DATED 2008
DATED 2008
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MARTECH
SYSTEMS (WEYMOUTH) LIMITED
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(1)
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And
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THE
ROYAL BANK OF SCOTLAND PLC
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(2)
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____________________________________
____________________________________
▇▇▇▇▇▇
▇▇▇▇▇ Corporate Lawyers
▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Birmingham
B2
5NY
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1
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DATE
OF DEBENTURE
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2008
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BETWEEN:-
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(1)
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MARTECH
SYSTEMS (WEYMOUTH) LIMITED (Company Number 2300406) whose
registered
office is at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
DT4 9TH (the “Company”);
and
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| (2) |
THE
ROYAL BANK OF SCOTLAND PLC (Registered Number 90312) acting
through its
London offices located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the
“Subscriber”);
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IT
IS AGREED THAT:
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1.
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DEFINITIONS
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1.1
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Unless
the context otherwise requires the following expressions shall
have the
following meanings wherever used in this agreement and its
introduction:
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"Act"
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means
the Insolvency Act 1986.
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“Agreed
Form”
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in
relation to any document means the form agreed and for the purposes
of
identification only initialled by or on behalf of COGI and the
Subscriber.
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“Business
Day”
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means
a day (excluding Saturdays, Sundays and any public holiday) on
which banks
are open for business in London for the transaction of normal banking
business.
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“Charged
Property”
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means
all of the undertaking, assets, rights, revenues and property (present
and
future) of the Company charged to the Subscriber under paragraph
4 of this
Debenture.
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“COGI”
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Coda
Octopus Group, Inc. incorporated in the State of Delaware, whose
principal
place of business is at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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“Completion”
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means
the carrying out by the parties of their obligations under Clauses
3.1 to
3.3 of the Subscription Agreement.
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“Completion
Date”
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means
the date hereof.
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“Confidentiality
Agreement”
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means
the agreement dated on or around the Completion Date between COGI
and the
Subscriber whereby the Subscriber agrees, inter alia, to keep certain
information confidential.
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-
2
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“Debts”
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means
all present and future book and other debts and any other monies
of any
nature whatsoever due to the Company (and whether or not yet due
and
payable) now or at any time during the continuance of the security
interest created under this Debenture.
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|
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“Deed
of Guarantee”
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means
a deed in the Agreed Form to be entered into at Completion whereby
those
Subsidiaries which are registered in the United Kingdom agree to
guarantee
the obligations of COGI under the Transaction Documents
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“Equipment
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means
all plant, machinery, jigs, moulds, fixtures, fittings (not being
landlord’s fixtures) furniture, equipment and tools now or at any time
during the continuance of this security belonging to the
Company.
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|
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“Floating
Charges”
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means
the two floating charges to be granted on the date hereof in favour
of the
Subscriber, one floating charge to be granted by Coda Octopus Products
Ltd
and the other by Coda Octopus R & D Ltd and “Floating Charge” shall
mean whichever of the Floating Charges as the context
admits
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“Goodwill”
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means
the goodwill of the Company’s business as carried on by the Company after
the date of this Debenture;
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“Intellectual
Property”
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means
all customer information, patterns, drawings, product names, intellectual
property and design rights including (without limitation) trade
marks or
trade names (whether registered or not), all patents, patent applications,
registered designs, copyright, letters patent, service marks, business
names, inventions, trade secrets, confidential information and
know-how
(together with the benefit but subject to the burden of any licences
consents or permissions relating to them) of or used by the Company
in the
Company’s business.
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|
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“Intercreditor
Deed”
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means
a deed entered into on or around the Completion Date among COGI,
the
Subscriber and FGI regulating the priorities of the various charges
and
security interests held by the Subscriber and FGI.
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|
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“Loan
Note Instrument”
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means
the loan note instrument executed by COGI on the Completion Date
pursuant
to which the Notes are constituted.
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-
3
-
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“Lock-up
Agreements”
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means
certain agreements entered into on or around the date hereof between
the
directors and board members of COGI and the Subscriber undertaking
(with
certain exceptions) not to sell or transfer or otherwise dispose
of any of
their shares in COGI.
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“Noteholder”
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means
the person for the time being entered in the Register as a holder
of any
part of the Notes.
