Exhibit 10.18
CERTIFICATE OF THE REGISTRATION
OF A MORTGAGE OR CHARGE
PURSUANT TO SECTION 401(2) OF THE COMPANIES ACT 1985
COMPANY No. 02636542
THE REGISTRAR OF COMPANIES FOR ENGLAND AND WALES HEREBY CERTIFIES
THAT A DEED OF CHARGE DATED THE 12th NOVEMBER 1996 AND CREATED BY
IMTC HOLDINGS (U.K.) 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
IMTC HOLDINGS (UK) LIMITED
(REGISTERED NO. 2636542)
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
FIXED AND FLOATING CHARGE
STAMP
OF
COMPANIES HOUSE
---------------
REGISTERED
28 NOV 1996
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*
THIS DEED OF CHARGE made on the 12th day of November 1996
BETWEEN
IMTC HOLDINGS (UK) LIMITED (registered in England and Wales no.
2636542) whose registered office is at Watergate House, 13/15 York
Buildings, London, WC2N 6JU, 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 IMTC HOLDINGS (UK) ) /s/ Charles F. Osborne, Jr.
LIMITED acting by two ) --------------------------
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 )