Exhibit 10.19
CERTIFICATE OF THE REGISTRATION
OF A MORTGAGE OR CHARGE
PURSUANT TO SECTION 401(2) OF THE COMPANIES ACT 1985
COMPANY No. 02670649
THE REGISTRAR OF COMPANIES FOR ENGLAND AND WALES HEREBY CERTIFIES THAT A
DEED OF CHARGE DATED THE 12th NOVEMBER 1996 AND CREATED BY MUREX BIOTECH
LIMITED FOR SECURING ALL MONIES DUE OR TO BECOME DUE FROM THE COMPANY TO
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION UNDER A CREDIT
AGREEMENT DATED 12TH NOVEMBER 1996 WAS REGISTERED PURSUANT TO CHAPTER 1
PART XII OF THE COMPANIES ACT 1985 ON THE 28th NOVEMBER 1996.
GIVEN AT COMPANIES HOUSE, CARDIFF THE 3rd DECEMBER 1996.
/s/ R.N. Owens
RICHARD NEIL OWENS
for the Registrar of Companies
12 NOVEMBER 1996
MUREX BIOTECH LIMITED
(REGISTERED NO. 2670649)
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
FIXED AND FLOATING CHARGE
STAMP
OF
COMPANIES HOUSE
---------------
REGISTERED
28 NOV 1996
---------------
*
THIS DEED OF CHARGE made on the 12th day of November 1996
BETWEEN
MUREX BIOTECH LIMITED (registered in England and Wales no. 2670649) whose
registered office is at Central Road, Temple Hill, Dartford, Kent, DA1 5LR,
England (the COMPANY)
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION acting through its
London Branch at 1 Alie Street, London E1 8DE (the COLLATERAL AGENT)
WITNESSES AS FOLLOWS:
Interpretation
1.1 DEFINITIONS: All capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit
Agreement (as defined below). Additionally, in this Deed, each of the
following expressions and capitalized terms has, except so far as the
context otherwise requires, the meaning shown:
CHARGED PROPERTY means the property, assets, undertaking and rights for the
time being comprised in or subject to the Security Interests contained in
this Deed; and references to the Charged Property include references to any
part of it;
CREDIT AGREEMENT means the Credit agreement by and among International
Murex Technologies Corporation, Murex Diagnostics International, Inc., IMTC
Holdings, Inc., Murex Diagnostics Corporation, IMTC Holdings (UK) Limited,
Murex Diagnostics, Inc., and Murex Biotech Limited, as Borrowers, Bank of
America, FSB, as Agent, the Issuing Banks and the Lenders, dated of even
date hereof as from time to time amended, modified, supplemented or varied
in any manner or respect whatsoever including, in particular, by any
alteration or modification which increases or otherwise affects the
liability of the Company hereunder or thereunder;
THIS DEED means this present deed and any other document by which, pursuant
to any of its provisions or otherwise, the Company may grant a Security
Interest to the Collateral Agent, as, in each case, from time to time
varied in any manner or respect whatsoever, and CHARGES CONTAINED IN THIS
DEED and SECURITY INTERESTS CONTAINED IN THIS DEED and similar expressions
shall be construed accordingly;
RECEIVER includes any person or persons appointed (and any additional
person or persons appointed or substituted) as administrative receiver,
receiver, manager, or receiver and manager by the Collateral Agent under
this Deed or otherwise;
SECURITY INTEREST means any mortgage, charge, pledge, lien, assignment,
encumbrance, right of set off, title transfer or retention arrangement or
agreement, or any security interest whatsoever, howsoever created or
arising.
1.2 CONSTRUCTION: In this Deed, except where the context otherwise
requires:
(a) the COMPANY includes its successors and assigns and persons deriving
title through or under the Company in whole or in part and whether at
law or in equity and the COLLATERAL AGENT includes its successors and
assigns and persons deriving title through or under the Collateral
Agent in whole or in part and whether at law or in equity;
(b) references to a document include any deed (including this Deed),
negotiable instrument, certificate, notice or other document of any
kind and references to any document (or a provision thereof) shall be
construed as a reference to that document or provision as from time to
time amended, supplemented, varied or replaced (in whole or in part);
(c) reference to a BUSINESS DAY shall be construed as a reference to a day
(other than a Saturday or Sunday) on which banks are generally open
for business in London;
(d) references to SUBSIDIARY and HOLDING COMPANY have the meanings
ascribed to them by section 736 Companies Act 1985; and
(e) references to any statute or other legislative provision shall include
any statutory or legislative modification or re-enactment thereof, or
any substitution therefor.
1.3 HEADINGS: The headings in this Deed shall not affect its
interpretation.
FIXED AND FLOATING CHARGES
2.1 CHARGES: The Company, with full title guarantee, hereby charges to
the Collateral Agent as a continuing security for the payment or discharge
of the Obligations:
(a) with full title guarantee, by way of first fixed charge, all book
debts and other trade receivables now and in the future due and owing
to the Company, including, without limitation, all financial
instruments evidencing trade indebtedness;
(b) by way of floating charge, all its right and interest in all stock in
trade and inventory in all its forms (wherever located) now or
hereafter existing (including, but not limited to, (i) all goods,
merchandise and other personal property owned and held for sale, (ii)
all raw materials, work or goods in process, finished goods thereof,
and materials and supplies which contribute to the finished products
of the Company in the ordinary course of business and (iii) goods
which are returned to or repossessed by the Company) and all books,
records and documents evidencing title thereto and all monies received
in relation to the book debts, other trade receivables and financial
instruments evidencing trade indebtedness that are subject to the
fixed charged contained in clause 2.1(a) (including, without
limitation, all payments received under insurance, or any indemnity,
warranty or guaranty) and all bank accounts into which the proceeds of
any of the foregoing may be paid, and, to the extent that the same are
not subject to a valid fixed charge, any of the matters subject to the
charges under clause 2.1(a) and any monies received in relation
thereto.
