HYPOTHEC ON MOVABLES [CD1]
This Hypothec on Movables (the “Agreement”) is effective [DATE],
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BETWEEN: |
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[YOUR COMPANY NAME] (the "Partnership"), a company organised and existing
under the laws of the [COUNTRY], with its head office located at: |
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[YOUR COMPLETE ADDRESS] |
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AND
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[FIRST
GRANTOR NAME] (the "First Grantor"), an
individual with his main address located at: |
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[COMPLETE
ADDRESS] |
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AND: |
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[SECOND GRANTOR NAME] (the
"Second Grantor"), an individual with his main address located at: |
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[COMPLETE
ADDRESS] |
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AND: |
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[CREDITOR NAME] (the "Creditor"), a company organised and existing under
the laws of the [COUNTRY], with its head office located at: |
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[COMPLETE
ADDRESS] |
WHICH PARTIES AGREE WITH EACH OTHER AS FOLLOWS:
1. INTERPRETATION
1.1.
Definitions
The capitalised
words and expressions used in this Deed or in any deed, document or agreement
supplemental or ancillary hereto, unless there be something in the subject or
the context inconsistent therewith, shall have the following meanings:
“Claims” shall have the
meaning ascribed to it in subsection 2.1.2;
“Creditor” means [CREDITOR NAME]. And includes any successor or
assignee thereof;
“Deed of
Hypothec”, “this Deed”, “this Deed of Hypothec”, “these presents”, “herein”,
“hereby”, “hereunder” and other similar expressions refer collectively to this
Deed of Hypothec, its accompanying schedules as well as any and every deed or
another instrument which is supplementary or ancillary hereto or in
implementation hereof, the whole as same may be amended, supplemented or
restated from time to time;
“Default” means
any one of the events specified in Section 7.1, the occurrence or failure to
occur of which constitutes, or with the passage of time or the giving of notice
or both, would constitute an Event of Default;
“Event of Default” shall
have the meaning ascribed to it in Section 7.1;
“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to the government;
“Grantors” refers
collectively to the Partnership and the Partners;
“Hypothecated Property”
shall have the meaning ascribed to it in Section 2.1;
“Inventory” shall have
the meaning ascribed to it in subsection 2.1.1;
“Law” means all
applicable provisions of statutes, ordinances, decrees, orders in council,
rules, regulations, treaties and all applicable determinations, rulings, orders
and decrees of Governmental Authorities and arbitrators;
“Lien” means
any interest in property or the income or profits therefrom securing an
obligation owed to, or a claim by, a Person other than the owner (which for the
purposes hereof shall include a possessor under a title retention agreement and
a lessee under a lease herein below described) of such property, or claim
whether such interest is based on common [YOUR COUNTRY LAW], civil [YOUR
COUNTRY LAW], statute or contract, and including, but not limited to, any
security interest, hypothec, prior claim, mortgage, pledge, lien, claim,
charge, cession, transfer, assignment, encumbrance, title retention agreement,
lessor’s interest under a lease which would be capitalized on a balance sheet
of the owner of such property or analogous instrument in, of, or on any
property or the income or profits therefrom of a Person, other than Liens
incurred in the ordinary course of business and for the purpose of carrying on
same not in connection with the borrowing of money or the obtaining of credit
and which do not in the aggregate materially impair the use, the income or
profits therefrom, of the property covered thereby in the operation of such
Person’s business;
“Obligations”
is the collective reference to all the obligations, present and future, direct
and indirect, absolute and contingent, presently owing and due or hereafter to
become owing and due to the Creditor by the Grantors from time to time,
including, without limiting the generality of the foregoing, all their
obligations to pay to the Creditor all amounts owing to the Creditor in respect of sales of tyre inventory
made by it to the Partnership from time to time;
“Partners”
refers collectively to [NAME], born on [DATE] in [COUNTRY] and residing at
[FULL ADDRESS], [STATE/PROVINCE], and [NAME], born on [DATE] in [COUNTRY], and
residing at [FULL ADDRESS], [COUNTRY], in their capacity as partners of the
Partnership, and includes any heirs and successors respectively thereof;
“Partnership”
refers to [COMPANY NAME], a general partnership duly constituted under the
[YOUR COUNTRY LAW], and includes any successor thereto;
“Person” means
any legal or natural person, company, joint venture, partnership, whether
general, limited or undeclared, trust, association, unincorporated company,
Governmental Authority or other entity of whatever nature.
