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EXHIBIT 10.12
FIXED AND FLOATING SECURITY DOCUMENT
DATED 14 APRIL 1999
CREATED BY
SENETEK PLC
(Registered No. 1759068)
As the Company
in Favour of
SILVER CREEK INVESTMENTS, LTD.
as Collateral Agent
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This Deed is made on 14 April 1999 between:
(1) SENETEK PLC, a company incorporated in England (Registered No. 1759068)
whose registered office is at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"COMPANY") and
(2) SILVER CREEK INVESTMENTS, LTD. a company incorporated in the British Virgin
Islands as Collateral Agent for the Purchasers under the Purchase Agreement
(the "COLLATERAL AGENT", which expression includes its successors and
assigns).
BACKGROUND
(A) The Company is entering into this Deed in connection with the Purchase
Agreement.
(B) The Board of Directors of the Company is satisfied that entering into this
Deed is for the purposes and to the benefit of the Company and its
business.
(C) The Collateral Agent and the Company intend this document to take effect as
a deed (even though the Collateral Agent only executes it under hand).
(D) This Deed is intended to grant security over the assets of the Company
situated within the United Kingdom only.
It is agreed as follows:
1. Interpretation
1.1 DEFINITIONS: Except as otherwise defined, terms defined in the Purchase
Agreement have the same meaning in this Deed and, except to the extent that
the context requires otherwise:
"BANK ACCOUNTS" means all current, deposit or other accounts with any bank
or financial institution in which the Company now or in the future has an
interest and (to the extent of its interest) all balances now or in the
future standing to the credit of those accounts
"BOOK DEBTS" means all book and other debts of any nature, and all other
rights to receive money (excluding Bank Accounts), now or in the future
due, owing or payable to the Company and the benefit of all related
negotiable instruments, rights, Security, guarantees and indemnities of any
kind
"CHARGED ASSETS" means the assets from time to time subject, or expressed
to be subject, to the Charges or any part of those assets
"CHARGES" means all or any of the Security created or expressed to be
created by or pursuant to this Deed
"CURRENCY OF ACCOUNT" means the currency in which the relevant indebtedness
is denominated or, if different, is payable
"DELEGATE" means a delegate or sub-delegate appointed pursuant to Clause 16
"ENFORCEMENT EVENT" means the occurrence of an Event of Default
"EXCLUDED ASSETS SCHEDULE" means the schedule so entitled attached to this
Deed
"FIXTURES" means, fittings (including trade fixtures and fittings) and
fixed plant, machinery and apparatus
"INSOLVENCY ACT" Means the Insolvency Act of 1986
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"INSURANCES" means all contracts and policies of insurance of any kind now or in
the future taken out by or on behalf of the Company or (to the extent of its
interest) in which the Company now or in the future has an interest
"INTELLECTUAL PROPERTY" means, insofar as they exist in and/or are registrable
in the United Kingdom all patents, designs, copyrights, topographies,
trademarks, trading names, rights in confidential information and know-how, and
any associated or similar rights, which the Company now or in the future owns
or (to the extent of its interest) in which the Company now or in the future
has an interest (in each case whether registered or unregistered and including
any related licences and sub-licences of the same granted by it or to its
applications and rights to apply for the same)
"INVESTMENTS" means insofar as they exist in and/or are registrable in the
United Kingdom:
(i) securities and investments of any kind (including shares, stock,
debentures, units, depositary receipts, bonds, notes, commercial
paper and certificates of deposit)
(i) warrants, options or other rights to subscribe for, purchase or
otherwise acquire securities and investments
(ii) all rights relating to securities and investments which are
deposited with, or registered in the name of, any depositary,
custodian, nominee, clearing house or system, investment manager,
chargee or other similar person or their nominee, in each case
whether or not on a fungible basis (including rights against any
such person) and
(i) all other rights attaching or relating to securities or investments
and all cash or other securities or investments in the future
deriving from investments or such rights
in each case now or in the future owned by the Company or (to the extent of its
interest) in which the Company has an interest
"LIABILITIES" means the Obligations (as that term is defined in the Purchase
Agreement)
"LPA" means the Law of Property ▇▇▇ ▇▇▇▇
"PURCHASE AGREEMENT" means the note purchase agreement dated as of the date
hereof between the Company and the Collateral Agent
"REAL PROPERTY" means freehold and leasehold property (with an unexpired term
of 30 years or more) in England and Wales (in each including any estate or
interest therein, all rights from time to time attached or relating thereto and
all Futures from time to time therein or thereon)
"RECEIVER" means an administrative receiver, receiver and manager or other
receiver appointed in respect of the Charged Assets
"SECURITY" includes any mortgage, pledge, lien, hypothecation, security
interest or other charge or encumbrance and any other agreement having
substantially the same economic effect (and "SECURED" shall be construed
accordingly)
"TAX(ES)" includes any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any kind (and whatever called) imposed, levied,
collected, withheld or assessed by or on any person in any jurisdiction
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the "Winding-up" of a person also includes the amalgamation,
reconstruction, administration, dissolution, liquidation, merger or
consolidation of that person, and any equivalent or analogous procedure
under the law of any jurisdiction.
