Exhibit 10.5
[LOGO] NatWest Debenture Secs 1 (9/98)
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: 17 December 2001
Definitions
Bank: National Westminster Bank Plc
Company: Bottomline Technologies Europe Limited Company No:
01911956
Company's Obligations: All the Company'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 or Company'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
Interest: Interest at any rate(s) charged to the Company by the
Bank from time to time
Property: The whole and any part of the undertaking property and
assets of the Company charged by Clause 1
Registered Land: Description of property Land Registry Title Number
Required Currency: The currency or currencies in which the Company's
Obligations are expressed from time to time
Charge
1 The Company covenants to discharge on demand the Company'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 all the freehold and leasehold property now
vested in or charged to the Company including any Registered Land
1.2 By way of fixed charge all estates or interests in any freehold and
leasehold property now and in the future vested in or charged to the
Company except the property charged by Clause 1.1
1.3 By way of fixed charge all the plant machinery and fixtures and
fittings of the Company present and future
1.4 By way of fixed charge all furniture furnishings equipment tools and
other chattels of the Company present and future not regularly
disposed of in the ordinary course of business
1.5 By way of fixed charge all the goodwill and uncalled capital of the
Company present and future
1.6 By way of fixed charge all stocks shares and other securities of the
Company present and future
1.7 By way of fixed charge all intellectual property rights choses in
action and claims of the Company present and future and the proceeds
of any insurance from time to time affecting the Property
1.8 By way of fixed charge the benefit of any currency or interest rate
swap cap or collar or other hedging agreement or any futures
transaction or treasury instrument made with the Bank or any third
party
1.9 By way of fixed charge all book debts and other debts of the Company
present and future and the proceeds of payment or realisation of
each of them until the receipt of the proceeds from time to time
into an account in accordance with Clause 4.2
1.10 By way of fixed charge all funds standing to the credit of the
Company from time to time on any account with the Bank or any other
bank or financial institution or organisation including all receipts
from time to time paid into an account in accordance with Clause
4.2.
1.11 By way of floating charge all the undertaking and all property
assets and rights of the Company present and future not subject to a
fixed charge under this deed
Restrictions
2.1 The Company will not without the previous written consent of the
Bank:-
2.1.1 Create or permit to arise any mortgage charge or lien on the
Property
2.1.2 Dispose of the Property charged by Clauses 1.1 to 1.10 inclusive
2.1.3 Deal with the Company's book debts and other debts otherwise than by
collecting them in the ordinary course of the Company's business and
in particular the Company will not realise its book debts and other
debts by means of block discounting factoring or the like
2.1.4 Dispose of the Property charged by Clause 1.11 other than in the
ordinary course of business
2.1.5 Grant or accept a surrender of any lease or license of or part with
or share possession or occupation of its freehold and leasehold
property or any part of it
2.2 The Company 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
Insurance
3.1 The Company will keep comprehensively insured to the Bank's
reasonable satisfaction all of the Property which is of an insurable
nature for its full reinstatement cost and in default the Bank may
enter and effect such insurance (without becoming liable to account
as mortgagee in possession)
3.2 The Company will hold in trust for the Bank all money received under
any insurance of the Property 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 Company's Obligations
Deeds Securities and Debts
4.1 The Company will from time to time deposit with the Bank all
insurance policies (or where the Bank agrees copies of them) deeds
and documents of title relating to the Property
4.2 The Company will pay into the Company's account with the Bank (or
such other account as the Bank may specify from time to time) all
money which the Company may receive in respect of the Company's book
debts and other debts
Repair and Alteration
5.1 The Company will keep the Property charged by Clauses 1.1 to 1.4
inclusive in good condition and in default the Bank may enter and
effect repairs (without becoming liable to account as mortgagee in
possession)
5.2 The Company will not without prior written consent of the Bank make
any alteration to the Property charged by Clauses 1.1 and 1.2 which
would require Planning Permission or approval under any Building
Regulations
Notice of Crystallisation
6 The Bank may by written notice to the Company convert the floating
charge into a fixed charge as regards any of the Property specified
in the notice
Powers of the Bank
7.1 The Bank may without restriction grant or accept surrenders of
leases of the Company's freehold and leasehold property or any part
of it
7.2 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
7.3 The Bank may under the hand of any official or manager or by deed
appoint or remove a Receiver or Receivers of the Property and may
fix and pay the fees of a Receiver but any Receiver shall be deemed
to be the agent of the Company and the Company shall be solely
responsible for the Receiver's acts defaults and remuneration