1.2.
Plural and Masculine
Unless there be
something in the subject or the context inconsistent therewith, words importing
the singular only shall include the plural and vice versa and words importing the masculine gender shall include
the feminine gender and vice versa,
and any reference to [AMOUNT] shall mean [COUNTRY] [AMOUNT].
1.3.
Division in Articles.
The division of
this Deed into Articles, Sections, subsections and paragraphs and the insertion
of titles are for convenience of reference only and do not affect the meaning
or the interpretation of the present Deed.
2. HYPOTHECS
2.1.
Principal Hypothec
As a general
and continuing collateral security for the performance by the Grantors of the
Obligations, each of the Grantors hereby hypothecates to and in favour of the
Creditor the following property and its respective rights, titles and interests
in and to such property (collectively referred to herein as the
“Hypothecated
Property”) to the extent of the sum of [AMOUNT], with interest thereon at the
rate of [PERCENTAGE %] per annum:
2.1.1. the universality
of all the present and future tires, of whatever make and model, of which the
Partnership is now or hereafter may be a wholesale or retail purchaser or
shipper or in which it is now or may hereafter be a dealer or seller
(collectively referred to herein as the “Inventory”) and all rights to the
warehouse receipts, bills of lading and other title documents relating to the
Inventory; and
2.1.2. the universality
of all claims, accounts receivable and book debts which now are or may at any
time hereafter become vested in the Partnership, of any nature and kind arising
pursuant to the sale, transfer, assignment or other disposition of any Inventory,
whether or not such claims are certain and determinate, invoiced, liquid,
eligible, litigious or constituted by a negotiable or other instrument or
2.1.3.
draft and including, without limiting the generality of
the foregoing, the contracts, guarantees, bills of exchange, notes, Liens,
suretyships and accessories connected in any manner whatsoever to or securing
the said claims, accounts receivable and book debts, and all the books,
accounts, invoices, letters and other documents evidencing the said claims,
accounts receivable and book debts, in any manner whatsoever, which now are or
may hereafter become vested in the
Partnership (collectively referred to herein
as the “Claims”).
2.2.
Additional Hypothec
As general and
continuing collateral security for the performance by the Grantors of the
Obligations not otherwise secured by the hypothecs created under the terms of
Section 2.1, including, without limiting the generality of the foregoing,
interest on all overdue interest, as well as the costs and expenses incurred by
the Creditor in order to preserve or realise upon the Liens created and to be
created from time to time under the terms hereof and all other costs and
expenses related to the Obligations, each of the Grantors hereby hypothecates
the Hypothecated Property to and in favour of the Creditor to the extent of an
additional sum of [AMOUNT] with interest
thereon at the rate of [PERCENTAGE %]
per annum.
3. SPECIAL PROVISIONS
RELATING TO CLAIMS
3.1. Authorization of
the Creditor to permit the Grantors to Collect the Principal and Revenues of
the Claims
The Creditor
expressly authorizes the Grantors to collect, when and as the same shall become
due, the principal of and revenues payable from time to time pursuant to the
Claims for so long as no Default hereunder shall have occurred and been
continuing and the Creditor shall not have notified the Grantors of the
withdrawal of the present authorization. The Grantors shall pay over to the
Creditor, on demand, any amount paid to the Grantors in respect of the Claims following the withdrawal of the present
authorization.
3.2.
The exercise of Rights in respect of the Claims
Following the
withdrawal of the authorization to collect the Claims, the Creditor may grant
releases for all amounts collected by it and, without any obligation to do so,
may proceed with the realization of the whole or any part of the Claims, grant
extensions or postponements of the term of any Claim, accept the amount of any
Claim, and any suretyship, or security accessory thereto and may take any
action and exercise any right in order to preserve, protect or secure such
Claims, the whole at such time and in such manner as the Creditor may deem
appropriate, without any notice to or a consent from the Grantors.