2.2 WARRANTY: The Company warrants to the Collateral Agent that it is
absolutely entitled to all of the Charged Property vested in it as at the
date of this Deed free from all Security Interests and claims whatsoever
other than Permitted Liens.
CONTINUANCE OF SECURITY
3.1 The charges contained in this Deed are made for securing further
advances under the Credit Agreement and shall be without prejudice and in
addition to any other security whatsoever which may be held by the Agent or
any Collateral Agent from the Company or any other Person for or in respect
of the whole or part of the Obligations; and the charges, covenants and
provisions contained in this Deed shall remain in force as continuing
security to the Collateral Agent notwithstanding any settlement of account
or the existence at any time of a credit balance on any current or other
account or any other act, event or matter whatsoever, except only the
execution by the Collateral Agent as a deed of an absolute and
unconditional release or the execution by the Agent or the Collateral Agent
of a receipt for all (and not part only) of the Obligations and the
termination of the Commitment, whereupon the Collateral Agent shall
forthwith release any security held under this Deed and shall execute such
document evidencing this release as the Company may reasonably require.
GENERAL COVENANTS AND REPRESENTATIONS
4.1 COVENANTS: Until the Obligations have been repaid and discharged and
the Commitment terminated, the Company further covenants with the
Collateral Agent as follows:
(a) not to create or permit to exist any Security Interest in, over or
affecting any of the Charged Property (other than a Permitted Lien);
(b) not to transfer, sell, lend, lease, license or otherwise dispose of
any of the Charged Property, except as permitted by the Credit
Agreement or in connection with sales of goods in the ordinary course
of business on arms length terms;
(c) (i) except as permitted by the Credit Agreement, not to transfer,
factor, discount, sell, release, compound, subordinate, defer or
vary the terms of any book or other debts or moneys for the time
being due, owing or payable to the Company, nor otherwise to deal
with the same except by getting in the same in the usual course
of business; and
(ii) to collect and pay or (if the Collateral Agent shall so require)
instruct all customers and debtors to pay direct into the
Company's specified account with the Collateral Agent or any
other bank as the Collateral Agent shall instruct all moneys
which it may receive or which may be paid by customers and
debtors in respect of such debts.
(d) in the event that the Collateral Agent exercises its right to take
possession of all or any of the Charged Property, to allow the
Collateral Agent peaceably and quietly to hold and enjoy such Charged
Property under the terms of this Deed without any lawful interruption
or disturbance from or by the Company or any person rightfully
claiming under or in trust for the Company.
4.2 POWERS AND AUTHORIZATIONS: The Company covenants with and represents
to the Collateral Agent that the documents which contain or establish the
Company's constitution include provisions which give power, and all
necessary corporate authority has been obtained and action taken, for the
Company to grant the charges contained in this Deed and execute and
deliver, and perform the covenants and obligations contained in this Deed
and that this Deed constitutes valid and binding obligations of the Company
enforceable in accordance with its terms except as such validity or
enforceability may be limited by applicable bankruptcy, reorganization,
moratorium or other insolvency laws affecting creditors' rights generally.
4.3 NON-VIOLATION: The Company further covenants and represents to the
Collateral Agent that neither the execution and delivery of this Deed nor
the performance of any of the covenants contained in it does or will
contravene or constitute a default under, or cause to be exceeded any
limitation on it or the powers of its directors imposed by or contained in:
(i) any document which contains or establishes its constitution; or
(ii) any agreement to which it is a party or by which any of its
assets is bound.
4.4 NON-COMPLIANCE BY COMPANY: If the Company for any reason fails to
observe or punctually to perform any of its obligations to the Collateral
Agent, whether under this Deed or otherwise, the Collateral Agent
(following seven days notice to the Company to remedy the same) shall have
power but shall not be obliged, on behalf of or in the name of the Company
or otherwise, to perform the obligation and to take any steps which the
Collateral Agent may, in its absolute discretion, consider appropriate with
a view to remedying or mitigating the consequences of the failure, but so
that the exercise of this power, or the failure to exercise it, shall in no
circumstances prejudice the Collateral Agent's rights under this Deed.
THE COLLATERAL AGENT'S POWERS
5.1 AMOUNTS DUE: Without prejudice to the provisions of the Credit
Agreement, the Obligations shall become due for the purposes of section 101
of the Law of Property Act 1925 (1925 ACT) and the statutory power of sale
and of appointing a receiver which are conferred on the Collateral Agent
under that Act (as varied or extended by this Deed) and all other powers
shall be deemed to arise immediately after execution of this Deed.
5.2 POWER OF SALE: Section 103 of the 1925 Act shall not apply in
relation to any of the charges contained in this Deed and the statutory
power of sale (as extended by this Deed) and all other powers shall be
exercisable at any time after the Agent or the Collateral Agent has served
a demand for the payment or discharge of the Obligations or a Receiver has
been appointed.