1.2 CONSTRUCTION OF CERTAIN REFERENCES: Except to the extent that the context
requires otherwise, any reference in this Deed to:
"ASSETS" insofar as they exist in and/or are registrable in the United
Kingdom of any person means all or any part of its business, undertaking,
property, assets, revenues, rights and uncalled capital, wherever located
any document (including this Deed) is a reference to that document as from
time to time amended, supplemented, novated, restated or replaced and
includes a reference to any document which amends, supplements, novates,
restates, replaces or is entered into, made or given under or in
accordance with any of the terms of that document
in the event of any inconsistency between the provisions or terms of this
Deed and the Purchase Agreement, the provisions or terms of the Purchase
Agreement shall prevail
any legislative provision shall, at any particular time, include any
modification, extension or re-enactment of it then in force and all
instruments, orders and regulations then in force and made under or
deriving validly from it
"PERSON" includes any individual, company, corporation, firm, partnership,
joint venture, undertaking, association, organisation, trust, state or
agency of a state (in each case whether or not having separate legal
personality)
"RIGHTS" includes rights, authorities, discretions, remedies, liberties,
powers, easements, quasi-easements and appurtenances (in each case, of any
nature whatsoever).
1.3 HEADINGS: Headings shall be ignored in construing this Deed.
1.4 TRANSACTION DOCUMENT: The parties acknowledge that this Deed constitutes a
Transaction Document (as defined in the Purchase Agreement).
2. UNDERTAKING TO PAY
The Company shall discharge or perform each Liability when due in
accordance with its terms or, if they do not specify a time for payment or
performance, immediately on demand by the Collateral Agent.
3. FIXED CHARGES
The Company, with full title guarantee and as security for the payment and
discharge of all Liabilities, charges in favour of the Collateral Agent
for the benefit of the Purchasers:
3.1 FUTURE REAL PROPERTY: except for the Real Property (if any) set out and
described in the Excluded Assets Schedule by way of first fixed equitable
charge, all Real Property now belonging to it and all Real Property
acquired by it in the future
3.2 OTHER ASSETS: except for the Intellectual Property (if any) set out and
described in the Excluded Assets Schedule by way of first fixed charge,
all Intellectual Property both present and future.
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2 FLOATING CHARGE
3.3 CREATION: The Company, with full title guarantee and as security for the
payment and discharge of all Liabilities, charges in favour of the
Collateral Agent for the benefit of the Purchasers by way of first floating
charge, its undertaking and all its assets, both present and future
(including assets expressed to be charged by Clause 3 (Fixed Charges))
except for the undertaking and assets set out and described in the Excluded
Assets Schedule.
3.4 RANKING: The floating Charge ranks behind all the fixed Charges but ranks
in priority to any other Security over the Charged Assets except for
Security ranking in priority in accordance with paragraph 6 of Schedule 1
(Borrow Money).
3.5 CONVERSION BY NOTICE: The Collateral Agent may convert the floating Charge
into a fixed Charge (either generally or specifically) by notice to the
Company specifying the relevant Charged Assets:
3.5.1 if it considers (on reasonable grounds) it desirable to do so in
order to protect or preserve the Charges over those Charged
Assets and/or the priority of those Charges and/or
3.5.2 at any time after an Enforcement Event occurs.
3.6 AUTOMATIC CONVERSION: if:
3.6.1 the Company takes any step to create any Security in breach of
Clause 5.1 (Security) over any of the Charged Assets not subject
to a fixed Charge or
3.6.2 any person takes any step to levy any distress, attachment,
execution or other legal process against any of those Charged
Assets
the floating Charge over the relevant Charged Assets shall automatically
and immediately be converted into a fixed Charge.
4 RESTRICTION AND FURTHER ASSURANCE
4.1 SECURITY: The Company shall not (and shall not agree to) create or have
outstanding any Security over the Charged Assets except for:
4.1.1 the Charges and
4.1.2 Permitted Liens
4.2 DISPOSAL: The Company shall not (and shall not agree to) sell, factor,
discount, transfer, assign, lease or hire out, lend or otherwise dispose of
the Charged Assets, except for a disposal in the ordinary course of trade
of assets which are not then subject or expressed to be subject to a fixed
Charge and the disposal of which is not prohibited by any Transaction
Document, without the prior written consent of the Collateral Agent.
4.3 FURTHER ASSURANCE: Subject to Clause 10.2, the Company shall promptly do
whatever the Collateral Agent:
4.3.1 reasonably requires to perfect or protect the Charges or the
priority of the Charges or
4.3.2 requires following an Event of Default to facilitate the
realisation of the Charged Assets or the exercise of any rights
vested in the Collateral Agent or any Receiver
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including executing any transfer, conveyance, charge, assignment or
assurance of the Charged Assets (whether to the Collateral Agent or its
nominees or otherwise), making any registration and giving any notice,
order or direction.
5 REAL PROPERTY
5.1 ACQUISITION: The Company shall promptly notify the Collateral Agent of its
acquisition of, or agreement to acquire, any Real Property.
5.2 DOCUMENTS: The Company shall deposit with the Collateral Agent, and the
Collateral Agent shall be entitled to hold, all title deeds and documents
relating to the Company's future Real Property.
5.3 FUTURE REAL PROPERTY: In the case of the Company's future Real Property in
England and Wales, the Company shall:
5.3.1 promptly apply to H.M. Land Registry for first registration of
the title to that Real Property and/or registration of the
Company as proprietor of that Real Property and notify the
Collateral Agent of its title number and
5.3.2 request the Chief Land Registrar to register in relation to
that Real Property notice of all Charges.
5.4 UNREGISTERED REAL PROPERTY: In the case of the Company's future Real
Property in England and Wales, which is not registered at H.M. Land
Registry and is not required to be so registered, the Company shall
promptly apply to register this Deed and the Charges at the Land Charges
Registry if the title deeds and documents are not deposited with the
Collateral Agent.
