<PAGE>
Sub-clauses 4(a)(i), (iv) and (v) and 4(f) contain restrictions an dealings with
assets, Sub-clauses 4(a)(ii) (iii) and (vi) contain restrictions on the creation
or subsistence of other security or other similar arrangements and Sub-clause
4(b) contains a request to H.M. Land Registrar to note a restriction in the
Proprietorship Register.
AD 47 DEBENTURE (1995)
THIS DEBENTURE DEED made the 24th day of November 1997 BETWEEN Adaytum Limited
(Company number 2520192) whose Registered Office is at 13 Great George Street,
Bristol BSI 5RR (hereinafter called "the Company") of the first part and LLOYDS
BANK PLC (hereinafter called "the Bank") of the second part
WITNESSES as follows:
1. PAYMENT COVENANT
The Company will pay to the Bank in accordance with any relevant
agreement in writing between the Bank and the Company relating to the
amounts hereby secured or, in the absence of such agreement, on demand
all money and liabilities whether actual or contingent (including
further advances made hereafter by the Bank and secured directly or
indirectly by this Debenture) which now are or at any time hereafter
may be due, owing or incurred by the Company to the Bank anywhere or
for which the Company may be or become liable to the Bank on any
current or other account or in any manner whatsoever without limitation
(and whether alone or jointly with any other person, firm or
corporation and in whatever style, name or form and whether as
principal or surety and notwithstanding that the same may at any
earlier time have been due owing or incurred to some other person, firm
or corporation and have subsequently become due, owing or incurred to
the Bank as a result of a transfer, assignment or other transaction or
by operation of law) together with interest to the date of payment at
such rate or rates as may from time to time be agreed between the Bank
and the Company in writing or, in the absence of such agreement; at the
rate of 2% above the Banks base rate for the time being in force in
respect of any such money or liabilities denominated in sterling and 2%
above the Bank's cost (as certified by the Bank) from time to tune of
obtaining the relevant currency in respect of any such money or
liabilities denominated in a currency other than sterling and
commission and other banking charges and legal, administrative and
other costs, charges and expenses incurred by the Bank in relation to
this Debenture or in enforcing the security hereby created on a full
and unqualified indemnity basis and a reasonable fee for any work
undertaken by the Bank in relation to such enforcement
2. INTEREST
The Company will pay interest at the rate aforesaid on the money so due
(whether before or after any judgment which may be recovered therefor)
upon such days in each year as the Bank and the Company shall from time
to time agree in writing or, in the absence of such agreement, as the
Bank shall from time to time fix and (without prejudice to the
<PAGE>
right of the Bank to require payment of such interest) all such
interest shall be compounded (both before and after any demand or
judgment) upon such days in each year as the Bank shall from time to
time fix.
3. CHARGES
(a) The Company with full title guarantee hereby charges with the
payment of all money and liabilities and other sums hereby
agreed to be paid or intended to be hereby secured (including
any expenses and charges arising out of or in connection with
the acts or matters referred to in Clauses 6, 9, 10,15 and 20
hereof) and so that the charges hereby created shall be a
continuing security:
First: The freehold and leasehold property (if any) of
the Company both present and future including
(without prejudice to the generality of the
foregoing) the properties (if any) specified in
the Schedule hereto (and, where any such
property is leasehold, any present or future
right or interest conferred upon the Company in
relation thereto by virtue of any Enfranchising
Legislation as defined by Clause 13(a) hereof
(including any rights arising as against any
nominee purchaser pursuant thereto)) and all
buildings and fixtures (including trade
fixtures) fixed plant and machinery from time
to time on any such property and all liens,
mortgages, charges, options, agreements and
rights, titles and interests (whether legal or
equitable) of the Company in or over land or
the proceeds of sale thereof of whatever
description both present and future and all the
right, title and interest of the Company in any
such plant and machinery from time to time
hired, leased or rented by the Company from
third parties or acquired by the Company from
third parties on a hire instalment or
conditional purchase basis including (without
prejudice to the generality of the foregoing)
the Company's right to any refund of rentals or
other payments.
Secondly: All book debts both present and future due or
owing to the Company or in which the Company is
legally, beneficially, or otherwise interested
(and the proceeds thereof) and the benefit of
all rights relating thereto including (without
prejudice to the generality of the foregoing)
negotiable instruments, legal and equitable
charges, reservation of proprietary rights,
rights of tracing and unpaid vendors' liens and
similar and associated rights.
Thirdly: All other debts, claims, rights and choses in
action both present and future of the Company
or in which the Company is legally,
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<PAGE>
beneficially or otherwise interested (and the
proceeds thereof) including (without prejudice
to the generality of the foregoing):
(i) deposits and credit balances held by
the Company with the Bank or any third
party from time to time both present
and future (Including things in action
which give rise or may give rise to a
debt or debts) owing to the Company
(and the proceeds thereof);
(ii) any amounts owing to the Company by
way of rent, license fee, service
charge or dilapidations by any tenant
or licensee (in each case whether
present or future) of any freehold or
leasehold property from time to time
forming part of the Charged Property
and any ground rents and rent charges
owing to the Company (and, in each
case, the proceeds thereof);
(iii) without prejudice to (iv) below, any
amounts owing or which may become
owing to the Company under any
building, construction or development
contract or by virtue of the Company's
rights under any retention or other
trusts, whether or not any certificate
as to the amount due has been issued
in respect thereof (and the proceeds
thereof);
(iv) without prejudice to (v) below, all
rights (and the proceeds of such
rights) present or future, actual or
contingent, arising under or in
connection with any contract
whatsoever in which the Company has
any right; title or interest;
(v) any amounts owing or which may become
owing to the Company by way of
damages, compensation or otherwise
under any judgment or order of any
competent authority howsoever arising;
and
(vi) the benefit of all rights relating
thereto including (without prejudice
to the generality of the foregoing)
such rights as are Secondly described
in this Sub-clause.
Fourthly: Where the Company for the time being carries on
any business comprising or relating to the
provision of credit (as defined by Section 9 of
the Consumer Credit Act 1974) or any business
comprising or relating to the bailment or (in
Scotland) the hiring of goods:
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<PAGE>
(i) the full benefit of and all rights
under all agreements now or hereafter
entered into by the Company under
which the Company has provided or
agreed to provide credit (as so
defined) to any person of any amount
and all agreements now or hereafter
entered into by any person other than
the Company under which credit (as so
defined) is provided or agreed to be
provided and the benefit of which is
assigned to or otherwise vested in the
Company (all agreements described in
this paragraph (i) being hereinafter
referred to as "the Credit
Agreements"), including all moneys
payable under or in respect of the
Credit Agreements;
(ii) the full benefit of and all rights
under all agreements (not being Credit
Agreements) now or hereafter entered
into by the Company for the bailment
or (in Scotland) the hiring of goods
to any person and all agreements (not
being Credit Agreements) now or
hereafter entered into by any person
other than the Company for such
bailment or (in Scotland) hiring the
benefit of which is assigned to or
otherwise vested in the Company (all
agreements described in this paragraph
(ii) being hereinafter referred to as
the "Hiring Agreements"), including
all moneys payable under or in respect
of the Hiring Agreements;
(iii) the full benefit of and all rights
relating to the Credit Agreements and
the Hiring Agreements (hereinafter
together called "the Instalment Credit
Agreements") including all legal and
equitable charges and other securities
and guarantees and the other rights
and remedies expressly or impliedly
reserved by the Instalment Credit
Agreements and by such securities and
guarantees;
(iv) the Company's present and future
rights and interests (if any) in and
to any chattels comprised in the
Instalment Credit Agreements or
securities and guarantees provided in
relation thereto including (without
prejudice to the generality of the
foregoing) any right to damages
relating thereto and the benefit of
any warranties given in respect
thereof insofar as the property or any
interest in such chattels remains
vested in the Company; and
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<PAGE>
(v) the full benefit of the Company's
rights and interests (if any) in and
to all insurance effected BY the
Company or by any other person of any
chattels comprised in any Instalment
Credit Agreements or any security or
guarantee provided in relation
thereto.