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“Notes”
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means
USD 12,000,000 Convertible Loan Notes due 21 February 2015 constituted
by
the Loan Note Instrument, or, as the case may be the Principal
Amount
Outstanding (as defined in the Loan Note Instrument) represented
by them,
and each “Note” shall be for a nominal amount of USD 100,000.
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|
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“Permitted
Encumbrance”
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A
debenture dated 30 October 2006 and registered on 7 November 2006
granted
by the Company in favour of Faunus Group International, Inc (“FGI”)
a
Delaware corporation whose principal place of business is ▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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“Securities”
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||
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“Security
Agreement”
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means
an agreement in the Agreed Form to be entered into at Completion
whereby
COGI and those of its Subsidiaries incorporated in the United States
of
America grant a continuing and first security interest in and over
the
assets of COGI and those of its Subsidiaries incorporated in the
United
States of America
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"Stock"
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means
all stock in trade and raw materials now or at any time during
the
continuance of this security belonging to the Company.
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“Subscription
Agreement”
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means
the subscription agreement dated the Completion Date between the
Subscriber and COGI.
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“Transaction
Documents”
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means
the Subscription Agreement, the Loan Note Instrument, the Deed
of
Guarantee, this Debenture and the debenture to be granted on the
Completion Date by Coda Octopus (UK) Holdings Ltd, the Floating
Charges,
the Lock-up Agreements, the Security Agreement, the Confidentiality
Agreement, the Intercreditor Deed and all other documents entered
into in
connection with any of them.
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-
4
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"VAT"
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means
Value Added Tax.
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"Vehicles"
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means
all vehicles now or at any time during the continuance of this
security
owned by the Company.
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"Work
in Progress"
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means
all partly completed goods or services allocated by the Company
from time
to time to its contracts with its customers for the supply of goods
or
services.
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"1925
Act"
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means
the Law of Property Act 1925
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1.2
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In
interpreting this agreement:
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1.2.1
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references
to clauses and schedules are, unless otherwise stated, references
to
clauses, sub-clauses and schedules in or annexed to this
agreement;
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1.2.2
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the
headings used in this agreement are for convenience only and shall
not
affect its interpretation;
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1.2.3
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where
any agreement, obligation, covenant, warranty, undertaking or
representation is expressed to be made, undertaken or given by
two or more
persons they shall be jointly and severally responsible in respect
of such
matter;
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1.2.4
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reference
to "a person" shall be construed so as to include any individual,
firm,
company or partnership (whether or not having a separate legal
personality
and whether incorporated or not);
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1.2.5
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references
to any enactment shall be deemed to include references to such
enactment
as re-enacted, amended or extended.
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2.
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COVENANT
TO PAY
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The
Company covenants to pay to the Subscriber on demand all sums which are due
or
which may after the date of this Debenture become due or owing to the Subscriber
from the Company under the provisions of the Transaction Documents.
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3.
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LIABILITIES
SECURED BY THE DEBENTURE
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This
Debenture shall be continuing security to the Subscriber for payment or
discharge on demand of the following:
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5
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3.1
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all
present and future indebtedness of the Company to the Subscriber
and the
Noteholders arising under the terms of the Transaction Documents;
and
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3.2
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all
costs, charges, expenses, claims and liabilities of any kind whatsoever
and howsoever arising owed to or incurred directly or indirectly
by the
Subscriber and the Noteholders in relation to the enforcement of
this
security,
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(together
the “Secured Liabilities”).
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4.
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PROPERTY
CHARGED BY THE DEBENTURE
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The
Company with full title guarantee (except for the Permitted Encumbrance)
and
with the intent that the security created by this Debenture shall rank as
continuing security for payment and discharge of the Secured Liabilities
described in paragraph 3 above:
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4.1
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charges
by way of fixed charge all right, title and interest in any freehold
or
leasehold property now or at any time during the continuance of
this
security belonging to the Company, including all present future
rights,
licences, guarantees, rents, deposits and
contracts;
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4.2
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charges
by way of fixed charge all right, title and interest in any stocks,
shares
or other securities and monies standing to the credit of any bank
account
now or at any time during the continuance of this security belonging
to
the Company;
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4.3
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assigns
by way of first fixed mortgage its rights in any policies of insurances,
assurances present or future;
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4.4
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charges
by way of fixed charge its Goodwill and Intellectual
Property;
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4.5
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charges
by fixed charge all its Equipment and Vehicles;
and
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4.6
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charges
by floating charge all of the Company’s undertaking and all Debts, stock
and work in progress, and all other property, assets and rights
now or at
any time during the continuance of this security belonging to the
Company
not otherwise charged by the charges set out in paragraphs 4.1
to 4.5
inclusive.