5.3 LAW OF PROPERTY ACT 1925: The provisions of the 1925 Act relating to
the power of sale and the other powers conferred by section 101(l) and (2)
are hereby extended (as if such extensions were contained therein) to
authorize the Collateral Agent at its absolute discretion:
(a) to sell all the Company's title to or interest in the Charged
Property, and to do so for any shares, debentures or other securities
whatsoever, or in consideration of an agreement to pay all or part of
the purchase price at a later date or dates, or an agreement to make
periodical payments, whether or not the agreement is secured by a
Security Interest or a guarantee, or for such other consideration
whatsoever as the Collateral Agent may think fit, and also to grant
any option to purchase, and to effect exchanges;
(b) with a view to selling the Charged Property (or offering it for sale)
to repair, replace and develop the Charged Property and to apply for
any appropriate permission, license or approval;
(c) with a view to or in connection with the sale of the Charged Property,
to carry out any transaction, scheme or arrangement which the
Collateral Agent may, in its absolute discretion, consider
appropriate;
(d) to insure the Charged Property against such risks and for such amounts
as the Collateral Agent may consider prudent; and
(e) to do all or any of the things or exercise all or any of the powers
which are mentioned or referred to in clause 6.6 as if each of them
was expressly conferred on the Collateral Agent by this Deed and which
may not be included in paragraphs (a) to (d) above.
RECEIVER
6.1 APPOINTMENT: The Collateral Agent may by writing or by deed appoint
such person or persons (including an officer or officers of the Collateral
Agent) as it thinks fit to be administrative receiver, receiver, manager or
receiver and manager of the Charged Property or any part thereof and in the
case of an appointment of more than one person, to act together or
independently of the other or others and the Collateral Agent may make such
appointment at any time after the Agent has demanded payment of the
Obligations due to the occurrence of an Event of Default or if it is
requested to do so by the Company or upon the presentation of a petition to
the court for an administration order in respect of the Company.
6.2 REMOVAL AND REPLACEMENT: Except as otherwise required by statute, the
Collateral Agent may by writing or by deed remove a Receiver and appoint
another in his place or to act with a Receiver and the Collateral Agent may
apply to the court for an order removing an administrative receiver.
6.3 EXTENT OF APPOINTMENT: The exclusion of any part of the Charged
Property from the appointment of the Receiver shall not preclude the
Collateral Agent from subsequently extending his or their appointment (or
that of the Receiver replacing him or them) to that part or appointing
another Receiver over any other part of the Charged Property.
6.4 AGENT OF COMPANY: The Receiver shall be the agent of the Company and
the Company alone shall be responsible for his acts and defaults and liable
on any contracts or engagements made or entered into or adopted by him; and
in no circumstances whatsoever shall the Collateral Agent be in any way
responsible for or incur any liability in connection with his contracts,
engagements, acts, omissions, misconduct, negligence or default and if a
liquidator of the Company shall be appointed, the Receiver shall act as
principal and not as agent for the Collateral Agent.
6.5 REMUNERATION: Subject to section 36 of the Insolvency Act 1986, the
remuneration of the Receiver may be fixed by the Collateral Agent (and may
be or include a commission calculated by reference to the gross amount of
all moneys received or otherwise and may include remuneration in connection
with claims, actions or proceedings made or brought against the Receiver by
the Company or any other person or the performance or discharge of any
obligation imposed upon him by statute or otherwise) but such remuneration
shall be payable by the Company alone; and the amount of such remuneration
may be debited by the Agent or the Collateral Agent to any account of the
Company, but shall, in any event, form part of the Obligations and
accordingly be secured on the Charged Property under the charges contained
in this Deed.
6.6 POWERS: The Receiver, in addition to any powers conferred on an
administrative receiver, receiver, manager or receiver and manager by
statute or common law, shall have the following powers:
(a) to enter upon, take possession of, get in and collect the Charged
Property (or such part thereof in respect of which he may be
appointed) whether accrued before or after the date of his
appointment;
(b) to sell, exchange, license, surrender, release, disclaim, abandon,
return or otherwise dispose of or in any way whatsoever deal with the
Charged Property or any interest in the Charged Property for such
consideration (if any), and upon such terms (including by deferred
payment or payment by installments) as he may think fit and to concur
in any such transaction;
(c) to let on charter, sub-charter, hire, lease or sell on condition and
to grant rights, options, licenses or easements over the whole or any
part of the Charged Property and (with or without consideration) to
rescind, surrender or disclaim or accept or agree to accept surrenders
or disclaimers of leases, hire purchase contracts or agreements
relating to or affecting the Charged Property in such circumstances,
to such persons (including, without limitation, to the Collateral
Agent), for such purposes and upon such terms whatsoever as he may
think fit and also to vary the terms of any contract affecting the
Charged Property and to act in relation to any review of the rent or
provide payments under such a lease in such manner as he may think
fit;
(d) to insure, protect, decorate, maintain, repair, alter, improve,
replace, exploit, the Charged Property or any part thereof in any
manner and for any purpose whatsoever;
(e) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims, disputes and proceedings concerning the
Charged Property or any part thereof;
(f) to transfer all or any of the Charged Property to any other company or
body corporate, whether or not formed or acquired for the purpose;
(g) to redeem, discharge or compromise any Security Interest from time to
time having priority to or ranking pari passu with this Deed;
(h) in connection with the exercise of any of his powers, to execute or
do, or cause or authorize to be executed or done, on behalf of or in
the name of the Company or otherwise, as he may think fit, all
documents, receipts, registrations, acts or things which he may
consider appropriate;
(i) to exercise any powers, rights or entitlements in relation to any of
the Charged Property or incidental to the ownership of or rights in or
to any Charged Property and to complete, disclaim, abandon or modify
all or any of the outstanding contracts or arrangements of the Company
relating to or affecting the Charged Property;
(j) to exercise all powers as are described in Schedule 1 to the
Insolvency Act 1986, whether or not the Receiver is an ADMINISTRATIVE
RECEIVER as defined in that Act;
(k) generally to carry out, or cause or authorize to be carried out, any
transaction, scheme or arrangement whatsoever, whether similar or not
to any of the foregoing, in relation to the Charged Property which he
may consider expedient as effectually as if he were solely and
absolutely entitled to the Charged Property.