Fifthly: (i) All stocks, shares, certificates of
deposit, depositary receipts,
securities and other interests and
rights which are now or may at any
time hereafter be owned by the Company
or in which the Company may be
legally, beneficially or otherwise
interested including (without
prejudice to the generality of the
foregoing):
(aa) loan capital indebtedness or
liabilities on any account or
in any manner owing to the
Company both present and
future of the Company in (and
from) any company which now
is or may hereafter become a
subsidiary (as defined in
Section 736 of the Companies
Act 1985) of the Company;
(bb) the full benefit of all
stocks, shares, certificates
of deposit, depositary
receipts and securities which
or the certificates for which
are now or may at any time
hereafter be lodged by the
Company or on its behalf with
the Bank or held by the Bank
or its agents or transferred
to or registered in the name
of the Bank or its agents or
their respective nominees or
held by any party other than
the Company for or to the
order of the Bank at the
request of or by arrangement
with the Company;
(cc) all property and rights of
the Company in respect of any
account now or hereafter held
by or for the Company as
participant or as beneficiary
of a nominee or trustee
participant with any
clearance or settlement
system or depositary or
custodian or subcustodian or
broker (in each case, whether
in the UK or elsewhere)
relating to stocks, shares,
securities, certificates of
deposit, depositary receipts,
securities or other interests
or rights whatsoever without
limitation;
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<PAGE>
(ii) all rights in respect of or incidental
to the Charged Property described at
(i) above (the Charged Property (i)
and (ii) hereby Fifthly charged being
hereinafter called "the Securities");
and
(iii) all stocks, shares, securities,
rights, moneys or property accruing or
offered at any time by way of
conversion, redemption, bonus,
preference, option or otherwise to or
in respect of any of the Securities
including all dividends, interest and
other income payable in connection
therewith (the Charged Property (i) to
(iii) hereby Fifthly charged being
hereinafter called "Interests in
Securities").
Sixthly: All present and future copyrights, patents,
trademarks, brand names, inventions, design
rights, know-how and all other intellectual
property rights whatsoever without any
limitation, whether registered or unregistered
in all or any part of the world in which the
Company is legally, beneficially or otherwise
interested and the benefit of any pending
applications for the same and all benefits
deriving therefrom and thereunder including but
not limited to royalties, fees, profit sharing
agreements and income arising therefrom and all
licences in respect of or relating to any
intellectual property rights, whether such
licences are granted to the Company or granted
by the Company (the Charged Property hereby
Sixthly charged being hereinafter called
"Intellectual Property Rights").
Seventhly: The goodwill and the uncalled capital of the
Company both present and future.
Eighthly: All other plant and machinery, fittings and
equipment (not in any such case being the
Company's stock-in--trade or work in progress)
now or at any time hereafter belonging to the
Company or in which the Company is legally,
beneficially or otherwise interested, wherever
situated and whether or not affixed to any
freehold or leasehold property of the Company.
Ninthly: All the rights, interests and benefits of the
Company under any present or future
hire-purchase, conditional sale; credit sale,
leasing or rental agreement to which the
Company is a party in the capacity of hirer,
purchaser or lessee including (without
prejudice to the generality of the foregoing)
the Company's right to any refund of rentals or
other payments.
-6-
<PAGE>
Tenthly: The undertaking and all property and assets of
the Company both present and future including
(without prejudice to the generality of the
foregoing) heritable property and all other
property and assets in Scotland and the Charged
Property First, Secondly; Thirdly, Fourthly,
Fifthly Sixthly, Seventhly, Eighthly and
Ninthly described (if and in so far as the
charges thereon or on any part or parts thereof
herein contained shall for any reason be
ineffective as fixed charges)
In this Debenture, the expression `Charged Property' means the
undertaking, assets, properties, revenues, rights and benefits
First, Secondly, Thirdly, Fourthly, Fifthly, Sixthly,
Seventhly, Eighthly, Ninthly and Tenthly described in
Sub-clause 3(a) hereof and references to the Charged Property
include references to any part of it.
(b) The security hereby created shall as regards the Charged
Property First, Secondly, Thirdly, Fourthly. Fifthly, Sixthly,
Seventhly, Eighthly and Ninthly described be first fixed
charges (and as regards all those parts of the Charged
Property First described now vested in the Company shall
constitute a charge by way of legal mortgage thereon) and as
regards the Charged Property Tenthly described shall be a
first floating charge.
4. RESTRICTIONS AND WARRANT
(a) The Company shall not without the consent in writing of the
Bank:
(i) sell, assign, license, sub-license, discount, factor
or otherwise dispose of, or deal in any other way
with the Charged Property (other than the Charged
Property Tenthly described) provided that for the
avoidance of doubt this Sub-clause 4(a)(i) shall not
prevent the Company without such consent collecting
proceeds of the book and other debts, monetary claims
and choses in action forming part of the Charged
Property in the ordinary course of the Company's
business and paying the same into the Company's
account(s) with the Bank in accordance with
Sub-clause 4(f) and provided further that where the
Bank makes a payment at the request of the Company
which is debited to any account with the Bank which
is for the time being in credit, the Bank shall be
taken to have given any necessary consent for the
purposes of this clause to such payment unless such
payment was made as a result of some mistake of fact
on the part of the Bank;
(ii) create or permit to subsist or arise any mortgage,
debenture, hypothecation, charge, assignment by way
of security, pledge or lien or any other encumbrance
or security whatsoever (save a lien arising by
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<PAGE>
operation of law in the ordinary course of business)
upon the Charged Property;
(iii) enter into any contractual or other agreement or
arrangement which has or may have an economic effect
similar or analogous to any such encumbrance or
security as would be prohibited by Sub-clause 4(a)
(ii);
(iv) transfer, sell or otherwise dispose of the whole or
any material part of the Changed Property Tenthly
described whether by a single transaction or a number
of transactions whether related or not except by way
of sale at full value in the rival course of trading
as transacted at the date hereof;
(v) vary or purport to vary any Instalment Credit
Agreement or any security or guarantee provided in
relation thereto or give any consents or licences
under the terms of any Instalment Credit Agreement or
any security or guarantee provided in relation
thereto provided that the Company shall not be
prohibited by this covenant from agreeing to any such
variation or giving any such licence or consent if to
do so would not materially and adversely affect the
value to the Bank for security purposes of such
Instalment Credit Agreement or such security or
guarantee and if to do so would not affect the
validity or enforceability of such Instalment Credit
Agreement or such security or guarantee; or
(vi) enter into any agreement with a financier, provider
of money, creditor or any other party whatsoever
(hereinafter called `the Financier') which has the
economic effect of, or an economic effect similar to
that of providing security in respect of or in
connection with the provision of finance or credit by
the Financier and which involves or may involve one
or more of the following:
(aa) sales, agreement for sale or transfers of
any property or rights whatsoever to the
Financier; and/or
(bb) sales, agreements for sale or transfers
actually or potentially on behalf of the
Financier to any third party whatsoever,
and/or
(cc) the grant or possible grant of authority by
the Financier for sales, agreements for sale
or transfers of the nature set out in (bb).
