Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11 Registration Statement for Securities of a Real 68 252K
Estate Company
2: EX-3.(I) Articles of Incorporation/Organization or By-Laws 5 14K
3: EX-3.(II) Articles of Incorporation/Organization or By-Laws 13 48K
4: EX-5.1 Opinion re: Legality 2 11K
5: EX-10.1 Material Contract 6 25K
6: EX-10.2 Material Contract 10 33K
7: EX-10.3 Material Contract 11 32K
8: EX-10.4 Material Contract 26 75K
9: EX-22 Published Report Regarding Matters Submitted to a 2 5K
Vote of Security Holders
10: EX-24.6 Power of Attorney 3 7K
11: EX-27 Financial Data Schedule (Pre-XBRL) 1 8K
-1 -
BON HYANG, INC.
A corporation incorporated under the
Laws of Korea
DEBENTURE
MADE: December 1, 1999 Principal Sum: $500,000,000
DUE: ON DEMAND UPON THE DEFAULT OF EURO CAP CORPORATION UPON ITS
OBLIGATIONS PURSUANT TO AN INDENTURE ENTERED INTO ON DECEMBER 1, 1999, SAID
INDENTURE ATTACHED HERETO, AND FORMING PART OF THIS DEBENTURE AS IF THE
BORROWER AS DEFINED THEREIN WERE THE BORROWER HEREIN.
Debt
1. Bon Hyang, Inc., a corporation incorporated under the laws
of Korea (the "Borrower"), for value received, hereby acknowledges itself
indebted and promises to pay ON DEMAND UPON THE DEFAULT OF EURO CAP
CORPORATION UPON ITS OBLIGATIONS PURSUANT TO AN INDENTURE ENTERED INTO ON
DECEMBER 1, 1999(the"Indenture"), SAID INDENTURE ATTACHED HERETO, AND FORMING
PART OF THIS DEBENTURE AS IF THE BORROWER AS DEFINED THEREIN WERE THE
BORROWER HEREIN. (the "Due Date") to or to the order of the holders of Notes
pursuant to the Indenture entered into between Euro Cap Corporation, a New
York Corporation, and the holders of the said Notes(as defined in the
Indenture) (the "Holders") and their respective successors and assigns, the
sum of FIVE HUNDRED MILLION DOLLARS ($500,000,000.00) OR such other sum as
may be outstanding to the holders from time to time in lawful money of the
United States of America at such place as the Holders may designate by
notice in writing to the Borrower together with interest, costs and fees.
Security
2. As security for the due payment of all moneys payable
hereunder, the Borrower hereby:
(a) charges as and by way of a fixed and floating charge to and
in favour of the Holders and their respective successors and assigns all
lands and premises now owned or in the future owned, wholly or in part, by
the Borrower, including all appurtenances, buildings and fixtures
now or hereafter situate thereon, and all other lands and premises, including
buildings and fixtures, hereafter acquired by the Borrower;
(b) charges as and by way of a fixed and floating charge to and
in favour of the Holders and their respective successors and assigns all
machinery, equipment, plant, vehicles, goods and chattels now owned or in
the future purchased and owned or partially owned by the Borrower, and all
other machinery, equipment, vehicles, goods and chattels hereafter acquired
by the Borrower; and
99
- 2 -
(c) charges as and by way of a first floating charge to and in
favour of the Holders and their respective successors and assigns, all its
undertaking, property and assets, both present and future, of every nature
and kind and wherever situate (other than such as are at all times validly
subject to the first fixed and specific mortgage and charge hereby created),
including, without limiting the generality of the foregoing, its franchises,
uncalled capital, goodwill, leases, rents, inventories, book debts, contracts
and agreements;
such charges hereby constituted being sometimes collectively called the
"Security".
Covenants of Borrower
3. The Borrower hereby covenants and agrees that it will at all
times do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered all such further acts and assurances in law or
equity as the Holders may reasonably require for the better assuring and
confirming unto the Holders and for perfecting the security interests hereby
created in the undertaking, property and assets hereby charged or intended
so to be or which the Borrower may hereafter become bound to charge in
favour of the Holders and for the better accomplishing and effectuating of
this debenture.