5.5 LEGAL CHARGE: As security for the liabilities, the Company shall promptly
execute and deliver to the Collateral Agent such legal charge of such of
its Real Property from time to time in England and/or Wales as the
Collateral Agent requires, such charge to be in a form agreed between the
parties or failing such agreement in a form determined by the Collateral
Agent that is no more onerous than this Deed. The Company shall promptly
apply to H.M. Land Registry for registration of any such legal charge.
5.6 COMPLIANCE WITH OBLIGATIONS: The Company shall comply with any covenants,
stipulations, conditions, licences, consents, and any other statutory,
regulatory or contractual obligations relating to its Real Property or its
use, including those requiring payment of sums in respect of its Real
Property.
5.7 LEASES: THE COMPANY SHALL:
5.7.1 comply with all obligations imposed on it, and enforce the due
observance and performance of all obligations of all other
persons of which it has the benefit, under any lease of Real
Property
5.7.2 not exercise any power to determine or extend, or accept the
surrender of, any lease of Real Property of which it is the
lessor and
5.7.3 not exercise any of the powers of leasing or agreeing to lease
any Real Property vested in or conferred on mortgagors by the
general law.
5.8 NOTICES: The Company shall produce to the Collateral Agent within 7 days
of receipt by it every statutory notice made in connection with any of its
Real Property and other communication relating to the Real Property which
could in the Companies view have a material adverse effect
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on the value of the Real Property and comply with the reasonable
instructions of the Collateral Agent in relation to any such notice or
communication.
6 BOOK DEBTS
6.1 COLLECTION: Following the Charge becoming fixed over Book Debts under
Clauses 4.3 or 4.4 the Company shall promptly collect all Book Debts and
shall hold the proceeds of collection on trust for the Collateral Agent.
6.2 PAYMENT INTO DESIGNATED BANK ACCOUNT(S): Following the Charge becoming
fixed over Book Debts under Clauses 4.3 or 4.4 the Company shall
immediately pay all moneys received or receivable by it from any source
(including all proceeds of collection of Book Debts) into a Bank Account
(or, if one or more Bank Accounts have been designated for this purpose by
the Collateral Agent, the relevant Bank Account(s)). The Collateral Agent
may designate different Bank Accounts for different moneys.
6.3 RESTRICTIONS ON DEALING WITH BOOK DEBTS: Following the Charge becoming
fixed over Book Debts under Clauses 4.3 or 4.4 without prejudice and in
addition to Clauses 5.1 (Security), 5.2 (Disposal) and 5.3 (Further
Assurance):
6.3.1 except for the Charges, the Company shall not create or have
outstanding any Security over all or any part of any of the Book
Debts and
6.3.2 except as required by Clause 5.3 (Further Assurance), the Company
shall not sell, factor, discount, transfer, assign, lend or
otherwise dispose of all or any part of any of the Book Debts.
6.4 DOCUMENTS:: Following the Charge becoming fixed over Book Debts under
Clauses 4.3 or 4.4 the Company shall promptly execute and/or deliver to the
Collateral Agent such documents relating to such of the Book Debts as the
Collateral Agent reasonably requires.
7 BANK ACCOUNTS
7.1 RESTRICTION ON BANK ACCOUNTS: The Company shall have no Bank Accounts other
than those from time to time advised to the Collateral Agent.
7.2 RESTRICTIONS ON DEALING WITH BANK ACCOUNTS: Following the Charge becoming
fixed over Bank Accounts under Clauses 4.3 or 4.4 without prejudice and in
addition to Clauses 5.1 (Security), 5.2 (Disposal) and 5.3 (Further
Assurance):
7.2.1 except for the Charges, the Company shall not create or have
outstanding any Security over all or any part of any of the Bank
Accounts and
7.2.2 except as required by Clause 5.3 (Further Assurance), the Company
shall not transfer, assign or otherwise dispose of all or any
part of any of the Bank Accounts.
8 INVESTMENTS
8.1 ACQUISITION: The Company may only acquire, or agree to acquire any
investment in accordance with the terms of the Purchase Agreement. The
Company shall promptly notify the Collateral Agent of its acquisition of,
or agreement to acquire, any investment.
8.2 DOCUMENTS: Following the Charge becoming fixed over investments under
Clauses 4.3 or 4.4 the Company shall:
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8.2.1 except to the extent the Collateral Agent notifies the Company from
time to time to the contrary, deposit with the Collateral Agent, or
as it directs, all certificates representing investments and
8.2.2 execute and/or deliver to the Collateral Agent such other documents
relating to the investments, including transfers of investments
executed in blank, as the Collateral Agent requires.
2.1 VOTING COLLATERAL AGENT AND OTHER RIGHTS: Subject to Clause 9.4 (Voting and
other Rights if the Changes become Enforceable), the Company shall be
entitled to exercise or direct the exercise of the voting and other rights
attached to any investment as it sees fit provided that exercise of or
failure to exercise those rights could not reasonably be expected to have
an adverse effect on the value of the relevant investment or the Charged
Assets and would not otherwise prejudice the interests of the Collateral
Agent
8.3 VOTING AND OTHER RIGHTS IF THE CHARGES BECOME ENFORCEABLE: At any time
after an Enforcement Event occurs:
8.3.3 the Collateral Agent or the Receiver shall be entitled to exercise
or direct the exercise of the voting and other rights attached to
any investment in such manner as it or he sees fit and
8.3.4 the Company shall comply or procure the compliance with any
directions of the Collateral Agent or the Receiver in respect of the
exercise of those rights and shall promptly execute and/or deliver
to the Collateral Agent or the Receiver such forms of proxy as it or
he may require with a view to enabling such person as it or he may
select to exercise those rights.