(b) The Company hereby requests the Chief Land Registrar to
register the following restriction on the Proprietorship
Register of any registered land forming part of the Charged
Property:
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<PAGE>
"RESTRICTION
Except under an order of the Registrar no disposition
by the proprietor of the land is to be registered
without the consent of the proprietor of the charge
dated ___________________ in favour of Lloyds Bank
Plc referred to in the Charges Register."
(c) The Company warrants that the charges contained in Clause 3 do
not infringe any intellectual property rights whether
registered or unregistered whatsoever and the Company agrees
to indemnify the Bank against any loss, damage or expense
which the Bank may suffer or incur as a result of any breach
of the foregoing warranties or undertaking.
(d) The Company shall consent to or concur in the entry of any
registration, notice or memorandum on any register in the
United Kingdom or elsewhere (including without limitation any
registration under Section 25 of the Trade Marks Act 1994)
which the Bank may require in order to register or note any
interest it may have in, to or under the Charged Property
Sixthly described (or any part thereof) and/or to restrict any
dealings in, under or in connection with such Charged
Property.
(e) The Company shall waive and procure the waiver of any and all
moral rights (being the rights conferred by chapter IV of the
Copyright Designs and Patents Act 1988) which may affect or
relate to the Charged Property as the Bank may required.
(f) During the continuance of this security the Company shall pay
into its account or accounts with the Bank the proceeds of the
book and other debts, monetary claims and choses in action
forming part of the Charged Property provided that the Bank
shall be deemed to receive the amounts owing to the Company
referred to in paragraph (ii) of the premises Thirdly
described in Sub-clause 3(a) pursuant to the fixed charge
contained therein and not pursuant to the fixed charge on
freehold and leasehold property First described in that
Sub-clause or as mortgagee in possession.
5. DEPOSIT OF TITLE DEEDS, ETC.
The Company will deposit with the Bank and the Bank during the
continuance of this security shall be entitled to hold and retain
(unless held by a prior mortgagee at the date hereof and for as long as
it remains the prior mortgagee):
(a) all deeds and documents of title relating to the Company's
freehold and leasehold and heritable property for the time
being;
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<PAGE>
(b) all stock and share certificates and documents of title
relating to Interests in Securities;
(c) all documents evidencing the Instalment Credit Agreements, and
any securities and guarantees provided in relation thereto;
and
(d) all such (if any) deeds and documents of title relating to the
Charged property Secondly, Thirdly, Sixthly and Ninthly
described as the Bank may from time to time specify.
6. FURTHER ASSURANCE AND NOTICE OF CRYSTALLISATION
(a) The Company will at any time if and when required by the Bank
execute to the Bank or as the Bank shall direct such further
legal or other assignments, mortgages, securities, charges,
agreements or other legal documentation as the Bank shall
require of and on all or any of the Charged Property to secure
all money and liabilities and other sums hereby agreed to be
paid or intended to be hereby secured, such assignments,
mortgages, securities, charges, agreements or other legal
documentation to be prepared by or on behalf of the Bank at
the cost of the Company and to contain all such clauses for
the benefit of the Bank as the Bank may require including if
so required by the Bank in the case of a mortgage or charge on
any freehold or leasehold property any such clauses as are
contained in any of the Bank's standard forms of mortgage from
time to time and in the case of securities over inheritable
property any such clauses as are contained in any of the
Bank's standard forms of agreement from time to time. The
Company will any time if and when required by the Bank give
notice to such parties as the Bank may require of the charges
hereby effected and any such further legal or other
assignments, mortgages, securities, charges, agreements or
other legal documentation and will take such other steps as
the Bank may require to perfect any of the same.
(b) Without prejudice to the security hereby constituted the Bank
may at any time (either before or after demand has been made
by the Bank for payment of the money hereby secured) by notice
in writing to the Company convert the floating charge created
by Sub-clause 3(a) hereof over the Charged Property Tenthly
described with immediate effect into a fixed charge as regards
any of the Charged Property Tenthly described specified in the
notice.
7. BANK'S POWERS OF SALE AND LEASING
(a) The powers and remedies conferred on mortgagees by Section 101
of the Law of Property Act 1925 shall apply to this Debenture
but without the restriction imposed by Section 103 of that Act
and the statutory powers of leasing conferred
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<PAGE>
on the Bank shall be extended so as to authorise the Bank to
lease and make arrangements for leases at a premium or
otherwise and accept surrenders of leases and grant options as
the Bank shall think expedient and without the need to observe
any of the provisions of Sections 99 and 100 of the said Act.
The Bank in exercising its statutory power of sale and any
receiver or receivers appointed by the Bank in exercising his
or their powers hereunder shall be at liberty to sell at such
price and on such terms and conditions as it or he or they in
its or his or their sole discretion thinks) fit and shall not
be under any duty or obligation to obtain the best or any
particular price. Neither the Bank nor any such receiver or
receivers shall be liable to the Company or any other party
for any loss, damage, cost, expense or liability which the
Company or any such party may suffer or incur as a direct or
indirect result of the Bank exercising its statutory power of
sale as hereby varied or extended, or such receiver or
receivers exercising his or their powers hereunder.
(b) In favour of a purchaser the money hereby secured shall be
deemed to have become due on the day on which demand for
payment thereof is made by the Bank and the statutory power of
sale as hereby varied or extended shall be exercisable from
and after that date, which date (without prejudice to the
equitable right to redeem) shall be the redemption date.
8. COMPANY'S POWERS OF LEASING AND LICENSING
During the continuance of this security the statutory powers and any
other powers of leasing, letting, entering into agreements for leases
or lettings and accepting or agreeing to accept surrenders of leases
shall not, in relation to any freehold or leasehold property now or at
any time hereafter acquired by or belonging to the Company or any part
thereof, be exercisable by the Company, nor shall the Company part with
possession of the same or any part thereof, nor confer upon any person,
firm, company or body whatsoever any lease, tenancy, licence, right or
interest to occupy the same or any part thereof nor grant any licence
or permission to assign, underlet or part with possession of the same
or any part thereof without in any such case obtaining the consent of
the Bank, signified in writing under the hand of any official of the
Bank authorised by the Bank from time to time or any person authorised
by such official.
9. APPOINTMENT AND POWERS OF A RECEIVER
(a) At any time after the Bank shall have demanded payment of any
money or liabilities or other sums hereby secured or the
Company shall have requested it so to do or a notice shall
have been issued to convene a meeting for the purpose of
passing a resolution to wind up the Company or such a
resolution shall have been passed or a resolution shall have
been passed by the Company's directors to seek an
administration order in relation to the Company or a petition
for a winding up
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<PAGE>
or administration order relating to the Company shall have
been presented or such an order shall have been made or a
proposal for a voluntary arrangement shall have been made in
relation to the Company under Part I of the Insolvency Act
1986 or a step shall have been taken outside the United
Kingdom which is similar or analogous to any of the foregoing
or the Bank shall have reasonable grounds for believing that
any of the foregoing is imminent the Bank may, by writing
under the hand of any official of the Bank authorised by the
Bank from time to time or any person authorised by such
official in writing, appoint any person or persons to be a
receiver or joint receivers or several receivers or joint and
several receivers of the Charged Property to act, in the case
of two or more receivers, jointly, severally or jointly and
severally (as the Bank may specify in the appointment) and to
the extent permitted by law similarly to remove any receiver
or receivers so appointed and appoint another or others in his
or their place.
