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EXHIBIT 2
DEED OF CHARGE OVER SECURITIES
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IMPORTANT NOTICE TO THE CHARGOR
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This Deed will create legal obligations and liabilities on your part. You are
strongly advised to seek independent legal advice before you execute this Deed.
Without prejudice to any provision of this Deed, please take note of the
following :-
(1) You may become liable (and if you consist of two or more persons,
you may become liable jointly and severally), instead of or as well as
the Beneficiary of the Bank Undertaking referred to in the Second
Schedule of this Deed, for all sums (whether actual or contingent)
suffered, incurred or sustained by us by reason, arising out of or on
account of the Bank Undertaking together with interest accrued thereon.
(2) Your maximum liability under this Deed is unlimited as to amount.
(3) You will be required to pay all sums of money debts and liabilities
incurred by us on account of the Bank Undertaking either on demand by us
or upon occurrence of any events of default set out in Clause 4.1 of
this Deed.
(4) We shall have the right, after the occurrence of any events of default,
without prior notice or reference to you, to realize the Securities or
any part thereof towards payment of your liabilities under this Deed
(whether actual or contingent).
(5) This Deed is a continuing security. Nevertheless, you may extinguish
your liability under this Deed if (i) pursuant to Clause 7.11 of this
Deed, you give us 3 months' prior written notice of determination; and
(ii) your liabilities hereunder in respect of all or any sums (actual or
contingent) incurred by us on account of the Bank Undertaking prior to
the effective date of determination of this Deed have been satisfied in
full.
(6) We shall be entitled to retain this Deed for at least 25 months after
you have extinguished your liabilities under this Deed.
Bank of China,
Hong Kong Branch
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To: BANK OF CHINA, HONG KONG BRANCH
In consideration of Bank of China, Hong Kong Branch (hereinafter called "the
Bank", including its successors and assigns) agreeing at the request of the
undersigned (whose particulars are set out in the First Schedule hereto) from
time to time or at any time to do, perform, provide or refrain from doing (as
the case may be) such acts, things, deeds or services as set out in the Second
Schedule hereto (hereinafter called "the Bank Undertaking"), I/we hereby agree
to and undertake with the Bank as follows:-
1.0 INDEMNITY
1.1 Indemnity and payment on demand: I/We shall INDEMNIFY the Bank and keep the
Bank fully indemnified from and against all actions, suits, proceedings,
claims, demands, losses, damages, costs, fees, expenses and/or liabilities
of whatsoever nature which the Bank may suffer, incur or sustain, whether
actual or contingent, by reason, arising out or on account of the Bank
Undertaking and shall pay to the Bank ON DEMAND or upon the occurrence of
an event of default as set out in Clause 4.1 below all sums (whether actual
or contingent) so suffered, incurred or sustained by the Bank together with
interest accrued thereon from the date when the same were first paid or
incurred by the Bank until actual payment in full by me/us at the rate of
6% per annum above the cost of fund of the Bank (as conclusively determined
by the Bank, subject to fluctuation) provided that the Bank may vary the
basis of calculation of such rate upon 30 days' prior notice to you
displayed or posted in the Bank's banking halls.
1.2 Authority to debit any account: I/We hereby irrevocably authorize the Bank,
without prejudice to any other rights or remedies which the Bank may have
against me/us, to debit the sums due and payable by me/us as mentioned in
Clause 1.1 above to any account of whatsoever nature or in whatever
currency which I/we may have with the Bank whether opened and maintained at
the Bank's main or branch offices.
1.3 Authority to make payments: I/We hereby irrevocably authorize the Bank to
make any payments or to comply with any demands which appear or purport to
be claimed or made under the Bank Undertaking without any reference to or
further authority from
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me/us, without inquiry into the justification for them or into the
validity, genuineness or accuracy of any statement or certificate received
by the Bank with respect to or under the Bank Undertaking and despite any
contestation on my/our part and I/we agree that any such claim or demand
shall be binding on me/us and shall, as between the Bank and me/us, be
accepted by me/us as conclusive evidence that the Bank was liable to pay or
comply with it.
1.4 Modification of the Bank Undertaking: The Bank Undertaking may be modified,
amended, renewed or extended, either in accordance with its original terms,
or upon my/our request and the agreement of the Bank and the Beneficiary of
the Bank Undertaking. My/Our liability under this Deed shall continue to
apply to the Bank Undertaking as so modified, amended, renewed or extended
from time to time.