8.4 POWER OF ATTORNEY: If any Investment is not held in the Company's name,
the Company shall promptly deliver to the Collateral Agent an irrevocable
power of attorney, expressed to be given by way of security and executed
as a deed by the person in whose name that investment is held. That power
of attorney shall appoint the Collateral Agent, each Receiver and each
Delegate the attorney of the holder in relation to that investment and
shall be in such form as the Collateral Agent reasonably requires.
8.5 COMMUNICATIONS: The Company shall promptly execute and/or deliver to the
Collateral Agent a copy of each circular, notice, report, set of accounts
or other document received by it or its nominee in connection with any
investment, as the Collateral Agent requires.
9 INTELLECTUAL PROPERTY
9.1 ACQUISITION: The Company shall promptly notify the Collateral Agent of its
acquisition of, or agreement to acquire, (by licence or otherwise) any
Intellectual Property, and any application by it or on its behalf to
register any Intellectual Property in so far as doing so would not breach
any contractual obligations of confidentiality.
9.2 DOCUMENTS: The Company shall promptly execute and/or deliver to the
Collateral Agent such documents relating to Intellectual Property as the
Collateral Agent requires. Provided that prior to an Enforcement Event the
Company shall not be required to execute a conveyance assignment or
transfer of its Intellectual Property to the Collateral Agent or its
nominee.
9.3 MAINTENANCE: The Company shall take all necessary action to safeguard and
maintain its present and future ownership and rights in connection with
all Intellectual Property used in or necessary for its business, including
observing all related covenants and stipulations, obtaining all
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actions, it will also take all steps necessary to maintain all registered
design, patent and trade ▇▇▇▇ registration held by it, including payment of
renewal fees.
10 INSURANCE
10.1 DOCUMENTS: The Company shall promptly:
10.1.1 execute and/or deliver to the Collateral Agent a copy of such
insurance policies effected by it and the related premium
receipts, and such other documents relating to the insurances, as
the Collateral Agent requires and
10.1.2 procure that the fixed Charges over the insurances are noted on
the relevant policies.
2.2 MAINTENANCE: The Company shall maintain insurances in respect of the Charge
Assets in accordance with the provisions of the Security Agreement as if
those provisions were incorporated into this Deed mutatis mutandis.
11 GENERAL UNDERTAKINGS
11.1 COMPLY WITH UNDERTAKINGS: The Company shall comply with its undertakings
and obligations under the Purchase Agreement.
12 REPRESENTATIONS AND WARRANTIES
2.3 The Company makes the representations and warranties to the Collateral
agent set out in Clause 10 of the Purchase Agreement and repeats those
representations and warranties under this Deed as the same time that they
are made or repeated under the Purchase Agreement
13 ENFORCEMENT
13.1 WHEN ENFORCEABLE: As between the Company and the Collateral Agent the
Charges shall be enforceable, and the powers conferred by Section 101 of
the LPA as varied and extended by this Deed shall be exercisable, at any
time after an Enforcement Event occurs.
13.2 POWER OF SALE: The Statutory power of sale, of appointing a Receiver and
the other statutory powers conferred on mortgagees by Section 101 of the
LPA as varied and extended by this Deed shall arise on the date of this
Deed.
13.3 SECTION 103 LPA: Section 103 of the LPA shall not apply to this Deed.
14 APPOINTMENT AND RIGHTS OF RECEIVERS
14.1 APPOINTMENT OF RECEIVERS: if:
14.1.3 requested by the Company or
14.1.4 any step is taken with a view to the administration of the
Company under the insolvency Act or
14.1.5 any other Enforcement Event occurs (whether or not the Collateral
Agent has taken possession of the Charged Assets)
without any notice or further notice, the Collateral Agent may at any time,
by deed, or otherwise in writing signed by any officer or manager of the
Collateral Agent or any person authorised for this
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Agent may similarly remove any Receiver and appoint any person instead of
any Receiver. If the Collateral Agent appoints more than one person as
Receiver, the Collateral Agent may give those persons power to act either
jointly or severally.
14.2 SCOPE OF APPOINTMENT: Any Receiver may be appointed Receiver of all of the
Charged Assets or Receiver of a part of the Charged Assets specified in the
appointment. In the latter case, the rights conferred on a Receiver as set
out in Schedule 1 (Rights of Receivers) shall have effect as though every
reference in that Schedule to any Charged Assets were a reference to the
part of those assets so specified or any part of those assets.
14.3 RIGHTS OF RECEIVERS: Any Receiver appointed pursuant to this Clause 15
shall have the rights, powers, privileges and immunities conferred by the
Insolvency Act on administrative or other receivers duly appointed under
the Insolvency Act, and shall also have the rights set out in Schedule 1
(Rights of Receivers).
14.4 AGENT OF COMPANY: Any Receiver shall be the agent of the Company for all
purposes. The Company alone shall be responsible of the Receiver's
contracts, engagements, acts, omissions, defaults and losses and for
liabilities incurred by the Receiver save where such arise directly from
the gross negligence or wilful default of the Receiver.
14.5 REMUNERATION: The Collateral Agent may determine the remuneration of any
Receiver and direct payment of that remuneration out of moneys he receives
as Receiver. The Company alone shall be liable for the remuneration and all
other costs, charges and expenses of the Receiver.
15 COLLATERAL AGENT'S RIGHTS
15.1 SAME RIGHTS AS RECEIVER: Any rights conferred by any Transaction Document
upon a Receiver may be exercised by the Collateral Agent or any delegate
appointed by it (such appointment to be upon such terms and conditions as
it sees fit) after the Charges become enforceable, whether or not the
Collateral Agent shall have taken possession or appointed a Receiver of the
Charged Assets.