(b) A receiver or receivers so appointed shall have power in the
name of or on behalf and at the cost of the Company or at his
or their option (but only with the specific approval in
writing of the Bank) in the name of the Bank or at his or
their option in his or their own name(s) (and in any case
notwithstanding any administration or liquidation of the
Company) to do or omit to do anything which the Company could
do or omit to do and (in addition) to exercise mutatis
mutandis all or any of the powers specified in schedule 1 to
the Insolvency Act 1986 (whether or not such receiver is an
administrative receiver) and in particular (but without
prejudice to the generality of the foregoing) any such
receiver or receivers may:
(i) deal with, take possession of, collect and get in any
of the Charged Property;
(ii) carry on, manage, develop or diversity or concur in
carrying on, managing, developing or diversifying any
business of the Company or any part thereof and
(without prejudice to the generality of the
foregoing) such power shall include the power to
carry out or complete (with or without modification)
on any of the Charged Property any works of
demolition, building, repair, construction,
furnishing or any project or development in which the
Company was engaged;
(iii) (for the purposes of exercising all or any of the
powers conferred on the receiver or receivers
hereunder or by statute) raise or borrow any money
from or incur any other liability to the Bank or any
other person, firm or corporation and on such terms
as to interest or otherwise and with or without
security as the receiver or receivers may think
expedient and so that any such security may, with the
prior written consent of the Bank be or include a
charge on the Charged Property ranking either in
priority to or pari passu with or after the security
hereby created;
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<PAGE>
(iv) forthwith and without the restriction imposed by
Section 103 of the Law of Property Act 1925, sell,
_____, dispose of or concur in selling, realizing or
disposing of (but where necessary with the leave of
the Court) and without the need to observe any of the
provisions of Sections 99 and 100 of the said Act let
or concur in letting and surrender or concur in
surrendering and accept surrenders of leases or
tenancies of all or any of the Charged Property;
(v) carry any sale, exchange, realization, disposal,
lease, tenancy or surrender of the Charged Property
into effect by conveying, transferring, assigning,
leasing letting, surrendering or accepting surrenders
in the name and on behalf of the Company (or other
the estate owner) and so that covenants and
contractual obligations may be granted in the name of
and so as to bind the Company (or other the estate
owned so far as the receiver or receivers may
consider it necessary, appropriate or expedient for
the exercise of the powers conferred by this
Debenture so to do. Any such sale, exchange,
realisation, disposal, lease or tenancy may be for
cash, debentures or other obligations, shares, stock
or other valuable consideration and may be payable in
a lump sum or by instalments spread over such period
as the receiver or receivers shall think fit and so
that any consideration received or receivable shall
ipso facto forthwith be and become charged with the
payment of all money and liabilities and other sums
secured hereby. Plant, machinery and other fixtures
may be severed and sold separately from the premises
containing them without the consent of the Company
being obtained thereto;
(vi) promote the formation of a subsidiary or subsidiaries
of the Company with a view to such subsidiary or
subsidiaries purchasing, leasing, licensing or
otherwise acquiring interests in or the use of all or
any of the assets of the Company or with a view to
such subsidiary or subsidiaries engaging employees or
providing management or other services or purchasing
or selling agencies or distributors or for any other
purpose or function which may be regarded as
necessary or appropriate by such receiver or
receivers from time to time;
(vii) arrange for such subsidiary or subsidiaries to trade
or cease to trade as the receiver or receivers may
think fit from time to time;
(viii) arrange for the purchase, lease, licence or
acquisition of all or any of the assets of the
Company by any such subsidiary or subsidiaries on a
basis whereby the consideration may be for cash,
shares, debentures, loan stock, convertible loan
stock or other securities, shares of profits or sums
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<PAGE>
calculated by reference to profits or turnover or
royalties or licence fees or otherwise howsoever and
whether or not secured on the assets of the
subsidiary or subsidiaries and whether or not such
consideration is payable or receivable in a lump sum
or at any one time or a number of times or by
instalments spread over such period as the receiver
or receivers may think fit;
(ix) take any proceedings in relation to the Charged
Property in the name of the Company or otherwise as
may seem expedient;
(x) enter into any agreement or make any arrangement or
compromise which he or they shall think expedient in
respect of the Charged Property;
(xi) make and effect all repairs, renewals and any
improvements of the Company's plant, machinery and
effects and insure the Charged Property or maintain
or renew all insurances of the same;
(xii) appoint managers, agents, officers and employees for
any of the aforesaid purposes at such salaries and
for such periods as he or they may determine and
dismiss any of the same;
(xiii) adopt any contract of employment entered into between
the Company and any of its employees with such
variations to the contract as he or they may think
fit and dismiss any such employees;
(xiv) cause the Company to grant such powers of attorney or
appoint agents as he or they may from time to time
think expedient;
(xv) do all such things as may be thought necessary for
the management of the affairs, business and property
of the Company; and
(xvi) do all such other acts and things as may from time to
time be considered by such receiver or receivers to
be incidental or conducive to any of the matters or
powers aforesaid or otherwise incidental or conducive
to the realisation of the Bank's security or the
exercise of his or their functions as receiver or
receivers.
(c) All money received by such receiver shall be applied first in
payment of his remuneration and the costs of realisation
including all costs and expenses of or incidental to any
exercise of any power hereby conferred, secondly in or towards
the payment of any preferential debts which are by statute
made payable in preference to the money hereby secured to the
extent to which such preferential debts are made so payable
and thirdly (if the receiver thinks fit, but not otherwise)
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in or towards payment of all or any of the matters referred to
in paragraphs (i), (ii), (iii), (iv) of sub-section 109(8) of
the Law of Property Act 1925 as he in his absolute discretion
shall decide, and fourthly in or towards satisfaction of the
Secured Obligations. Sub-section 109(8) of the Law of Property
Act shall not apply.
(d) Any receiver or receivers so appointed shall at all times and
for all purposes be deemed to be the agent or agents of the
Company and the Company shall be solely responsible for his or
their acts or defaults and for his or their remuneration.
(e) Any such receiver or receivers shall be entitled to
remuneration for his or their services and the services of his
or their firm(s) at a rate or rates or in an amount or amounts
as may from time to time be agreed between the Bank and such
receiver or receivers or (in default of agreement) as may be
appropriate to the work and responsibilities involved upon the
basis of charging from time to time adopted by the receiver or
receivers in accordance with the current practice of the
receiver or receivers or his or their firm(s) and without in
either such case being limited by the maximum rate specified
in Section 109(6) of the Law of Property Act 1925.
(f) Only money actually paid by the receiver or receivers to the
Bank shall be capable of being applied by the Bank in or
towards satisfaction of any money or liabilities or other sums
hereby secured.
(g) All the foregoing provisions shall take effect as and by way
of variation and extension of the provisions of Sections 99 to
109 inclusive of the said Act which provisions so varied and
extended shall be regarded as incorporated herein.
