or document and take any action required by the Bank to
perfect this security or further to secure the Mortgagor's Obligations on
the Property the Charged Assets and the Goodwill
Memorandum and Articles of Association
9 If the Mortgagor is a company the Mortgagor certifies that this deed does
not contravene the Mortgagor's Memorandum and Articles of Association
Notices
10.1 Any notice or demand by the Bank may be sent by post or fax or delivered
to the Mortgagor at the Mortgagor's address last known to the Bank or if
the Mortgagor is a company may be served personally on any director or the
secretary of the Mortgagor
10.2 A notice or demand by the Bank by post shall be deemed served on the day
after posting
10.3 A notice or demand by the Bank by fax shall be deemed served at the time
of sending
Governing Law
11 This deed shall be governed by and construed in accordance with English
law
Interpretation
12.1 The expressions "Mortgagor" and "Bank" where the context admits include
their respective successors in title and assigns
12.2 If two or more persons are included in the expression "Mortgagor" then the
use in this deed of the word "Mortgagor" shall be deemed to refer to such
persons both together and separately and the Mortgagor's Obligations shall
be their joint and several obligations and each of them shall be primarily
liable by way of indemnity for the liabilities to the Bank of the other or
others of them
12.3 References to the "Property" and the "Charged Assets" include any part of
it or them and the "Property" includes all covenants and rights affecting
or concerning the same. The "Property" also includes any share from time
to time held by the Mortgagor in any landlord or management company of the
Property
12.4 Interest will be calculated both before and after demand or judgment on a
daily basis and compounded according to agreement or in the absence of
agreement monthly on such days as the Bank may select
12.5 Each of the provisions of this deed shall be severable and distinct from
one another and if one or more of such provisions is invalid or
unenforceable the remaining provisions shall not in any way be affected
In Witness of which this deed has been duly executed
/s/ P. Fortune
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Director
/s/ S.J. Cutler
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Secretary/Director
(Please ensure this document is dated)
Signed and Delivered as a deed by the Mortgagor acting by a director and its
secretary or two directors