EXHIBIT 4.4(b)
CONFORMED COPY
DATED 17 SEPTEMBER 2001
XXXXXXXX CASTING UK LIMITED
and others as Chargors
and
BURDALE FINANCIAL LIMITED
---------------------------
DEED OF DEBENTURE
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[XXXXXXXX XXXXXXX LOGO]
INDEX
CLAUSE PAGE
1. INTERPRETATION.......................................................... 3
2. FIXED SECURITY.......................................................... 7
3. FLOATING CHARGE......................................................... 9
4. REPRESENTATIONS AND WARRANTIES.......................................... 9
5. UNDERTAKINGS............................................................ 12
6. WHEN SECURITY BECOMES ENFORCEABLE....................................... 19
7. ENFORCEMENT OF SECURITY................................................. 19
8. RECEIVER................................................................ 21
9. POWERS OF RECEIVER...................................................... 22
10. APPLICATION OF PROCEEDS................................................. 25
11. EXPENSES AND INDEMNITY.................................................. 25
12. DELEGATION.............................................................. 26
13. FURTHER ASSURANCES...................................................... 26
14. POWER OF ATTORNEY....................................................... 27
15. CONTINUING SECURITY..................................................... 27
16. MISCELLANEOUS........................................................... 29
17. RELEASE................................................................. 30
18. RIGHTS AND REMEDIES..................................................... 30
19. NOTICES................................................................. 30
20. GOVERNING LAW AND JURISDICTION.......................................... 32
SCHEDULE 1 The Chargors...................................................... 33
SCHEDULE 2 Mortgaged Property................................................ 34
SCHEDULE 3 Forms of Notice to Banks and Acknowledgement...................... 35
SCHEDULE 4 Group Shares...................................................... 41
SCHEDULE 5 Other Accounts.................................................... 43
SCHEDULE 6 Deed of Accession................................................. 45
SCHEDULE 7 Specified Intellectual Property................................... 49
SCHEDULE 8 Specified Equipment............................................... 50
SIGNATORIES.................................................................. 51
THIS DEED OF DEBENTURE is dated 17 September 2001
BETWEEN:
(1) XXXXXXXX CASTING UK LIMITED (Registered in England and Wales No. 03514183)
(the "COMPANY");
(2) THE COMPANIES (if any) identified in Schedule 1 (together with the Company
and each person which becomes a party to this Deed by executing a Deed of
Accession, each a "CHARGOR" and together the "CHARGORS"); and
(3) BURDALE FINANCIAL LIMITED (Registered in England and Wales No. 2656007)
("BURDALE").
BACKGROUND:
(A) The Chargors enter into this Deed to secure the repayment and satisfaction
of the Secured Liabilities.
(B) The Chargors and Burdale intend that this document take effect as a deed
notwithstanding that it may be executed under hand.
IT IS AGREED:
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed:
"BLOCKED ACCOUNTS" is defined in the Facility Agreement.
"BOOK DEBTS" means:
(a) all book and other debts in existence from time to time (including,
without limitation, any sums whatsoever owed by banks or similar
institutions) both present and future, actual or contingent, due,
owing to or which may become due, owing to or purchased or otherwise
acquired by any Chargor; and
(b) the benefit of all rights whatsoever relating to the debts referred to
above including, without limitation, any related agreements,
documents, rights and remedies (including, without limitation,
negotiable or non-negotiable instruments, guarantees, indemnities,
legal and equitable charges, reservation of proprietary rights, rights
of tracing, unpaid vendor's liens and all similar connected or related
rights and assets).
"CHARGED ACCOUNTS" means the Blocked Accounts and the Other Accounts.
"DANGEROUS SUBSTANCE" means any substance of whatever kind and form and in
whatever combination capable of causing harm to any lifeform or the
environment.
"DEED OF ACCESSION" means a deed of accession substantially in the form set
out in Schedule 6.
"ENVIRONMENTAL LAW" means all laws, regulations, directives, statutes and
any guidance, circular or regulations issued thereunder, subordinate
legislation, common
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law, equity, all other international, national and local laws and all
judgments, orders, instructions or awards of any court or competent
authority concerning the protection of or compensation for damage to human
health, the environment, or the condition, of any work place or the
generation, dealing with, or disposal of any Dangerous Substance.
"ENVIRONMENTAL LICENCE" means any consent, approval, authorisation,
exemption, licence, order, permission, condition, recording, registration,
variation, modification or transfer required by any Environmental Law.
"ENVIRONMENTAL PROCEEDINGS" means any written claim or demand or any
criminal, civil, judicial, regulatory or administrative proceedings, suit
or action or other enforcement process brought or taken under any
Environmental Laws (including without limitation any written claim or
demand etc in respect of any Remedial Works) or any matter which would be
the subject of any such written claim or demand etc but where liability has
been admitted or otherwise settled or agreed.
"EQUIPMENT" means (save to the extent that any such items form part of such
Chargor's stock in trade) all present and future plant, equipment,
machinery, computers and computer hardware and software (whether owned or
licensed), vehicles, tools, furniture and fixtures and all attachments,
accessories owned by any Chargor and property (other than Fixtures) now or
in future relating to it or used in connection with it and replacements and
substitutions for it wherever located.
"EVENT OF DEFAULT" is defined in the Facility Agreement.
"FACILITY AGREEMENT" means the facility agreement dated on or about today's
date between the Company and others as Facility Companies and/or Guarantors
and Burdale.
"FACILITY COMPANY" is defined in the Facility Agreement.
"FINANCE DOCUMENTS" is defined in the Facility Agreement.
"FIXTURES" means all fixtures and fittings (including, without limitation,
those of trade) and fixed plant and machinery on the Mortgaged Property.
"GROUP SHARES" means all shares specified in Schedule 4 or in the Schedule
to any Deed of Accession or, when used in relation to a particular Chargor,
such of those shares as are specified against its name in Schedule 4 or in
the Schedule to any Deed of Accession, together in each case with all other
stocks, shares, debentures, bonds, warrants, coupons or other securities
and investments now or in the future owned by any or (when used in relation
to a particular Chargor) that Chargor from time to time;
"INSURANCES" means all contracts and policies of insurance taken out by or
for a Chargor or in which any Chargor has an interest (to the extent of
that interest).
"INTELLECTUAL PROPERTY" means all subsisting patents and subsisting rights
of a similar nature held in any part of the world, applications for patents
and such rights, divisions and continuations of such applications for
patents, registered and unregistered trade marks, registered designs,
utility models (in each case for their full period and all extensions and
renewals of them), applications for any of them and the right to apply for
any of them in any part of the world, inventions, confidential information,
Know-how, business names, trade names, brand names, copyright and
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rights in the nature of copyright, design rights and get-up and any similar
rights existing in any country; and the benefit (subject to the burden) of
any and all agreements, arrangements and licences in connection with any of
the foregoing including but not limited to the Specified Intellectual
Property.
"KNOW-HOW" means all the body of knowledge, technical experience, expertise
and skills, technical processes, secret processes, formulae and technical
information held by any Chargor and relating to its business, which is not
in the public domain.
"MORTGAGED PROPERTY" means any freehold or leasehold property (including
the Premises) the subject of the security created by this Deed.
"OBLIGORS" is defined in the Facility Agreement.
"OTHER ACCOUNTS" means the bank accounts of the Chargors specified in
Schedule 5 and/or in the Schedule to any Deed of Accession and/or such
other bank accounts of the Chargors as Burdale may permit, such permission
not to be unreasonably withheld.
"PERMITTED SECURITY INTEREST" means any Security Interest which any Chargor
is permitted to create or maintain under the terms of the Facility
Agreement.
"PREMISES" means any building or other edifice on the Mortgaged Property or
other Security Asset.
"RECEIVER" includes any receiver, receiver and manager or administrative
receiver.
"RECEIVER" means any individual or individuals (who may be an employee or
employees of Burdale) for the time being and from time to time appointed by
Burdale to be a receiver or receivers (and, where more than one individual
is appointed jointly, they shall have the power to act severally, unless
Burdale shall specify to the contrary in their appointment) under this Deed
and, where the context shall admit, any individual or individuals for the
time being and from time to time so appointed in substitution, provide
always that all such individuals shall be qualified under the Insolvency
Xxx 0000 to act as a receiver of the property of any company with respect
to which he is appointed or as an administrative receiver of any such
company.
"RELATED RIGHTS" means, in relation to the Group Shares, all dividends and
other distributions paid or payable after today's date on all or any of the
Group Shares and all stocks, shares, securities (and the dividends or
interest on them), rights, money or property accruing or offered at any
time by way of redemption, bonus, preference, option rights or otherwise to
or in respect of any of the Group Shares or in substitution or exchange for
any of the Group Shares.