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The
charge on the property and assets described in Paragraph 4.6 (and also on
such
other property and assets of the Company both present and future as the
Subscriber may have agreed in writing to exclude from the fixed charge or
are
otherwise not charged hereunder by way of fixed charge) is created as a floating
charge until a demand has been made under Paragraph 7 or until the provisions
of
Paragraph 7 relating to enforcement without demand become operative when
the
floating charge shall crystallize and become a fixed charge. Any assets acquired
by the Company after the floating charge has crystallized shall be treated
as if
charged by way of a fixed charge.
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6
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| 5. |
ACKNOWLEDGEMENT
OF PRIOR CHARGE
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The
Subscriber hereby acknowledges the existence of the Permitted Encumbrance
and
that the Permitted Encumbrance has priority over the security of the Subscriber
in all respects and the rights and powers of the Subscriber under this Debenture
shall always be subject to the Permitted Encumbrance for so long as the
Permitted Encumbrance remains outstanding.
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6.
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COMPANY’S
COVENANTS
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The
Company (subject to the rights of FGI under the Permitted Encumbrance) covenants
with and undertakes to the Subscriber as follows:
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6.1
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in
accordance with the terms of the Permitted Encumbrance the Company
shall
take all steps required by contract and law to satisfy its indebtedness
to
FGI secured by the Permitted Encumbrance no later than 31 January
2009 and
to secure the discharge of the registered charges no later than
28
February 2009.
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6.2
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to
register the Debenture with the Registrar of Companies for England
and
Wales no later than 21 days after the date of execution of this
Debenture.
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6.3
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upon
discharge of the Permitted Encumbrance the Company shall take all
steps
required under the laws of England and Wales to ensure that the
Subscriber
has a first ranking security interest in the Charged
Property.
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6.4
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if
required by the Subscriber to forthwith deposit with the Subscriber
all or
any documents, deeds, or other papers whatsoever relating to the
Charged
Property as the Subscriber may
require;
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6.5
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to
make timely payment of all lawful amounts in respect of the Charged
Property when due including all rents, periodic charges and outgoings
of
any nature.
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6.6
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to
keep all of the Charged Property in a good state of repair and
in proper
and good working order and condition and to permit the Subscriber
and such
other persons as the Subscriber may from time to time appoint for
the
purpose to enter and view the Charged Property’s state and condition on
reasonable notice;
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6.7
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to
insure and keep insured all of the Charged Property which are of
an
insurable nature against loss or damage by fire and all other usual
risks
as the Subscriber may require in the full amount of their reinstatement
value in such name and in such offices as the Subscriber shall
approve in
terms not permitting the insurers to cancel the policy of insurance
without giving at least 14 days’ notice to the Company and to pay when due
all premiums and any other charges necessary for effecting and
maintaining
such insurance and, if requested by the Subscriber, to have the
interest
of the Subscriber noted on any policy or policies and if required
to
deliver to the Subscriber such policy or policies and the receipt
for
every premium payable in respect of such policy or
policies;
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-
7
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6.8
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to
hold all money received on any insurance whatsoever in respect
of loss,
damage or destruction of the Charged Property whether under the
covenant
in paragraph 6.7 or otherwise on trust for the Subscriber to be
applied in
making good the loss or damage in respect of which the money is
received
or in or towards discharge of the sums for the time being owing
to the
Subscriber under this Debenture as the Subscriber may in its absolute
discretion require;
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6.9
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not
without the previous written consent of the Subscriber to create
or
attempt to create any mortgage, pledge, fixed or floating charge
or other
encumbrance or security interest on or over any of the Charged
Property;
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6.10
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except
for the Permitted Encumbrance, not to take or omit to take any
action that
might or would have the result of materially impairing the security
interests created by this Debenture. The Company will not grant
to any
person other than the Subscriber and the Noteholders any interest
whatsoever in the Charged Property;
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6.11
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to
inform the Subscriber immediately on becoming bound to complete
the
purchase of any estate or interest in any freehold or leasehold
property
after the date of this Debenture and to deposit with the Subscriber
the
deeds and documents of title relating to such property
;
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6.12
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to
execute at any time upon request over all or any of the property
referred
to in paragraph 6.11, charge by way of legal mortgage in favour
of the
Subscriber in such form as the Subscriber shall
require;
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6.13
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to
execute and do all such assurances and things including (without
prejudice
to the generality of the foregoing) legal mortgages, charges and
assignments as the Subscriber may require for perfecting the security
constituted by this Debenture and for facilitating the realisation
of the
Charged Property and for exercising all powers, authorities and
discretions conferred by this Debenture upon the Subscriber or
any
receiver appointed by the Subscriber and to give notice of any
such
assurance or other thing to any person the Subscriber may
require;
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6.14
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to
comply with any and all covenants and undertakings which the Company
has
entered into in the other Transaction
Documents.
