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Exhibit 10.13
DATED 23 JUNE 1999
ZAI NET SOFTWARE LIMITED
- AND -
FLEET BANK, N.A.
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DEBENTURE
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PINSENT--▇▇▇▇▇▇
GPT
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CONTENTS
1 Interpretation 1
2 Company's Obligations 5
3 Charges 6
4 Protection of Chargeholder's Rights 7
5 Covenants Etc 9
6 Demand and Enforcement 11
7 Receivers 12
8 Power of Attorney 13
9 Payment of Moneys 13
10 Consolidation 14
11 Protection of Third Parties 15
12 Protection of the Bank and the Receiver 15
13 Miscellaneous Provisions 16
14 Upstream Payments 17
SCHEDULES
1 Registered Land/Unregistered Land 19
2 The Account 20
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THIS DEED is made on 19
This Debenture is given by ZAI NET SOFTWARE LIMITED (No 03636211) whose
registered office is at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"COMPANY") in favour of FLEET BANK N.A. (the"BANK")
1 INTERPRETATION
1.1 In this Debenture unless the context otherwise requires:-
"ACCOUNT" means the account referred to in Schedule
2, or such further or other account as the
Bank may at any time stipulate
"ASSETS" means all the undertaking, property and
assets of the Company whatsoever and
wheresoever, present or future
"ASSET CONTRACTS" means all the rights of the Company, now or
in the future, arising out of or in
connection with any agreement:-
(i) for the acquisition of any property
(real or personal) by the Company
(except to the extent that such rights
amount to an interest in land
effectively charged by way of legal
mortgage or fixed charge by Clause 4.1
or 4.2) including without limitation
any option to acquire property;
(ii) for the hire, hire purchase, lease or
loan of any property (real or
personal), to the Company (except as
aforesaid)
"BANK" includes persons deriving title under the
Bank
"CREDIT AGREEMENT" means the agreement dated on or about even
date herewith between the Bank and Caminus
LLC providing for the extension of credit b
the Bank to Caminus LLC in the aggregate
principal sum of US Dollars five million
and includes all amendments and supplements
thereto from time to time
"DEBTS" means all book and other debts now or in
the future becoming due to the Company
(whether alone or jointly with any other
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person), whenever payable and whether
liquidated or unliquidated, certain or
contingent, including without limitation
credit balances on any account at any bank
or financial institution, other than the
Account, and together with all cheques,
bills of exchange, negotiable instruments,
credits and securities at any time given in
relation to, or to secure payment of, any
such debt, but "DEBTS" does not include any
asset or right effectively charged by way
of fixed charge under any other heading of
Clause 3
"ENCUMBRANCE" means any mortgage, charge, pledge, lien,
hypothecation or other security interest of
any kind, and any right of set-off,
assignment, trust, flawed asset or other
agreement or arrangement whatsoever for the
purpose of providing security or having a
similar effect to the provision of
security, other than liens arising by
operation of law in the ordinary course of
the Company's business
"ENVIRONMENTAL LAW" means all laws, including without
limitation common law, statutes, delegated
legislation, legislation of the European
Union or any of its institutions, and codes
of practice and guidance issued by any
relevant authority or agency, in relation
to any matter affecting the environment,
human health or the storage handling or
disposal of any waste or other substance
"FIXED PLANT AND EQUIPMENT" means all plant machinery or equipment of
any kind (including without limitation all
cables, pipes, switchgear, heating,
lighting, electrical, water and gas
apparatus) which does not for any reason
constitute a fixture, but is now or at any
time directly or indirectly attached by any
means and for any purpose to any land or
building, whether or not it is removable or
intended to form part of the land or
building
"FIXTURES" means all things of any kind now or at any
time affixed to land for any purpose,
including without limitation trade and
tenants fixtures
"GROUP COMPANY" means any company which is at any relevant
time a subsidiary
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company or a holding company of the
Company, or a subsidiary of any such
holding company, or a company which is
controlled by persons who control the