Any action
taken or not taken, as the case may be and any right exercised or, not, as the
case may be shall be without any liability on the part of the Creditor, other
than with respect to its gross negligence or willful misconduct, and without
any obligation to render an accounting for any such action taken or omitted to
be taken, any such right exercised or omitted to be exercised and any amount collected,
save and except for the obligation to pay over to the Grantors at the end of
the process of realization all amounts collected in excess of the then
outstanding amount of the Obligations.
3.3.
The obligation of the Grantors to Provide Information
relating to the Claims
Upon demand of
the Creditor following the occurrence of an Event of Default, the Grantors
undertake to provide the Creditor with a list of all of their debtors and all
their books, accounts, letters, invoices, papers, contracts, negotiable
instruments, title documents, Liens and other documents attesting to the
existence of the whole or any part of the Claims or relating thereto, and to
permit the Creditor or its agents access to the Grantors’ premises in order to
inspect and make copies of the aforementioned books and documents. The Grantors
are also bound to assist the Creditor and provide it with all information,
which it may find useful in the collection of the Claims.
3.4.
Guaranteed Claims
The Grantors
represent and warrant that none of the Claims which are presently vested in the
Grantors is themselves secured by a Lien or by the suretyship of a third Person
in favour of any one of the Grantors, and the Grantors undertake to notify the
Creditor without delay of any Claim, which now is or may at any time hereafter
become vested in the Grantors and which, following the date hereof, is or
becomes secured by a Lien or by the suretyship of a third Person in favour of
any one of the Grantors and to provide the Creditor with copies of the
agreements or other documents evidencing such Liens or such suretyships.
4. POSSESSION AND USE OF
THE HYPOTHECATED PROPERTY
4.1.
Possession and Use
Until the
Grantors have surrendered or are bound to surrender the whole or any part of
the Hypothecated Property under the terms of any Law, the Grantors subject,
however, to the express terms hereof, shall be entitled and permitted to
possess the Hypothecated Property and to manage, develop, operate, use and enjoy
the same.
5. APPLICATION OF MONEY
RECEIVED BY THE CREDITOR
5.1.
Use of Money Not Otherwise Released
All the sums of
money collected by the Creditor pursuant to the provisions hereof and all the
sums of money of which the Creditor is depositary in virtue of this Deed and in respect of which no other specific
provision regulates the use thereof are held by the Creditor as security for
the payment of the Obligations. However, the Creditor, notwithstanding the
provisions of Article
[NUMBER] and
the second paragraph of Article [NUMBER] of [ACT/LAW/RULE] of [COUNTRY] and
every other legal rule concerning the imputation of payments, may apply such
moneys to the full or partial reduction and to such of the indebtedness forming
part of the Obligations as the Creditor may deem appropriate. In the absence of
any such imputation on the part of the Creditor, such sums, at the request of
the Partnership, may be invested, provided however that any such investment of
the sums held by the Creditor be realizable upon demand.
6. REPRESENTATIONS AND
COVENANTS OF THE GRANTORS
So long as any Obligation is outstanding and
unpaid, the Grantors make the following representations, provide the following
warranties and covenant and agree as follows:
6.1.
Title to Hypothecated Property
That they alone
are and shall be the lawful owners of the Hypothecated Property; that they have
full, good and lawful authority to hypothecate the Hypothecated Property as
provided in this Deed. The Hypothecated Property is free and clear of all
Liens. They shall not create, assume, incur or permit the existence of any Lien
on the Hypothecated Property other than Liens in favour of the Creditor.
6.2.
Payment of Taxes
That they will
pay or cause to be paid as and when due and payable all taxes, rates, charges,
levies or assessments, ordinary or extraordinary, governmental or other charges
of a like nature, assessed or payable upon the Hypothecated Property or any
part thereof or upon the income and profits of the Grantors.