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7.
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DEFAULT
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Section
103 of the 1925 Act shall not apply to this Debenture and all money secured
by
this Debenture shall be immediately payable on demand by the Subscriber in
accordance with the provisions of the Loan Note Instrument and the other
Transaction Documents and failing payment immediately of any money so demanded
this security shall become immediately enforceable and the power of sale
conferred upon mortgagees by the 1925 Act immediately exercisable without
the
restrictions contained in the 1925 Act as to the giving of notice or otherwise.
All money secured by this ▇▇▇▇▇▇▇▇▇ shall also become payable without any
demand
and this security will become immediately enforceable in the same manner
as if
demanded on the occurrence of any of the following events:
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8
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7.1
|
if
there is an Event of Default (as detailed in Condition 9.1 of the
Loan
Note Instrument) which has not been remedied as provided for in
Condition
9.2 of the Loan Note Instrument;
|
| 7.2 |
if
the Company
fails to observe or commits any breach of any of the covenants,
undertakings, conditions or provisions of this Debenture provided
always
that (save for a breach of Paragraphs 6.1 or 6.2 of this Debenture
or a
breach of Condition 9.1 (e) of the Loan Note Instrument) before
this
security becomes enforceable the Company shall have a period of
30 days
(or such longer period as is reasonable in the circumstances and
which is
agreed between the Company and the Subscriber, both parties acting
reasonably) from the earlier of (i) the date the Company becomes
aware, or
ought reasonably to be aware, of the failure to observe or commission
of
the breach and (ii) the date the Company is given notice by either
the
Subscriber or a majority (by value) of the Noteholders in which
to remedy
any failure to observe or breach. If the Company remedies the failure
to
observe or breach in accordance with this Paragraph 7.2 then this
security
shall not become immediately enforceable as a result of the failure
to
observe or breach which has been
remedied;
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| 7.3 |
if
an order is made for the winding up of the Company by the court
or if an
effective resolution is passed for the members' or creditors' voluntary
winding up of the Company;
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| 7.4 |
if
a petition is presented for an administration order to be made
in relation
to the Company pursuant to the Act;
or
|
| 7.5 |
if
a receiver is appointed of all or any part of the property and
assets of
the Company.
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|
8.
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APPOINTMENT
OF A RECEIVER, ADMINISTRATOR, LIQUIDATOR OR PROVISIONAL
LIQUIDATOR
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8.1
|
Paragraph
14 of Schedule B1 to the Act (the power by the holder of a floating
charge
to appoint an administrator of the Company) shall apply to this
Debenture.
At any time after the Subscriber has demanded payment of any of
the
liabilities secured by Paragraph 3, or any step or proceeding has
been
taken for the appointment of a receiver, administrator, liquidator
or
provisional liquidator, or with a view to seeking a moratorium
or a
voluntary arrangement, in respect of the Company, or if requested
by the
Company, the Subscriber may appoint by writing, insofar as permitted
by
law, any person or persons to be a receiver and manager of all
or any of
the Charged Property or an administrator or administrators; and
this
Debenture shall in any of such events become immediately
enforceable.
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-
9
-
|
8.2
|
Where
the Subscriber appoints more than one person as receiver, liquidator
or
provisional liquidator or administrator, they shall have power
to act
separately unless the Subscriber specifies to the contrary in the
appointment.