APPLICATION OF PROCEEDS
7.1 APPLICATION: All moneys received by the Agent or the Collateral Agent
arising from the exercise of the powers of the Receiver or the Collateral
Agent shall be applied, so far as the law will permit, in or towards
discharging the Obligations in the following order of priority:
(a) first, to the amount of all moneys raised or borrowed by the Receiver,
and all costs, charges, expenses and liabilities paid, incurred, or
charged by the Receiver (including any amounts for which he is
entitled to be indemnified) in connection with or as a result of the
exercise of his powers and the remuneration of the Receiver, in such
order as the Receiver or the Collateral Agent may from time to time
determine; and
(b) then to the other Obligations in the order of priority set forth in
the Credit Agreement.
7.2 ACCOUNTS: All moneys from time to time received by the Collateral
Agent from the Company or any person or persons liable to pay the same or
from any Receiver or otherwise on the realization or enforcement of the
charges contained in this Deed may be applied, so far as the law will
permit, by the Collateral Agent either as a whole or in such proportion as
the Collateral Agent shall think fit to any account or item of account or
any transaction and, without limitation, the Collateral Agent may in its
absolute discretion at all times pending the payment to the Collateral
Agent or the Agent of all of the Obligations place and keep to the credit
of a separate or suspense interest bearing account any money received by
the Collateral Agent from the Company or such other persons for so long and
in such manner as the Collateral Agent may determine without any obligation
to apply the same or any part thereof in or towards the discharge of any of
the Obligations. Interest accruing on money standing to such separate or
suspense account shall be for the benefit of the Company.
7.3 RECEIVER'S RECEIPTS: Sections 109(6) and (8) of the 1925 Act shall
not apply in relation to a Receiver appointed under this Deed.
PROTECTION OF THIRD PARTIES
8.1 ENQUIRY: No purchaser from, or other person dealing with, the
Collateral Agent or the Receiver shall be concerned to enquire whether any
of the powers exercised or purported to be exercised has arisen or become
exercisable, whether the Obligations remain outstanding, whether the
Receiver is authorized to act or as to the propriety or validity of the
exercise or purported exercise of any power; and the title of such a
purchaser and the position of such a person shall not be impeachable by
reference to any of those matters and the protections contained in
sections 104 to 107 of the 1925 Act shall apply to any person purchasing
from or dealing with a Receiver or the Collateral Agent.
8.2 RECEIPTS: The receipt of the Collateral Agent or the Receiver shall
be an absolute and a conclusive discharge to a purchaser and shall relieve
him of any obligation to see to the application of any moneys paid to or by
the direction of the Collateral Agent or the Receiver.
8.3 CONSTRUCTION: In clauses 8.1 and 8.2, PURCHASER includes any person
acquiring any lease of or Security Interest over, or any other interest or
right whatsoever in relation to the Charged Property.
PROTECTION OF COLLATERAL AGENT AND RECEIVER
9.1 LIABILITY: Neither the Collateral Agent nor the Receiver nor any of
their affiliates shall be liable to the Company in respect of any loss or
damage which arises out of the exercise, the attempted or purported
exercise or the failure to exercise any of their respective powers other
than as a result of their willful negligence or gross default as determined
by a final order of a court of competent jurisdiction.
9.2 POSSESSION: Without prejudice to the generality of clause 9.1, entry
into possession of the Charged Property shall not, as far as the law will
permit, render the Collateral Agent or the Receiver liable to account as
mortgagee in possession; and if and whenever the Collateral Agent enters
into possession of the Charged Property, it shall be entitled at any time
to go out of such possession.
EXPENSES AND INDEMNITY
10.1 EXPENSES: Subject to Clause 11.4 of the Credit Agreement, the Company
further covenants with the Collateral Agent to reimburse or pay to the
Collateral Agent or the Receiver (on the basis of a full indemnity) the
amount of all costs (including legal costs), charges and expenses incurred
or sustained in good faith by the Collateral Agent or the Receiver
(including, for the avoidance of doubt, any such costs, charges and
expenses arising from any act or omission of, or proceedings involving, any
third person) in connection with:
(a) the investigation of title to or any survey, inspection or valuation
of the Charged Property under or in connection with this Deed, and the
perfecting of this Deed (or any of the charges contained in it), or
any other document entered into between the Company and the Collateral
Agent;
(b) the exercise, or the attempted or purported exercise, or the
consideration of the exercise, by or on behalf of the Collateral Agent
or the Receiver of any of the powers of the Collateral Agent or the
Receiver, and the enforcement, preservation or attempted preservation
of this Deed or the Charged Property or any other action taken by or
on behalf of the Collateral Agent with a view to or in connection with
the recovery by the Collateral Agent of the Obligations from the
Company or any other person;
(c) the carrying out or consideration of any other act or matter which the
Collateral Agent or the Receiver may consider to be for the
preservation, improvement or benefit of the Charged Property.