10. COVENANTS
During the continuance of this security the Company shall:
(a) within such period as is allowed by law for the laying and
delivering of such accounts furnish to the Bank a balance
sheet and profit and loss account complying with the
provisions of the Companies Act 1935 and showing the true
position of the Company's affairs in every financial year
audited and reported upon by an accountant approved by the
Bank and also from time to time such other information in
respect of the assets and liabilities of the Company
(including management accounts) as the Bank may reasonably
require;
(b) maintain at all times the aggregate value of the Company's
good book debts and cash in hand as appearing in the Company's
books and investments quoted on any recognised Stock Exchange
and its marketable stock-in-trade (taken at cost or market
price whichever may be the lower according to the best
estimate that can
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<PAGE>
be formed without it being necessary to take stock for the
purpose) at such sum (if any) as the Bank may from time to
time require by not less than one month's notice in writing to
the Company (and in the absence of such notification from the
Bank at a sum which is equal to the money and liabilities and
other sums from time to time owing or incurred to the Bank
plus a margin of one hundred percent (100%) and on such dates
(if any) in every year as may from time to time be required by
the Bank the Company shall obtain and furnish to the Bank a
certificate showing the said aggregate value together with
details of any amounts payable by the Company and outstanding
which under Sections 175 and 386 of the Insolvency Act 1986 or
under any other statute would in the event of the liquidation
of the Company constitute preferential debts. Such certificate
shall be signed by the Managing Director of the Company for
the time being or, if there shall be no Managing Director,
then by one of the Directors of the Company. For the purposes
of this Sub-clause there shall be disregarded:
(i) any stock-in-trade the property in which remains in
the seller notwithstanding that the Company may have
agreed to purchase the same and notwithstanding that
the same may be in the possession, order or
disposition of the Company;
(ii) any book debts or cash in hand deriving from any such
stock-in-trade as is referred to in paragraph (i) of
this Sub-clause;
(c) maintain at all times the aggregate value or the amounts
remaining to be paid under the Instalment Credit Agreements
for the time being deposited with and approved by the Bank for
this purpose (hereinafter called "the Approved Instalment
Credit Agreements') (excluding those Approved Instalment
Credit Agreements under which instalments are more than six
months in arrears) at such sum (if any) as the Bank may from
time to time require by not less than one month's notice in
writing to the Company and on such dates (if any) in every
year as may from time to time be required by the Bank the
Company shall obtain from the Managing Director of the Company
for the time being or if there shall be no Managing Director
then from one of the Directors of the Company and furnish to
the Bank a certificate showing the said aggregate value
(including a full explanation as to how that value was
calculated);
(d) keep all buildings and fixtures hereby charged in a good state
of repair and all plant and machinery in good working order
and condition and insure and keep insured all its property and
effects of every description in an office or offices or with
other insurers to be approved by the Bank against loss or
damage by fire and such other contingencies and risks as may
be required by the Bank in their full reinstatement value for
the time being in the joint names of the Company and the Bank
or with the interest of the Bank endorsed on the policy or
policies or noted
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<PAGE>
as the Bank may require and will (unless deposited with a
prior mortgagee at the date hereof and for as long as it
remains the prior mortgage or unless the insurance to which
such policy or policies relate and which was approved by the
Bank was effected by a landlord with the respective interests
of the Bank and the Company endorsed or noted thereon) deposit
with the Bank such policies as may be required by the Bank and
will duly pay all premiums and sums payable for this purpose
and produce the receipts therefor to the Bank within seven
days of their becoming due and payable. If default shall at
any time be made by the Company in keeping its buildings and
fixtures and plant and machinery or any part thereof in a good
state of repair and in good working order or in effecting or
keeping up any such insurance or in producing to the Bank any
such policy or receipt, it shall be lawful for, but not
obligatory on, the Bank to repair and maintain the same with
power to enter any of the Company's property for that purpose
or as the case may require to effect or renew any such
insurance as aforesaid as the Bank shall think fit and any sum
or sums so expended by the Bank shall be repayable by the
Company to the Bank on demand together with interest as
provided in Clauses 1 and 2 hereof from the date of payment by
the Bank as aforesaid. All money which may at any time be
received or receivable under any such insurance or any other
insurance covering any of the property and effects of the
Company against such risks as aforesaid shall be held in trust
for the Bank and (at the Bank's option) shall either be paid
to the Bank or shall be applied in replacing, restoring or
reinstating the property destroyed or damaged;
(e) not (except with the prior consent in writing under the hand
of an official of the Bank and then only on such terms and
conditions as the Bank may specify) sever or remove from the
Charged Property First described any trade or other fixtures,
fixed plant and machinery for the time being thereon except
for the purpose of renewing or replacing the same by trade or
other fixtures or fixed plant and machinery of equal or
greater value;
(f) comply with all relevant licences, consents, permissions and
conditions from time to time granted or imposed by the
Planning Acts (which shall bear the meaning given to it by
Sub-clause 24(a) hereof) and not without the prior written
consent of the Bank to enter into any agreement with any
relevant planning authority affecting the Charged Property
First described;
(g) forthwith upon receipt of any permission, notice, order,
proposal or recommendation given or issued by any competent
planning authority to the owner or occupier of the Charged
Property First described or any notice under Section 146 of
the Law of Property Act 1925 or otherwise from any superior
landlords of the Charged Property First described forward the
same or a true copy thereof to the Bank;
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<PAGE>
(h) not to make or consent to the making of any application for
planning permission or any other application under the
Planning Acts affecting the Charged Property First described
unless either the Bank has consented in writing to such
application being made or a copy of the proposed application
has been sent to the Bank at least one month before the date
of the application and the Bank raises no objection to the
making of the application;
(i) permit the Bank or its agents at any time to enter upon the
Charged Property First described for the purpose of
establishing whether or not the Company is complying fully
with its obligations under this Debenture;
(j) not take or knowingly fail to take any action which does or
might reasonably be expected to adversely affect any
registration of the Intellectual Property Rights;
(k) maintain and defend the Intellectual Property Rights at all
times (including without limitation by paying at the Company's
expense all recordal and renewal fees) and taking all action
reasonably necessary to defend such Intellectual Property
Rights against any action, claim or proceeding brought or
threatened by any third party to stop infringements thereof by
any third party;
(l) not abandon or cancel or authorise any third party to do any
act which would or might invalidate and jeopardise or be
inconsistent with the Intellectual Property Rights and will
not omit or authorise any third party to omit to do any act
which by its omission would have that effect or character; and
(m) promptly notify the Bank of any infringement by any third
party of any Intellectual Property Rights.
6. ENVIRONMENTAL OBLIGATIONS
(a) In this Debenture the expressions:
(i) "Environmental Laws" means all laws (statutory common
law or otherwise) including, without limitation,
circulars, guidance notes and codes or practice from
time to time regulating the carrying on of any
process or on premises and any emissions from and all
waste produced by such process or activity and any
such chemicals or substances relating to the same
whether relating to health and safety, the workplace,
the environment or the provision of energy (including
without limitation the Health and Safety at Work etc
Act 1974, the Control of Pollution Act 1974, the
Environmental Protection Act 1990, the Water Industry
Act 19912, the Water Resources Act 1991, the Clean
Air Acts, the Alkali and c. Works Regulation Act
1906, the Planning Hazardous Substances Act
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<PAGE>
1990, the Public Health Acts and the Radioactive
Substances Act 1960 and any European Community
legislation regulating the same) from time to time in
force and any other instrument, plan, regulation,
permission, authorisation and direction made or
issued thereunder or deriving validity therefrom; and
(ii) "Environmental License" means any permit, license,
authorization, consent or other approval required by
or given pursuant to any Environmental Laws.
(b) The Company covenants with the Bank that the Company shall:
(i) obtain all requisite Environmental Licenses
applicable to the Charged Property and comply with
the terms and conditions of same;
(ii) comply with all Environmental Laws applicable to the
Charged Property and not permit a contravention of
the same;
(iii) notify the Bank of the receipt of and content of all
claims, notices or other communication in respect of
any alleged breach of any Environmental Law or the
terms and conditions of any Environmental Licenses
which may, if substantiated, have a material adverse
effect on the market value of the Charged Property
and shall forthwith take such steps as the Bank may
direct to remedy and/or cease the continuation of any
such alleged breach;
(iv) promptly pay all fees and other charges in respect of
any Environmental License applicable to the Charged
Property;
(v) forthwith notify the Bank of the receipt of and the
contents of any notices or other communication
varying or suspending any Environmental License
relating to the Charged Property and forthwith take
such steps as the Bank may direct to reinstate in
full force and effect any Environmental License so
varied or suspended; and
(vi) forth with supply the Bank with copies of any
environmental reports, audits or studies undertaken
in relation to the Charged Property.