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8.3
|
The
Subscriber may from time to time determine the remuneration of
the
receiver, administrator, liquidator or provisional
liquidator.
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8.4
|
Once
a receiver, administrator, liquidator or provisional liquidator
is
appointed, the Subscriber will not be precluded from making any
subsequent
appointment of a receiver, administrator, liquidator or provisional
liquidator over any Charged Property, whether or not any receiver,
administrator, liquidator or provisional liquidator previously
appointed
continues to act.
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8.5
|
The
receiver, administrator, liquidator or provisional liquidator will
be the
agent of the Company and the Company will be solely liable for
his acts,
defaults and remuneration unless the Company goes into liquidation,
after
which he shall act as principal and not become the agent of the
Subscriber.
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|
8.6
|
The
receiver, administrator, liquidator or provisional liquidator will
be
entitled to exercise all the powers set out in Schedules 1 and
2 to the
Act. In addition, but without limiting these powers and without
prejudice
to the Subscriber’s powers (including the power of the Subscriber to sell
or otherwise dispose of all or any part of the Charged Property
(at the
times, in the manner and on the terms it thinks fit) and to apply
the
proceeds of such sale or other disposal in paying the costs of
that sale
or disposal and in or towards the discharge of the Secured Liabilities).
Such power of sale or other disposal shall operate as a variation
and
extension of the statutory power of sale under section 101 of the
1925 Act
and the receiver, administrator liquidator or provisional liquidator
will
have power with or without the concurrence of others and subject
always to
the rights under the Permitted
Encumbrance:
|
|
8.6.1
|
to
sell, let, lease or grant licences of, or vary the terms or terminate
or
accept surrenders of leases, tenancies or licences of, all or any
of the
Charged Property, or grant options over them, on any terms the
Receiver
thinks fit in his absolute discretion and any sale or disposition
may be
for cash, payable in a lump sum or by instalments, or other valuable
consideration;
|
| 8.6.2 |
to
sever any fixtures from land and/or sell them
separately;
|
| 8.6.3 |
to
promote a company to purchase all or any Charged Property or any
interest
in them;
|
-
10
-
| 8.6.4 |
to
make and effect all repairs, renewals and improvements to the Charged
Property and effect, renew or increase insurances on the terms
and against
the risks that he thinks fit;
|
|
8.6.5
|
to
exercise all voting and other rights attaching to Securities and
investments generally;
|
|
8.6.6
|
to
redeem any prior encumbrance and settle and pass the accounts of
the
encumbrancer so that all accounts so settled and passed will (except
for
any manifest error) be conclusive and binding on the Company and
the money
so paid will be deemed to be an expense properly incurred by the
receiver,
administrator, liquidator or provisional
liquidator;
|
| 8.6.7 |
to
pay the Subscriber’s proper charges for time spent by the Subscriber’s
employees and agents in dealing with matters raised by the administrator,
liquidator or provisional liquidator or relating to the administration;
and
|
|
8.6.8
|
to
do all other acts and things which he may consider incidental or
conducive
to any of the above matters or powers or to the preservation, improvement
or realisation of the Charged
Property.
|
|
8.7
|
Subject
to section 45 of the Act, the Subscriber may at any time remove
a
receiver, administrator, liquidator or provisional liquidator from
all or
any of the Charged Property of which he is the receiver, administrator,
liquidator or provisional
liquidator.
|
|
9.
|
APPOINTMENT
OF ATTORNEY
|
The
Company irrevocably by way of security appoints the Subscriber and any person
nominated in writing by the Subscriber including any receiver appointed under
this Debenture as attorney of the Company for the Company and in its name
and on
its behalf to execute seal and deliver and otherwise perfect and do any deed,
assurance, agreement, instrument, act or thing which it ought to execute
and do
under the covenants undertakings and provisions of this Debenture or which
may
be required or deemed proper for any of the purposes of the
Debenture.
|
10.