"REMEDIAL WORKS" means:
(a) any investigation, inspection, sampling or monitoring works; or
(b) any works, steps or measures to treat, xxxxx, remove, remedy, contain,
control, manage or ameliorate the presence or actual or potential
effect of any Dangerous Substance or any harm to the environment or
human health or pollution of the environment.
"SECURED LIABILITIES" means all present and future obligations and
liabilities, whether actual or contingent and whether owed jointly or
severally or in any other
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capacity whatsoever, of each Obligor to Burdale except for any obligation
which, if it were so included, would result in a contravention of section
151 of the Companies Xxx 0000 (or its equivalent in any other
jurisdiction).
"SECURITY ASSETS" means all assets of each Chargor the subject of any
security created by this Deed (and includes the Mortgaged Property).
"SECURITY INTEREST" is defined in the Facility Agreement.
"SECURITY PERIOD" means the period beginning on the date of this Deed and
ending on the date on which the Secured Liabilities have been irrevocably
and unconditionally satisfied in full.
"SECURITY SHARES" means the Group Shares and the Related Rights and, in the
case of a particular Chargor, means such of the Group Shares as are held by
it at the relevant time, together with all Related Rights in respect of
such Group Shares.
"SPECIFIED EQUIPMENT" means the Equipment (if any) specified in Schedule 8
or in the Schedule to any Deed of Accession.
"SPECIFIED INTELLECTUAL PROPERTY" means the registered Intellectual
Property (if any) specified in Schedule 7 or in the Schedule to any Deed of
Accession.
1.2 CONSTRUCTION
(a) Any reference in this Deed to:
(i) "ASSETS" includes present and future properties, revenues and
rights of every description;
(ii) an "AUTHORISATION" means an authorisation, consent, approval,
licence, resolution, filing or registration;
(iii) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(iv) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(v) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association,
trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing;
(vi) a "REGULATION" includes any regulation, rule or official
directive (having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(vii) a provision of law is a reference to that provision as
amended or re-enacted;
(viii) words importing the singular shall include the plural and vice
versa;
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(ix) a charge or mortgage of any freehold or leasehold property
includes all Premises and Fixtures on that property, the
proceeds of sale of any part of that property, and the benefit
of any covenants for title (or any monies paid or payable in
respect of them) given or entered into by any predecessor in
title in respect of that property;
(x) any party or person includes any person deriving title from it
or any successor, transferee or assignee.
(b) Clause and Schedule headings are for ease of reference only.
(c) An Event of Default is "CONTINUING" if it has not been waived.
(d) Capitalised terms defined in the Facility Agreement have the same
meaning when used in this Deed unless the context requires otherwise.
(e) If at any time the Company is the only Chargor the references in this
Agreement to "Chargors" shall, whilst such circumstance is continuing,
be construed accordingly.
(f) The terms of the other Finance Documents and of any side letters
between the parties to this Deed in relation to the Finance Documents
are incorporated in this Deed to the extent required for any purported
disposition of the Mortgaged Property in this Deed to be a valid
disposition in accordance with Section 2(1) of the Law of Property
(Miscellaneous Provisions) Xxx 0000.
(g) Every disposition effected by this Deed is made with full title
guarantee. The other terms of this Deed do not limit or extend any of
the covenants implied by virtue of Part 1 of the Law of Property
(Miscellaneous Provisions) Xxx 0000 but create separate and
independent obligations having effect cumulatively with those implied
covenants.
(h) Each of the charges in Clause 2 over each category of the assets, each
asset and each sub-category of each asset specified in such clause
shall be read and construed separately, as though each such category,
asset and sub-category were charged independently and separately of
each other.
(i) In the event of any conflict between the provisions of this Deed and
the provisions of the Facility Agreement the provisions of this Deed
shall prevail.
2. FIXED SECURITY
Each Chargor, as security for the payment and performance of the Secured
Liabilities and in the manner specified in Clause 1.2(g) of this Deed:
(a) charges in favour of Burdale by way of a first legal mortgage all the
property (if any) now belonging to it and specified in Schedule 2 and
all other interests in any freehold or leasehold property now or in
the future belonging to it; and
(b) charges in favour of Burdale by way of a first fixed charge:
(i) (to the extent that they are not within Clause 2(a)) all
interests in any freehold or leasehold property now or in the
future belonging to it;
(ii) all Equipment (other than any Specified Equipment effectively
mortgaged to Burdale by way of a first legal mortgage pursuant to
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Clause 2(e)) now or in the future belonging to it and its
interest in any such Equipment in its possession now or in the
future;
(iii) all of its benefits, claims and returns of premiums in respect
of the Insurances;
(iv) all of its right, title and interest (if any) in and to the
Blocked Accounts and all monies standing to the credit of any the
Blocked Accounts and the debts represented by them;
(v) its goodwill and its uncalled capital both present and future;
(vi) its Book Debts, both uncollected and collected, the proceeds of
the same and all monies otherwise due and owing to such Chargor
but excluding the Charged Accounts and any amounts standing to
the credit of any Charged Account;
(vii) the benefit of all rights, securities and guarantees of
whatsoever nature enjoyed or held by it in relation to anything
in sub-paragraph 2.1(b)(vii);
(viii) its rights under any hedging arrangements;
(ix) any of its beneficial interest, claim or entitlement in any
pension fund;
(x) the benefit of all permissions of whatsoever nature and whether
statutory or otherwise, held in connection with its business or
the use of any Security Asset and the right to recover and
receive all compensation which may be payable to it;
(xi) its Intellectual Property now or in the future subject to any
necessary (as at the date of this Deed) third party's consent to
such charge being obtained. To the extent that such Intellectual
Property is not capable of being charged (whether by reason of
lack of any such consent or otherwise) the charge purported to be
effected by this Clause 2(b)(xi) shall operate as an assignment
of any and all damages, compensation, remuneration, profit, rent
or income which any Chargor may derive from such Intellectual
Property or be awarded or entitled to in respect of such
Intellectual Property as continuing security for the payment,
discharge and performance of the Secured Liabilities
(c) mortgages and charges and agrees to mortgage and charge to Burdale all
Group Shares held now or in the future by it and/or any nominee on its
behalf, the same to be a security by way of a first mortgage; and
(d) mortgages and charges and agrees to mortgage and charge to Burdale all
the Related Rights accruing to all or any of the Group Shares held now
or in the future by it and/or any nominee on its behalf, the same to
be a security by way of a first mortgage or charge.
PROVIDED THAT:
(i) whilst no Event of Default is continuing, all dividends and other
distributions paid or payable as referred to in paragraph (d)
above may be paid directly to the relevant Chargor (in which case
Burdale or its nominee shall execute any necessary dividend
mandate) and, if paid
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directly to Burdale shall be paid promptly by it to the relevant
Chargor; and
(ii) subject to Clause 5.4(c) whilst no Event of Default is
continuing, all voting rights attaching to the relevant Group
Shares may be exercised by the relevant Chargor or, where the
shares have been registered in the name of Burdale or its
nominee, as the relevant Chargor may direct in writing, and
Burdale and any nominee of Burdale in whose name such Group
Shares are registered shall execute any form of proxy or other
document reasonably required in order for the relevant Chargor to
do so.
(e) mortgages and charges and agrees to mortgage and charge to Burdale the
same to be a security by way of a first mortgage all of its right,
title and interest in and to:
(i) the Specified Equipment;
(ii) all spare parts and replacements for and all modifications and
additions to the Specified Equipment.
3. FLOATING CHARGE
3.1 CREATION
Each Chargor as security for the payment and performance of the Secured
Liabilities and in the manner specified in Clause 1.2(g) of this Deed
charges in favour of Burdale by way of a floating charge all its assets not
otherwise effectively mortgaged or charged by way of fixed mortgage or
charge by Clause 2.
3.2 CONVERSION BY NOTICE
Burdale may by notice to any Chargor convert the floating charge created by
this Deed into a fixed charge in relation to all or any of such Chargor's
assets specified in the notice if:
(a) an Event of Default has occurred and is continuing; or
(b) Burdale becomes aware that steps have been taken to wind up such
Chargor (or that such a petition has been presented).
3.3 NO WAIVER
The giving by Burdale of a notice pursuant to Clause 3.2 in relation to any
class of any Chargor's assets, rights and property shall not be construed
as a waiver or abandonment of Burdale's rights to give other similar
notices in respect of any other class of assets.