Company
"INSURANCES" means all the right title and interest of
the Company, now or in the future, in or
under any policy of insurance or assurance
or to the proceeds thereof
"INTELLECTUAL PROPERTY" means all the right title and interest of
the Company (now or in the future) in or to
any of the following:-
(I) any registered intellectual property
right in any territory, including
without limitation patents, trade
marks, service marks, registered
designs, and any similar right in any
territory and any applications or right
to apply for any of the above;
(ii) any invention, copyright, design right
of performance right; and
(iii) any trade secrets, know-how and
confidential information
"LAND" means any estate, right or interest in or
over land, whether legal or equitable, and
wherever the land is situated, including
any buildings and Fixtures on land, and the
benefit of any covenants or rights owed to
any person or enforceable by him by virtue
of the ownership possession or occupation
of Land, but for these purposes "land"
excludes heritable property situated in
Scotland
"LOOSE PLANT AND EQUIPMENT" means all plant, machinery, equipment and
motor vehicles now or at any time owned by
the Company as a capital asset which is not
Fixed Plant and Equipment, (including
without limitation any moulds, patterns,
tools (other than hand tools and consumable
tooling) dies and jigs)
"OTHER CLAIMS" means all rights claims or obligations of
any kind whatsoever now or at any time
owed to the Company capable of being
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satisfied by the payment of money, which
are not effectively charged by way of fixed
charge by any other provision of this
Debenture
"RECEIVER" means any receiver appointed under this
Debenture, and, where more than one
receiver has been appointed, each of them
"RENTS" means any sum payable to the Company (and
any right to recover any such a sum):-
(I) by way of rent, service charge or
otherwise under any lease of Land, or
as mesne profits, licence fee, or
otherwise howsoever for the use or
occupation of or trespass upon Land, or
other income arising from any Land;
(ii) by way of rent or otherwise for or in
connection with the possession or use
of, or in respect of any trespass to or
conversion of, any chattel
except insofar as the same is effectively
charged by way of fixed charge by Clause
3.1 or 3.2
"SECURED LIABILITIES" means all money liabilities and obligations
now or in the future owed or incurred by
the Company to the Bank, of any kind,
however arising and in any currency,
whether or not immediately payable, whether
certain or contingent, whether sole or
joint, whether as principal or as surety,
whether or not the Bank was the original
creditor in respect thereof, and including
(without limitation) interest commission
costs charges and expenses charged by the
Bank at rates agreed between it and the
Company or, in the absence of express
agreement, in accordance with the Bank's
normal practice for the time being
"SECURITIES" means all the right title and interest of
the Company, now or in the future, in any
stocks, shares, instruments creating or
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acknowledging any debt, or other securities
issued by any person
1.2 In this Debenture unless the context otherwise requires:-
1.2.1 the singular includes the plural and vice versa, and
reference to any gender includes the other genders;
1.2.2 references to persons include bodies corporate,
associations, partnerships, organisations, states, state
agencies and any other entity, whether or not having
separate legal personality;
1.2.3 words and phrases defined in the Companies ▇▇▇ ▇▇▇▇ have
the same meanings in this Agreement but the word "COMPANY"
includes any body corporate;
1.2.4 references to Clauses are to clauses or sub-clauses of this
Debenture, references to a Schedule are to a schedule to
this Debenture and references within a Schedule to
paragraphs are to paragraphs or sub-paragraphs of that
Schedule;
1.2.5 references to any rate of interest shall be construed as
meaning that rate as from time to time in force, calculated
from day to day, and compounded on the Bank's usual days
for charging interest in each year, both before and after
judgment; and references to a base lending rate shall, if
there is no such published or determinable rate at the
appropriate time, be construed as meaning such reasonably
equivalent rate as the Bank shall select;
1.2.6 unless the defined herein capitalised terms have the
meaning assigned thereto in the Credit Agreement.