|
INDEMNITY
|
|
10.1
|
The
Company shall indemnify the Subscriber and any receiver, administrator,
liquidator, provisional liquidator, attorney manager, agent or
other
person appointed by the Subscriber under this Debenture out of
the Charged
Property in respect of all actions, proceedings, costs, claims,
liabilities and demands (“Liabilities”) incurred or suffered directly or
indirectly by any of them in the execution or purported execution
of any
of their powers, duties or functions under this Debenture or otherwise
and
against all actions, proceedings, costs, claims, liabilities and
demands
of any nature in respect of any thing done or omitted to be done
in any
way relating to their powers duties and
functions.
|
-
11
-
|
10.2
|
Any
receiver, administrator, liquidator or provisional liquidator appointed
under this Debenture may retain and pay all sums in respect of
any of the
liabilities and expenses referred to in paragraph out of any money
received by him under the powers conferred by this
Debenture.
|
|
10.3
|
The
Company shall ratify and confirm all transactions entered into
by the
Subscriber or any receiver, administrator, liquidator or provisional
liquidator in the exercise or purported exercise of the Subscriber’s or
the receiver’s powers and all documents entered into or things done by the
Subscriber or the receiver or other person acting under the Power
of
Attorney in paragraph 9.
|
|
11.
|
DEMANDS
AND NOTICES
|
Any
demand or written notice to be served under this agreement may be delivered
to
Company at the address set out in this Debenture or to such other address
as may
previously have been notified in writing to the Subscriber or to the Company’s
registered office or principal place of business. Notice shall either be
delivered personally, sent by first class pre-paid post to an address within
the
United Kingdom and by Air Mail to an address outside the United Kingdom or
by
facsimile transmission and shall be deemed to have been received by the
recipient party (notwithstanding that it may be returned undelivered) in
the
case of personal delivery on delivery and in the case of posting to an address
in the United Kingdom at 10.00 am on the second Business Day following the
day
of posting and in the case of posting to an address outside of the United
Kingdom at 10.00 am on the fifth Business Day following the day of posting
and
in the case of facsimile transmission on completion of the
transmission.
|
12.
|
COMPLIANCE
WITH CONSTITUTIONAL DOCUMENTS
|
The
Company warrants that:
|
12.1
|
it
is duly incorporated and validly existing in the United Kingdom
and has
full authority to enter into this Debenture and to perform its
obligations
hereunder;
|
|
12.2
|
this
Debenture constitutes its legal, valid and binding obligation and
is an
effective security over the Charged
Property;
|
|
12.3
|
that
neither the execution of this Debenture nor the creation of any
security
under or pursuant to it contravenes or will contravene the provisions
of
the memorandum or articles of association of the Company or any
equivalent
constitutional documents governing the Company;
|
|
12.4
|
the
Company is the sole legal and beneficial owner of the Charged Property
subject to the Permitted Encumbrance or any other security interests
disclosed in the Disclosure Letter;
|
|
12.5
|
the
Company has not stopped payment on any debts and is not insolvent
or
unable to pay its debts for the purpose of Section 123 of the
Act;
|
-
12
-
|
12.6
|
all
approvals required to be obtained whether under the provisions
of the
Companies Act 1985 or any other enactment have been duly obtained
and that
it is in a position to enter into this
Debenture;
|
and
the
Company agrees and undertakes to indemnify the Subscriber on a full indemnity
basis from and against all and any Liabilities arising as a result of any
breach
of any of the warranties set out in this Paragraph 12.
|
13.
|
FOREIGN
CURRENCY
|
If,
for
any reason, any amount payable by the Company is paid or recovered in a currency
other than that in which it is required to be paid (the “Contractual
Currency”)
and,
when converted into the contractual currency at the exchange rate applicable
at
the time, leaves the Subscriber with less than the amount payable in the
contractual currency, the Company must make good the amount of the shortfall
(without deduction) on demand.
| 14. |
CONTINUING
SECURITY
|
This
Debenture will be a continuing security for the liabilities detailed in
Paragraph 3 notwithstanding any intermediate payment or settlement of all
or any
part of such liabilities or other matter or thing whatsoever and will be
without
prejudice and in addition to any other right, remedy or security of whatever
sort which the Subscriber may hold at any time for such liabilities or any
other
obligation whatsoever and will not be affected by any release, reassignment
or
discharge of any other right remedy or security.
| 15. |
ASSIGNMENT
|
The
Subscriber shall be entitled to assign the benefit of this Debenture to any
party acting for the benefit of the Noteholders, provided such assignment
is
requested by an Extraordinary Resolution of the Noteholders in accordance
with
the provisions of the Loan Note instrument.