4. Until the Security becomes enforceable, the Borrower may pay
dividends out of moneys of the Borrower properly applicable therefor and may
in any way dispose of or deal with the subject matter of the floating charge
in the ordinary course of their business and for the purpose of carrying on
the same provided that it will not and the Borrower covenants that it will
not, without the prior written consent of the Holders, dispose of or deal
with the Security out of the ordinary course of their business or to replace
it with property, goods, and chattels of equal or greater value.
100
- 3 -
5. The Borrower hereby covenants and agrees with the Holders
that until all moneys owing hereunder are paid in full:
(a) it will maintain its corporate existence and carry
on and conduct its business in a proper, efficient and business-like manner
and in accordance with good business practice;
(b) it will keep or cause to be kept proper books of
account in accordance with sound accounting practice and, when requested by
the Holders, will furnish the Holders with copies of all its audited or
unaudited financial statements available to it;
(c) it will pay or cause to be paid all taxes, rates,
government fees and dues levied, assessed or imposed upon it and its
property and assets or any part thereof as and when the same shall become
due and payable (save and except where and so long as the validity of any
such taxes, rates, fees, dues, levies, assessment or imposts is
in good faith contested by it) and to pay all amounts owing in respect of
the Security including rent as the same shall become due and payable;
(d) it will duly observe and conform to all valid
requirements of any government authority relative to any of their
undertakings, property or assets;
(e) it will insure and keep insured the buildings,
erections, improvements, machinery, stock in trade, and all other insurable
property and assets hereby mortgaged and charged against loss or damage by
fire and other such insurable hazards and in such amounts as may be usual
and prudent with persons carrying on a similar business or holding similar
assets and will show the interest of the Holders in the relevant policies of
insurance and will provide copies of such policies to the Holders;
(f) it will keep the Security, where applicable, in good
condition and repair according to the nature and description thereof, and,
without limitation, will not do any act to impair the collectability of their
book debts except in accordance with paragraph 4, and will allow the Holders,
whenever the Holders deem necessary, either in person or by
101
- 4 -
agent, to enter upon and inspect the Charged Premises
and records thereof;
(g) it will not, without the prior written consent of
the Holders, permit or be a party to any sale or change of ownership of a
controlling interest in the shares of the Borrower;
(h) subject to paragraph 4 above, it will not without
the prior written consent of the Holders incur or create any further or
additional trade indebtedness except to the Holders and except such normal
trade indebtedness as may be incidental to the ordinary course of its
business;
(i) it will furnish within ten (10) days of request to
the Holders such information respecting the Security and the insurance on the
Security as the Holders may reasonably require from time to time;
(j) it will give written notice to the Holders of all
litigation before any court, administrative board or other tribunal that has
been brought against the Borrower that might affect the Security of the
Borrower; and
(k) it will not redeem, purchase for cancellation, or
otherwise pay off or make any repayment of paid-up capital on any shares in
its capital stock.
Exceptions
6. The last day of the term of any lease, verbal or written, or
any agreement therefor, now held or hereafter acquired by the Borrower, is
hereby excepted out of any charge created hereby or by any other instrument
supplemental hereto and does not and shall not form part of the property
hereby or by any such other instrument charged so as to be charged with the
moneys intended to be secured hereby, but the Borrower shall stand possessed
of the reversion remaining in the Borrower of any leasehold premises, for
the time being demised, as aforesaid, upon trust to assign and dispose
thereof as the Holders shall direct; and upon any sale of the leasehold
premises or any part thereof, the Holders, for the purpose of vesting the
aforesaid reversion of any such term or any renewal thereof in any purchaser
or purchasers thereof, shall be entitled by deed or writing to appoint such
purchaser or purchasers or any other person or persons a new trustee or
trustees of the aforesaid reversion of any such term or renewal thereof in
the place of the Borrower and to vest the same accordingly in the new trustee
or trustees so appointed freed and discharged from any obligation respecting
the same.
102
- 5 -
Discharge
7. The Holders or any other holder hereof pursuant to paragraph
16 below is the person entitled to receive the money payable hereunder and
to give a discharge hereof.