4. REPRESENTATIONS AND WARRANTIES
4.1 MAKING OF REPRESENTATIONS
Each Chargor makes the representations and warranties set out in this
Clause 4 to Burdale. The representations and warranties so set out are made
on the date of this Deed and are deemed to be repeated by the Chargors
throughout the Security Period on those dates on which representations and
warranties are to be repeated
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in accordance with Clause 12.1 of the Facility Agreement with reference to
the facts and circumstances then existing.
4.2 CAPACITY
Each Chargor has the capacity, power and authority to enter into this Deed
and the obligations assumed by it are its legal, valid, binding and
enforceable obligations subject to laws affecting creditors' rights
generally.
4.3 TITLE
The Chargors are the sole legal and beneficial owner of the Security Assets
free of any Security Interest or third party interest of any kind (other
than pursuant to or as permitted by the Finance Documents).
4.4 ENVIRONMENTAL MATTERS
(a) Save as disclosed in writing by the relevant Chargor to Burdale prior
to the date of this Deed, each Chargor has at all times complied with
all applicable Environmental Law including the obtaining of and
compliance with all requisite Environmental Licences (as varied or
modified from time to time).
(b) Save as disclosed in writing by the relevant Chargor to Burdale prior
to the date of this Deed, no Dangerous Substance has been present,
used, disposed of or otherwise dealt with at, on, in, from or under
any property or premises while within any Chargor's ownership,
occupation or control in circumstances which are likely to result in
any Environmental Proceedings.
(c) No Dangerous Substance is present at, in, on or under or migrating
onto or from any Mortgaged Property (or any other property owned or
occupied by any Chargor) in circumstances which are likely to give
rise to Environmental Proceedings.
(d) No Chargor is involved in any Environmental Proceedings and no Chargor
is aware of any circumstances which are likely to give rise to such
Environmental Proceedings.
(e) No circumstances exist which will result in any Chargor having any
requisite Environmental Licence revoked or modified or varied in a
material manner.
4.5 MORTGAGED PROPERTY
(a) The Chargor named as owner in respect of any Mortgaged Property is the
legal and beneficial owner of such Mortgaged Property.
(b) Other than as notified in writing to Burdale, the Mortgaged Property
is free from any agreement for lease, lease, licence, tenancy,
overriding lease or other occupational arrangement or overriding
interest.
(c) The Premises and the Fixtures are in good and substantial repair save
as disclosed in the Property Valuation save as disclosed in the
certificate of title provided to Burdale pursuant to the Facility
Agreement.
(d) There subsists no breach of any law or regulation which could affect
materially the value of the Mortgaged Property.
8
(e) There are no covenants, agreements, stipulations, reservations,
conditions, interests, rights or other matters whatsoever which could
affect adversely the Mortgaged Property so far as the Chargors are
aware save as disclosed in the certificate of title provided to
Burdale pursuant to the Facility Agreement.
(f) The Mortgaged Property is free from any financial encumbrance of
whatsoever nature other than Permitted Security Interests.
(g) No Chargor has received any notice of any material adverse claim, nor
has any acknowledgement been given in respect of the ownership of the
Mortgaged Property, or any interest in it.
(h) No facility necessary for the enjoyment and use of the Mortgaged
Property may be terminated or curtailed.
4.6 SECURITY
This Deed creates the various forms of security it purports to create and
is not liable to be avoided or otherwise set aside on the liquidation or
administration of any Chargor, or otherwise.
4.7 SECURITY SHARES
(a) Each Chargor is and will remain the sole beneficial owner of its
Security Shares and, save where such Security Shares have been
registered in the name of Burdale or its nominee pursuant to this Deed
and/or its nominee, is and will remain the absolute legal owner of
such Security Shares.
(b) No Chargor will take any action whereby the rights attaching to the
Security Shares are altered or diluted.
(c) The Group Shares are fully paid and non-assessable and neither the
Group Shares nor the Related Rights are subject to any options to
purchase or similar rights of any person.
4.8 SPECIFIED INTELLECTUAL PROPERTY
(a) The details of the Specified Intellectual Property appearing or
referred to in Schedule 7:
(i) are true, accurate, and complete in all material respects; and
(ii) no Chargor is the owner of any interest in any other registered
Intellectual Property material to its business which is not
identified in that Schedule.
(b) The Chargors are the sole legal and beneficial owners of any Specified
Intellectual Property referred to in Clause 4.8(a) and there are no
(i) Security Interests, nor (ii) any options, rights of pre-emption,
licences, agreements or other third party interests of any nature,
affecting any such Specified Intellectual Property, other than those
which are specifically identified in Schedule 7.
(c) Nothing has been done or has been omitted to be done by or with the
consent of the Chargors whereby any person (including any relevant
registrar or other applicable authority) might reasonably be expected
successfully (i) to seek
9
cancellation or rectification or any other modification of any
registration of or application for registration, in any jurisdiction,
of any Specified Intellectual Property which is registered or subject
to an application for registration in such jurisdiction, or (ii) to
challenge the legality or validity of any such registration or
application.
(d) No Chargor is aware of any circumstances which would be likely to
entitle a third party to a licence, permission, consent or assignment
of, or in respect of, any Specified Intellectual Property or other
Intellectual Property right.
(e) No Chargor is aware of any actions, claims or allegations against any
third party alleging infringement of any Specified Intellectual
Property, nor of any facts, matters or circumstances which could
reasonably be expected to give rise to any such action, claim or
allegation.
(f) No Chargor is aware of any pending or anticipated actions, claims,
counter-claims, applications or allegations impugning the validity or
enforceability of any Specified Intellectual Property or its ownership
of it, nor of any facts, matters or circumstances which could
reasonably be expected to give rise to any such action, claim,
counter-claim, application or allegation.
(g) No Chargor has done or omitted to do any act in relation to any
Specified Intellectual Property which has resulted or which could
reasonably be expected to result in any breach or infringement of any
third party's intellectual property rights.
(h) All renewal fees due in respect of the registrations for the Specified
Intellectual Property in any jurisdiction have been paid.
5. UNDERTAKINGS
5.1 DURATION
The undertakings in this Clause 5 shall remain in force throughout the
Security Period and are given by each Chargor to Burdale.
5.2 GENERAL
(a) BOOK DEBTS AND RECEIPTS: Each Chargor shall collect and realise its
Book Debts and other monies and receipts and, save to the extent that
Burdale otherwise agrees in writing, pay the proceeds thus realised
into a Blocked Account (in the case of each Facility Company) or an
Other Account (in the case of any other Chargor) and, pending such
payment into a Blocked Account or Other Account (as the case may be),
hold the proceeds thus realised upon trust for Burdale.
(b) COVENANT TO PERFORM: Each Chargor shall continuously comply with the
terms (both express and implied) of this Deed and any contracts
relating to the Secured Liabilities.
(c) RESTRICTIONS ON DEALINGS: No Chargor shall:
(i) create or permit to subsist any Security Interest of whatsoever
nature on any Security Asset other than a Permitted Security
Interest or as created by this Deed; or
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(ii) sell, transfer, grant, lease or otherwise dispose of any Security
Asset, except for the disposal in the ordinary course of trade of
any Security Asset subject to the floating charge created by
Clause 3.1 and except as provided for under the Finance
Documents.
5.3 PROPERTY
(a) DEPOSIT OF TITLE DEEDS: For the duration of the Security Period each
Chargor shall deposit with Burdale all deeds and documents of title
relating to the Mortgaged Property owned by it and any property
comprised within Clause 5.3(c).
(b) ENVIRONMENTAL MATTERS: Each Chargor shall:
(i) comply in all material respects with all applicable Environmental
Law including the obtaining of and compliance with all requisite
Environmental Licences (as varied from time to time);
(ii) immediately inform Burdale:
(1) of any actual Environmental Proceedings or, as soon as it
becomes aware, of any potential Environmental Proceedings
involving it; and
(2) upon receipt, of any communication of whatsoever nature,
whether specific or general and whether from a third party
or competent regulatory authority, served on it concerning
any alleged breach of any Environmental Law or
non-compliance with any Environmental Licence, which, if
substantiated, could have a material adverse effect upon its
financial position or upon its ability to perform its
obligations under this Deed;
(iii) immediately inform Burdale if it becomes aware that any of the
Mortgaged Property or any other property owned or occupied by any
Chargor is likely to be entered on any register relating to land
use or to Remedial Works affecting land and waters (including,
without limitation, registers to be held by any competent
regulatory authority under section 78R of the Environmental
Protection Xxx 0000 or section 190 of the Water Resources Act
1991);
(iv) immediately inform Burdale of the presence of any Dangerous
Substance in, on, at or under or migrating onto or from any
Mortgaged Property or other property owned or occupied by any
Chargor or of any other circumstance, event or incident which is
likely to give rise to any Environmental Proceedings; and
(v) immediately inform Burdale of any actual or proposed variation,
modification or revocation of any requisite Environmental Licence
held by such Chargor and of any refusal to grant or transfer to
the Chargor any Environmental Licence required by it for the
purpose of its business.