1.5 Conclusive evidence: Any of my/our statement of account with the Bank and
signed as correct by any of the officers of the Bank shall be conclusive
evidence of my/our indebtedness due and owing to the Bank and shall be
binding upon me/us save for manifest error.
2.0 CHARGE OVER THE SECURITIES
2.1 First Fixed Charge: The Securities as defined in Clause 3.1 hereof are
HEREBY CHARGED and are TO BE CHARGED TO the Bank (as and when the
Securities come into the Bank's possession or deposited with the Bank in
the manner as mentioned in Clause 3.1 hereof ) as a continuing security for
the payment of all monies and the discharge of all obligations and
liabilities hereby covenanted to be paid or otherwise hereby secured by way
of FIRST FIXED CHARGE but so that the Bank shall not in any circumstances
incur any liability whatsoever in respect of any calls, instalments or
otherwise in connection with the Securities.
3.0 THE SECURITIES
3.1 Definition: The word "Securities" whenever used in this Deed shall mean all
shares, stocks, loan stocks, bonds, debentures, certificate of deposit,
commercial papers, notes, trust writs or other investment funds and other
securities of any kind whatsoever which are now or may at any time
hereafter be in the Bank's possession or held in the Bank's name or to the
Bank's order or deposited with the Bank or the Bank's agents or
representatives or correspondents or such depository as the Bank may from
time to time designate or lodged with the Bank or transferred to the Bank
or the Bank's nominee(s) by me/us or by others in my/our name(s) or for
my/our account or at my/our request whether in Hong Kong or elsewhere, and
all interest, dividends, bonus issues, offers by way of rights, benefits,
rights and entitlement arising from them or attaching to them including,
without limitation, any rights and claims which I/we may have against the
issuer of the Securities. For the avoidance of doubt, the Securities shall
exclude those from time to time released by the Bank and include those from
time to time deposited or re-deposited with or transferred to the Bank or
to the Bank's order pursuant to this Deed.
3.2 Not to deal with the Securities: I/We hereby covenant with the Bank that
while this Deed is still in force and unless with the Bank's consent, I/we
shall not and shall have no right to withdraw, mortgage, charge, pledge,
assign, transfer or howsoever deal with or encumber the Securities or any
part thereof or grant or suffer to arise any third party rights over or
against the whole or any part of the Securities or purport so to do.
3.3 Title to the Securities: I/We hereby represent and warrant to the Bank that
I/we have unencumbered and absolute title to the Securities which are free
and clear of and not subject to any charge, lien, trust, negative pledge or
other adverse interest and claim and the Securities are still valid and
subsisting. I/We hereby further represent and warrant that all the
Securities are fully paid and that there are no monies or liabilities
outstanding or payable in respect of the Securities.
3.4 Repetition of representation and warranty: The representation and warranty
as set out in Clause 3.3 above shall be deemed to have been repeated and
given by me/us in respect of such Securities deposited on each and every
subsequent occasion pursuant to this Deed.
3.5 To furnish additional Securities: If at any time the aggregate net value of
the Securities, as determined by the Bank taken at cost or market price,
whichever is the lower, does not exceed my/our total obligations and
liabilities (whether actual or contingent) outstanding and secured by this
Deed by such a margin as the Bank may consider safe or adequate, I/we
shall, forthwith upon the request of the Bank, furnish further securities
or shares acceptable to the Bank with such net value (as determined by the
Bank in the same manner as regards valuation of the Securities) as the Bank
may consider sufficient to maintain or restore the said margin.