16 ORDER OF DISTRIBUTIONS
16.1 APPLICATION OF PROCEEDS: All amounts received or recovered by the
Collateral Agent or any Receiver or Delegate in exercise of their rights
under this Deed shall, subject to the rights of any creditors having
priority, be applied in the order provided in Clause 17.2 (Order of
Distributions).
16.2 ORDER OF DISTRIBUTIONS: The order referred to in Clause 17.1 (Application
of Proceeds) is:
16.2.1 in or towards the payment of all costs, charges, losses,
liabilities and expenses of and incidental to the appointment of
any Receiver or Delegate and the exercise of any of his rights,
including his remuneration and all outgoings paid by him
16.2.2 in or towards the payment of the Liabilities in such order as the
Collateral Agent thinks fit and
16.2.3 in payment of any surplus to the Company or other person entitled
to it.
17 LIABILITY OF COLLATERAL AGENT, RECEIVERS AND DELEGATES
17.1 POSSESSION: If the Collateral Agent, any Receiver or any Delegate takes
possession of the Charged Assets, it or he may at any time relinquish
possession. Without prejudice to Clause 18.2
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(Collateral Agent's Liability), the Collateral Agent shall not be liable as
a mortgagee in possession by reason of viewing or repairing any of the
Company's present or future assets.
17.2 COLLATERAL AGENT'S LIABILITY: Neither the Collateral Agent nor any Receiver
or Delegate shall (either by reason or taking possession of the Charged
Assets or for any other reason and whether as mortgagee in possession or
otherwise) be liable to the Company or any other person for any costs,
charges, losses, damages, liabilities or expenses relating to the
realisation of any Charged Assets or from any act, default, omission or
misconduct of the Collateral Agent, any Receiver, any Delegate or their
respective officers, employees or agents in relation to the Charged Assets
or in connection with the Transaction Documents except to the extent caused
by its or his own gross negligence or wilful misconduct.
18 POWER OF ATTORNEY
18.1 APPOINTMENT: The Company by way of security irrevocably appoints the
Collateral Agent, every Receiver and every Delegate severally its attorney
(with full power of substitution), on its behalf and in its name or
otherwise, at such time and in such manner as the attorney thinks fit:
18.1.1 to do anything which the Company is obliged to do (but has not
done) under any Transaction Document (including to execute
charges over, transfers, conveyances, assignments and assurances
of, and other instruments, notices, orders and directions
relating to, the Charged Assets) and
18.1.2 to exercise any of the rights conferred on the Collateral Agent,
any Receiver or any Delegate in relation to the Charged Assets or
under any Transaction Document, the LPA or the Insolvency Act.
18.2 RATIFICATION: The Company ratifies and confirms and agrees to ratify and
confirm whatever any such attorney shall do in the proper exercise of the
power of attorney in Clause 19.1 (Appointment).
19 PROTECTION OF THIRD PARTIES
19.1 NO DUTY TO ENQUIRE: No person dealing with the Collateral Agent, any
Receiver or any Delegate shall be concerned to enquire:
19.1.1 whether the rights conferred by or pursuant to any Transaction
Document are exercisable
19.1.2 whether any consents, regulations, restrictions or directions
relating to such rights have been obtained or compiled with
19.1.3 otherwise as to the propriety or regularity of acts purporting or
intended to be in exercise of any such rights or
19.1.4 as to the application of any money borrowed or raised.
19.2 PROTECTION TO PURCHASERS: All the protection to purchasers contained in
Sections 104 and 107 of the LPA, Section 42(3) of the Insolvency Act or in
any other applicable legislation shall apply to any person purchasing from
or dealing with the Collateral Agent, any Receiver or any Delegate.
20 SAVINGS PROVISIONS
20.1 CONTINUING SECURITY: Subject to Clause 22 (Discharge of Security), the
Charges shall:
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20.1.2 not be affected in any way by any settlement of account (whether
or not any Liabilities remain outstanding) or other matter or
thing whatsoever and
20.1.3 be in addition to any other Security, guarantee or indemnity now
or in the future held by the Collateral Agent or any other person
in respect of any of the Liabilities.
20.2 SECURITY UNAFFECTED: Without prejudice to the generality of Clause 21.1
(Continuing Security). neither the Charges nor the Liabilities shall be
affected in any way by:
20.2.1 any time, indulgence, concession, waiver or consent given to the
Company or any other person, whether by the Collateral Agent or
any other person
20.2.2 any amendment to or change in any Security, guarantee or
indemnity (including any Transaction Document), or the terms of
any Liability
20.2.3 the making or absence of any demand for payment of any
Liabilities on the Company or any other person, whether by the
Collateral Agent or any other person
20.2.4 the enforcement or absence of enforcement of any Security,
guarantee or indemnity (including any Transaction Document)
20.2.5 the taking, existence or release of any other Security, guarantee
or indemnity
20.2.6 the Winding-up of the Company or any other person, or any step
being taken for any such Winding-up or
20.2.7 the illegality, invalidity or unenforceability of, or any defect
in, any provision of any agreement or document relating to the
liabilities or any Security, guarantee or indemnity (including
any Transaction Document) or any of the rights or obligations of
any of the parties under or in connection with any such document
or any Security, guarantee or indemnity (including any
Transaction Document).
