DEBENTURE
Date:
________(day) of ______________________(month), 200
Parties:
1 The
Creditor [name______________________________________]
of [address__________________________________________________________]
.
2
The
Debtor [name_______________________________________]
of
[address[_________________________________________________________]
Operative
provisions:
1 Interpretation
1.1 In this Debenture:
ASSETS means the all the
interest, property, undertaking and assets of the Debtor expressed to be charged
to the Creditor now or hereafter under clause 2.
CREDITOR shall include,
unless the context otherwise requires, the Creditor’s successors and assigns from
time to time, whether in
LAW means
the common law and all applicable laws, statues, ordinances, rules, regulations
or requirements concerning this debenture.
INDEBTEDNESS means all the Debtor’s
present or future indebtedness to the Creditor on any current or other account
whatever held by the Debtor whether solely or jointly with any other person or
persons (notwithstanding that there may from time to time be a credit balance
on any such account) and all the Debtor’s other liabilities whatever to the Creditor, including
(without limitation) indebtedness on account of money advanced, bills of
exchange, promissory notes, obligations with respect to letters of credit,
guarantees and indemnities, whether present, future, actual or contingent and
whether or not matured or accrued due and whether incurred solely, severally or
jointly with any other person and whether in Sterling, Hong Kong dollars or in
any other currency, together with interest, commission, Creditor charges and
any other costs, charges and legal expenses (on a full indemnity basis) charged
or incurred by the Creditor and including those arising from the Creditor
perfecting or enforcing or attempting to enforce this Debenture or any other
security (and its rights thereunder) held by the Creditor from time to time
PROPERTY means all leasehold
and freehold property referred to in clauses 2.1.1 and 2.1.2, and
RECEIVERS has the meaning
given to it in clause 4.1.
1.2 Clause headings are for ease of reference
only.
2 Charge
2.1 The Debtor hereby covenants on demand to pay
or discharge the Indebtedness to the Creditor. As security for the payment and
discharge of the Indebtedness, the Debtor, hereby charges to the Creditor with
full title guarantee:
2.1.1 by way of legal mortgage, all freehold
and leasehold property now vested in the Debtor, together with all buildings, fixtures
(including trade fixtures) and fixed plant and machinery from time to time on
that property;
2.1.2 by way of fixed charge, all estates or
interests in any freehold and leasehold property of the Debtor (not being
Property charged by clause 2.1.1) now and in the future vested in the Debtor,
together with all buildings, fixtures (including trade fixtures) and fixed
plant and machinery from time to time on that property;
2.1.3 by way of fixed charge, all the goodwill
and uncalled capital for the time being of the Debtor;
2.1.4 by way of fixed charge, all book debts
and other debts now and in the future due or owing to the Debtor;
2.1.5 by way of fixed charge, all intellectual
property rights, choses in action and claims now and in the future belonging to
the Debtor;
2.1.6 by way of floating charge, all the Debtor’s present and future undertaking and assets, whatever and wherever, including (without limitation) all other property and assets not subject to a fixed charge under this Debenture.
2.1.7 by way of paying the interest, money, and
its receivable under any pension fund now and in the future due and owing to
the Debtor and by way of irrevocable power of attorney to operate the bank
account(s) in relation to the receipt of the interest, money, and its
receivable under any pension fund.
3 Covenants
3.1 The Debtor shall not:
3.1.1 (except for charges in favour of the Creditor
created under or pursuant to this Debenture) create or permit to subsist any
mortgage, charge or lien on any of its undertaking or assets;
3.1.2 sell, transfer or otherwise dispose of
its undertaking and other assets or any part of them, except by getting in and
realising them in the ordinary and proper course of its business;
3.1.3 pull down or remove all or any part of
the buildings forming part of the Property or sever, unfix or remove any of the
fixtures on the Property nor (except for necessary repairs or the substitution
of full value replacements) remove any plant and machinery from the Property;
3.1.4 deal with its book or other debts or
securities for money except by getting in and realising them in the ordinary
and proper course of its business, but so that this exception shall not permit
the realisation of debts by means of block discounting or factoring; or
3.1.5 grant or accept a surrender of any lease
or licence of or part with or share possession or occupation of the Property or
any part of it.