10.2 Subject to Clause 11.4 of the Credit Agreement, the Company further
covenants with the Collateral Agent to reimburse or pay to the Collateral
Agent (on the basis of a full indemnity) the amount of all reasonable
costs, charges and expenses (including reasonable legal fees and
disbursements) together with any VAT thereon reasonably incurred by the
Collateral Agent in connection with the negotiation, preparation and
registration of this Deed, or any other document entered into between the
Company and the Collateral Agent.
10.3 INDEMNITY: The Company hereby agrees to indemnify the Collateral
Agent and the Receiver from and against all losses, actions, claims, costs
(including legal costs), expenses, demands and liabilities whether in
contract, tort, or otherwise now or hereafter sustained or incurred by the
Collateral Agent or the Receiver or by any person for whose liability, act
or omission the Collateral Agent or the Receiver may be answerable, in
connection with anything done or omitted under this Deed or any other
document, agreement or arrangement entered into between the Company and the
Collateral Agent, or in the exercise or purported exercise of the powers
herein contained, or occasioned by any breach by the Company of any of its
covenants or other obligations to the Collateral Agent, or in consequence
of any payment in respect of the Obligations (whether made by the Company
or a third person) being declared void or impeached for any reason
whatsoever unless the same arises as a result of the willful default or
gross negligence (as determined by a final order of a court of competent
jurisdiction) of the Collateral Agent, the Receiver or such person for whom
they may be answerable.
10.4 INTEREST: Any amounts for which the Company shall be liable under
clauses 10.1, 10.2 or 10.3 shall be payable on demand and shall bear
interest at the Default Rate from the date or dates on which they were
paid, incurred or charged by the Collateral Agent or the Receiver (as the
case may be) and such amounts and interest may be debited by the Agent or
the Collateral Agent to any account of the Company, but shall, in any
event, form part of the Obligations and accordingly be secured on the
Charged Property under the charges contained in this Deed.
10.5 TAXES: All sums of whatsoever nature which are payable by the Company
under this Deed and which are now or at any time hereafter become subject
to Value Added Tax or any similar tax shall be deemed to be exclusive of
Value Added Tax or any similar tax and the Company in addition to such sums
will indemnify the Agent and the Collateral Agent from and against all
claims and liabilities whatsoever in respect thereof.
10.6 The obligation contained in clause 10.3 shall survive the expiration
of this Deed and the transfer of title to the Charged Property (whether by
sale, foreclosure or otherwise).
PROTECTION OF CHARGES
11.1 The Company further covenants with the Collateral Agent at the
Company's own cost, as a continuing security for the payment or discharge
of the Obligations:
(a) to deposit with the Collateral Agent all documents creating or
evidencing Security Interests in favor of the Company and all
securities in respect of any debts payable to the Company;
(b) if the Collateral Agent, in its absolute discretion, considers that
all or any of the Charged Property is in danger of being seized or
sold under any form of distress or execution levied or threatened or
is otherwise in jeopardy or if any circumstance shall occur which in
the opinion of the Collateral Agent is prejudicial to or imperils or
is likely to prejudice or imperil any or all of the security hereby
created or recovery of the Obligations and so requires, promptly to
execute a first or subsequent fixed mortgage or charge (as the
Collateral Agent may require) in terms specified by the Collateral
Agent of all or any part of the Charged Property which is for the time
being subject to the floating charge contained in this Deed;
(c) if the Collateral Agent so requires, promptly to execute an assignment
to the Collateral Agent in terms specified by the Collateral Agent of
all or any debts or moneys payable to the Company and any Security
Interests or documents relating to them or otherwise to negotiate the
same to the Collateral Agent;
11.2 FURTHER SECURITY: The Company further covenants with the Collateral
Agent from time to time (and, for the purposes mentioned in paragraph (a)
below, notwithstanding that the Collateral Agent may not have served a
demand for payment of the Obligations) upon demand to execute, at the
Company's own cost, any document or do any act or thing which:
(a) the Collateral Agent may specify with a view to perfecting or
improving any charge or security created or intended to be created by
this Deed provided the same does not alter the nature of any charge
created hereunder; or
(b) the Collateral Agent or the Receiver may specify with a view to
facilitating the exercise or the proposed exercise of any of their
powers.
CRYSTALLISATION
12.1 NOTICE: In addition and without prejudice to any other event
resulting in a crystallization of the floating charge created by this Deed
or any other right the Collateral Agent may have, the Collateral Agent may,
at any time or from time to time whether or not it has served a demand for
payment of the Obligations, by notice in writing to the Company declare
that the floating charge hereby created shall be converted into a first
specific fixed charge as to all of the undertaking, property and assets or
such of them as may be specified in the notice, and by way of further
assurance, the Company, at its own expense, shall execute all documents in
such form as the Collateral Agent shall require and shall deliver to the
Collateral Agent all conveyances, deeds, certificates and documents which
may be necessary to perfect the first specific fixed charge.
12.2 DEMAND: Before a demand for payment has been made, a notice may only
be served by the Collateral Agent under clause 12.1 if an Event of Default
or a Default has occurred or if the Collateral Agent has reason to believe
that the property, assets and rights described or referred to in the demand
or notice are in danger of being seized or sold under any form of distress
or execution levied or threatened or are otherwise in jeopardy or if any
circumstance shall occur which in the opinion of the Collateral Agent is
prejudicial to or imperils or is likely to prejudice or imperil any or all
of the security hereby created or recovery of the Obligations.