6.3.
Maintenance of Security.
That they will
fully and effectively maintain the Liens hereby constituted as valid and
effective security, and that they will perform all acts and execute and publish
all documents as may be necessary to ensure that the Liens hereof remain
effective and at all times opposable to third Persons.
6.4.
Insurance
That they will
insure and maintain insured the Hypothecated Property against such risks and
for such amounts as is customary for businesses of a like nature and that they
shall duly and punctually pay or cause to be paid when due to the premiums and
other money payable in respect of
such insurance policies.
6.5.
Restriction on Alienation of Hypothecated Property
That, unless
the Creditor otherwise consents to same in writing, the Grantors shall not
sell, transfer or otherwise dispose of any of the Hypothecated Property save
and except for the sale of Inventory in the ordinary course of their business
and for the purpose of carrying on same, provided that no Default hereunder
shall have occurred and been continuing at the time of any such sale, transfer
or other disposition.
6.6.
No Inchoate Liens
The Grantors
represent and warrant that (y) they have not executed or agreed to execute any
deed, document, contract or agreement with any Person whomsoever which would
necessitate or result in the creation in favour of such Person of any Lien
whatsoever on the Hypothecated Property and (SPECIFY) no creditor of the
Grantors has, within the meaning of Articles [NUMBER] and [NUMBER] of the
[ACT/LAW/RULE] of [COUNTRY], given value to the Grantors in the [NUMBER] days
preceding the execution of this Deed.
7. EVENTS OF DEFAULT
7.1.
Events of Default
The occurrence of any one or more of the
following events shall constitute an event of default (herein referred to as an “Event of Default”):
7.2.
Payment
Should any one
of the Grantors default in the payment or performance of any of the Obligations
and such default continue beyond any applicable grace period; or
7.3.
Bankruptcy
Should any one
of the Grantors make an assignment for the benefit of creditors, or file or
consent to the filing of a petition in bankruptcy, a proposal or a notice of
intention under any bankruptcy [YOUR COUNTRY LAW] of any jurisdiction
whatsoever or be adjusticated insolvent or bankrupt, or petition or apply to
any tribunal to have any receiver, trustee, liquidator or sequestrate appointed
for any substantial portion of its property, or if any one of the Grantors
commences any proceeding in respect
of itself, its property or any substantial portion thereof under any
reorganization, arrangement, readjustment of debt, composition or liquidation
[YOUR COUNTRY LAW] of any jurisdiction whatsoever, whether now or hereafter in
effect (any of which proceedings, including, without limitation, the making of
an assignment for the benefit of creditors, or the filing or consenting to the
filing of a petition in bankruptcy, a proposal or a notice of intention under
any such bankruptcy
[YOUR COUNTRY
LAW] shall be referred to herein as a “Proceeding”); or if there is commenced
against any one of the Grantors any Proceeding, and such Proceeding remains
dismissed for a period of [NUMBER] days; or if any receiver, trustee,
liquidator or sequestrate is appointed for any one of the Grantors or any
substantial portion of its property or if any one of the Grantors consents to
or approves or accepts any Proceeding or the appointment of any receiver,
trustee, liquidator or sequestrate for itself or for any substantial portion of
its property; or
7.4.
Seizure
Should any
process of execution be enforced or levied upon any of the Hypothecated
Property and remain unsatisfied for a period of [NUMBER] days? However, an
Event of Default shall only occur under this subsection if such process is not
contested in good faith by or on behalf of any one of the Grantors and
non-payment, in the opinion of the Creditor, shall jeopardise or impair the
Liens created hereunder and the Grantors shall not have granted or caused to
have been granted security which, in the discretion of the Creditor, shall be
sufficient to pay in full the amount claimed in the event that it shall be held
to be a valid claim; or
7.5.
Representations
Should any
representation which has been made by any one of the Grantors under, in
connection with or pursuant to this Deed prove to be, at any time and from time
to time, substantially false or inaccurate; or
7.6.