(c) FUTURE ACQUISITIONS AND LEGAL MORTGAGE: Each Chargor shall:
(i) notify Burdale immediately upon the acquisition by it of any
freehold or leasehold or other interest in property (and for the
purposes of this
11
Clause 5.3(c) the date of exchange of contracts for such an
acquisition shall be deemed the date of acquisition);
(ii) at its cost, execute and deliver to Burdale, on demand, a legal
mortgage (on terms no more onerous than the terms of this Deed)
in favour of Burdale of any freehold or leasehold or other
interest in property which becomes vested in it after the date of
this Deed; and
(iii) in any event, if applicable, give H.M. Land Registry written
notice of this Deed and procure that notice of it be duly noted
in the Registers to each such title.
(d) LEASE AND COVENANT COMPLIANCE: Each Chargor shall:
(i) perform all the terms on its part contained in any lease or
agreement for lease comprising the Mortgaged Property or to which
the Mortgaged Property is subject;
(ii) not do anything as a result of which any lease or agreement for
lease comprising Mortgaged Property or to which the Mortgaged
Property is subject may become forfeit or otherwise determinable;
and
(iii) properly perform (and indemnify Burdale for any breach of) any
covenants and stipulation of whatsoever nature affecting the
Mortgaged Property.
(e) NOTICES: Within 10 days after the receipt by a Chargor of any
application, requirement, order or notice served or given by any
public, local or other authority relating to any Mortgaged Property,
such Chargor shall:
(i) deliver a copy to Burdale; and
(ii) inform Burdale of the steps taken or proposed to be taken by way
of compliance.
(f) POWER TO REMEDY: In case of default by any Chargor in performing any
obligation or other covenant affecting the Mortgaged Property, each
Chargor shall permit Burdale or its agents and contractors:
(i) to enter on the Mortgaged Property;
(ii) to comply with or object to any notice served on any Chargor
relating to the Mortgaged Property; and
(iii) to take any action Burdale may reasonably consider expedient
to prevent or remedy any breach of any such term or to comply
with or object to any such notice,
provided that nothing in this Clause 5.3(f) (or otherwise in this
Deed) shall entitle Burdale or its agents and contractors to any
action (including any Remedial Works) relating to any notice served
under or breach of any Environmental Law (including without limitation
Part II A of the Environmental Protection Act 1990).
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(g) REPAIR: Each Chargor shall, and shall procure that each other Chargor
shall, keep the Premises and the Fixtures in good and substantial
repair and condition and decorative order.
5.4 SECURITY SHARES
(a) Each Chargor shall forthwith deposit with Burdale or as Burdale may
direct all bearer instruments, share certificates and other documents
of title or evidence of ownership in relation to such Group Shares as
are owned by it or in which it has or acquires an interest and their
Related Rights and shall execute and deliver to Burdale all such share
transfers and other documents as may be requested by Burdale in order
to enable Burdale or its nominees to be registered as the owner or
otherwise to obtain a legal title to the same and, without limiting
the generality of the foregoing, shall deliver to Burdale on today's
date executed (and, if required to be stamped, pre-stamped) share
transfers for all Group Shares in favour of Burdale and/or its
nominee(s) as transferees or, if Burdale so directs, with the
transferee left blank and shall procure that all such share transfers
are at the request of Burdale forthwith registered by the relevant
company and that share certificates in the name of Burdale and/or such
nominee(s) in respect of all Group Shares are forthwith delivered to
Burdale.
(b) Each Chargor shall provide Burdale with certified copies of all
resolutions and authorisations approving the execution of such
transfer forms and registration of such transfers as Burdale may
reasonably require.
(c) Burdale and its nominee may at any time whilst an Event of Default is
continuing exercise or refrain from exercising (in the name of each
Chargor, the registered holder or otherwise and without any further
consent or authority from each Chargor and irrespective of any
direction given by any Chargor) in respect of the Security Shares any
voting rights and any powers or rights under the terms of the Security
Shares or otherwise which may be exercised by the person or persons in
whose name or names the Security Shares are registered or who is the
holder thereof, including, without limitation, all the powers given to
trustees by Section 10(3) and (4) of the Trustee Xxx 0000 as amended
by Section 9 of the Trustee Investments Act 1961 in respect of
securities or property subject to a trust PROVIDED THAT in the absence
of notice from Burdale each Chargor may and shall continue to exercise
any and all voting rights with respect to the Group Shares subject
always to the terms of this Deed. No Chargor shall without the
previous consent in writing of Burdale exercise the voting rights
attached to any of the Group Shares in favour of resolutions having
the effect of changing the terms of the Group Shares (or any class of
them) or any Related Rights or prejudicing the security under this
Deed or impairing the value of the Security Shares. Each Chargor
hereby irrevocably appoints Burdale or its nominees its proxy to
exercise (as provided in or permitted by this Deed) all voting rights
so long as the Group Shares belonging to it remain registered in its
name.
(d) Each Chargor during the continuance of this security will make all
payments which may become due in respect of any of the Security Shares
and, in the event of default in making any such payment, Burdale may
if it thinks fit make such payment on behalf of each Chargor. Any sums
so paid by Burdale shall be repayable by the relevant Chargor to
Burdale on demand and pending such repayment shall constitute part of
the Secured Liabilities.
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(e) It is expressly agreed that, notwithstanding anything to the contrary
contained in this Deed, each Chargor shall remain liable to observe
and perform all of the conditions and obligations assumed by it in
respect of the Security Shares and Burdale shall not be under any
obligation or liability by reason of or arising out of the security
over the Security Shares conferred by this Deed. Burdale shall not be
required in any manner to perform or fulfil any obligation of any
Chargor in respect of the Security Shares, or to make any payment, or
to receive any enquiry as to the nature or sufficiency of any payment
received by them, or to present or file any claim or take any other
action to collect or enforce the payment of any amount to which they
may have been or to which they may be entitled under this Deed at any
time or times.
(f) Upon the occurrence of an Event of Default and at any time thereafter
while the same is continuing Burdale shall be entitled to put into
force and exercise immediately as and when it may see fit any and
every power possessed by Burdale by virtue of the security over the
Security Shares conferred by this Deed or available to a secured
creditor (so that Sections 93 and 103 of the Law of Property Act 1925
shall not apply to this security) and in particular (without
limitation):
(i) to sell all or any of the Security Shares in any manner permitted
by law upon such terms as Burdale shall in its absolute
discretion determine;
(ii) to collect, recover or compromise and give a good discharge for
any monies payable to any Chargor in respect of the Security
Shares or in connection therewith; and
(iii) to act generally in relation to the Security Shares in such
manner as Burdale acting reasonably shall determine.
For the avoidance of doubt, each Chargor agrees that the
enforceability of the security over the Security Shares conferred by
this Deed is not dependent on the performance or non-performance by
Burdale of its obligations under any agreement with any Chargor.
(g) Immediately on conversion of any of the Group Shares from certificated
to uncertificated form, and on the creation or conversion of any other
securities which are for the time being comprised in the Security
Shares in or into uncertificated form, each Chargor shall give such
instructions or directions as Burdale may require in order to protect
or preserve its security.
(h) Each Chargor shall, immediately upon receipt of any certificate or
other document evidencing any entitlement to further Security Shares,
deposit it with Burdale together with such share transfer forms in
blank and other documents as Burdale may require.
5.5 OPENING OF ACCOUNTS AND COLLECTION OF RECEIVABLES
(a) Forthwith upon the execution of this Deed, each Facility Company shall
open the relevant Blocked Accounts, and the Chargors shall maintain
the Other Accounts and execute all deeds and documents and do all
other acts and things required by Burdale in connection with them and
the Chargors shall maintain such accounts until the security
constituted by this Deed has been discharged.
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(b) Forthwith upon the execution of this Deed, each Facility Company shall
serve notice upon the bank at which each Blocked Account is opened (in
respect of the relevant Blocked Accounts) in substantially the form
set out in Part I of Schedule 3 and the Chargors shall serve notice
upon each bank at which any Other Account is held (in respect of the
relevant Other Accounts) in substantially the form set out in Part II
of Schedule 3, and shall procure the relevant bank returns the
acknowledgement in substantially the form set out in the relevant Part
of Schedule 3 or such other form acceptable to Burdale in its absolute
discretion.