12. INSTALLMENT CREDIT AGREEMENTS
(a) The Company hereby expressly warrants and undertakes in
relation to each Approved Installment Credit Agreement, as and
when the same is deposited with the Bank:
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<PAGE>
(i) that such Approved Installment Credit Agreement and
any security or guarantee provided in relation to it
is fully valid and enforceable in accordance with its
terms, and that the form and content of the Approved
Instalment Credit Agreement any security or guarantee
provided in relation to it complies with any relevant
law including (without limitation) the Consumer
Credit Act 1974 and the regulations made thereunder
and that the creditor or owner under any such
Instalment Credit Agreement has complied with all
other requirements under any such law in relation to
the provision of such credit;
(ii) that any deposit or advance payment as the case may
be shown as paid under such Approved Instalment
Credit Agreement has in fact been paid in the manner
therein stated;
(iii) that (except where otherwise agreed) the sum stated
in such Approved Instalment Credit Agreement (or in
the schedule accompanying such Approved Instalment
Credit Agreement) as outstanding in respect of such
Approved Instalment Credit Agreement, is in fact
outstanding at such date;
(iv) that the particulars of any person providing any
security or guarantee and of any assets secured
appearing in any such Approved Instalment Credit
Agreement are correct in every respect and that such
assets are in existence;
(v) that save as otherwise notified the Company is not
aware of any proceedings brought against it or
threatened or contemplated in respect of any
representation, breach of condition, breach of
warranty or other express or implied term contained
in any Approved Instalment Credit Agreement;
(vi) in any case where the debtor or hirer under an
Approved Instalment Credit Agreement is by statute
given the right to cancel the Approved Instalment
Credit Agreement, that the statutory period of
cancellation has expired without the right having
been exercised;
(vii) that (save as disclosed in writing to the Bank) no
agreement has been entered into, varying the terms of
the Approved Instalment Credit Agreement or any
security or guarantee provided in relation to it;
(viii) that all documents constituting the Approved
Instalment Credit Agreement and any security or
guarantee provided in relation to it and all deeds
and documents of title connected therewith have been
or are deposited with the Bank;
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<PAGE>
(ix) that the Company has no knowledge of any fact which
would or might prejudice of affect any right, power
or ability of the Bank or any receiver appointed by
it to enforce such Approved Instalment Credit
Agreement or any security or guarantee provided in
relation to it or any term or terms thereof.
(b) The Company agrees that it will perform all its obligations
(including without limitation obligations as to maintenance)
devolving on it by or in relation to the Approved Instalment
Credit Agreements and any security or guarantee provided in
relation to them.
(c) The Company further agrees that it will:
(i) (if it carries on a consumer credit business or a
consumer hire business as defined by the Consumer
Credit Act 1974) obtain and at all times maintain a
current consumer credit license and consumer hire
license under the Consumer Credit Act 1974, where
appropriate covering in the canvassing off trade
premises of debtor-creditor-supplier agreements and
consumer hire agreements, and will advise the Bank
forthwith should it receive notice from the Director
General of Fair Trading that he is minded to refuse
any application for he grant or renewal of such
license or that he is minded to revoke or suspend any
such license; and
(ii) procure that any person by whom the debtor or hirer
under any Instalment Credit Agreement was introduced
to the Company had and at all relevant times
maintains (if required by law so to do) a current
credit-broker's license under the Consumer Credit Act
1974, where appropriate covering the canvassing off
trade premises of debtor-creditor-supplier agreements
and consumer hire agreements, and will advise the
Bank forthwith should it come to the Company's
attention that such license was not at any relevant
time maintained.
13. FRANCHISING LEGISLATION
(a) In this Debenture the expression "Enfranchising Legislation"
means any legislation conferring upon a tenant or tenants of
property (whether individually or collectively with other
tenants of that or other properties) the right to acquire a
new lease of that property or to acquire or require the
acquisition by a nominee of the freehold or any intermediate
reversionary interest in that property including (without
limitation) the Leasehold Reform Act 1967 and the Leasehold
Reform Housing and Urban Development Act 1993 but does not
include Part II of the Landlord and Tenant Act of 1954.
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<PAGE>
(b) The Company covenants with the Bank as follows:
(i) Where any of the Charged Property First described
Clause 3(a) hereof is held under a lease:
(aa) to notify the Bank forthwith if such
property becomes subject to an Estate
Management Scheme pursuant to Chapter IV or
Part I of the Leasehold Reform, Housing and
Urban Development Act 1993 and to provide a
copy of the scheme deed as approved by the
relevant leasehold valuation tribunal;
(bb) to notify the Bank before exercising
(whether individually or collectively with
others) any right conferred upon the Company
in relation to the property by Enfranchising
Legislation and to supply to the Bank such
information as it may reasonably require in
relation to the exercise of such right;
(cc) not without the prior written consent of the
Bank to agree the terms of any new lease of
the property (with or without any further
property) to be granted to the Company
pursuant to any Enfranchising Legislation or
otherwise;
(dd) if as a result of the exercise of any rights
conferred by Enfranchisng Legislation or
otherwise the freehold interest and/or any
intermediate reversionary interest in the
property becomes vested in a third party on
behalf of the Company (with or without
others) forthwith to supply to the Bank
particulars of such third party and (where
such third party is a body corporate)
details of any shares therein to be issued
to the Company and to deliver the share
certificate in respect thereof to the Bank
when received.
(ii) Where any of the Charged Property First described in
Clause 3(a) hereof or any part of it is or (without
prejudice to Clause 8) becomes subject to any
tenancy:
(aa) forthwith to notify the bank on receipt of
(and to provide to the Bank a copy of) any
notices received from any tenant of the
property or any part of it pursuant to the
provisions of any Enfranchising Legislation;
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<PAGE>
(bb) not without the prior written agreement of
the Bank to serve upon any tenant of the
property or any part of it a notice pursuant
to the provisions of any Enfranchising
Legislation;
(cc) to serve such notices in such form and to
take such other steps as the Bank may
reasonably require following the exercise by
any tenant of the property or any part of it
of any rights arising under Enfranchising
Legislation;
(dd) not without the prior written agreement of
the Bank to enter into any agreement to
grant a new lease to any tenant of the
property or any part of it pursuant to or in
consequence of the operation of any
Enfranchising Legislation; and
(ee) not without the prior written agreement of
the Bank to enter into any agreement
pursuant to or in consequence of the
operation of any Enfranchisng Legislation to
transfer to any person or persons the
Company's interest in the property subject
to the security hereby created and (if such
agreement be given) to provide to the Bank
such information in respect of any such
transfer and its terms (including the
identity of the transferees) as the Bank may
reasonably require.