1.3 In this Debenture:-
1.3.1 any reference to any statute or statutory instrument or any
section or part thereof includes any enactment (present or
future) replacing or amending it or any instrument, order
or regulation made under it and also includes any past
statutory provisions (as from time to time modified or
re-enacted) which such provision has directly or indirectly
replaced;
1.3.2 headings are for reference purposes only and shall not
affect the construction of anything in this Agreement;
2 COMPANY'S OBLIGATIONS
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The Company covenants:-
2.1 to pay or discharge to the Bank on demand made at any time
at which the Bank is entitled to do so any or all of the
Secured Liabilities; and
2.2 to pay interest to the Bank upon any sum so demanded until
payment (both before and after any judgment) at the rate
applicable to that sum immediately before demand (or, if
there was no such applicable rate, at four per cent above
the Bank's Base Rate.)
3 CHARGES
As security for payment of the Secured Liabilities the Company (with full
title guarantee) hereby charges to the Bank:-
3.1 by way of first legal mortgage all Land now owned by the
Company including (without limitation) the land which is
described in the Schedule hereto,
3.2 by way of first fixed equitable charge all Land which the
Company acquires in the future;
3.3 by way of separate first fixed charges:-
3.3.1 all the goodwill and uncalled capital of the
Company, present or future
3.3.2 the Securities
3.3.3 the Insurances
3.3.4 the Intellectual Property
3.3.5 the Debts
3.3.6 the Rents
3.3.7 the Asset Contracts
3.3.8 the Other Claims
3.3.9 the Fixed Plant and Equipment
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3.3.10 the Loose Plant and Equipment
3.4 by way of first floating charge all those Assets which are
not for any reason effectively charged by this Debenture by
way of fixed charge, including (without limitation) any
heritable property of the Company situated in Scotland.
4 PROTECTION OF CHARGEHOLDER'S RIGHTS
4.1 The Company shall pay into the Account all moneys which it receives in
respect of any Debts and Rents and until such payment hold all moneys so
received upon trust for the Bank and shall not without the prior written
consent of the Bank charge factor discount or assign any of them in
favour of any other person, or otherwise deal with them except for the
purpose of collecting them in and paying them as required by this Clause.
4.2 The Company shall deal with any money standing to the credit of the
Account, subject to the rights of the bank at which the Account is
maintained, in accordance with any directions given in writing by the
Bank from time to time.
4.3 Any monies received by the Company in respect of Debts or Rents and paid
into the Account in accordance with Clause 4.1 at any time prior to this
Debenture becoming enforceable shall, in the absence of any prior
direction to the contrary given by the Bank, upon such payment in be
deemed released from the fixed charges created by Clause 3.3, but shall
be subject to the floating charge created by Clause 3.4. Any such release
shall not affect the continuance of the fixed charges over all other
Debts and Rents for the time being outstanding.
4.4 The Company covenants not, without the prior written consent of the
Bank:-
4.4.1 to create (otherwise than in favour of the Bank) any
Encumbrance, or to allow any Encumbrance to arise or
continue, on or over any of the Assets ; or
4.4.2 to part with or dispose of all or any of the Assets charged
by way of floating charge except in the ordinary course of
carrying on its business as a going concern.
Unless permitted by the Credit Agreement.
4.5 The Bank may from time to time by notice in writing to the Company
convert any floating charge created by this Debenture into a fixed
charge, in respect of any Assets which are specified in any such notice.
Any such floating charge shall automatically be converted into a fixed
charge:-
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4.5.1 in respect of any Assets, immediately prior to the Company
agreeing or resolving (unless the Bank has first consented
to it) to create any Encumbrance over those Assets in
favour of any other person, or to part with or dispose of
them otherwise than in the ordinary course of carrying on
the Company's business as a going concern; and
4.5.2 in respect of all the Assets if the Company ceases to carry
on business or to be a going concern or if any voluntary
arrangement or other moratorium or compromise with the
Company's creditors, or any class of them, is proposed or
put into effect;
but so that this sub-Clause 4.5 shall not apply to any Assets situated in
Scotland.
4.6 The Company hereby applies to the Chief Land Registrar for a restriction
to be entered on the register of title of all registered land now or in
the future owned by the Company in the following terms:-
"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 for
the time being of [the charge created by this Debenture]".