(c) Until the security constituted by this Deed is discharged, no Chargor
shall maintain any bank accounts which are not Charged Accounts.
5.6 OPERATION OF BLOCKED ACCOUNT
(a) Until the security constituted by this Deed is discharged, no Facility
Company shall be entitled to withdraw the whole or any part of any
amount standing to the credit of any Blocked Account and shall not,
subject to paragraph (b) below, take any action, claim or proceedings
against Burdale or any other party for the return or payment to any
person of the whole or any part of any amount standing to the credit
of any Blocked Account.
(b) Each Facility Company agrees that until the security constituted by
this Deed is discharged, Burdale shall be able to withdraw on a daily
basis all deposits made into any Blocked Account provided that the
amount so withdrawn is applied towards the Secured Liabilities in
accordance with Clause 7 of the Facility Agreement and each Facility
Company shall direct the relevant bank(s) to transfer the cleared
balance of such Facility Company's Blocked Accounts to such account as
Burdale shall specify for the purpose from time to time at the end of
each Business Day.
5.7 OPERATION OF OTHER ACCOUNTS
Until notified by Burdale in writing to the contrary, the Chargors shall be
entitled to operate the Other Accounts PROVIDED THAT:
(a) the Other Accounts each retain a credit or zero balance at all times;
(b) the Chargors shall not and shall procure that no other person shall
deposit or transfer any monies into the Other Accounts other than
those transferred from the Blocked Accounts or any Other Account; and
(c) the Chargors shall not at any time transfer the whole or any part of
the amounts standing to the credit of any Other Account to any other
bank account other than to another Charged Account or in the ordinary
course of business to the extent permitted under the Finance
Documents.
5.8 INTELLECTUAL PROPERTY
(a) Without prejudice to Clause 13 if after the date of this Deed, any
Chargor (i) proposes to apply to register any Specified Intellectual
Property in any register in which it is not already identified as
being registered in or (ii) proposes to apply to register any
Intellectual Property right not existing on the date of this Deed,
such Chargor shall notify Burdale and, if Burdale reasonably so
requires and promptly notifies the Chargor, such Chargor shall ensure
that
15
application is made for the security created by this Deed to be
recorded, and that any such security is recorded, at the same time as
the application or registration (as the case may be) of such
Intellectual Property.
(b) Each Chargor will make such registrations and pay such fees, renewal
fees, registration taxes and similar amounts as are necessary to keep
the Specified Intellectual Property in force provided it is
commercially sensible for them to do so.
(c) Each Chargor will take such steps as are commercially sensible
(including the institution of legal proceedings) to police its
Specified Intellectual Property in any territories which are material
to its business to ensure proper use of them and to prevent third
parties infringing them and, take such other steps as are reasonably
practicable to maintain and preserve its interests in its Specified
Intellectual Property including applying to register any interests
therein in any relevant register.
(d) Each Chargor will promptly notify Burdale in writing upon becoming
aware of any circumstances which would make any of the representations
in Clause 4.8 inaccurate or misleading in any material respect if
those representations were then to be repeated.
(e) No Chargor will do anything nor use the Specified Intellectual
Property in any way which could reasonably be expected to have an
adverse effect or which could devalue any such Specified Intellectual
Property.
(f) No Chargor will, without the prior written consent of Burdale, such
consent not to be unreasonably withheld:
(i) sell, transfer, license or otherwise dispose of any Intellectual
Property;
(ii) permit any Specified Intellectual Property which is registered or
subject to an application for registration to be abandoned or
cancelled, to lapse or to be liable to any claim for abandonment
for non-use or otherwise.
5.9 EQUIPMENT
(a) Forthwith after the date of this Deed, each Chargor shall attach to a
visible part of each item of Specified Equipment owned by it and with
a value in excess of (pound)10,000 (as determined in accordance with
the Equipment Valuation) in a permanent manner a clear and distinctive
label, no smaller than 3 inches by 4 inches in size comprising the
following notice: "This piece of Equipment is subject to a first legal
mortgage in favour of Burdale Financial Limited ("BURDALE") and may
not be removed or sold without the prior written consent of Burdale".
(b) Each Chargor shall keep its Equipment in good repair, working order
and condition and fit for its purpose and shall not permit the same to
be handled other than by persons properly qualified and trained or to
be overloaded or to be used for any purpose for which the Equipment is
not designed or reasonably suitable.
(c) No Chargor will, without the prior written consent of Burdale, make
any modification or permit any modification to be made to the
Equipment if the effect of such modification may be to reduce the
value of the Equipment.
16
(d) No Chargor will permit or procure any Equipment to be taken out of
England and Wales without the prior written consent of Burdale and
then subject only to such further terms as Burdale may require.
(e) Each Chargor will promptly pay all taxes, fees, licence duties,
registration charges, insurance premiums and other outgoings in
respect of the Premises and the Equipment and on demand produce
evidence of such payment to Burdale.
(f) Each Chargor will obtain all authorisations from time to time required
for the use and operation of the Equipment and not to do or permit to
be done any act or omission whereby the Equipment or the use of it
would contravene regulations for the time being in force.
(g) Each Chargor will forthwith notify Burdale of any loss, theft, damage
or destruction to the Equipment.
(h) Each Chargor will give Burdale such information concerning the
location, condition, use and operation of the Equipment as the Burdale
may require and to permit any persons designated by Burdale at all
reasonable times to inspect and examine the Equipment and the records
maintained in connection with it.
(i) Each Chargor will ensure that the Premises are suitable for the use or
storage of the Equipment, and will keep the Equipment at the Premises.
(j) Each Chargor will procure in favour of Burdale from any person with a
proprietary interest or encumbrance (including any owner, leaseholder
or chargee) in any real or personal property to which the Equipment
might become affixed, or with which title to the Equipment might
merge, an acknowledgement prior to such fixing or merger that their
rights and remedies will only be exercised subject to Burdale's rights
in the Equipment and, in particular, but without limitation to the
generality of the foregoing, the right of Burdale, its servants or
agents to enter upon any such property to remove the Equipment
notwithstanding that it might be affixed to, or have merged with, any
real or personal property.
6. WHEN SECURITY BECOMES ENFORCEABLE
The security constituted by this Deed shall become immediately enforceable
and the power of sale and other powers conferred by section 101 of the Law
of Property Xxx 0000, as varied or amended by this Deed, shall be
immediately exercisable upon and at any time after the occurrence of any
Event of Default and whilst the same is continuing after which Burdale may
in its absolute discretion enforce all or any part of the security in any
manner it sees fit.
7. ENFORCEMENT OF SECURITY
7.1 GENERAL
(a) For the purposes of all powers implied by statute, the Secured
Liabilities are deemed to have become due on the date of this Deed.
(b) Section 103 of the Law of Property Act (restricting the power of sale)
and section 93 of the Law of Property Xxx 0000 (restricting the right
of consolidation) do not apply to the security constituted by this
Deed.
17
(c) The statutory powers of leasing conferred on Burdale are extended so
that, without the need to comply with any provision of section 99 or
100 of the Law of Property Xxx 0000, Burdale is empowered to lease,
make agreements for leases, accept surrenders of leases and grant
options as Burdale may think fit.
7.2 AGENT OF THE CHARGORS
For all purposes each Receiver is deemed to be in the same position as a
Receiver duly appointed by a mortgagee under the Law of Property Xxx 0000.
Every Receiver shall be the agent of the Chargor in respect of which he was
appointed unless and until a liquidator shall be appointed of that Chargor,
whereafter such Receiver shall act as principal but shall not become the
agent of Burdale. That Chargor alone shall be responsible for the
receiver's contracts, engagements, commissions, omissions, defaults and
losses and for liabilities incurred by him. Burdale shall not incur any
liability of whatsoever nature (either to the Chargors or to any other
person) by reason of Burdale making his appointment as a Receiver or for
any other reason.
7.3 CONTINGENCIES
If Burdale enforces the security constituted by this Deed at a time when no
amounts are due to Burdale under the Finance Documents but at a time when
amounts may or will become so due, Burdale (or the Receiver) may pay the
proceeds of any recoveries effected by it into a Blocked Account (in the
case of a Facility Company) or an Other Account (in the case of any other
Chargor).