20.3 EXERCISE OF COMPANY'S RIGHTS: So long as any Charge remains outstanding:
20.3.1 any rights of the Company, by reason of the performance of any of
its obligations under the Purchase Agreement the enforcement of
any of the Charges or any action taken pursuant to any rights
conferred by or in connection with the Purchase Agreement, to be
indemnified by any person, to prove in respect of any liability
in the Winding-up of any person or to take the benefit of or
enforce any Security, guarantees or indemnities, shall be
exercised and enforced only in such manner and on such terms as
the Collateral Agent may require and
20.3.2 any amount received or recovered by the Company (a) as a result
of any exercise of any such rights or (b) in the Winding-up of
any such person shall be held in trust for and immediately paid
to the Collateral Agent.
20.4 AVOIDANCE OF PAYMENTS: The Company shall on demand indemnify the
Collateral Agent against any cost, charge, loss, liability or expense
(including loss of profit) sustained or incurred by the Collateral Agent
as a result of the Collateral Agent being required for any reason
(including any bankruptcy, insolvency, Winding-up or similar law of any
jurisdiction) to refund all or part of any amount received or recovered
by it in respect of any of the Liabilities and shall in any event pay to
the Collateral Agent on demand the amount so refunded by it.
20.5 SUSPENSE ACCOUNTS: Any amount received or recovered by the Collateral
Agent, any Receiver or any Delegate in exercise of its rights under any
Transaction Document may be credited to an
13
being credited to that account) until the Collateral Agent is satisfied
that all the Liabilities have been discharged in full and that all
facilities which might give rise to Liabilities have terminated.
20.6 TACKING: The Collateral Agent shall comply with its obligations under the
Purchase Agreement (including any obligation to purchase Notes).
21 DISCHARGE OF SECURITY
21.1 FINAL REDEMPTION: Subject to Clause 22.2 (Retention of Security). If the
Collateral Agent is satisfied that all the Liabilities have been
irrevocably and unconditionally discharged in full and that all facilities
and agreements which might give rise to Liabilities have terminated, the
Collateral Agent shall at the request and cost of the Company release,
reassign or discharge (as appropriate) the Charged Assets from the
Charges.
21.2 RETENTION OF SECURITY: If the Collateral Agent considers that any amount
paid or credited to it in respect of the Notes is capable of being avoided
or otherwise set aside on the Winding-up of the Company or any other
person, or otherwise, that amount shall not be considered to have been
paid for the purposes of determining whether all the Liabilities have been
irrevocably and unconditionally discharged.
21.3 CONSOLIDATION: Section 93 of the LPA shall not apply to the Charges.
22 EXPENSES, STAMP DUTY AND INTEREST
22.1 ENFORCEMENT EXPENSES: The Company shall pay to the Collateral Agent on
demand, all costs, and expenses (including Taxes thereon and legal fees)
incurred by the Collateral Agent, any Receiver or any Delegate in relation
to this Deed or the Notes (including the administration, protection,
realisation or enforcement of any right under or in connection with this
Deed, or any consideration by the Collateral Agent as to whether to
realise or enforce the same, and/or any such amendment, supplement,
waiver, consent or release).
22.2 STAMP DUTY: The Company shall pay promptly, and in any event before any
interest or penalty becomes payable, any stamp, documentary, registration
or similar Tax (including Land Registry fees) payable in connection with
the entry into, registration, performance, enforcement or admissibility in
evidence of this Deed or the Notes and any amendment, supplement, waiver,
consent or release and shall indemnify the Collateral Agent against any
liability with respect to or resulting from any delay in paying or
omission to pay any such Tax.
23 PAYMENTS
23.1 DEMANDS: Any demand for payment made by the Collateral Agent shall be
valid and effective even if it contains no statement of the relevant
Liabilities or an inaccurate or incomplete statement of them.
23.2 PAYMENTS: All payments by the Company under this Deed (including damages
for its breach) shall be made in the Currency of Account and to such
account, with such financial institution and in such other manner as may
be agreed between the parties or, if not so agreed, as the Collateral
Agent may direct.
23.3 CONTINUATION OF ACCOUNTS: At any time after:
23.3.1 the receipt by the Collateral Agent of notice (either actual
or otherwise) of any subsequent Security affecting the Charged
Assets or
14
23.3.2 the presentation of a petition or the passing of a resolution for
or with a view to the Winding-up of the Company
the Collateral Agent may open a new account in the name of the Company
with the Collateral Agent (whether or not it permits any existing account
to continue). If the Collateral Agent does not open such a new account, it
shall nevertheless be treated as if it had done so when the relevant event
occurred. No moneys paid into any account, whether new or continuing,
after that event shall discharge or reduce the amount recoverable pursuant
to any Transaction Document.
23.4 SET-OFF: The Company authorises the Collateral Agent to apply (without
prior notice) any credit balance (whether or not then due) to which the
Company is at any time beneficially entitled on any account at, any sum
held to its order by and/or any liability to it of, any office of the
Collateral Agent in or towards satisfaction of any part of the Liabilities
which are due and unpaid and, for that purpose, to convert one currency
into another.
24 RIGHTS, AMENDMENTS, WAIVERS, CONSENTS AND DETERMINATIONS
24.1 RIGHTS ADDITIONAL: The rights and remedies provided in each Transaction
Document are cumulative and not exclusive of any other rights or remedies
(whether provided by law or otherwise). Where there is any ambiguity or
conflict between the rights conferred by law and those conferred by or
pursuant to any Transaction Document, the terms of that Transaction
Document shall prevail.
24.2 EXERCISE OF RIGHTS: If the Collateral Agent or any Receiver or Delegate
fails to exercise or delays exercising any right under any Transaction
document, it will not operate as a waiver of that right. Any single or
partial exercise of any right will not preclude any other or further
exercise of that right or the exercise of any other right.