3.6 The Securities to be registered in the name of the Bank's nominee(s) at the
discretion of the Bank: I/We covenant that during the continuance of this
Deed, I/we shall at all times:-
(a) deposit with the Bank or cause to be transferred to the order of the
Bank and permit the Bank during the continuance of this Deed to hold
and retain (i) all stocks and share certificates and documents and
evidence of title relating to the Securities; (ii) instruments of
transfer of the Securities duly completed in favour of the Bank or
BANK OF CHINA (NOMINEES) LIMITED or otherwise in favour of such other
nominee(s) as the Bank may from time to time direct; and (iii) such
other documents as the Bank may from time to time require for
perfecting the Bank's title to the Securities (duly executed by or
signed on behalf of the registered holder) or for vesting and enabling
the Bank to vest the same in the Bank or the Bank's nominee(s) or in
any purchaser to the intent that the Bank may at any time without
notice present them for registration;
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(b) consent to the Bank's transfer of all or any Securities to such
nominee(s) in its absolute discretion, agent(s) or any other person(s)
or entity(ies) wheresoever situate as the Bank may select and that in
the case of Securities in script form, the Bank may hold all or any
such Securities in any branch or branches of the Bank or with any
correspondent or other agents whether in Hong Kong or overseas and
that all the Securities shall be held at my/our sole risk, expense and
responsibility;
(c) consent to the deposit by the Bank of all or any Securities with such
depository or custodian and the withdrawal of all or any of the
Securities from such depository or custodian as the Bank may from time
to time in its absolute and unfettered discretion deem fit;
(d) pay to the Bank upon demand all levies, debts, costs, fees, expenses
incurred or chargeable by the Bank or its nominee(s) in connection
with the transfer, registration, safe custody and/or withdrawal of the
Securities;
(e) the Bank shall not be liable to account as mortgagee in possession in
respect of all or any of the Securities even if the same shall be
registered in the Bank's name or in the name of the Bank's nominee(s)
or held to the order or under the control of the Bank and shall not be
liable for any loss upon realization or for any neglect or default to
present any interest coupon or any bond or stock drawn for repayment
or for any failure to pay any call or instalment or to accept any
offer or to notify me/us of any such matter or for any other loss of
any nature whatsoever in connection with the Securities;
(f) the Bank shall not in any way whatsoever be liable for any loss or
damage caused to me/us as a result of any loss of the Securities
(whether the same be kept by the Bank or the depository or custodian
appointed by it for such purpose) or damage done to the share or stock
certificates except caused by the Bank's wilful default.
3.7 Payment of all calls on the Securities:
(a) I/We shall duly and promptly pay all calls which may from time to time
be made in respect of any unpaid money under any of the Securities and
duly and promptly pay any other money which I/we may lawfully be
required to pay in respect of any of the Securities.
(b) In default of Sub-Clause 3.7(a) above, the Bank may, if it thinks fit
but not obliged to, make such payments on my/our behalf and any sums
so paid by the Bank shall be repayable by me/us on demand, together
with interest thereon at the rate and calculated in the manner as
mentioned in Clause 1.1 above and any costs or expenses incurred by
the Bank as a result of such payment and the Securities shall stand
charged to such payments as well.
3.8 Rights issue:
(a) If there is any rights issue arising from any of the Securities
registered in the name of the Bank or its nominee(s) or deposited with
the Bank or are being held to the Bank's order, the Bank or its
nominee(s) will within a reasonable time after receipt of the relevant
rights issue documents inform me/us of the same.
(b) If I/we fail to instruct the Bank or its nominee(s) within the time
prescribed by the Bank or its nominee(s) for me/us to reply regarding
the rights issue:-
(i) where the rights issue is not obligatory, it shall be conclusively
deemed that I/we have irrevocably renounced all my/our rights and
entitlements regarding such rights issue in favour of the Bank
for its own use and benefit absolutely and the Bank is entitled
to deal with such rights issue in its own rights and for its own
benefit in whatever manner it deems fit without having to account
to me/us for the profits (if any);
(ii) where the rights issue is obligatory, the Bank is entitled at its
absolute discretion either to realize part of the Securities to
raise sufficient monies to pay for the subscription of such
obligatory rights issue or to pay on my/our behalf of such
subscription, the payment of which shall be a further advance of
money to me/us and secured by this Deed and shall be repayable by
me/us on demand, together with interest thereon at the rate and
calculated in the manner as mentioned in Clause 1.1 and the
Securities shall stand charged to such payment as well.
(c) If I/we shall instruct the Bank or its nominee(s) to take up the
rights issue by subscribing the requisite shares, the Bank or its
nominee(s) is/are not obligated to do so unless and until sufficient
immediate available funds have been received by the Bank within the
time limit as set out in Clause 3.8(b) above and in default thereof,
the provisions of Clause 3.8(b) shall apply as if I/we have failed to
instruct the Bank in time.
(d) All shares allotted pursuant to the rights issue taken up by or on
behalf of me/us (but excluding those which I/we have renounced in
favour of the Bank) shall form part of the Securities.
3.9 Exercise of voting rights: The Bank or any of the Bank's agents,
representatives or correspondents shall be entitled, but not obligated or
under any duty, to exercise at its or their discretion and without any
notice or reference to me/us, or any consent or authority on my/our part,
all voting and other rights now or at any time attaching to the Securities
or any of them.