4.7 The Company shall subject to the rights of any prior mortgagee deposit
with the Bank and the Bank during the continuance of this security shall
be entitled to hold all deeds and documents of title relating to the
Company's Land, the Securities (including warrants and coupons) and the
Insurances.
4.8 The Company shall, at is own expense, at any time when required by the
Bank:-
4.8.1 execute and deliver to the Bank a valid legal mortgage of
any Land now or in the future owned by the Company;
4.8.2 execute and deliver to the Bank a legal assignment of any
Debts, Rents, or Other Claims which the Bank shall require,
and give notice of any such assignment to any person when
required by the Bank; and
4.8.3 execute and deliver all deeds and documents and do and
concur in all other acts and things which the Bank may deem
necessary or desirable to vest in the Bank the security
intended to be created by this Debenture over all or any of
the Assets
4.8.4 do and concur in all such other acts or things as the Bank
may deem necessary or desirable to vest in the Bank the
security intended to be created by this Debenture over all
of any of the Assets or to facilitate the enforcement of
that security, or the exercise of any powers or discretions
intended to be vested in the Bank or the Receiver by this
Debenture
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in each case, in the Bank's standard form or such other form as the Bank
may require. In the case of Assets situated outside England and Wales,
references to any form of security shall be taken to refer to any form of
security available under the relevant local law which the Bank may
select.
4.9 This security shall be a continuing security to the Bank and shall remain
in force until expressly discharged in writing by the Bank
notwithstanding any intermediate settlement of account or other matter or
thing whatsoever, and shall be without prejudice and in addition to any
other right remedy or security of any kind which the Bank may have now or
at any time in the future for or in respect of any of the Secured
Liabilities.
5 COVENANTS ETC
5.1 While this Debenture continues in force the Company shall:-
5.1.1 provide to the Bank all information, and copies of all
documents which the Bank may require relating to the
financial affairs of and its interest in the Company and
any Group Company, including, without limitation, providing
not later than 21 days after the end of each month, (or
such other period as the Bank may at any time specify in
writing) copies of management accounts and financial
information in such form as the Bank may require, in
respect of the Company and each Group Company;
5.1.2 forthwith notify the Bank of the acquisition of any Land;
5.1.3 ensure that the aggregate value of the Company's good book
debts (excluding debts payable by any other Group Company,
and any other person from time to time specified by the
Bank), after deducting any provision which is (or ought to
have been) made in respect of doubtful debts in the
Company's most recent management or audited accounts ("the
Debtor Value"), at all times exceeds such amount as the
Bank may from time to time specify;
5.1.4 provide to the Bank, within three days after a request by
the Bank, a certificate signed by a director of the Company
of the aggregate Debtor Value as at a stated date not more
than seven days before the date of the certificate, and
such other information in relation to the Debts as the Bank
may require;
5.1.5 put and keep all its buildings in good and substantial
repair and all fixtures and fittings plant machinery and
other effects in good working order and condition;
5.1.6 maintain all such insurances as are normally maintained by
prudent companies carrying on similar businesses and in
particular (without limitation) will insure and keep
insured such of the
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Assets as are insurable with an insurance office or
underwriters to be approved by the Bank in writing from
time to time, (and, if at any time so requested by the
Bank) either in the name of the Company with the interest
of the Bank noted or, at the option of the Bank, in the
joint names of the Company and the Bank, against loss or
damage by fire and such other risks (on terms that the
insurer shall not avoid cancel or fail to renew any such
policy for non payment of premium without first giving not
less than 21 days prior notice to the Bank, and on such
other terms as the Bank may from time to time require, in
their full replacement value for the time being);
5.1.7 pay all premiums and other moneys necessary to effect and
keep up such insurances within one week of the same
becoming due, on demand produce to the Bank the policy or
policies of such insurance and the receipt for every such
payment, comply at all times with all the requirements of
any such insurance policy, and not do or omit to do
anything, or allow any thing to occur or continue which
will or may in the sole opinion of the Bank cause any such
insurance policy to become void or voidable, or allow the
insurer to refuse any indemnity under it;
5.1.8 in relation to all Land owned or occupied by the Company
(a) at all times observe and perform (and ensure that
any other person at any time occupying any such
Land also observes and performs) all restrictive
and other covenants to which the Land or any part
of it may from time to time be subject, all
obligations on the part of the Company or any such
occupier in any lease or tenancy agreement and all
building regulations and all restrictions
conditions and stipulations for the time being
affecting the Land or any part of it or the use or
enjoyment of the Land
(b) within seven days deliver to the Bank any notice
or proceedings served on the Company and relating
to any alleged breach of any of the above; and
(c) at all times keep the Land in a safe condition for
all persons forseeably likely to be present on any
part of it, and where necessary or desirable for
such purposes, erect and maintain fencing,
barriers, covers and other security measures
(d) pay all rents rates taxes and outgoings payable by
virtue of its ownership or occupation, and
(e) permit the Bank at any reasonable time to enter on
the land, inspect it and any assets on it, and
take copies of any documents there.