24.3 AMENDMENTS, WAIVERS AND CONSENTS: Any provision of any Transaction
Document may be amended, supplemented or novated only if the Company and
the Collateral Agent agree in writing. Any waiver, consent or approval by
the Collateral Agent under any Transaction Document:
24.3.1 shall not be effective unless it is in writing
24.3.2 may be given subject to any conditions thought fit by the
Collateral Agent and
24.3.3 shall be effective only in the instance and for the purpose for
which it is given.
24.4 DETERMINATIONS: Any determination by or certificate of the Collateral
Agent or any Receiver or Delegate under any Transaction Document shall be
conclusive save for manifest error.
25 PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of any
Transaction Document under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision of that or any other Transaction Document.
26 COMMUNICATIONS
Each communication under any Transaction Document shall be made in
accordance with Section 12.9 of the Purchase Agreement. Each communication
or document to be delivered to a party under any Transaction Document
shall be sent to it at the fax number or address indicated in ????
15
27 WITHHOLDING
27.1 PAYMENTS TO BE FREE AND CLEAR: All sums payable by the Company under this
Deed shall be paid in full without set-off or counterclaim unless
prohibited by law.
27.2 TAX INDEMNITY: If the Company or any other person must at any time pay any
Tax or other amount on, or calculated by reference to, any sum received or
receivable by the Collateral Agent under this Deed (except for a payment
by the Collateral Agent or a Purchaser of Tax on its own Overall Net
Income), the Company shall pay or procure the payment of that Tax or other
amount before any interest or penalty becomes payable or, if that Tax or
other amount is payable and paid by the Collateral Agent, shall reimburse
it on demand for the amount paid by it.
27.3 TAX RECEIPTS: Within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, the Company shall
deliver to the Collateral Agent evidence satisfactory to the Collateral
Agent of that deduction, withholding or payment and (where remittance is
required) of the remittance thereof to the relevant taxing or other
authority.
27.4 TAX ON OVERALL NET INCOME: In this Clause 28, "Tax on Overall Net Income"
of a person shall be construed as a reference to Tax (other than Tax
deducted or withheld from any payment) imposed on that person by the
jurisdiction in which its principal office (and/or, in the case of the
Collateral Agent or a Purchaser, its office through which it is acting in
connection with this Deed) is located on (a) the net income, profits or
gains of that person world-wide or (b) such of its net income, profits or
gains as arise in or relate to that jurisdiction.
27.5 TAX CREDIT: If the Company makes a payment under Clause 26.2 (Tax
Indemnity) to the Collateral Agent or a Purchaser ("RECEIPIENT") and the
Receipient determines that it has received or been granted a credit
against or a refund of any tax paid or payable by it with reference to the
liability to which such payment relates, the Receipient shall to the
extent it can do so without prejudice to the retention of the amount of
such credit or refund pay to the Company such amount as it shall have
determined to be attributable to the payment. Nothing herein contained
shall interfere with the right of the Receipient to arrange its tax
affairs in whatever manner it thinks fit and, in particular, the
Receipient shall not be under any obligation to claim credit or refund
from or against its corporate profits or similar tax liability in respect
of the amount of such payment in priority to any other credits or refunds
available to it, nor to disclose any information relating to its tax
affairs or any computations in respect thereof.
28 INDEMNITIES
28.1 CURRENCY OF ACCOUNT: The Currency of Account is the sole currency of
account and payment for all sums payable by the Company under or in
connection with this Deed, including damages.
28.2 EXTENT OF DISCHARGE: Any amount received or recovered in a currency other
than the Currency of Account (whether as a result of, or of the
enforcement of, a judgment or order of a court of any jurisdiction, in
the Winding-up of the Company or otherwise) by the Collateral Agent in
respect of any Liability shall only constitute a discharge to the Company
to the extent of the amount in the Currency of Account which the
Collateral Agent is able, in accordance with its usual practice, to
purchase with the amount so received or recovered in that other currency
on the date of that receipt or recovery (or, if it is not practicable to
make that purchase on that date, on the first date on which it is
practicable to do so).
16
28.3 CURRENCY INDEMNITY: If that amount in the Currency of Account is less
than the amount of the Liability in the Currency of Account the Company
shall indemnify the Collateral Agent against any loss sustained by it as
a result. In any event, the Company shall indemnify the Collateral Agent
against the cost of making any such purchase. For the purpose of this
Clause 29.3, it will be sufficient for the Collateral Agent to
demonstrate that it would have suffered a loss had an actual exchange or
purchase been made.
28.4 ENVIRONMENTAL INDEMNITY: The Company shall indemnify the Collateral Agent
against any and all costs, charges, losses, liabilities or expenses
(including any paid, incurred, suffered or sustained as a matter of
commercial prudence even if no actual liability or obligation exists)
expended, paid, incurred, suffered or sustained by the Collateral Agent
arising (directly or indirectly) out of:
28.4.1 any breach or potential breach of or liability (whether civil
and/or criminal) under any Environmental Law or
28.4.2 any responsibility on the part of the Collateral Agent in respect
of any clean-up, repair or other corrective action
arising out of or in connection with the operations of business of the
Company in the UK or in respect of any Real Property of the Company.