3.10 Income arising from the Securities: Unless and until an Event of Default as
mentioned in Clause 4.1 shall have occurred, all dividends, interest and
other cash income (hereinafter collectively called the "Income") relating
to or arising from the Securities shall be received by the Bank as agent
for me/us and the Income shall be deemed part of the Securities and shall
stand charged to the Bank as security for the Bank Undertaking. I/We hereby
irrevocably appoint and authorize the Bank without prior notice or
reference to me/us to apply the Income as and when the same is received
towards payment, repayment or prepayment of the monies and liabilities
(whether actual or contingent) which are now or at any time hereafter may
be due, owing and payable by me/us to the Bank hereunder in such manner or
order as the Bank may absolutely determine.
4.0 REALIZATION OF THE SECURITIES
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4.1 Events of default: Without prejudice and in addition to any other
provisions herein set out, it shall be lawful for the Bank at any time
after the occurrence of any one or more of the following events, without
prior notice or reference to me/us, to realize the Securities or any part
thereof towards payment of the monies and liabilities (whether actual or
contingent) which are now or at any time hereafter may be due, owing and
payable by me/us to the Bank hereunder:-
(a) I/we make default in the payment of any sum hereby covenanted to be
paid to the Bank after demand has been duly made; or
(b) I/we make default in the payment of any sum undertaken and/or
covenanted to be paid by me/us to any party, including the Bank, under
any loan agreement, indemnity, guarantee, bond or undertaking upon
maturity or where demand is required after demand has been duly made;
or
(c) there is any breach of or omission to observe any of the covenants or
obligations under the terms of this Deed and/or under the terms of any
loan agreement, indemnity, guarantee, bond or undertaking of
whatsoever nature given by me/us to any third party; or
(d) I/we become bankrupt or otherwise become insolvent or a petition for
bankruptcy or winding up has been filed against me/us; or
(e) the security for any of my/our liabilities whether present or future
becomes enforceable, or an encumbrancer takes possession or a receiver
or other similar officer is appointed over the whole or any part of
my/our assets and undertakings; or
(f) any judgment or order made against me/us is not complied with within
seven (7) days, or a distress execution or sequestration or other
process is levied or enforced upon any of my/our chattels or property
and is not discharged within seven (7) days of being levied; or
(g) any party of the security hereby granted or any guarantee, indemnity,
bond, undertaking or other security given by me/us to the Bank for any
money, obligation or liability thereby secured in any respect ceases
to be in full force and effect or to be continuing, or is or purports
to be determined or disputed, or becomes in jeopardy, invalid or
unenforceable, or if any and all necessary or desirable licence,
authorization, consent or approval is removed, withheld, materially
modified or fails to be granted or fails to remain in full force and
effect.
4.2 Powers:
(a) The Bank and any of the Bank's nominees may without further notice or
reference to me/us exercise all the powers or rights which may be
exercisable by the registered holder of the Securities and all other
powers conferred on mortgagees by the Conveyancing and Property
Ordinance Cap. 219 Laws of Hong Kong SAR as hereby varied or extended;
and
(b) Any dividends, interest or other payment which may be received or
receivable by the Bank or by any of the Bank's nominees in respect of
any of the Securities may be applied by the Bank as though they were
proceeds of sale; and
(c) In exercising the powers conferred upon the Bank or any of the Bank's
nominees hereunder, the Securities or any party thereof may be sold or
disposed of at such times, in such manner and generally on such terms
and conditions and for such considerations as the Bank may think fit
and the Bank's obligations and liabilities as a chargee/mortgagee to
me/us whether under common law or statute are hereby expressly
released and waived. Any such sale or disposition may be for cash,
debenture or other obligations, shares, stocks, securities or other
valuable consideration and be payable immediately or by instalments
spread over such period as the Bank may think fit.
4.3 Title to transferee upon realization: A certificate signed by any of the
Bank's officers that I/we have made default and that the power of sale has
become exercisable shall be conclusive evidence of the fact therein stated
in favour of any purchaser or other person to whom any of the Securities
may be transferred under such sale and I/we shall indemnify the Bank and
keep the Bank fully indemnified from and against any claim or demand which
may be made against the Bank by such purchaser or person and any liability,
loss, cost or expense which the Bank may suffer or incur by reason of any
defect in my/our title to such Securities.
4.4 Appropriation of proceeds of realization: All monies received by the Bank
in the exercise of any powers hereby conferred shall be applied in or
towards satisfaction of such of the monies, obligations and liabilities
hereby secured and in such order as the Bank in its absolute discretion may
from time to time conclusively determine Provided Always That the Bank may
at any time credit the same to a suspense account for so long and in such
manner as the Bank may from time to time determine.
