EXHIBIT 10.18
DATED OCTOBER 24, 2001
VERTICAL INVESTMENTS LIMITED
And
INVU INC.
------------------------------------------------------------------------------
DEBENTURE
creating fixed and floating charges
------------------------------------------------------------------------------
Teacher Xxxxx Xxxxx
00-00 Xxxxxxx Xxx
Xxxxxx
XXXX 0XXX
Tel: 000 0000 0000
Ref: AJR/GOL041-4
Dated 2001
Parties:
1 VERTICAL INVESTMENTS LIMITED (Company Number; 71185) a company
registered in Jersey whose registered office is at Xxxxx Xxxxx, Xxx
Xxxx, Xx. Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxx JEl ("Lender"); and
2 INVU INC. (Company number: 3340939) a company organised and existing
under the laws of the State of Colorado (whose shares trade on the NASD
OTC Bulletin Board) whose principal place of business is at the Beren,
Xxxxxxxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxxxxx XX0 0XX ("Guarantor").
Operative Provisions:
1 Interpretation
1.1 In this Debenture:
'Acts' means the law of Property Xxx 0000 and the
Insolvency Xxx 0000 (or any statutory
modification or re-enactment of those acts
for the time being in force);
'Assets' means the property, undertaking and assets
of the Company expressed to be charged to
the Lender now or hereafter pursuant to
clause 2;
'Indebtedness' means all the Company's present or future
indebtedness to the Lender on any advance or
loan given to the Company by the Lender,
(including, in particular but without
limitation the Loan) whether solely or
jointly with any other person or persons and
all the Company's other liabilities
whatsoever to the Lender, including (without
limitation) indebtedness on account of money
advanced, 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 or in any other
currency, together with interest, and any
other costs, charges and legal expenses (on
a full indemnity basis) charged or incurred
by the Lender and including those arising
from the Lender in perfecting or enforcing
or attempting to enforce this Debenture or
any other security (and its rights
thereunder) held by the Lender from time to
time as well after as before any demand has
been made or judgment obtained hereunder;
'Lender' shall include, unless the context otherwise
requires, the Lender's successors and
assigns from time to time;
'loan' the advance, of US$500,000 made by the
Lender to the Company pursuant to a Loan
Agreement of even date made between the
Company, the Lender, Invu Services Limited,
and Invu International Holdings Limited and
others;
'Property' means all leasehold and freehold property
referred to in clauses 2.1.1 and 2.1.2, and
'Receiver' 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 Company hereby covenants on demand to pay or discharge the
Indebtedness to the Lender. As security for the payment and discharge
of the Indebtedness, the Company as beneficial owner hereby charges to
the Lender, with full title guarantee:
2.1.1 by way of legal mortgage, all freehold and leasehold property now
vested in the Company, 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 Company (not being Property charged by clause
2.1.1) now and in the future vested in the Company, together with all
buildings, fixtures (including trade fixtures) and fixed plant and
machinery from time to time on that properly:
2.1.3 by way of fixed charge, all the goodwill and uncalled capital for the
time being of the Company;
2.1.4 by way of fixed charge, all book debts and other debts, now and in the
future due or owing to the Company;
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 Company; and
2.1.6 by way of floating charge, all the Company'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.
3 Covenants
3.1 The Company shall not:
3.1.1 (except for charges in favour of the lender 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 Company shall:
3.2.1 keep such of the Assets as are insurable comprehensively insured to the
lender's satisfaction in writing (and, if so required by the Lender, in
the joint names of itself and the Lender) against loss or damage: by
fire and such other risks as the Lender may require, to their full
replacement value and, where such insurance is not in joint names,
procure that the Lender's interest is noted on all policies required
under this clause 3.2.1;
3.2.2 duly and promptly pay all premiums and other moneys necessary for
maintaining the insurances required under clause 3.2.1 and on demand
produce the insurance policies and premium receipts to the Lender;
3.2.3 keep all buildings and all plant, machinery, fixtures, fittings and
other effects in good repair and working order;
3.2.4 promptly notify the Lender 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 Company or any of its
Assets and, if any such official is appointed, of his appointment.
3.3 If the Company fails to perform any of its obligations under clauses
3.2.1 and 3.2.3 the Lender 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 Company on demand.