3.2 The Debtor shall:
3.2.1 promptly deposit with the Creditor all
deeds and documents of title and all insurance policies relating to the Assets
and promptly notify the Creditor on acquiring any Property after the date of
this Debenture;
3.2.2 keep such of the Assets as are insurable
comprehensively insured to the Creditor’s satisfaction in writing (and, if so
required by the Creditor, in the joint names of itself and the Creditor)
against loss or damage by fire and such other risks as the Creditor may
require, to their full replacement value and, where such insurance is not in
joint names, procure that the Creditor’s interest is noted on all policies
required under this clause 3.2.2;
3.2.3 duly and promptly pay all premiums and
other moneys necessary for maintaining the insurances required under clause
3.2.2 and on demand produce the insurance policies and premium receipts to the Creditor;
3.2.4 keep all buildings and all plant,
machinery, fixtures, fittings and other effects in good repair and working
order;
3.2.5 pay into its bank account [account number_______________________] with the Creditor (or such other account as the Creditor may designate by notice to the Debtor from time to time) all moneys which it may receive in respect of the book debts and other debts charged by clause 2.1.4 [and, except with the Creditor’s prior written consent, not make any withdrawals from that account];
3.2.5.1 pay into its bank account [account
number___________________________] with the Creditor (or such other account as
the Creditor may designate by notice to the Debtor from time to time) all
moneys which it may receive in respect of the Retirement benefits of the Old
Pension Scheme or New Pension Scheme under Civil Service Fringe Benefits of
Hong Kong
3.2.6 conduct and maintain its business,
operations and property so as to comply in all respects with all applicable
Environmental Laws and notify the Creditor promptly and in reasonable detail of
any claim, notice or communication in respect of any violation or potential
violation of an Environmental Law; and
3.2.7 promptly notify the Creditor of any
meeting to discuss, or any proposal or application for the appointment of an
administrator, receiver, liquidator or similar official in respect of the Debtor
or any of its Assets and, if any such official is appointed, of his
appointment.
3.3 If the Debtor fails to perform any of its
obligations under clauses 3.2.2, 3.2.3 or 3.2.4, the Creditor may take out or
renew any insurance or effect such repairs and take such other action as it may
deem appropriate to remedy such failure and recover the premiums and other
expenses so incurred from the Debtor on demand.
4 Receiver
4.1 At any time after the Creditor’s demand for
payment from the Debtor of any Indebtedness (or if so requested by the Debtor),
the Creditor may appoint by writing any person or persons to be an
administrative receiver or a receiver and manager or receivers and managers (the Receivers which
expression shall include any substituted receiver(s) and manager(s)) of all or
any part of the Assets. Without limiting the Creditor’s rights under this
clause 4.1 or at law, the Creditor may, whether or not any demand has been made
for payment of the Indebtedness, appoint a Receiver if the Creditor becomes
aware of any of the matters referred to in clause 3.2.6 or if the security
created by this Debenture shall be in jeopardy.
4.2 The Creditor may from time to time determine
the remuneration of the Receiver and may remove the Receiver and appoint
another in his place.
4.3 The Receiver shall be the Debtor’s agent and shall have all
powers conferred by the Laws. The Debtor alone shall be responsible for his
acts and omissions and for his remuneration. In particular, but without
limiting any general powers or the Creditor’s power of sale, the Receiver shall
have power:
4.3.1 to take possession of collect and get in
all or any part of the Assets and for that purpose to take any proceedings in
the Debtor’s name or
otherwise as he shall think fit;
4.3.2 to carry on or concur in carrying on the
Debtor’s business and
raise money from the Creditor or others on the security of all or any part of
the Assets;
4.3.3 to sell, let and/or terminate or to
accept surrenders of leases or tenancies of any part of the Property, in such
manner and on such terms as he thinks fit;
4.3.4 to take, continue or defend any
proceedings and make any arrangement or compromise which the Creditor or he
shall think fit;
4.3.5 to make and effect all repairs,
improvements and insurances;
4.3.6 to appoint managers, officers and agents
for any of the above purposes, at such salaries as the Receiver may determine;
4.3.7 to call up any of the Debtor’s uncalled capital;
4.3.8 to promote the formation of a subsidiary
Debtor or companies of the Debtor, so that such subsidiary may purchase, lease,
license or otherwise acquire interests in all or any part of the Assets; and
4.3.9 to do all other acts and things which he
may consider to be incidental or conducive to any of the above powers.
4.4 Any moneys received under this Debenture
shall be applied:
4.4.1 first, in satisfaction of all costs,
charges and expenses properly incurred and payments properly made by the Creditor
or the Receiver and of the remuneration of the Receiver;
4.4.2 secondly, in or towards satisfaction of
the Indebtedness in such order as the Creditor shall determine; and
4.4.3 thirdly, the surplus (if any) shall be
paid to the person or persons entitled to it.