5.0 RELEASE OF SECURITIES
5.1 Return of Securities: Subject to Clause 7.15 hereof, on any release of any
of the Securities the Bank shall not be bound to return the identical
Securities which were deposited, lodged, held or transferred to the Bank,
its nominee(s) or are being held to the Bank's order. I/We will accept
Securities of the same class, denomination and nominal amount and rank
pari passu with those originally accepted by the Bank, subject always to
any capital reorganization which may have occurred in the meantime. In
case of Securities hereby charged being Securities already deposited into
the Central Clearing and Settlement System ("CCASS"), release of any of
the Securities under this Clause 5.1 will be made at my/our request and
direction either by transferring such Securities to other participant of
CCASS or arranging for the Securities of the same class denomination and
nominal amount and rank pari passu with those originally accepted by the
Bank (subject to any capital reorganization which have occurred in the
meantime) to be withdrawn from the CCASS depository. Where instructions
are for Securities in CCASS to be transferred to other participants of
CCASS, the Bank shall be absolutely discharged and released upon its
execution of such instructions and shall not be under any duty to ensure
that such Securities have been transferred to the participant named by
me/us or to confirm with such participant that the same is to hold the
Securities to my/our order. The release, transfer and/or return of
Securities hereunder shall be subject to payment of such charges and fees
determined by the Bank and compliance with the conditions stipulated by
the Bank in its absolute discretion.
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6.0 POWER OF ATTORNEY
6.1 Bank as attorney: I/We by way of security hereby irrevocably appoint the
officers from time to time appointed by the Bank, with full power to
appoint substitute severally, to be my/our attorney in the name and on
behalf and as the act and deed of me/us or otherwise to execute and
complete in favour of the Bank or its nominee(s) or any purchaser any other
documents which the Bank may require for perfecting its title to or for
vesting the Securities in the Bank or its nominee(s) or in any purchaser
and otherwise generally to sign, seal and deliver and otherwise perfect any
such other documents and any such legal or other charges or assignments
over the Securities required by the Bank and all such deeds, assurances,
agreements and documents and do all such acts and things as may be required
to protect, preserve or realize any or all of the Securities or enforce or
prosecute any rights which I/we or the Bank may enjoy in respect of any or
all of the Securities including the giving of receipts for all payments
made under or in respect of any or all the Securities or for the full
exercise of all or any of the powers hereby conferred or which may be
deemed expedient on or in connection with any other disposition,
realization or getting in by the Bank or its nominee(s) of the Securities
or any part thereof or in connection with any other exercise of any power
hereunder.
7.0 GENERAL
7.1 Continuing security: This Deed shall be a continuing security and shall
cover and secure the ultimate balance from time to time due and owing to
the Bank by me/us hereunder notwithstanding my/our death, bankruptcy,
insolvency or incapacity or any settlement of account or other matter
whatsoever and such continuing security shall not be affected or
discharged by the taking or release of any security collateral additional
or other security whatsoever which the Bank may for the time being hold or
which may be held by the Bank hereafter.
7.2 Partial release: The Bank shall have absolute discretion in releasing or
discharging the whole or any part of the Securities at any time and from
time to time charged under this Deed without receiving any payment or on
payment of an amount less than the total amount hereby secured or the
value of the Securities released or discharged. In such event, I/we shall
remain fully liable for the monies hereby secured or the balance thereof
and the part of the Securities that has not been released or discharged
shall remain charged by way of a First Fixed Charge hereunder and subject
to the provisions of this Deed. In case there is any partial release or
discharge as aforesaid, any certification by the Bank as to the Securities
remaining at any time charged under this Deed shall be binding on me/us
save for manifest error.
7.3 Security additional: For the avoidance of doubt, this Deed shall be in
addition to and shall not affect or otherwise jeopardize any other
guarantee, indemnity, and/or agreement made between the Bank and me/us
and/or given by third party or parties in favour of the Bank and/or any
other securities now or at any time hereafter held by the Bank in respect
of any or all of the monies and liabilities which are now or may at any
time hereinafter due, owing or incurred by me/us to the Bank.
7.4 Further assurance: I/We shall at any time if and when required by the Bank
execute such further legal or other charges or assignments in favour of
the Bank as the Bank shall from time to time require over all or any of
the Securities and all rights relating thereto both present and future and
any other documents which the Bank may from time to time require for
perfecting its title to the same or for vesting or enabling it to vest the
same in itself or its nominees to secure all monies, obligations and
liabilities hereby covenanted to be paid or otherwise hereby secured, such
further charges or assignments to be prepared by or on behalf of the Bank
at my/our cost.