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5.1.9 at all times comply with all applicable Environmental Law,
and obtain and comply with the terms of any licence or
permit under any Environmental Law which is necessary or
desirable to carry on any of the Company's businesses or
activities.
5.1.10 take all action necessary to maintain any registered rights
to Intellectual Property in full force and effect, and to
make and pursue all applications which it is entitled to
make for any such rights.
5.2 If the Company is in default under any of the covenants set out in Clause
5.1 above (or any of its other obligations under this Debenture), the
Bank may at its sole discretion (but will not be obliged to) take any
steps which it considers necessary or desirable to remedy the default or
make good its effects in whole or in part, and in particular, without
limitation, may pay any amount which the Company ought to pay and may
authorise any person to enter, by force if necessary, on any Land or into
any building owned or occupied by the Company and perform works and may
put in place or renew any insurance. Neither the Bank, nor any person
authorised by it, shall be deemed to have taken possession of any Land by
virtue of exercising any power given by this Clause, irrespective of the
degree of control exercised over the Land or access to it, unless and
until the Bank (or any such person) serves notice in writing on the
Company expressly stipulating its intention to take possession.
5.3 The Bank shall be entitled to be paid the proceeds of any Insurance to
which the Company is entitled (other than any indemnity against liability
to a third party) and the Company hereby irrevocably instructs any
insurer in respect of any such policy to pay such proceeds to the Bank
and undertakes to the Bank to issue such further instructions to that
effect as the Bank may require.
5.4 All moneys received on any Insurance whatsoever (other than any indemnity
against liability to a third party) shall as the Bank in its sole
discretion requires be applied either in making good the loss or damage
in respect of which the money is received or in or towards discharge of
the Secured Liabilities.
6 DEMAND AND ENFORCEMENT
6.1 This Debenture shall become enforceable:-
6.1.1 upon any demand being made by the Bank for payment of any
of the Secured Liabilities;
6.1.2 upon any request being made by the Company to the Bank for
the appointment of a receiver or for the Bank to exercise
any other power or right available to it;
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6.1.3 upon the occurrence of any event referred to in Clause
4.5.2, or any event causing the floating charge created by
this Debenture to become fixed in relation to any Assets;
6.1.4 upon the passing of any resolution, or the presentation of
a petition for winding up, or for an administration order
in relation to the Company
6.2 Any demand for payment, and any other notice to be given by the Bank
under this Debenture, shall be in writing and may be signed by any
official of the Bank, and may be made or given at any place of business
of the Company, or at its registered office:-
6.2.1 by delivering it to any such place, or
6.2.2 by sending it by first class post to any such place (in
which case it shall be deemed received at 10am on the next
business day after posting, and proof of posting shall be
proof of delivery), or
6.2.3 by sending it by fax to any of the Company's fax numbers
(in which case it shall be deemed received when sent, and
proof of sending shall be proof of receipt).
6.3 At any time after this Debenture shall have become enforceable, the Bank
may exercise, in respect of any Asset, the power of sale given to
mortgagees by the Law of Property ▇▇▇ ▇▇▇▇. The restrictions imposed by
section 103 of that Act shall not apply, and the Bank may delegate the
exercise of its power of sale to any Receiver or other person.