12.3 AUTOMATIC CRYSTALLISATION: In addition and without prejudice to any
other event resulting in a crystallisation of the floating charge, the
floating charge contained herein shall automatically be converted into a
fixed charge over:
(a) all property, assets or undertaking of the Company subject to the
floating charge, if and when:
(i) the Company ceases to carry on business or a substantial part
thereof or shall cease to be a going concern;
(ii) the Company stops making payments to its creditors or gives
notice to creditors that it intends to stop payment; or
(iii) if the holder of any other Security Interest whether ranking in
priority to or pari passu with or after the charges contained in
this Deed shall appoint an administrative receiver, receiver,
manager or receiver and manager;
(b) any property, assets or undertaking of the Company which shall become
subject to a Security Interest other than a Permitted Lien in favor of
any person other than the Agent or any Collateral Agent or which
is/are the subject of a sale, transfer or other disposition, in either
case, contrary to the covenants contained in this Deed, immediately
prior to such Security Interest arising or such sale, transfer or
other disposition being made.
POWER OF ATTORNEY, ETC.
13.1 ATTORNEYS: For the purpose of securing the interest of the Collateral
Agent in the Charged Property and the performance of the Company's
obligations to the Collateral Agent whether under this Deed or otherwise,
the Company irrevocably and by way of security appoints the Collateral
Agent and the Receiver jointly and also severally to be its attorney and
attorneys (with full power to appoint substitutes and to sub-delegate,
including power to authorize the person so appointed to make further
appointments, in both cases, with regard to all or any part of the Charged
Property) on behalf of the Company and in its name or otherwise, to execute
any document or do any act or thing which the Collateral Agent or the
Receiver (or their substitutes or delegates) may, in its or his absolute
discretion, consider appropriate in connection with the exercise of any of
the powers of the Collateral Agent or the Receiver or which the Company is
obliged to the Collateral Agent to execute or do, whether under this Deed
or otherwise; and without prejudice to the generality of its power to
appoint substitutes and to sub-delegate, the Collateral Agent may appoint
the Receiver as its substitute or delegate, and any person appointed the
substitute of the Collateral Agent shall, in connection with the exercise
of the said power of attorney, be the agent of the Company and clause 6.4
shall apply mutatis mutandis.
13.2 CHARGED PROPERTY ON TRUST: For the purpose of giving effect to this
Deed, the Company hereby declares that, as far as the law will permit, as
and when the charges contained in this Deed shall become enforceable or a
demand for payment of the Obligations has been made, it will hold all of
the Charged Property (subject to the right of redemption) upon trust to
convey, assign or otherwise deal with the Charged Property in such manner
and to such person as the Collateral Agent shall direct and declares that
it shall be lawful for the Collateral Agent to appoint a new trustee or
trustees of the Charged Property in place of the Company.
13.3 POWERS AS TRUSTEE: The Company hereby agrees and declares that the
Collateral Agent or any nominee of the Collateral Agent may at any time
after the Collateral Agent or any nominee or nominees of the Collateral
Agent has/have been registered as owner(s) of any investments, without any
further consent or authority on the part of the Company, exercise (in the
name of the Company or otherwise) with respect to such investments and to
the exclusion of the Company, all rights and powers conferred by statute or
otherwise upon an absolute owner of those investments and all the powers
given to trustees by sections 10(3) and (4) of the Trustee Act 1925 (as
amended by section 9 of the Trustee Investments Act 1961) in respect of
investments or property subject to a trust, and all rights or powers
incidental to or conducive to the exercise of rights and powers in relation
to the investments; provided that until the security constituted by this
Deed shall become enforceable the Collateral Agent shall:
(a) exercise or procure that its nominees shall exercise all such rights
and powers at the specific request of and in accordance with the
instructions of the Company but so that neither the Collateral Agent
nor any nominees of the Collateral Agent shall be obliged to give
effect to any request or instruction which the Collateral Agent may
consider would be prejudicial to the charges contained in this Deed or
if in doing so it would incur any cost or expense or render itself
subject to any liability, unless previously indemnified to its
satisfaction; and
(b) pay or procure that its nominee shall pay to the Company all
dividends, interest and other distributions of an income nature that
it or its nominee receives.
EXAMINATION OF SECURED ASSETS, ETC.
14.1 INSPECTION: The Company shall permit the Collateral Agent and any
persons appointed by it full access to the Charged Property to carry out
any survey, inspection, assessment or review of the Charged Property and
shall permit an inspection to be made and copies and extracts to be taken
of books, accounts, records and documents relating to the Charged Property
or the covenants and obligations of the Company under this Deed and any
costs, fees and expenses incurred by the Collateral Agent in connection
with all such inspection, assessment or review shall be payable by the
Company and shall form part of the Obligations.
14.2 THIRD PARTY INVESTIGATION: The Company shall at its own cost, if
requested by the Collateral Agent, appoint such persons as the Collateral
Agent may specify to investigate or review the financial affairs or
operations of the Company and report thereon to the Collateral Agent.
OTHER SECURITY, ETC.