5 Miscellaneous
5.1 No statutory or other power of granting or
agreeing to grant or of accepting or agreeing to accept surrenders of leases or
tenancies of any part of the Property may be exercised by the Debtor without
the Creditor’s prior written consent.
5.2 By notice in writing to the Debtor, the Creditor
may at any time convert the floating charge created by clause 2.1.6 into a
specific charge over any Assets specified in the notice which the Creditor
considers to be in danger of being seized or sold under any form of distress,
attachment or other legal process or to be otherwise in jeopardy. The Debtor at
its expense shall at any time on the Creditor’s request promptly execute and
deliver to the Creditor any other or further mortgage, charge or other
instrument conferring a fixed charge on any of its Assets (including any of the
Assets charged by clause 2.1.6) or such other charge as the Creditor may in its
discretion think fit for securing the Indebtedness.
5.3 This Debenture shall be:
5.3.1 a continuing security to the Creditor,
notwithstanding any settlement of account or other matter or thing whatever;
5.3.2 without prejudice and in addition to any
other security for the Indebtedness (whether by way of mortgage, equitable
charge or otherwise) which the Creditor may hold now or hereafter on all or any
part of the Assets; and
5.3.3 in addition to any rights, powers and
remedies at law.
5.4 The
statutory power of sale shall be exercisable at any time after the execution of
this Debenture. The Creditor shall not exercise its power of sale until payment
has been demanded, but this provision shall not affect a purchaser or put him
on inquiry whether such demand has been made.
5.5 No failure or delay on the Creditor’s part in
the exercise of any of its rights, powers and remedies under this Debenture or
at law shall operate or be construed as a waiver. No waiver of any of the Creditor’s
rights shall preclude any further or other exercise of that right or of any
other right.
5.6 The Creditor may give time or other
indulgence or make any other arrangement, variation or release with any person
in respect of the Indebtedness or any other security or guarantee for the
Indebtedness without derogating from the Debtor’s liabilities or the Creditor’s rights under this
Debenture.
5.7 The Debtor certifies that the charges created
by this Debenture do not contravene any provision of its memorandum and
articles of association or any agreement binding on it or any of the Assets.
5.8 The Debtor shall, on demand by the Creditor,
execute and deliver all transfers, mandates, assignments, deeds or other
documents as the Creditor may require to perfect its rights under this
Debenture and to give effect to any sale or disposal of any of the Assets and otherwise
give effect to the intent of this Debenture.
6 Power of attorney
By way of security, the Debtor hereby irrevocably appoints the Creditor as its attorney, with full power of delegation, for it and in its name and on its behalf and as its act and deed or otherwise, to seal, deliver and otherwise perfect any deed, assurance, agreement, instrument, bank account including (without limitation) the bank account number [________________________] or act which may be required or may be deemed proper for any of the above purposes.
7 Costs
All
costs, charges and expenses incurred by the Creditor and all other moneys paid
by the Creditor or the Receiver in perfecting or otherwise in connection with
this Debenture and all costs of the Creditor or the Receiver of all proceedings
for enforcement of this Debenture shall be recoverable from the Debtor as a
debt, may be debited to any account of the Debtor, shall bear interest at the
rate per annum of [________] per cent over the Creditor’s base lending rate
accordingly (as well before as after judgment) and shall be charged on the
Assets.
8 Severance
If
at any time any provision in this Debenture is or becomes invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions of this Debenture shall not be impaired.
9 Notices
9.1 Any demand, notice or other communication by
the Creditor may be delivered personally to the Debtor or sent to the Debtor by
post, fax, email, short message service of mobile phone, tele-message, cable,
telex or telecopier at its address set out above or such other address notified
in writing to the Creditor. Any such notice, demand or other communication
shall be deemed to have been received by the Debtor 24 hours after posting
(where sent by prepaid post) immediately upon such delivery (where delivered
personally) and immediately on sending (where sent by fax, email, short message
service of mobile phone, tele-message, cable, telex or telecopier) whether or
not it is actually received.
9.2 Any notice from the Debtor to the Creditor
shall be served by prepaid recorded delivery post or by tested telex sent to
the Creditor at its address set out above or such other address notified to the
Debtor.
10 Law
This
Debenture shall be governed by and construed in accordance with
Attestation
[Signed,
Sealed and Delivered] ;or
Executed
and unconditionally delivered as a deed as follows:
Signed
and sealed of [the Debtor]