14. POWER OF ATTORNEY
The Company hereby irrevocably appoints the Bank and the persons
deriving title under it and its and their substitutes and any receiver
or receivers appointed under the foregoing provisions hereof jointly
and also severally to be its attorney for it and in its name and on its
behalf and as its act and deed or otherwise to make any alteration or
addition or deletion in or to and/or to execute any deed or document
which the bank may require for perfecting its title or for vesting any
of the Charged Property in the Bank or its nominees or any purchaser
and to redeliver the same thereafter and otherwise generally to create,
issue, sign or otherwise execute and deliver and perfect any such legal
or other assignment, mortgage, security, charge, agreement, or other
legal documentation as aforesaid and to give notice thereof or of the
charges hereby effected and to perfect the same or (without executing
any such assignment mortgage, security, charge, agreement or other
legal documentation) and deed, assurance, document or act which may be
required or may be deemed proper by the receiver or receivers (whether
in favour of the Bank or any other person and whether for the purpose
of exercising any power conferred by Clauses 6, 7 or 9 hereof or
otherwise) on or in connection with any sale, realisation, disposal,
lease, tenancy or surrender or getting in by the Bank or by any such
receiver or receivers as aforesaid under any power applicable thereto
or in connection with any other exercise of any power hereunder and
(without limiting the generality of the foregoing) to
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<PAGE>
sign or otherwise execute and deliver on behalf of or in the name of
the company any legal or equitable mortgage on any Interests in
Securities, to do any thing which the attorney may consider necessary
or desirable to do consequent upon regulations made pursuant to Section
207 of the Companies Act 1989 and to file any particulars or other
documents considered by the attorney to be necessary or desirable to be
filed with the Registrar of Companies pursuant to any of the sections
in Part XII or Chapter III of Part XXIII of the Companies Act 1985.
Without prejudice to the generality of the foregoing, the Company
hereby covenants with the Bank and separately with any such receiver or
receivers as aforesaid that if required so to do it will ratify and
confirm (i) all transactions entered into by the Bank or any such
receiver or receivers or by the Company at its, his or their instance
in the exercise or purported exercise of its, his or their powers and
(ii) all transactions entered into by the Bank or any such receiver or
receivers in signing or otherwise executing and delivering and
otherwise perfecting any assignment, mortgage, security, charge, deed,
agreement, other legal documentation, assurance or act as aforesaid.
The Company irrevocably acknowledges and agrees that the said power of
attorney is given to the bank and to the receiver or receivers (inter
alia) to secure the performance of the obligations owed to it, him or
them by the Company.
15. INDEMNITY
The Company hereby agrees to indemnify the Bank and any receiver or
receivers appointed by it and their respective employees and agents (as
a separate covenant with each such person indemnified) against:
(a) all existing and future rents, rates, taxes, duties, charges,
assessments and outgoings now or at any time payable in
respect of the Charged Property or by the owner or occupier
thereof; and
(b) all costs, claims, demands, expenses, charges, assessments,
impositions, fines and sums and the consequences of any
proceedings or prosecutions arising directly or indirectly
from or in connection with any breach by the Company of any
Environmental Law;
in each case, whether imposed by deed or statute or otherwise and
whether of the nature of capital or revenue and even though of a wholly
novel character. If any such sums shall be paid by the Bank or any such
receiver or receivers or any of their respective employees or agents,
the same shall be paid by the Company on demand with interest as
provided in Clauses 1 and 2 hereof from the time or respective times of
the same having been paid or incurred to the date of payment in full,
but the Bank shall not be deemed to have taken possession of the
Charged Property by reason of such payment.
16. NOTICE OF SUBSEQUENT CHARGES, ETC.
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If the Bank receives notice of any subsequent assignment, mortgage,
security, charge or other interest affecting the Charged Property the
Bank may open a new account or accounts for the Company; if the Bank
does not open a new account it shall nevertheless be treated as if it
had done so at the time when it received notice and as from that time
all payments made by or on behalf of the Company to the Bank shall be
credited or be treated as having been credited to the new account and
shall not operate to reduce the amount due from the Company to the Bank
at the time when it received notice.
17. SET-OFF
Without prejudice to any other rights whatsoever which the Bank may
have whether under general law or by implication or otherwise, the Bank
shall have the right at any time or times and without notice to the
Company (as well before as after any demand hereunder or otherwise) to
combine or consolidate all or any of the then existing accounts
(including accounts in the name of the Bank with any designation which
includes the name of the Company) and liabilities to the Bank of the
Company and/or set off or transfer any sum or sums standing to the
credit of any one or more of such accounts (whether subject to notice
or restriction on availability or not and whether denominated in
sterling or in a foreign currency) in or towards satisfaction of any of
the liabilities of the Company to the Bank on any other account or in
any other respect, whether such liabilities be actual, contingent,
primary, collateral, several or joint and whether as principal or
surety. In the case of all accounts (whether denominated in sterling or
in a foreign currency) the Bank may at its sole discretion, and with or
without notice to the Company, elect to convert all or any of the sum
or sums standing to the credit of any such account or accounts (in
whole or in part) into the currency or currencies of the whole or any
part of the money and liabilities hereby secured (deducting from the
proceeds of the conversion any currency premium or other expense) and
the rate of exchange shall be the Bank's spot rate for selling the
currency or currencies of the money and liabilities hereby secured for
the currency of the sum standing to the credit of such account at or
about 11:00 a.m. in London on the date that the Bank exercises its
rights of conversion hereunder.
18. NOTICES AND DEMANDS
(a) Any notice or demand by the Bank shall be deemed to have been
sufficiently given or made if:
(i) sent by hand or prepaid letter post to or left at the
registered office of the Company stated herein or the
address of the Company last known to the Bank; or
(ii) sent by telex or facsimile to the last known telex or
facsimile number relating to any such address or
office.
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<PAGE>
(b) Any such notice or demand given or made under Sub-clause 18(a)
shall be deemed to have been served on the Company:
(i) at the time of delivery or, as the case may be, at
the time it is left at the address referred to in
Sub-clause 18(a) (i) above, if sent by hand;
(ii) at the earlier of the time of delivery or 10:00 a.m.
on the day after posting (or, if the day after
posting be a Sunday or any other day upon which no
delivery of letters is scheduled to be made, at 10:00
a.m. on the next succeeding day on which delivery of
letters is scheduled to be made), if sent by prepaid
letter post;
(iii) at the time of transmission, if sent by telex or
facsimile (and a facsimile shall be deemed to have
been transmitted if it appears to the sender to have
been transmitted from a machine which is apparently
in working order); or
(iv) on the expiry of 72 hours from the time of despatch
in any other case.
(c) Service of legal proceedings in the manner described in
Sub-clause 18(a) (i) above shall be deemed to constitute good
service.
(d) Any notice or communication required to be served by the
Company of the Bank under the terms of this Debenture shall be
sent by recorded delivery or registered post to the Bank at
the address stated herein or at such other address as may be
notified in writing by the Bank to the Company for this
purpose.
19. CURRENCY CONVERSION
The Bank may at its sole discretion, and with or without notice to the
Company, elect to convert all or any part of any sum received by the
Bank pursuant to this Debenture (in whole or in part) into the currency
or currencies of the whole or any part of the money and liabilities
hereby secured (deducting from the proceeds of the conversion any
currency premium or other expense) and the rate of exchange shall be
the Bank's spot rate for selling the currency or currencies of the
money and liabilities hereby secured for the currency of the sum
received by the Bank hereunder at or about 11:00 a.m. in London on the
date that the Bank exercises its right of conversion hereunder.
20. PAYMENTS AND COSTS
(a) The Bank may apply, allocate or appropriate the whole or any
part of any payment made by the Company hereunder and any
moneys received by the Bank from any receiver or receivers
appointed by the Bank hereunder or from any
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liquidator or administrator of the Company or from the
proceeds of realization of any part of the Charged Property to
such part or parts of the money and liabilities due owing or
incurred by the Company to the Bank as the Bank may in its
sole discretion think fit to the entire exclusion of any right
of the Company to do so.