Events of Default
8. Notwithstanding anything to the contrary herein contained,
the principal, interest and other moneys hereby secured shall become
immediately payable and the Security shall become immediately enforceable in
each and every of the following events:
(a) if the Borrower makes default in the payment of the
principal of this debenture on the Due Date or fails to pay any interest
provided for in this debenture for more than seven (7) days after the same
falls due, or makes default in the observance or performance of any other
covenant, term or condition hereby required to be observed or performed and,
except for paragraph 4 or subparagraphs (g) or (h) of paragraph 5 above,
fails to remedy such default within ten (10) days after notice of
such default is given to the Borrower by the Holders;
(b) if the Borrower makes default in the observance or
performance of any of the covenants, terms or conditions required to be
observed or performed by paragraph 4 or subparagraphs (g) or (h) of
paragraph 5 above;
(c) if a petition is filed or a resolution is passed or
an order is made for the winding up, liquidation or dissolution of the
Borrower;
(d) if the Borrower ceases or threatens to cease to
carry on its business, or makes or agrees or threatens to make a bulk sale
of its assets or a substantial part thereof, or commits or threatens to
commit any act of bankruptcy, or becomes insolvent or bankrupt or makes an
authorized assignment, or if a bankruptcy petition is filed or presented
against it or if proceedings with respect to it are commenced under any
Companies Creditors Arrangement Acts, which petition or proceedings are
not discharged or settled within thirty (30) days of the filing or
presentation thereof;
103
- 6 -
(e) if any execution, sequestration, extent or any other
process of any court becomes enforceable against the Borrower or if a
distress or analogous process is levied upon the property of the Borrower or
any part thereof;
(f) if the Borrower makes default under any obligation
to pay money and, with respect to borrowed money, such default shall have
continued for a period sufficient to permit the acceleration of the maturity
of such obligation;
(g) if for any reason an encumbrancer shall take
possession of the Charged Premises or any part thereof;
(h) if the Borrower makes default in payment or
discharge of any indebtedness or liability to the Holders when the same
fall dues whether secured hereby or not,
(i) if at any time or times after written notice to the
Borrower, the Holders believe, in good faith, the prospect of payment of the
moneys payable hereunder or performance by the Borrower of the terms hereof
is impaired; or
(j) if there is or is about to be, without the prior
written consent of the Holders, any reorganization of the Borrower or any
consolidation, merger or amalgamation of the Borrower with any other company
or companies, or any change in the beneficial ownership of the borrower's
issued capital which results in any change of effective control of the
Borrower to any person or group of persons.
Enforcement
9. Whenever the Security has become enforceable, the Holders
may realize upon the Security and enforce their rights by entering into
possession; by taking proceedings in any court of competent jurisdiction for
the appointment of a receiver (which term as used in this debenture includes
a receiver and manager) of all or any part of the Security or for sale or
foreclosure of all or any part of the Security; by appointing by instrument
in writing a receiver of all or any part of the Security and removing or
replacing from time to time any such receiver; by filing proofs of claim and
other documents to establish their claims in any proceeding relative to the
Borrower; or by exercising any other remedies or taking any other proceedings
authorized or permitted hereby or by law or equity. Such remedies may be
exercised from time to time separately
104
- 7 -
or in combination and are in addition to and not in substitution for any
other rights of the Holders however created.
10. Any receiver appointed by instrument in writing shall have
power to take possession of, collect and get in all or any part of the Security,
for that purpose, to take proceedings in the name of the Borrower or
otherwise and to make any arrangement or compromise in connection therewith;
to sell or to concur in selling all or any part of the Security with or
without notice and in such manner and on such terms and conditions as may
seem advisable to the receiver, and to effect such sale by conveying in the
name and on behalf of the Borrower or otherwise; to carry on or concur in
carrying on all or any part of the business of the Borrower; and to borrow
or to raise money on all or any part of the Security in priority to this
debenture or otherwise for such purposes as may be approved by the Holders.
The receiver shall be vested with such other discretion and powers as are
granted in the instrument of appointment and any supplement thereto. The
receiver shall for all purposes be deemed to be the agent of the Borrower
and not of the Holders and the Borrower shall be solely responsible for the
acts or defaults of the receiver and for his or its remuneration and
expenses and the Holders shall not be in any way responsible for any
misconduct or negligence on the part of any such receiver or receivers.