7 RECEIVERS
7.1 At any time after this Debenture has become enforceable the Bank may
appoint any person or persons to be a receiver or receivers of all or any
part of the Assets hereby charged. An appointment over part only of the
Assets shall not preclude the Bank from making any subsequent appointment
over any other part of the Assets.
7.2 The appointment of a Receiver shall be in writing, and may be signed by
any officer of the Bank. Where more than one person is acting at any time
as Receiver, they shall have power to act severally as well as jointly.
7.3 The Bank may from time to time determine the remuneration of the Receiver
(which shall not be subject to the limit in section 109(6) of the Law of
Property Act 1925) and may (subject to the application of Section 45 of
the Insolvency Act 1986) remove any person from office in relation to all
or any part of the Assets of which he is the Receiver and at any time
(before or after any person shall have vacated office or ceased to act as
Receiver in respect of any of the Assets) appoint a further or other
receiver or receivers over all or any part of the Assets.
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7.4 The Receiver shall be the agent of the Company (which shall be solely
liable for his acts defaults and remuneration) unless and until the
Company goes into liquidation whereafter he shall act as principal and
shall not become the agent of the Bank, and the Receiver shall have and
be entitled to exercise in relation to the Company all the powers set out
in Schedule 1 to the Insolvency ▇▇▇ ▇▇▇▇ (whether or not he is an
administrative receiver) and in applying that Schedule:-
7.4.1 the words "he" and "him" refer to the Receiver; and
7.4.2 references to the property of the company are to the Assets
over which the Receiver is appointed
and in particular by way of addition to but without hereby limiting such
powers (and without prejudice to the Bank's powers) the Receiver shall
have power to do the following things namely:-
7.4.3 power to carry on or join with any person in carrying on
any business (whether or not carried on by the Company
prior to his appointment) and;
7.4.4 power to maintain, repair, make safe, improve and develop
any Land or other Asset and to do all such other things as
may in his opinion be necessary or desirable for
maintaining or enhancing the value or marketability of any
Asset.
8 POWER OF ATTORNEY
The Company hereby irrevocably appoints the Bank (whether or not a
Receiver has been appointed) and also (as a separate appointment) each
Receiver severally as the attorney and attorneys of the Company with
power to do any act, and execute and deliver any deed or other document,
on behalf of and in the name of the Company, which the Company could be
required to do or execute under any provision of this Debenture, or which
the Bank in its sole opinion may consider necessary or desirable for
perfecting the Bank's title to any of the Assets or enabling the Bank or
the Borrower to exercise any of its or his rights or powers under this
Debenture
9 PAYMENT OF MONEYS
9.1 Any moneys received by the Receiver shall, subject to the repayment as
far as necessary of any claims having priority to this Debenture, be paid
or applied in the following order of priority:-
9.1.1 in satisfaction of all costs charges and expenses properly
incurred and payments properly made by the Receiver and of
the remuneration of the Receiver;
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9.1.2 in or towards satisfaction of the Secured Liabilities in
such order as the Bank may at its discretion require;
9.1.3 as to the surplus (if any) to the person or persons
entitled thereto.
9.2 The Bank may, without prejudice to any other rights it may have, at any
time and from time to time place (and keep for such time as it may think
prudent) any moneys received recovered or realised under or by virtue of
this Debenture on a separate or suspense account to the credit either of
the Company or of the Bank as the Bank shall think fit without any
intermediate obligation on the Bank's part to apply the same or any part
thereof in or towards the discharge of the Secured Liabilities.
10 CONSOLIDATION
10.1 In addition to any general lien, right to combine accounts, right to set
off or other right which it may at any time have, the Bank shall have the
right at any time or times, without notice to the Company, to combine or
consolidate all or any accounts which it then has in relation to the
Company (in whatever name) and any liabilities owed by the Company to the
Bank, and/or to set off or transfer any amounts standing to the credit of
one or more accounts of the Company in or towards satisfaction of any
amount owed to the Bank on any other account or otherwise
10.2 The Bank's rights under Clause 10.1 apply:-
10.2.1 whether or not any demand has been made hereunder, or any
liability concerned has fallen due for payment
10.2.2 whether or not any credit balance is immediately available
or subject to any restriction
10.2.3 irrespective of the currencies in which any balance or
liability is denominated, and the Bank may for the purpose
of exercising its rights elect to convert any sum or
liability in one currency into any other of its spot rate
applying at or about 11am on the date of conversion
10.2.4 in respect of any liabilities owed to the Bank by the
Company, whether owed solely or jointly, certainly or
contingently, presently or in the future, as principal or
surety, and howsoever arising.