(b) If any payment made by or on behalf of the Bank hereunder
includes Value Added Tax or if any payment due to the Bank
hereunder shall be in reimbursement of any expenditure by or
on behalf of the Bank which includes Value Added Tax, then
such Value Added Tax shall be payable by the Company to the
Bank on demand.
(c) Without prejudice to the generality of Clauses 1 and 9 hereof,
the Company shall pay to the Bank all costs incurred or
suffered by the Bank, and any receiver or receivers appointed
by the Bank shall be entitled to recover as a receivership
expense all costs incurred or suffered by him or them:
(i) in connection with any application under Part II or
III of the Insolvency Act 1986; and
(ii) in defending proceedings brought by any third party
impugning the Bank's title to this security or the
enforcement or exercise of the rights and remedies of
the Bank or of such receiver or receivers hereunder.
21. NON-MERGER, ETC
(a) Nothing herein contained shall operate so as to merge or
otherwise prejudice or affect any bill, note, guarantee,
mortgage or other security or any contractual or other right
which the Bank may at any time have for any money or
liabilities or other sums due, owing or incurred by the
Company to the Bank or any right or remedy of the Bank
thereunder and any receipt, release or discharge of the
security provided by or of any liability arising under this
Debenture shall not release or discharge the Company from any
liability to the Bank for the same or any other money which
may exist independently of this Debenture, nor shall it
release or discharge the Company from any liability to the
Bank under the indemnity contained in Clause 15.
(b) Where the security hereby given to the Bank initially takes
effect as a collateral or further security then,
notwithstanding any receipt, release or discharge endorsed on
or given in respect of or under the principal security to
which this Debenture operates as a collateral or further
security, the security hereby provided shall in respect of any
money or liabilities or other sums which were originally
intended to be secured be an independent security for any such
money or liabilities or other sums.
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<PAGE>
(c) The security hereby created is in addition to any other
security or securities which the Bank may now or from time to
time hold or take from the Company.
22. PARTIAL INVALIDITY
Each of the provisions in this Debenture shall be severable and
distinct from one another and if at any time one or more of such
provisions is or becomes invalid, illegal or unenforceable the
validity, legality and enforceability of the remaining provisions
hereof shall not in any way be affected or impaired thereby.
23. MISCELLANEOUS
(a) Nothing that shall be done by or on behalf of the Bank shall
render it liable to account as a mortgagee in possession for
any sums other than actual receipts.
(b) The restriction on the right of consolidating mortgage
securities contained in Section 93 of the Law of Property Act
1925 shall not apply to this Debenture or any further or other
security entered into pursuant to this Debenture.
(c) Any change in the constitution of the Bank or its absorption
of or amalgamation with any other person or the acquisition of
all or part of its undertaking by any other person shall not
in any way prejudice or affect its or their rights hereunder
and the expression "Bank" shall include any such other person.
(d) If (but for this Sub-clause) any company which has issued any
Securities would by virtue of this Debenture be a "subsidiary
undertaking" or "associated undertaking" (both as defined by
the Companies Act 1985) of the Bank, then the Bank or its
nominee shall only exercise any voting rights in relation to
such Securities in accordance with the Company's instructions
an in the Company's interest, except where the Bank or its
nominee is exercising such voting rights for the purpose of
preserving the value of the security hereby created or for the
purpose of realising such security.
(e) Unless and until the Bank shall have made demand for payment
of any or all the money or liabilities hereby secured or one
of the other events mentioned in Sub-clause 9(a) hereof shall
have occurred, the Bank shall not be entitled (except for the
purposes mentioned in Sub-clause 10(d) hereof) to enter upon
the Company's freehold or leasehold or heritable property or
to obtain possession thereof.
24. INTERPRETATION
(a) In this Debenture:
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<PAGE>
(i) any reference to a statute shall be construed as a
reference to that statute as modified or re-enacted
from time to time or any analogous provision or rule
under any applicable foreign law;
(ii) any reference to a person shall include an
individual, company, partnership, joint venture,
association, organization or trust (in each case,
whether or not having separate legal personality);
(iii) the expression "Planning Acts" means all legislation
from time to time regulating the development, use,
safety and control of property including without
limitation the Town and Country Planning Act 1990 and
any other instrument, plan, regulation, permission
and direction made or issued thereunder or deriving
validity therefrom; and
(iv) any reference to a currency or currencies shall
include the unit of account known as the European
Currency Unit (ECU) or any currency or currencies
that may at any time in the future be adopted by all
or any countries of the European Union.
(b) Except where other-wise expressly provided, the scope of each
part of the Charged Property described in Sub-clause 3(a)
hereof shall not in any way be limited or restricted by
reference to or inference from the description of any other
such part.
(c) For the avoidance of any doubt, the rights, powers and
discretions conferred upon the Bank by or pursuant to this
Debenture shall (unless otherwise expressly stated) apply and
be exercisable regardless of whether a demand has been made by
the Bank of any money or liabilities hereby secured and
regardless of whether the power of sale or other powers and
remedies conferred on mortgagees by the Law of Property Act
1925 or this Debenture shall have arisen or become
exercisable.
(d) The clause headings shall be ignored in construing this deed.
(e) The expression "the Bank" hereinbefore used shall include the
Bank's successors in title and/or assigns, whether immediate
or derivative, and any such other person as is referred to in
Clause 23(c). Any appointment or removal under Clause 9 hereof
or consents hereunder may be made or given by writing, signed
or sealed, by any such successors and assigns and the Company
hereby irrevocably appoints each of such successors and
assigns to be its attorney in the terms and for the purposes
in Clause 14 hereinbefore set forth.
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<PAGE>
IN WITNESS whereof the parties hereto have signed or sealed this Debenture as a
deed and have delivered it upon its being dated.
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<PAGE>
THE SCHEDULE
(Registered Land)
--------------------------------------------------------------------------------
Premises at County/District Registered at H.M. Land
Registry under Title No.
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<PAGE>
THE COMMON SEAL OF
ADAYTUM LIMITED
WAS AFFIXED TO THIS DEED IN THE PRESENCE OF:
___________________________DIRECTOR
___________DIRECTOR/COMPANY SECRETARY
OR
SIGNED AS A DEED ON BEHALF OF
ADAYTUM LIMITED
/s/ Mike Hartley DIRECTOR
-----------------------------
/s/ James Williams COMPANY SECRETARY
------------------
SIGNED AS A DEED BY
/s/ Ian Courthope Wood
------------------------------------------------
AS ATTORNEY FOR AND ON BEHALF OF LLOYDS BANK, PLC
IN THE PRESENCE OF:
____________________________________________
____________________________________________
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<PAGE>
THIS DEED OF RELEASE made the _________________ day of ________________ 19__.
BETWEEN LLOYDS BANK PLC (hereinafter called "the Bank") of the one part and the
within-named Company (hereinafter called "the Company") of the other part
WITNESSES that the Bank HEREBY RELEASES unto the Company ALL the Charged
Property real and personal charged by the within-written Debenture TO HOLD the
same unto the Company freed and discharged from the within-written Debenture and
all principal moneys, interest, claims and demands whatsoever thereunder
PROVIDED THAT this release shall not discharge the Company from any liability to
the Bank remaining to be paid or any other security held by the Bank
IN WITNESS whereof the Bank has signed this instrument as a deed and has
delivered it upon its being dated.
SIGNED as a deed by
_________________________________________________
as Attorney for and on behalf of LLOYDS BANK, PLC
in the presence of:
_________________________________________________
_________________________________________________
33