7.4 All or any of the powers conferred on a Receiver by Clause 8 may be
exercised by the Bank without first appointing a Receiver or
notwithstanding any appointment
7.5 The Bank will not be liable to account to the Company as mortgagee
in possession for any money not actually received by the Bank
7.6 Section 93(1) of the Law of Property Act 1925 shall not apply to
this deed
7.7 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 Company's
Obligations against any deposit or credit balance or any account of
the Company with the Bank (whether or not that deposit or balance is
due to the Company)
7.8 Despite any term to the contrary in relation to any deposit or
credit balance on any account of the Company 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 Company before
all the Company's Obligations have been discharged but the Bank may
without prejudice to this deed permit the Company to make
withdrawals from time to time
7.9 The Bank may exchange or convert to the Required Currency and
currency held or received
Receivers
8.1 Any Receiver appointed by the Bank shall be a Receiver and Manager
and 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:-
8.1.1 To take possession of and generally manage the Property and any
business of the Company
8.1.2 To carry out on any freehold or leasehold property of the Company
any new works or complete any unfinished works of building
reconstruction maintenance furnishing or equipment
8.1.3 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
8.1.4 To sell lease surrender or accept surrenders of leases charge or
otherwise deal with or dispose of the Property without restriction
including (without limitation) power to dispose of any fixtures
separately from the land
8.1.5 To carry into effect and complete any transaction by executing deeds
or documents in the name of or on behalf of the Company
8.1.6 To take continue or defend any proceedings and enter into any
arrangement or compromise
8.1.7 To insure the Property and any works and effect indemnity insurance
or other similar insurance and obtain bonds and give indemnities and
security to any bondsmen
8.1.8 To call up any uncalled capital of the Company with all the powers
conferred by the Articles of Association of the Company in relation
to calls
8.1.9 To employ advisers consultants managers agents workmen and others
8.1.10 To purchase or acquire materials tools equipment goods or supplies
8.1.11 To borrow any money and secure the payment of any money in priority
to the Company's Obligations for the purpose of the exercise of any
of his powers
8.1.12 To do any other acts which the Receiver may consider to be
incidental or conducive to any of his powers or to the realisation
of the Property
8.2 A Receiver shall apply all money he receives first in the repayment
of all money borrowed by him and his expense 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
9 The Company irrevocably appoints the Bank and any Receiver severally
to be the Attorney of the Company (with full power of substitution
and delegation) in the Company's name and on the Company's behalf
and as the Company'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
10.1 Subject to Clause 10.2 the Bank may appropriate all payments
received for the account of the Company in reduction of any part of
the Company's Obligations as the Bank decides
10.2 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. 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 Company's Obligations outstanding at the time of receiving such
notice
Preservation of other Security and Rights and Further Assurance
11.1 This deed is in addition to any other security present or future
held by the Bank for the Company's Obligations and shall not merge
with or prejudice such other security or any contractual or legal
rights of the Bank
11.2 The Company will at its 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 on the Property the Company's
Obligations
Memorandum and Articles of Association
12 The Company certifies that this deed does not contravene the
Company's Memorandum and Articles of Association
Notices
13.1 Any notice or demand by the Bank may be served personally on any
director or the secretary of the Company or may be sent by post or
fax or delivered to the Company at the Company's address last known
to the Bank
13.2 A notice or demand by the Bank by post shall be deemed served on the
day after posting
13.3 A notice or demand by the Bank by fax shall be deemed served at the
time of sending
Governing Law
14 This deed shall be governed by and construed in accordance with
English Law
Interpretation
15.1 The expressions "Company" and "Bank" where the context admits
include their respective successors in title and assigns
15.2 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
15.3 References to the "Property" include any part of it
15.4 References to freehold and leasehold property include all covenants
and rights-affecting or concerning the same
15.5 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
Signed and Delivered as a deed by the Company acting by a
director and its secretary or two directors
/s/ P. Fortune
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Director
/s/ S.J. Cutler
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Secretary/Director
(Please ensure the document is dated)
/s/ [ILLEGIBLE]
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Duly Authorized Official
For and on behalf of the Bank
National Westminster Bank Plc releases to the within named Company the
undertaking and other property and assets comprised in the within written
document
For and on behalf of National Westminster Bank Plc
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Duly Authorized Official
Date