Observance of Covenants
Should any one
of the Grantors fail to perform or observe any one of the covenants or
conditions which it is bound to perform or observe under this Deed and any such
Default (excluding an Event of Default specifically provided for in this
Article) continue for a period of [NUMBER] days following the receipt by the
Grantor of a written notice from the Creditor specifying such Default and
requiring the Grantor to rectify same; or
7.7.
Registrations affecting the Hypothecated Property
Should any one
of the Grantors fail to obtain the cancellation of any prior notice of exercise
of a hypothenar right or any other entry affecting the
Hypothecated
Property in favour of any creditor of the Grantors other than the Creditor
within [NUMBER] days of their respective publication or registration, as the
case may be?
8. REMEDIES
8.1.
Exercise of Rights
If an Event of
Default shall occur and be continuing, to the extent and in the manner
permitted by [YOUR COUNTRY LAW] and subject to any preliminary measures thereby
contemplated, but without in any way limiting any of the rights, remedies or
recourses which the Creditor may otherwise have under any [YOUR COUNTRY LAW] or
under any other deed or document, the Creditor may declare the whole or any
part of the Obligations as being immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Grantors, anything in this Deed to the contrary
notwithstanding and the
Creditor shall be entitled to exercise all
recourses available to it under [YOUR
COUNTRY LAW].
9. MISCELLANEOUS
9.1.
Separate Security.
The present
Deed and the Liens created herein, are and shall be in addition to and not in
substitution for any other security held by the Creditor for the fulfilment of
the Obligations and shall thus not operate as a novation of any Obligation.
9.2.
Continuing Security
The Liens
created hereunder shall constitute continuing security which shall remain in
full force and effect until the Obligations shall have been fulfilled in full
and the Liens hereof shall have been cancelled. The Grantors expressly
acknowledge, for the purpose of Article [NUMBER] of the Civil Code of
[COUNTRY], that until they shall have received a written notice from the
Creditor to the effect that the Obligations have been fulfilled in full, they
bind and oblige themselves anew continuously under the Obligations.
9.3.
Notices
Except as
otherwise specified herein, all notices, requests, demands or other
communications to or upon the respective parties hereto shall be deemed to have
been duly given or made to the party to which such notice, request, demand or
other communication is required or permitted to be given or made under this
Deed when delivered to such party (by certified mail, postage prepaid, or by
telegraph, telex, email or hand delivery) at its address set forth below:
If to the Partnership:
[COMPANY NAME]
[FULL ADDRESS]
[COUNTRY]
Attention:
Email:
If to the Partners, at
their respective residential addresses, namely:
[INDIVIDUAL NAME]
[COMPANY NAME]
[FULL ADDRESS]
[COUNTRY]
[INDIVIDUAL NAME]
[FULL ADDRESS]
If to the Creditor:
[COMPANY NAME]
[FULL ADDRESS]
[COUNTRY]
Attention: [NAME]
[FULL ADDRESS]
Credit Manager
Email: [EMAIL ADDRESS]
Or at such other address as any of the
[COMPANY NAME] may hereafter notify the others in writing. No other method of
giving notice is hereby precluded.
9.4.
Severability
Any provision
of this Deed, which is prohibited or unenforceable in any jurisdiction, shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
9.5.
Governing Law
This Deed and
the interpretation and enforcement thereof shall be governed by and in
accordance with the [YOUR COUNTRY LAW]
[COMPANY
NAME] Per:
[NAME] AND [NAME] as partners carrying on
business in partnership under the name and style of [COMPANY NAME]
[NAME]
[NAME]
And on the [DATE] day in [COUNTRY],of [COMPANY NAME].
Per:
IN WITNESS WHEREOF, each party to this
agreement has caused it to be executed at [PLACE OF EXECUTION] on the date
indicated above.
PARTNERSHIP FIRST
GRANTOR
Authorised Signature Authorised
Signature
Print Name and Title Print
Name and Title
SECOND GRANTOR CREDITOR
Authorised Signature Authorised
Signature
Print Name and Title Print
Name and Title
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