| 16. |
SUBSCRIBER’S
AND RECEIVER’S LIABILITY
|
The
Subscriber shall not nor shall any receiver appointed as aforesaid by reason
of
its or the receiver's entering into possession of the Charged Property or
any
part thereof be liable to account as mortgagee in possession or be liable
for
any loss on realisation or for any default or omission for which a mortgagee
in
possession might be liable but every receiver duly appointed by the Subscriber
under this Debenture shall (subject always to the provisions of the Act)
be
deemed to be the agent of the Company for all purposes and shall as such
agent
for all purposes be deemed to be in the same position as a receiver duly
appointed by a mortgagee under the 1925 Act and the Subscriber and every
such
receiver shall be entitled to all the rights powers privileges and immunities
by
the 1925 Act conferred on mortgagees and receivers when such receivers have
been
duly appointed under the 1925 Act.
| 17. |
PROTECTION
OF THIRD PARTIES
|
-
13
-
| 17.1 |
No
person paying or handing over monies to the Subscriber or a receiver
and
obtaining a discharge shall have any responsibility or liability
to see to
their correct application.
|
| 17.2 |
No
person dealing with the Subscriber or a receiver need
enquire:
|
| 17.2.1 |
whether
any event has happened giving either the Subscriber or the receiver
the
right to exercise any of his
powers;
|
| 17.2.2 |
as
to the propriety or regularity of any act purporting or intending
to be an
exercise of such powers;
|
| 17.2.3 |
as
to the validity or regularity of the appointment of any receiver
purporting to act or to have been appointed as such;
or
|
| 17.2.4 |
whether
any money remains owing upon this
security.
|
| 17.3 |
All
the protection to purchasers contained in Sections 104 and 107
of the Law
of Property Act 1925 shall apply to any person purchasing from
or dealing
with the receiver or the Subscriber as if the liabilities secured
by this
Debenture had become due and the statutory power of sale and appointing
a
receiver in relation to the Charged Property had arisen on the
date of
this Deed.
|
| 17.4 |
No
person dealing with the Subscriber or the receiver shall be affected
by
express notice that any act is unnecessary or
improper.
|
|
18.
|
THIRD
PARTIES
|
The
Contracts (Rights of Third Parties) Act 1999 shall not apply to this Debenture
and a person who is not a party to this Agreement shall not have nor acquire
any
right to enforce any term of it pursuant to that Act. This provision shall
not
affect any right or remedy of any third party which exists or is available
otherwise than by reason of that Act and shall prevail over any other provision
of this Debenture which is inconsistent with it.
|
19.
|
GENERAL
LAW AND CONSTRUCTION
|
|
19.1
|
This
Debenture shall be construed and governed in all respects in accordance
with English law and shall be subject to the non-exclusive jurisdiction
of
the English courts.
|
|
19.2
|
The
Company agrees that if any of the provisions in this Debenture
is held to
be invalid but would be valid if part of the wording were deleted
or
modified then such provision shall apply with such modification
as may be
necessary to make it enforceable.
|
|
19.3
|
No
failure to exercise nor any delay in exercising, on the part of
the
Subscriber, any right or remedy under the terms of this Debenture
shall
operate as a waiver, nor shall any single or partial exercise of
any right
or remedy prevent its further exercise or the exercise of any other
right
or remedy. The rights and remedies provided in this Debenture are
cumulative and not exclusive of any rights or remedies provided
by law and
nothing in this agreement shall operate to restrict or affect in
any way
any right of the Subscriber to be indemnified or to exercise a
lien
howsoever.
|
-
14
-
AS
WITNESS
this
▇▇▇▇▇▇▇▇▇ has been executed and delivered as a deed by the Company on the
date
first above written
|
EXECUTED
AS A DEED
by
`
▇▇▇▇▇▇▇
Systems (Weymouth) Limited
acting
by:-
|
)
)
)
|
| .........................................
Director
|
|
| .........................................
Director/Secretary
|
|
EXECUTED
AS A DEED
by
`
THE
ROYAL BANK OF SCOTLAND PLC
acting
by:-
|
)
)
)
|
|
.........................................
|
-
15
-