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11 PROTECTION OF THIRD PARTIES
11.1 In favour of any purchaser, the statutory powers of sale and of
appointing a receiver which are conferred upon the Bank, as varied and
extended by this Debenture, and all other powers of the Bank, shall be
deemed to arise and be exercisable immediately after the execution of
this Debenture
11.2 No purchaser from or other person dealing with the Bank, any person to
whom it has delegated any of its powers, or the Receiver shall be
concerned to enquire whether any of the powers which they have exercised
has arisen or become exercisable, or whether the Secured Liabilities
remain outstanding or whether any event has happened to authorise the
Receiver to act or as to the propriety or validity of the exercise of any
such power; and the title and position of a purchaser or such person
shall not be impeachable by reference to any of those matters
11.3 The receipt of the Bank or the Receiver shall be an absolute and
conclusive discharge to a purchaser or such person and shall relieve him
of any obligation to see to the application of any moneys paid to or by
the direction of the Bank or the Receiver.
12 PROTECTION OF THE BANK AND THE RECEIVER
12.1 Neither the Bank nor any Receiver shall be liable in respect of any loss
or damage which arises out of the exercise, or attempted or purported
exercise of, or the failure to exercise any of their respective powers
under this Debenture
12.2 Without prejudice to any other provision of this Debenture, entry into
possession of any Asset shall not render the Bank or the Receiver liable
to account as mortgagee in possession or to be liable for any loss on
realisation or for any default or omission for which a mortgagee in
possession might be liable and if and whenever the Bank or the Receiver
enters into possession of any Asset it shall be entitled at any time it
or he thinks fit to go out of such possession
12.3 The Company shall indemnify and keep indemnified the Bank, every
Receiver, and any person who acts as the servant, agent, delegate or
attorney of any of them, against all claims costs expenses and
liabilities which they may suffer or incur arising in any way out of the
taking or holding of this Debenture, the exercise or purported exercise
of any right power authority or discretion given by it, or any other act
or omission in relation to this Debenture or the Assets. The provisions
of this Clause 12 shall continue in full force and effect notwithstanding
any release or discharge of this Debenture, or the discharge of any
Receiver from office.
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13 MISCELLANEOUS PROVISIONS
13.1 While this Debenture continues in force:-
13.1.1 no statutory or other power of granting or agreeing to
grant or of accepting or agreeing to accept surrenders of
leases or tenancies of the Land hereby charged or any part
of it shall be capable of being exercised by the Company;
13.1.2 the Company shall not be entitled to part with possession
(otherwise than on the termination of any lease tenancy or
licence to it) of any Land, or to share occupation of any
Land with any other person or persons, or to surrender any
lease of Land or permit such a lease to be assigned or
forfeited;
without the prior written consent of the Bank;
13.2 Section 93 of the Law of Property ▇▇▇ ▇▇▇▇ dealing with the consolidation
of mortgages shall not apply to this security.
13.3 The statutory powers of sale, leasing and accepting surrenders
exercisable by the Bank are hereby extended so that the Bank may, either
in its own name or in that of the Company,
13.3.1 grant a lease or leases (whether or not at a premium) of
the whole or any part or parts of any Land owned by the
Company, with such rights relating to other Land and
containing such covenants on the part of the Company and
generally on such terms and conditions as the Bank shall
think fit (including the payment of money to a lessee or
tenant on a surrender);
13.3.2 accept a surrender of any lease on such terms as the Bank
may think fit in either case, without any of the
restrictions on such powers contained in section 99 and 100
of the Law of Property ▇▇▇ ▇▇▇▇.