7.4 MORTGAGEE IN POSSESSION - NO LIABILITY
Neither Burdale nor any Receiver or Manager will be liable, by reason of
entering into possession of a Security Asset, to account as mortgagee in
possession or for any loss on realisation or for any default or omission
for which a mortgagee in possession might otherwise be liable.
7.5 PRIVILEGES
Each Receiver and Burdale is entitled to all the rights, powers, privileges
and immunities conferred by the Law of Property Xxx 0000 on mortgagees and
receivers when such receivers have been duly appointed under that Act,
except that section 103 of that Act does not apply.
7.6 PROTECTION OF THIRD PARTIES
No person (including a purchaser) dealing with Burdale or a Receiver or its
or his agents need enquire:
(a) whether the Secured Liabilities have become payable; or
(b) whether any power purported to be exercised has become exercisable; or
(c) whether any money remains due; or
(d) how any money paid to Burdale or to the Receiver is to be applied.
7.7 REDEMPTION OF PRIOR MORTGAGES
At any time after the security constituted by this Deed has become
enforceable, Burdale or any Receiver may, in the case of Burdale at the
sole cost of the Chargors
18
(payable to Burdale on demand) and in the case of a Receiver as an expense
of the Receiver's receivership:
(a) redeem any interest by way of security for the time being and from
time to time ranking in point of security in priority to any of the
security constituted by this Deed; and/or
(b) (in the case of a redemption by Burdale) procure the transfer of that
interest by way of security to itself; and/or
(c) settle and pass the accounts of any prior mortgagee, chargee or
encumbrancer which once so settled and passed shall be conclusive and
binding on the Chargors.
8. RECEIVER
8.1 APPOINTMENT OF RECEIVER
In the circumstances described in Clause 3.2(a) or at any time after the
security constituted by this Deed becomes enforceable, or, at any time if
so requested by any Chargor in writing, Burdale may (but shall not be
obliged) without further notice (and whether or not the relevant Chargor
shall have been accorded sufficient or any time in which to satisfy any
relevant indebtedness) from time to time, and notwithstanding that, if such
be the case, one or more than one Receiver shall have been appointed in
respect of all or any of the Security Assets pursuant to this Clause and
not removed from such Security Assets, appoint in writing, under the hand
of any manager of Burdale, a Receiver of the Security Assets or any of them
and, where so requested by a Chargor, whether or not those Security Assets
shall belong to that Chargor, but, in the circumstances described in Clause
3.2(a), only over the Security Assets specified in the notice referred to
in that Clause.
8.2 RELATIONSHIP WITH BURDALE
To the fullest extent permitted by law, any right, power or discretion
conferred by this Deed (be it express or implied) upon a Receiver of any
Security Assets may, after the security created by this Deed has become
enforceable, be exercised by Burdale in relation to any Security Asset
either:
(a) without first appointing a Receiver; or
(b) notwithstanding the appointment of a Receiver.
8.3 REMOVAL
Burdale may by writing under its hand (subject to Section 45 of the
Insolvency Act 1986 (any requirement for an order of the court in the case
of an administrative receiver)):
(a) remove any Receiver appointed by it; and
(b) whenever it deems it necessary or desirable, appoint a new Receiver in
the place of any Receiver whose appointment may for any reason have
terminated.
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8.4 REMUNERATION
Burdale may, from time to time, fix the remuneration of any Receiver and
direct payment of the same out of monies accruing to him in the exercise of
his powers, authorities and discretions by or pursuant to this Deed, but
the Chargor in respect of which any Receiver shall have been appointed
shall alone be liable for the payment of that remuneration.
9. POWERS OF RECEIVER
9.1 GENERAL
(a) In addition to those conferred by the Law of Property Xxx 0000 on any
receiver appointed under that Act, each Receiver has, and is entitled
to exercise, all of the rights, powers and discretions set out in this
Deed. The powers, authorities and discretions conferred by or pursuant
to this Deed in relation to the Security Assets on Burdale or any
Receiver shall be in addition to, and not in substitution for, the
powers conferred on mortgagees or receivers under the Law of Property
Xxx 0000, and, where there is any ambiguity or conflict between the
powers, authorities and discretions contained in that Act and those
conferred by or pursuant to this Deed, the terms of this Deed shall
prevail.
(b) If there is more than one Receiver holding office at the same time,
unless the document appointing him states otherwise, each Receiver may
exercise all of the powers conferred on a Receiver under this Deed
individually and to the exclusion of any other Receivers.
(c) A Receiver who is an administrative receiver of a Chargor has all the
rights, powers and discretions of an administrative receiver under the
Insolvency Xxx 0000.
(d) A Receiver may, in the name of the relevant Chargor if he so wishes:
(i) do all other acts and things which he may consider necessary or
desirable for realising any Security Asset or incidental or
conducive to any of the rights, powers or discretions conferred
on a Receiver under or by virtue of this Deed; and
(ii) do and exercise in relation to any Security Asset all the powers,
authorities and things which he would be capable of exercising as
if he were its absolute beneficial owner.
9.2 BORROW AND LEND MONEY
A Receiver may raise and borrow money (either unsecured or on the security
of any Security Asset, either in priority to, pari passu with, or
subsequent to, the security constituted by this Deed or otherwise) and may
lend money either with or without security in the case of either borrowing
or lending money on any other terms and for whatever purpose which he
thinks fit. No person lending that money need enquire as to the propriety
or purpose of the exercise of that power or to check the application of any
money so raised or borrowed.
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9.3 CARRY ON BUSINESS
A Receiver may carry on, manage or concur in the carrying on or managing
of, the business for the time being and from time to time of the relevant
Chargor in such manner as he may think fit, including, without limitation,
power to perform, repudiate, rescind, compromise, amend or vary any
contract, instrument or agreement to which the relevant Chargor shall for
the time being and from time to time be a party.
9.4 COMPROMISE
A Receiver may settle, adjust, refer to arbitration, compromise and arrange
any claims, accounts, disputes, questions and demands with or by any person
who is or claims to be a creditor of the relevant Chargor or relating in
any way to any Security Asset.
9.5 EMPLOYEES
Either in connection with any exercise by the Receiver of his powers by or
pursuant to this Deed or otherwise for any purpose connected with any of
the Security Assets, a Receiver may:
(a) appoint and discharge managers, officers, agents, accountants,
servants, workmen and others upon such terms as to remuneration or
otherwise as he may think proper; and
(b) discharge any such persons appointed by the relevant Chargor.
9.6 LEASES
A Receiver may grant, or concur in the grant of, any leases or licences of
any Security Asset for any term on any terms which he thinks fit
(including, without limitation, at a rent or fee with or without a premium)
and may accept a surrender of any lease or licence of any Security Asset on
any terms which he thinks fit (including, without limitation, the payment
of money to a lessee or licensee on a surrender).
9.7 LEGAL ACTIONS
A Receiver may bring, prosecute, enforce, defend and abandon all actions,
suits and proceedings to the relevant Chargor or its Security Assets as he
thinks fit.
9.8 POSSESSION
A Receiver may take immediate possession of, get in, and/or collect the
Security Assets of the relevant Chargor and, for that purpose, to enter
upon its property or any other premises at which its Security Assets are
for the time being and from time to time located and sever, dismantle or
remove the same or any fixtures for the time being and from time to time
therefrom without being liable for any loss or damage thereby occasioned.
9.9 PROTECTION OF ASSETS
A Receiver may, in each case as he may think fit:
(a) make and effect, and concur in the making and effecting of, all
repairs, maintenance, decoration, provision of all services
(including, without limitation,
21
lighting, heating and cleansing) structural and other alterations,
improvements, additions and development in or to the Security Assets
and do anything else in connection with the Security Assets which he
may think fit or which he may deem proper for the efficient use or
management of the Security Assets, as well as for the protection as
for the improvement of the Security Assets or for the protection of
the security hereby constituted;
(b) commence and/or complete any building operations on the Mortgaged
Property or other Security Asset;
(c) apply for and maintain any planning permission, building regulation,
approval or any other permission, consent or licence in relation to
the Security Assets; and
(d) effect and maintain insurances in respect of the Security Assets.
9.10 RECEIPTS
A Receiver may give valid receipts for all monies and execute all deeds or
documents (including, without limitation, with full power to convey any
assets sold in the name of the relevant Chargor) as may be necessary or
appropriate in the name of, or on behalf of the relevant Chargor for the
purpose of exercising any of the powers, authorities and discretions
conferred on the Receiver by or pursuant to this Deed and to use the name
of the relevant Chargor for all or any of such powers, authorities and
discretions, for which purpose the relevant Chargor hereby irrevocably
appoints every such Receiver to be its attorney.