15.1 NO MERGER: The charges contained in or created pursuant to this Deed
are in addition to, and shall neither be merged in, nor in any way exclude
or prejudice any other Security Interest, right of recourse, set off or
other right whatsoever which the Agent or any Collateral Agent may now or
at any time hereafter hold or have (or would apart from this Deed or any
charge contained or created pursuant to this Deed hold or have) as regards
the Company or any other person in respect of the Obligations and neither
the Agent nor any Collateral Agent shall be under any obligation to take
any steps to call in or to enforce any security for the Obligations nor
shall they be liable to the Company for any loss arising from any omission
on the part of the Agent or any Collateral Agent to take any such steps or
for the manner in which the Agent or any Collateral Agent shall enforce or
refrain from enforcing any such security.
15.2 CONSOLIDATION: Section 93 of the 1925 Act shall not apply in relation
to any of the charges contained in this Deed.
15.3 RULING OFF: Without prejudice to clause 4.1(a), if the Collateral
Agent receives notice of any Security Interest or any other interest
affecting the Charged Property:
(a) the Collateral Agent may open a new account with the Company and, if
it does not, it shall nevertheless be deemed to have done so at the
time it received such notice; and
(b) all payments made by the Company to the Collateral Agent after the
Collateral Agent receives such notice shall be credited or deemed to
have been credited to the new account, and in no circumstances
whatsoever shall operate to reduce the Obligations as at the time the
Collateral Agent received such notice.
15.4 PRIOR ENCUMBRANCES: If there are any Security Interests having
priority to the charges contained in this Deed in respect of all or any
part of the Charged Property then:
(a) if any proceedings or steps are being taken to exercise or enforce any
powers or remedies conferred by such prior Security Interest against
the Charged Property, the Collateral Agent or any Receiver may (but
without prejudice to any rights the Collateral Agent or the Receiver
may have under statute) redeem such prior charge or procure the
transfer thereof to itself or himself, as the case may be, and may
settle and pass the accounts of the prior chargee and any account so
settled and passed shall be conclusive and binding on the Company and
the principal, interest, costs, charges and expenses of and
incidental to such redemption or transfer shall be paid by the Company
to the Collateral Agent on demand with interest at the Default Rate
and, until payment, the Charged Property shall stand charged with the
amount to be so paid; and
(b) all the powers, authorities and discretions conferred by a prior
charge upon the chargee or any receiver thereunder shall be
exercisable by the Collateral Agent or a Receiver in like manner as if
the same were expressly included herein and the Collateral Agent shall
be entitled to exercise all the powers, authorities and discretions of
an administrative receiver, receiver, manager or receiver and manager
appointed thereunder.
15.5 CHANGE OF NAME, ETC.: This Deed shall remain valid and enforceable
notwithstanding any change in the name, composition or constitution of the
Collateral Agent or the Company or any amalgamation or consolidation by the
Collateral Agent or the Company with any other corporation.
SET OFF
16.1 The Collateral Agent may, as far as the law will permit, at any time
and from time to time without notice and notwithstanding any settlement of
account or other matter whatsoever combine or consolidate all or any of its
existing accounts including accounts in the name of the Collateral Agent or
of the Company jointly with others and may set off or transfer all or any
part of any credit balance or any sum standing to the credit of any account
(whether or not the same is due to the Company from the Collateral Agent
and whether or not the credit balance and the account in debit or the
Obligations are expressed in the same currency in which case the Collateral
Agent is hereby authorized to effect any necessary conversions at its
prevailing rates of exchange) in or towards satisfaction of any of the
Obligations and may in its absolute discretion estimate the amount of any
liability of the Company which is contingent or unascertained and
thereafter set off such estimated amount and no amount shall be payable by
the Collateral Agent to the Company unless and until all Obligations have
been ascertained and fully repaid or discharged.
AVOIDANCE OF PAYMENTS
17.1 NO RELEASE: No assurance, security or payment which may be avoided or
adjusted under the law, including under any enactment relating to
bankruptcy or insolvency and no release, settlement or discharge given or
made by the Collateral Agent on the faith of any such assurance, security
or payment, shall prejudice or affect the right of the Agent or the
Collateral Agent to recover the Obligations from the Company (including any
moneys which it may be compelled to pay or refund under the provisions of
the Insolvency Act 1986 and any costs payable by it pursuant to or
otherwise incurred in connection therewith) or to enforce the charges
contained in this Deed to the full extent of the Obligations.
17.2 RETENTION OF CHARGES: If the Collateral Agent shall have grounds in
its absolute discretion for believing that the Company may be insolvent or
deemed to be insolvent pursuant to the provisions of the Insolvency Act
1986 as at the date of any payment made by the Company to the Agent or the
Collateral Agent, the Collateral Agent shall be at liberty to retain the
charges contained in or created pursuant to this Deed until the expiry of a
period of one month plus such statutory period within which any assurance,
security, guarantee or payment can be avoided or invalidated after the
payment and discharge in full of all Obligations (unless the Company
produces a certificate of solvency from its auditors after such payment or
discharge) notwithstanding any release, settlement, discharge or
arrangement which may be given or made by the Collateral Agent on, or as a
consequence of, such payment or discharge of liability provided that, if at
any time within such period, a petition shall be presented to a competent
court for an order for the winding up or the making of an administration
order in respect of the Company, or the Company shall commence to be wound
up or to go into administration or any analogous proceedings shall be
commenced by or against the Company, the Collateral Agent shall be at
liberty to continue to retain such security for such further period as the
Collateral Agent may determine and such security shall be deemed to
continue to have been held as security for the payment and discharge to the
Collateral Agent of all Obligations.