All moneys from time to time received by the receiver may be applied as
follows: first, in discharge of all operating expenses and other outgoings
affecting the Security; second, in keeping in good standing all charges and
liens on the Security having priority over the Security; third, in payment
of the remuneration and disbursements of the receiver; fourth, in payment
to the Holders of the moneys payable hereunder; and the balance, if any,
shall be paid to the Borrower or as otherwise required by law.
11. The Borrower agrees to pay to the Holders forthwith upon
demand all reasonable costs, charges and expenses including, without
limitations, solicitors' costs and legal expenses of or incurred by the
Holders in connection with the recovery or enforcement of payment of any of
the moneys owing hereunder, including all such costs, charges and expenses
in connection with taking possession, protecting, preserving, collecting or
realizing upon any part of the Security, together with interest thereon at
the above-mentioned rate per annum from the date of incurring such costs,
charges and expenses. The Borrower agrees to pay to the Holders forthwith
upon demand all solicitors' costs and legal expenses incurred by the bank
in connection with the creation and registration of this debenture, or any
other security held by the Holders on the Security or any part thereof. All
sums payable pursuant to this section shall be added to the indebtedness
secured by this debenture and shall also be secured hereby.
105
- 8 -
Miscellaneous Provisions
12. The Security is in addition to and not in substitution for
any other security now or hereafter held by the Holders.
13. This debenture may be deposited with or pledged by the
Borrower as collateral security for its indebtedness and liabilities from
time to time to the Holders.
14. No consent or waiver by the Holders shall be effective
unless made in writing and signed by an authorized officer of each Holder.
Guarantee
15. This Debenture is a guarantee of payment by Euro Cap
Corporation to its Note holders of all payments due pursuant to the
Indenture entered into by Euro Cap Corporation with the said Note holders
on December 1, 1999, and a the Borrower herein shall be deemed to be the
Borrower in the said indenture for any and all actions by the Holders
therein for any default by the Borrower therein. rs.
16. Any notice, demand, request, consent or approval which is
required or permitted to be given or made by one party to any other pursuant
to any provision of this debenture shall be given or made in writing and
shall be served personally or sent by prepaid registered mail addressed to
the respective parties as follows:
(a) the Holders: at the addresses provided in
the Indenture
106
- 9 -
(b) the Borrower: at the address for the
Borrower in the Indenture.
or to such other address as any party may from time to time advise the other
parties hereto by notice in writing. Every such notice so given shall be
deemed to be received on the date of delivery, if served personally, or on
the second day of business following the day of mailing, if sent by mail;
provided that in the event of an interruption of postal service at any time
prior to the deemed receipt of any notice sent by mail, then such notice,
unless earlier delivered or actually received, shall be deemed to be
received on the second business day following the date of resumption of
normal postal service.
17. This debenture is to be treated as a negotiable instrument
and all persons are invited by the Borrower to act accordingly and any
holder hereof may exercise all rights created hereunder. This debenture
and all its provisions shall enure to the benefit of the Holders, and their
respective successors and assigns and any holder hereof and shall be binding
upon the Borrower, its successors and assigns and the Guarantor,
and his respective heirs, executors, administrators, successors and assigns.
18. The Holders shall, in addition to any other powers given to
them, have the following powers, namely:
(a) power to release any property of the Borrower from
the fixed and floating charges created by this debenture; and
(b) power to agree to any modification, compromise,
release or waiver of the rights of the Holders against the Borrower or
against its property, whether the rights shall arise under this debenture or
otherwise.
19. This debenture is governed by the law and procedure of the
State of New York, as amended, re-enacted and in force from time to time.
20. In this debenture words importing the singular number only
shall include the plural and vice-versa and words importing the masculine
gender shall include the feminine and neuter genders and vice-versa and
words importing persons shall include firms and corporations.
107
- 10 -
21. The headings of this paragraphs hereof are inserted for
convenience of reference only and shall not affect the interpretation or
construction of this debenture.
IN WITNESS WHEREOF the Borrower and the Guarantor have
caused this debenture to be executed this First day of December 1999.
Bon Hyang, Inc.
(SEAL) Per: /s/ Baik Suk Kim/s/
BAIK SUK KIM -CEO
108
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-11’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/10/00 | | | | | | | None on these Dates |
| | 12/1/99 | | 1 | | 8 |
| List all Filings |
↑Top
Filing Submission 0001102267-00-000003 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., Apr. 24, 7:26:06.1pm ET 