9.11 SALE OF ASSETS
A Receiver may sell, exchange, convert into money and realise any Security
Asset by public auction, tender or private treaty in any manner and on any
terms and with or without such advertisement and in such lot or lots and
together or separately as the Receiver thinks fit. The consideration for
any such transaction may consist of cash, debentures or other obligations,
shares, stock or other valuable consideration and any such consideration
may be payable in a lump sum or by instalments spread over such period as
the Receiver thinks fit. Fixtures may be severed and sold separately from
the property containing them without the consent of the relevant Chargor.
9.12 SUBSIDIARIES
A Receiver may promote the formation of a or purchase a newly formed, or
concur in the promotion of the formation of a or purchase a newly formed,
subsidiary and/or subsidiaries of any Chargor with a view to the same
purchasing, leasing, licensing or otherwise acquiring all or any of the
assets of that Chargor and the Receiver may sell, lease, license or
otherwise dispose all or any of the assets of that Chargor to such
subsidiary or subsidiaries on such terms as he shall think fit.
9.13 EXERCISE OF RIGHTS
A Receiver may exercise or permit the relevant Chargor or any nominee of
the relevant Chargor to exercise any powers or rights incidental to the
ownership of its Security Assets in such manner as the Receiver may think
fit and, in particular (as regards any shares, stock or other securities
for the time being and from time to time
22
included in its Security Assets), any rights for the time being and from
time to time attached thereto.
9.14 UNCALLED CAPITAL
A Receiver may call up all or any portion of any uncalled capital of a
Chargor.
9.15 PROFESSIONAL ADVICE
A Receiver may appoint a solicitor or accountant or other professionally
qualified person to advise or assist it in the exercise of any of the
powers, authorities and discretions by or pursuant to these presents or
otherwise for any purpose connected with its Security Assets, and may
discharge any such person.
9.16 SEAL
A Receiver may use a Chargor's seal.
9.17 SPECIFIED INTELLECTUAL PROPERTY
A Receiver may in respect of any Specified Intellectual Property:
(a) make such registrations and pay such fees, renewal fees, registration
taxes and similar amounts as he thinks fit to keep such Specified
Intellectual Property in force;
(b) take such steps as he thinks fit (including, without limitation, the
institution of legal proceedings and the incurring of advertising
expenditure) to police such Specified Intellectual Property in any
territory and to prevent third parties infringing it and otherwise to
maintain and preserve its value;
(c) if he thinks fit, abandon or cancel such Specified Intellectual
Property or permit its registration (or application for registration)
in any jurisdiction to lapse or to permit it to become liable to a
claim for abandonment for non-use or otherwise.
10. APPLICATION OF PROCEEDS
Any monies received by Burdale or any Receiver after this Deed has become
enforceable shall be applied in the following order of priority (but
without prejudice to the right of Burdale to recover any shortfall from the
Chargors):
(a) in satisfaction of or provision for all costs and expenses incurred by
Burdale or any Receiver and of all remuneration due to any Receiver
under this Deed;
(b) in or towards payment of the Secured Liabilities or such part of them
as is then due and payable to Burdale; and
(c) in payment of the surplus (if any) to any Chargor or other person
entitled to it.
11. EXPENSES AND INDEMNITY
Immediately upon demand, each Chargor shall pay all other costs and
expenses (including legal fees and VAT) incurred from time to time in
connection with the enforcement of or preservation of rights under this
Deed by Burdale, or any Receiver, attorney, manager, agent or other person
appointed by Burdale under this
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Deed or by statute, and keep each of them indemnified against any failure
or delay in paying the same.
12. DELEGATION
Burdale and any Receiver may, for the time being and from time to time,
delegate by power of attorney or in any other manner (including, without
limitation, under the hand of any manager of Burdale) to any person any
right, power or discretion exercisable by Burdale or such Receiver (as the
case may be) under this Deed. Any such delegation may be made upon the
terms (including, without limitation, power to sub-delegate) and subject to
any regulations which Burdale or such Receiver (as the case may be) may
think fit. Neither Burdale nor any Receiver will be in any way liable or
responsible to any Chargor for any loss or liability arising from any act,
default, omission or misconduct on the part of any such delegate or
sub-delegate who shall be entitled to all the indemnities to which his
appointor is entitled under this Deed.
13. FURTHER ASSURANCES
13.1 GENERAL
Each Chargor shall, at its own expense, execute and do all such acts, deeds
and things (including, without limitation, payment of all stamp duties and
registration fees) Burdale or a Receiver may reasonably require for:
(a) perfecting or better perfecting or protecting or better protecting the
security intended to be created by this Deed over any Security Asset;
and
(b) after the security constituted by this Deed has become enforceable,
facilitating the realisation of any Security Asset or the exercise of
any right, power or discretion exercisable, by Burdale or any Receiver
in respect of any Security Asset, including, without limitation, the
execution of any transfer, conveyance, assignment or assurance of any
property whether to Burdale or to its nominees, and the giving of any
notice, order or direction and the making of any registration, which
in any such case, Burdale may think necessary or desirable.
13.2 FURTHER SUBSIDIARIES
(a) Each Chargor undertakes to ensure that each Subsidiary (whether direct
or indirect) of any Chargor shall, unless it is a Dormant Company,
promptly upon being required to do so by Burdale, execute a Deed of
Accession in substantially the form set out in Schedule 6 and such
company shall on the date which such Deed of Accession is executed by
it become a party to this Deed in the capacity of a Chargor and this
Deed shall be read and construed for all purposes as if such company
had been an original party to this Deed as a Chargor (but for the
avoidance of doubt the security created by such company shall be
created on the date of the Deed of Accession).
(b) Burdale may specify any amendments or changes to the form or manner in
which any such new Chargor gives such security (including an
acceptance of a limit on the liability of such new Chargor) which in
the opinion of Burdale is necessary in order that such security may
lawfully be given.
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(c) The Company shall procure that all registrations or other steps
necessary to perfect any security created by a Deed of Accession are
completed as soon as is practicable after its execution and in any
event within any applicable time limit.
(d) Each Chargor (other than the Company) by its execution of this Deed or
any Deed of Accession, irrevocably appoints the Company to execute on
its behalf any Deed of Accession without further reference to or the
consent of such Chargor and such Chargor shall be bound by any such
Deed of Accession as if it had itself executed such Deed of Accession.
14. POWER OF ATTORNEY
Each Chargor, by way of security, irrevocably and severally appoints
Burdale, each Receiver and any of their delegates or sub-delegates to be
its attorney and on its behalf and in its name or otherwise to execute and
do all such acts, deeds and things which such Chargor is obliged to take
under this Deed and generally, on its behalf and in its name, to exercise
all or any of the powers, authorities and discretions conferred by or
pursuant to this Deed on Burdale or any Receiver. Each Chargor hereby
ratifies and confirms and agrees to ratify and confirm whatever any
attorney does or purports to do pursuant to its appointment under this
Clause.
15. CONTINUING SECURITY
15.1 ADDITIONAL SECURITY
The security constituted by this Deed is in addition to and is not in any
way prejudiced by any other security now or subsequently held by Burdale
for any of the Secured Liabilities.
15.2 CONTINUING SECURITY
The security constituted by this Deed is continuing and will extend to the
ultimate balance of all the Secured Liabilities, regardless of any
intermediate payment or discharge in whole or in part.
15.3 REINSTATEMENT
If any payment by a Chargor or any discharge given by Burdale (whether in
respect of the obligations of any Obligor or any security for those
obligations or otherwise) is avoided or reduced as a result of insolvency
or any similar event:
(a) the liability of each Chargor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) Burdale shall be entitled to recover the value or amount of that
security or payment from each Chargor, as if the payment, discharge,
avoidance or reduction had not occurred.
15.4 WAIVER OF DEFENCES
The obligations of each Chargor under this Deed will not be affected by an
act, omission, matter or thing which, but for this Clause, would reduce,
release or prejudice any of its obligations under this Deed (without
limitation and whether or not known to it or Burdale) including:
25
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the terms
of any composition or arrangement with any creditor of any Obligor or
any other person;
(c) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Obligor or other person or any
non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the
full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
15.5 IMMEDIATE RECOURSE
Each Chargor waives any right it may have of first requiring Burdale to
proceed against or enforce any other rights or security or claim payment
from any person before enforcing the security constituted by this Deed.
This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary.