CURRENCY CONVERSION
18.1 INDEMNITY: If under any applicable law, whether as a result of a
judgment against the Company or the liquidation of the Company or for any
other reason, any payment under or in connection with this Deed is made or
any amount is received or recovered by the Agent or the Collateral Agent in
respect of the Obligations in a currency (the OTHER CURRENCY) other than
the currency in which the Obligations are payable (the ORIGINAL CURRENCY),
then to the extent that the payment to or receipt by the Agent or the
Collateral Agent (when converted at the rate of exchange on the date of
payment or receipt) falls short of the whole of the Obligations the Company
shall as a separate and independent obligation fully indemnify the
Collateral Agent against the amount of the shortfall; and for the purposes
of this clause, RATE OF EXCHANGE means the rate at which the Collateral
Agent is able on the relevant date to purchase the original currency in
London with the other currency.
18.2 PURCHASES: If the Company fails to pay or discharge any part of the
Obligations when due, the Agent or the Collateral Agent from time to time
may purchase an amount of the currency in which such sum is due with any
other currency or currencies and the Company's obligation thereafter shall
be to pay to the Collateral Agent the amount of the other currency or
currencies so used to purchase.
EXECUTION OF DOCUMENTS
19.1 As far as the law will permit, any document required to be executed as
a deed by the Collateral Agent under or in connection with this Deed shall
be validly executed if executed as a deed by a duly authorized attorney of
the Collateral Agent.
NOTICES AND DEMANDS
20.1 Each communication to be made under this Deed shall be made in writing
but, unless otherwise stated, may be made by telefax or letter.
20.2 Any notice, communication or document to be made or delivered by one
person to another pursuant to this Deed shall be made or delivered, if to
the Company, in the manner for notices and to the address set forth in the
Credit Agreement, and if to the Collateral Agent, in the manner for notices
set forth in the Credit Agreement and delivered to the following address:
THE COLLATERAL AGENT
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, LONDON BRANCH
Address: 1 Alie Street
London E1 8DE
Attention: Keith Thomas
Telephone: 0171 634 4000
Telefax: 0171 634 4707
Copy to:
BANK OF AMERICA, FSB
Address: 1230 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30309
United States of America
Attention: John Yankauskas
Telephone: 001 404 815 5928
Telefax: 001 815 5919
20.3 Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer
of the person making or delivering the same) as being a true and accurate
translation thereof.
FURTHER PROVISIONS
21.1 EVIDENCE OF INDEBTEDNESS: In any action, proceedings or claim
relating to this Deed or the charges contained in this Deed, a statement as
to any amount due to the Collateral Agent or of the Obligations or any part
thereof which is certified as being correct by an officer of the Agent or
the Collateral Agent shall, save in the case of manifest error, be
conclusive evidence that such amount is in fact due and payable.
21.2 RIGHTS CUMULATIVE, WAIVER: The rights of the Collateral Agent and the
Receiver are cumulative, may be exercised as often as they consider
appropriate and are in addition to their respective rights under general
law. The respective rights of the Collateral Agent and the Receiver
(whether arising under this Deed or under the general law) shall not be
capable of being waived or varied otherwise than by express waiver or
variation in writing; and, in particular, any failure to exercise or any
delay in exercising any such rights shall not operate as a variation or
waiver of that or any other such right; any defective or partial exercise
of such rights shall not preclude any other or further exercise of that or
any other such right; and no act or course of conduct or negotiation on
their part or on their behalf shall in any way preclude them from
exercising any such right or constitute a suspension or variation of any
such right.
21.3 INVALIDITY OF ANY PROVISION: If any provisions of this Deed become
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired.
CHOICE OF LAW
22.1 This Deed is governed by, and shall be construed in accordance with,
the laws of England.
TRANSFER
23.1 For the avoidance of doubt (but without prejudice to any other rights
of the Collateral Agent whether at common law, by statute or otherwise) at
all times (other than during an Event of Default when no consent is
required) the Collateral Agent may with the consent of the Borrower
Representative, such consent not to be unreasonably withheld, transfer,
assign or otherwise deal with this Deed (and the charge or charges thereby
created) and all and any of its rights thereunder and any deed or document
entered into collaterally thereto whether at law or in equity and in the
event of such transfer or assignment the Company will:
(a) agree that upon any transfer, assignment or dealing to or with any
person he shall be bound to such person (to the extent of such
transfer, assignment or dealing) in like manner and to like extent as
he is bound to the Collateral Agent under this Deed (and the charge or
charges hereby created) and every reference to the Collateral Agent
shall be construed as including any such person; and
(b) consent to the Collateral Agent passing to such person or other party
interested in this Deed any information and documents which have been
or will be provided relating to the Charged Property or the Company.
save that the consent of the Borrower shall not be required if the
Collateral Agent proposes to transfer or assign this Deed to an Affiliate
who is organized in the same country as the Collateral Agent.
DULY DELIVERED AS A DEED by the Company on the date inserted above.
/s/ Steven C. Ramsey
----------------------------
EXECUTED as a DEED and ) Director
DELIVERED by MUREX BIOTECH LIMITED )
acting by two ) /s/ Charles F. Osborne, Jr.
Directors/a Director and the Secretary ) ----------------------------
Director/Secretary
SIGNED by /s/ Illegible )
----------------------
VICE PRESIDENT )
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for and on behalf of BANK OF AMERICA )
NATIONAL TRUST AND SAVINGS )
ASSOCIATION, London Branch )