13.4 The rights powers and discretions given to the Bank in this Debenture:-
13.4.1 may be exercised as often as and in such manner as, the
Bank thinks fit;
13.4.2 are cumulative, and are not exclusive of any of its rights
under the general law;
13.4.3 may only be waived in writing and specifically, and any
delay in exercising, or non-exercise of, any right, is not
a waiver of it.
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13.5 If any provision of this Debenture is illegal invalid or unenforceable in
any jurisdiction, that shall not affect:-
13.5.1 the validity or enforceability of any other provision, in
any jurisdiction, or
13.5.2 the validity or enforceability of that particular
provision, in any other jurisdiction.
13.6 All costs charges and expenses incurred or paid by the Bank or by the
Receiver in the exercise of any power or right given by this Debenture or
in relation to any consent requested by the Company, or in perfecting or
otherwise in connection with this Debenture or the Assets, including
(without limitation) all moneys expended by the Bank under Clause 5.2,
all sums recoverable under Clause 12.3 and all costs of the Bank (on an
indemnity basis) of all proceedings for the enforcement of this Debenture
or for obtaining payment of moneys hereby secured, shall be recoverable
from the Company as debts, may be debited by the Bank at any time to any
account of the Company and shall bear interest until payment at the rate
or rates applicable to the account to which they are debited, or, if
there is no such rate, at 4% over the Bank's base rate.
13.7 If the Bank receives notice of any subsequent charge or other security
interest affecting any of the Assets the Bank shall be entitled to close
the Company's then current account or accounts and to open a new account
or accounts for the Company; if the Bank does not open a new account or
accounts immediately on receipt of such notice it shall nevertheless be
treated as if it had done so at the time when it received such notice,
and as from that time all payments made for the credit of the Company to
the Bank shall be credited or be treated as having been credited to such
new account or accounts and shall not operate to reduce the amount due
from the Company to the Bank at the time when it received such notice.
13.8 The Bank may from time to time seek from any other person having dealings
with the Company such information about the Company and its affairs as
the Bank may think fit and the Company hereby authorises and requests any
such person to provide any such information to the Bank and agrees to
provide such further authority in this regard as the Bank may from time
to time require. The Company shall at its own cost at any time if so
requested by the Bank appoint an accountant or firm of accountants
nominated by the Bank to investigate the financial affairs of the Company
and/or any subsidiary of the Company and report to the Bank, and
authorises the Bank itself at any time to make such appointment on behalf
of the Company or on its own account as it shall think fit, and in every
such case the fees and expenses of such accountant or firm shall be
payable by the Company and may be paid by the Bank on behalf of the
Company.
13.9 The Bank may assign this Debenture to any successor in title to any of
the Secured Liabilities, and may disclose any information in its
possession relating to the Company, its affairs or the Secured
Liabilities to any actual or prospective assignee.
14 UPSTREAM PAYMENTS
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Nothing in this Debenture shall prohibit the payment by the Company of
dividends or distributors or the making of other payments or transfers to
its parent company which dividend distribution payments or transfers are
not prohibited by the Credit Agreement
EXECUTED AND DELIVERED AS A DEED by the Company, and executed by the Bank, on
the date hereof
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SCHEDULE 1
REGISTERED LAND
TITLE NUMBER DESCRIPTION
UNREGISTERED LAND
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SCHEDULE 2
THE ACCOUNT
The Company's current account detailed below:
Bank: [ ]
Branch: [ ]
Sort Code: [ ]
Account Number: [ ]
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EXECUTED (but not delivered until ) Director /s/ ▇. ▇. ▇▇▇▇▇
the date hereof) AS A DEED by ) ▇. ▇. ▇▇▇▇▇
ZAI NET SOFTWARE LIMITED ) Secretary /s/ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇▇▇▇▇
SIGNED by a duly authorised officer )
for and on behalf of FLEET BANK N.A. ) /s/ ▇▇▇▇▇▇▇ Twist
in the presence of:- -----------------------------------------------
)
Signature of Witness: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name of Witness: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address:
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