15.6 APPROPRIATIONS
Until all the Secured Liabilities have been irrevocably paid in full,
Burdale may:
(a) refrain from applying or enforcing any other monies, security or
rights held or received by Burdale in respect the Secured Liabilities,
or apply and enforce the same in such manner and order as it sees fit
(whether against the Secured Liabilities or otherwise) and no Chargor
shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any monies received from
any Chargor or on account of any Chargor's liability in respect of the
Secured Liabilities.
15.7 DEFERRAL OF CHARGORS' RIGHTS
Until all the Secured Liabilities have been irrevocably paid in full and
unless Burdale otherwise directs, no Chargor will exercise any rights which
it may have by reason of performance by it of its obligations under the
Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents; and/or
26
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any of Burdale's rights under the Finance
Documents or of any other guarantee or security taken pursuant to, or
in connection with, the Finance Documents by Burdale.
16. MISCELLANEOUS
16.1 COVENANT TO PAY
Each Chargor shall pay or discharge the Secured Liabilities in the manner
provided for in any document creating or evidencing the Secured Liabilities
and/or otherwise as agreed from time to time.
16.2 H.M. LAND REGISTRY
Each Chargor applies to the Chief Land Registrar for a restriction in the
following terms to be entered on the Register of Title relating to any
property registered at H.M. Land Registry in its name and against which
this Deed may be noted:
"Except under an order of the Registrar, no disposition or dealing by
the proprietor of the land is to be registered without the consent of
the proprietor for the time being of the Deed dated o 2001 between,
amongst others, [the relevant Chargor] and Burdale Financial Limited."
16.3 NEW ACCOUNTS
If Burdale receives, or is deemed to be affected by, notice, whether actual
or constructive, of any subsequent charge or other interest affecting any
Security Asset and/or the proceeds of sale of any Security Asset, Burdale
may open a new account for any Chargor. If Burdale does not open a new
account, it shall nevertheless be treated as if it had done so at the time
when it received or was deemed to have received notice. As from that time
all payments made to Burdale will be credited or be treated as having been
credited to the new account and will not operate to reduce any amount for
which this Deed is security and, furthermore, Burdale shall be under no
obligation to advance any monies or provide or continue to provide any
credit facility to any Facility Company.
16.4 TACKING
Burdale covenants with each Chargor that it shall perform its obligations
under any document creating or evidencing the Secured Liabilities
(including any obligation to make available further advances).
16.5 SEPARATE CHARGES
This Deed shall, in relation to each Chargor, be read and construed as if
it were a separate Deed relating to such Chargor to the intent that if any
Security Interest created by any other Chargor in this Deed shall be
invalid or liable to be set aside for any reason, this shall not affect any
Security Interest created under this Deed by such first Chargor.
16.6 INVALIDITY
If, at any time, any provision of this Deed is or becomes invalid, illegal
or unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired.
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17. RELEASE
17.1 EXPIRY OF SECURITY PERIOD
Upon the expiry of the Security Period (but not otherwise), Burdale shall,
at the request and cost of the Chargors, take whatever action is necessary
to release the Security Assets from the security constituted by this Deed
and/or reassign the benefit of the Security Assets to the Chargors.
17.2 OTHER ACCOUNTS
At any time before the security created by this Deed shall have become
enforceable, in the absence of any directions from Burdale to the contrary,
any amounts permitted by the terms of the Finance Documents to be paid into
an Other Account shall upon payment into such account stand released from
the fixed charge over Book Debts created pursuant to Clause 2 and shall
stand subject to the floating charge created by Clause 3, provided that
such release shall in no respect prejudice the continuance of the fixed
charge created pursuant to Clause 2 in respect of all other Book Debts.
17.3 PURCHASED RECEIVABLES
Where any Receivables are sold to Burdale by a Facility Company under the
Receivables Finance Facility, such Receivables shall upon title to them
passing to Burdale under the terms of the Facility Agreement stand released
from the Security Interests created by this Deed.
18. RIGHTS AND REMEDIES
The rights of Burdale under this Deed are cumulative, may be exercised as
often as considered appropriate and are in addition to the general law.
Such rights (whether arising hereunder or under the general law) shall not
be capable of being waived or varied otherwise than by an express waiver or
variation in writing and, in particular, any failure to exercise or delay
in exercising any of such rights shall not operate as a waiver or variation
of that or any other such right, any defective or partial exercise of any
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 by Burdale
or on its behalf shall in any way preclude it from exercising any such
right or constitute a suspension or any variation of any such right.
19. NOTICES
19.1 DELIVERY AND RECEIPT
(a) Any communications to be made under or in connection with this Deed
shall be made in writing, may be made by letter or facsimile and shall
be deemed to be given as follows:
(i) if by way of letter, when it has been left at the relevant
address or two Business Days after being deposited in the post
with postage prepaid in an envelope addressed to it at that
address; and
(ii) if by facsimile, when received in legible form,
28
save that any notice delivered or received on a non-Business Day or
after business hours shall be deemed to be given on the next Business
Day at the place of delivery or receipt.
(b) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or
delivered to each of the Chargors.
19.2 ADDRESSES
(a) The Company's, Sheffield Forgemasters Group Limited's and Sheffield
Forgemasters Limited's address and facsimile number for notices are as
follows:
XX Xxx 0000, Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx X0 0XX
Facsimile no: 0114 2424302
For the attention of: X X Xxxxxxx
or such as the Company or such Chargors may notify to Burdale by not
less than 10 days' notice.
(b) Sheffield Forgemasters Engineering Limited's address and facsimile
number for notices are as follows:
XX Xxx 000
Xxxxxxxxxx Xxxx
Xxxxxxxxx X0 0XX
Facsimile no: 0114 2422103
For the attention of: R Xxxxxx
or such as Sheffield Forgemasters Engineering Limited may notify to
Burdale by not less than 10 days' notice.
(c) Sheffield Forgemasters Rolls Limited's address and facsimile number
for notices are as follows:
Xxxxxx Xxxx
Xxxxx
Xxxxxxxx XX0 0XX
Facsimile no: 01270 212351
For the attention of: P Xxxxx
or such as Sheffield Forgemasters Rolls Limited may notify to Burdale
by not less than 10 days' notice.
(d) Burdale's address and facsimile number for notices are:
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Facsimile no: 020 7935 5445
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For the attention of: Company Secretary
or such as Burdale may notify to the Company by not less than 10 days'
notice.
20. GOVERNING LAW AND JURISDICTION
20.1 GOVERNING LAW
This Deed is governed by English law.
20.2 JURISDICTION
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Deed (including a
dispute regarding the existence, validity or termination of this Deed)
(a "DISPUTE").
(b) The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no party will
argue to the contrary.
(c) This Clause 20.2 is for the benefit of Burdale only. As a result,
Burdale shall not be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed
by law, Burdale may take concurrent proceedings in any number of
jurisdictions.
20.3 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant
law, each Chargor (other than a Chargor incorporated in England and Wales):
(a) irrevocably appoints the Company as its agent for service of process
in relation to any proceedings before the English courts in connection
with this Deed; and
(b) agrees that failure by a process agent to notify the relevant Chargor
of the process will not invalidate the proceedings concerned.
For the benefit of Burdale the Company expressly agrees and consents to its
irrevocable appointment as process agent pursuant to this Clause 20.3.
This Deed has been entered into as a deed on the date stated at the beginning of
this Deed.
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SIGNATORIES
THE COMPANY
Executed as a deed by
XXXXXXXX CASTING UK LIMITED
acting by two of its directors
or one director and its secretary
X. XXXXXXXX
----------------------------------------
Director
K. INNOCENT
----------------------------------------
Secretary
THE OTHER CHARGORS
Executed as a deed by
SHEFFIELD FORGEMASTERS
GROUP LIMITED
acting by two of its directors
or one director and its secretary
X. XXXXXXXX
----------------------------------------
Director
K. INNOCENT
----------------------------------------
Secretary
Executed as a deed by
SHEFFIELD FORGEMASTERS
LIMITED
acting by two of its directors
or one director and its secretary
X. XXXXXXXX
----------------------------------------
Director
K. INNOCENT
----------------------------------------
Secretary
31
Executed as a deed by
SHEFFIELD FORGEMASTERS
ROLLS LIMITED
acting by two of its directors
or one director and its secretary
X. XXXXXXX
----------------------------------------
Director
X. XXXXX
----------------------------------------
Director/Secretary
Executed as a deed by
SHEFFIELD FORGEMASTERS
ENGINEERING LIMITED
acting by two of its directors
or one director and its secretary
X. XXXXX
----------------------------------------
Director
X. XXXXXX
----------------------------------------
Director
BURDALE
BURDALE FINANCIAL LIMITED
By: X. XXXX X. XXXXX
32