4 Receiver
4.1 At any time after the Lender's demand for payment from the Company of
any Indebtedness (or if so requested by the Company), the lender may
appoint by writing any person or persons to the an administrative
receiver or a receiver and manager or receivers and managers ('the
Receiver', which expression shall include any substituted receiver(s)
and manager(s)) of all or any part of the Assets. Without limiting the
Lender's rights under this clause 4.1 or at law, the Lender may,
whether or not any demand has been made for payment of the
Indebtedness, appoint a Receiver if the Lender becomes aware of any of
the matters referred to in clause 3.2.4 or if the: security created by
this Debenture shall he in jeopardy.
4.2 The Lender 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, subject to the terms of the Acts, be the Company's
agent and shall have all powers conferred by the Acts. The Company
alone shall be responsible for his acts and omissions and for his
remuneration. In particular, but without limiting any general powers or
the Lender'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 Company's name or
otherwise as he shall think fit;
4.3.2 to carry on or concur in carrying on the Company's business and raise
money from the Lender or others on the security of all or any part of
the Assets;
4.3.3 to sell, let and/or terminates 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 Lender 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 Company's uncalled capital;
4.3.8 to promote the formation of a subsidiary company or companies of the
Company, 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 Lender or the Receiver and
of the remuneration of the Receiver;
4.2 secondly, in or towards satisfaction of the Indebtedness in such order
as the Lender 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 Company without the
lender's prior written consent. Section 93 of the Law of Property Acct
1925 shall not apply.
5.2 By notice in writing to the Company, the Lender 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 lender 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 Company at
its expense shall at any time on the Lender's request promptly execute
and deliver to the lender 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 lender may in its discretion think fit for securing the
Indebtedness.
5.3 This Debenture shall be;
5.3.1 a continuing security to the Lender 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 lender 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 Section 103 of the law of Property Xxx 0000 shall not apply. The
statutory power of sale shall be exercisable at any time after the
execution of this Debenture. The Lender shall not exercise its power of
sale until payment has been demanded, but this provision shall not
affect a purchase or put him on inquiry whether such demand has been
made.
5.5 No failure or delay on the Lenders part in the exercise of any of its
rights, powers and remedies (in this clause 5 'right(s)') under this
Debenture (or at law shall operate or be construed as a waiver. No
waiver of any of the Lender's rights shall preclude any further or
other exercise of that right or of any other right.
5.6 The Lender 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 Company's liabilities or the Lender's
rights under this Debenture.
5.7 The Company 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 Company shall, on demand by the Lender, execute and deliver all
transfers, mandates, assignments, deeds or other documents as the
Lender 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 Company hereby irrevocably appoints the Lender
and any Receiver jointly and severally 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 or act which may be required or may be
deemed proper for any of the above purposes.
7 Cost
All costs, charges and expenses incurred by the Lender and all other
moneys paid by the Lender or the Receiver in perfecting or otherwise in
connection with this Debenture and all costs of the Lender or the
Receiver of all proceedings for enforcement of this Debenture shall be
recoverable from the Company as a debt, shall bear interest at the rate
per annum of 4 per cent over the base rate from time to time of
National Westminster Bank plc accordingly (as well before as after
judgement) 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 Lender may be
delivered personally to the Company or sent to the (company by post, or
facsimile at its address set out above or such other address notified
in writing to the Lender. Any such notice, demand or other
communication shall be deemed to have been received by the Company 24
hours after posting (where sent by first class prepaid post)
immediately upon such delivery (where delivered personally) and
immediately on sending (where sent by facsimile) whether or not it is
actually received.
9.2 Any notice from the Company to the Lender shall be served by first
class prepaid recorded delivery post or by facsimile sent to the lender
at its address set out above or such other address notified to the
Company.
10 Counterparts
This Agreement may be executed in any number of counterparts (by
facsimile if necessary) and by each of the parties hereto on separate
counterparts each of which when executed and delivered (by facsimile if
necessary) shall he deemed to be an original, but all the counterparts
together shall constitute one and the same document,
11 Law
This Debenture shall be governed by and construed in accordance with
English law and the parties hereto submit to the exclusive jurisdiction
of the English Courts.
Executed and delivered as a Deed by the parties hereto the day and year first
above written.
EXECUTED and DELIVERED as ) -----------------------------------------
a DEED by VERTICAL ) Director
INVESTMENTS LIMITED )
acting by two directors/director )
-----------------------------------------
and secretary Director/Secretary
EXECUTED and DELIVERED as ) -----------------------------------------
a DEED by INVU INC. acting by )
two directors/director )
and secretary )
-----------------------------------------
Director/Secretary