28.5 INDEMNITIES SEPARATE: Each indemnity in this Deed shall:
28.5.1 constitute a separate and independent obligation from the other
obligations in that or any other Transaction Document
28.5.2 give rise to a separate and independent cause of action
28.5.3 apply irrespective of any indulgence granted by the Collateral
Agent
28.5.4 continue in full force and effect despite any judgment, order,
claim or proof for a liquidated amount in respect of any
Liability or any other judgment or order and
28.5.5 apply whether or not any claim under it relates to any matter
disclosed by the Company or otherwise known to the Collateral
Agent.
29 GOVERNING LAW
29.1 GOVERNING LAW: This Deed shall be governed by and construed in accordance
with the laws of England.
2.4 JURISDICTION: Any proceedings relating to a dispute which arises out of
or in connection with any Transaction Document ("PROCEEDINGS") shall be
brought in the courts of England, save that the Collateral Agent or any
Purchaser may also bring Proceedings, whether or not concurrently with
other Proceedings, in the courts of New York.
The Company submits to the jurisdiction of each such court.
2.5 VENUE: The Company irrevocably waives any objection which it may at any
time have to the laying of the venue of any Proceedings in any court
referred to in this Clause 30 and any claim that any such Proceedings
have been brought in an inconvenient forum. Each party irrevocably waives
all right to trial by jury in any Proceedings.
In witness whereof this Deed has been duly executed as a deed on the date
stated at the beginning.
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SCHEDULE 1
RIGHTS OF RECEIVERS
Any Receiver appointed pursuant to Clause 15 (Appointment and Rights of
Receivers) shall have the right, either in his own name or in the name of the
Company or otherwise and in such manner and upon such terms and conditions as
the Receiver thinks fit, and either alone or jointly with any other person:
1 ENTER INTO POSSESSION: to take possession of, get in and collect the
Charged Assets, and to require payment to it or to the Collateral Agent of
any Book Debts or credit balance on any Bank Account
2 CARRY ON BUSINESS: to manage and carry on any business of the Company
3 CONTRACTS: to enter into any contract or arrangement and to perform,
repudiate, rescind or vary any contract or arrangement to which the Company
is a party
4 DEAL WITH CHARGED ASSETS: to sell, transfer, assign, exchange, hire out,
lend or otherwise dispose of or realise the Charged Assets (including any
Fixtures, which may be sold separately from the related Real Property) to
any person (including a new company formed pursuant to paragraph 5 (Hive
Down)) either by public offer or auction, tender or private contract and
for a consideration of any kind (which may be payable or delivered in one
amount or by installments spread over a period or deferred)
5 HIVE DOWN: to form a new company and to subscribe for or acquire (for cash
or otherwise) any investment in or of the new company and to sell,
transfer, assign, exchange and otherwise dispose of or realise any such
investments or part thereof or any rights attaching thereto
6 BORROW MONEY: to borrow or raise money either unsecured or on the security
of the Charged Assets (either in priority to the Charges or otherwise) and
on such terms and conditions and for such purpose as he may think fit
7 COVENANTS AND GUARANTEES: to enter into bonds, covenants, guarantees,
indemnities and other commitments and to make all payments needed to
effect, maintain or satisfy them
8 DEALINGS WITH TENANTS: to grant leases, tenancies, licences and rights of
user, grant renewals and accept surrenders of leases, tenancies, licences
or rights of user, in each case on such terms as he thinks fit, and
otherwise to reach agreements and make arrangements with, and to make
allowances to, any lessees, tenants or other persons (including a new
company formed pursuant to paragraph 5 (Hive Down)) from whom any rents and
profits may be receivable (including those relating to the grant of any
licences, the review of rent in accordance with the terms of, and the
variation of, the provisions of any leases, tenancies, licences or rights
of user affecting the Charged Assets)
9 RIGHTS OF OWNERSHIP: to manage and use the Charged Assets and to exercise
and do (or permit the Company or any nominee of it to exercise and do) all
such rights and things as the Receiver would be capable of exercising or
doing if he were the absolute beneficial owner of the Charged Assets
10 INSURANCE, REPAIRS, IMPROVEMENTS ETC.: to insure the Charged Assets on such
terms as he thinks fit, to carry out decorations, repairs, alterations,
improvements and additions to the Charged Assets (including the development
or redevelopment of any Real Property) and to purchase or otherwise acquire
or do anything in connection with the Charged Assets as he may think fit
18
11 CLAIMS: to 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 Company or relating to the Charged
Assets
12 LEGAL ACTIONS: to bring, prosecute, enforce, defend and abandon actions,
suits and proceedings in relation to the Charged Assets or any business of
the Company
13 REDEMPTION OF SECURITY: to redeem any Security (whether or not having
priority to the Charges) over the Charged Assets and to settle the accounts
of any person with an interest in the Charged Assets
14 EMPLOYEES ETC.: to appoint, hire and employ officers, employees,
contractors, agents, advisors and others and to discharge any such persons
and any such persons appointed, hired or employed by the Company
15 INSOLVENCY ACT: to exercise all powers set out in Schedule 1 or (in the
case of a Scottish Receiver) Schedule 2 to the Insolvency Act as now in
force (whether or not in force at the date of exercise and whether or not
the Receiver is an administrative receiver) and any powers added to
Schedule 1 or Schedule 2, as the case may be, after the date of this Deed
and
16 OTHER POWERS: to do anything else he may think fit for the realisation of
the Charged Assets or incidental to the exercise of any of the rights
conferred on the Receiver under or by virtue of any Transaction Document,
the LPA or the Insolvency Act.
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SIGNED as a DEED by SENETEK PLC Signature of Director
acting by ▇▇▇▇▇ ▇▇▇▇▇▇▇ a Director and /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ---------------------
the Secretary
Signature of Director or Secretary
---------------------
Address:
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Fax No.:
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Attention:
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