7.5 Realization account for contingent debts: In the realization of the
Securities in satisfaction of contingent debts hereunder, such sums so
realized shall be paid by the Bank into a non-interest bearing suspense
realization account with the Bank pending actual settlement of the
contingent debts.
7.6 Payment into suspense account: Any money paid to the Bank under this Deed
may be placed and kept by the Bank in a separate suspense account bearing
no interest for so long and in such name as the Bank may in its absolute
discretion think fit without applying the same or any part thereof in or
towards discharge of the debts or liabilities due or incurred as a result
of the Bank Undertaking so as to enable the Bank to preserve intact the
Bank's right to sue or prove in arrangement, composition, liquidation,
bankruptcy, winding-up or such similar proceedings against the Beneficiary
of the Bank Undertaking the entirety of the debts or liabilities owing
without taking into account any sum so paid under this Deed.
7.7 Currency indemnity:
(a) All monies received or held by the Bank under this Deed may from time
to time after demand has been made be converted into such other
currency as the Bank considers necessary or desirable to cover my/our
obligations and liabilities in that currency at the then prevailing
spot rate of exchange of the Bank (as conclusively determined by the
Bank) for purchasing the currency to be acquired with the existing
currency.
(b) If and to the extent I/we fail to pay the amount due on demand the
Bank may in its absolute discretion without notice to me/us purchase
at any time thereafter so much of a currency as the Bank considers
necessary or desirable to cover my/our obligations and liabilities in
such currency hereby secured at the then prevailing spot rate of
exchange of the Bank (as conclusively determined by the Bank) for
purchasing such currency with Hong Kong Dollars and I/we hereby agree
to indemnify the Bank against the full Hong Kong Dollar price
(including all costs, charges and expenses) paid by the Bank.
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(c) No payment to the Bank (whether under any judgment or court order or
otherwise) shall discharge my/our obligation or liability in respect
of which it was made unless and until the Bank shall have received
payment in full in the currency in which such obligation or liability
was incurred and to the extent the amount of any such payment shall on
actual conversion into such currency fall short of such obligation or
liability expressed in that currency, the Bank shall have a further
separate cause of action against me/us and shall be entitled to
enforce the security hereby created to recover the amount of the
shortfall.
7.8 Enforcing other means of payment: The Bank is to be at liberty, but not
bound, to resort for its own benefit to any other means of payment at any
time and in any order it thinks fit without in consequence diminishing
my/our liability to the Bank hereunder and the Bank may enforce its rights
under this Deed either for the payment of the ultimate balance after
resorting to other means of payment or for the balance due at any time
notwithstanding that other means of payment have not been resorted to and
in the latter case without entitling me/us to any benefit from such other
means of payment so long as money remains due or owing or payable (whether
actually or contingently) from or by me/us to the Bank.
7.9 Rights cumulative, waivers: No delay or omission on the part of the Bank in
exercising any right, power, privilege or remedy in respect of this Deed
shall impair such right, power, privilege or remedy, or be construed as a
waiver of it, nor shall any single or partial exercise of any such right,
power, privilege or remedy preclude any further exercise of it or the
exercise of any other right, power, privilege or remedy. The rights,
powers, privileges and remedies provided in this Deed are cumulative and
not exclusive of any rights, powers, privileges or remedies provided by
law.
7.10 Liabilities joint and several: Where this Deed is signed by or on behalf of
two or more persons the obligations and liabilities of such persons
hereunder shall be joint and several and any demand for payment made by the
Bank to any one or more of the persons so jointly and severally liable
hereunder shall be deemed to be demand made to all such persons. The Bank
is at liberty to release or discharge any one or more of such persons from
liability under this Deed or to compound with, accept compositions from or
make any other arrangements with any of such persons without in consequence
releasing or discharging any other party to this Deed or otherwise
prejudicing or affecting the Bank's rights and remedies against any such
other party.
7.11 Effect of death, insolvency: This Deed shall be binding as a continuing
security on me/us and shall not be discharged or affected by the death,
bankruptcy, insolvency or liquidation of me/us or the Beneficiary of the
Bank Undertaking (if more than one, any of them). Without prejudice to the
generality of the foregoing, this Deed may be determined upon the
expiration of three (3) calendar months from the date of the Bank's actual
receipt of a notice in writing given by me or all of us (if there is more
than one undersigned) to terminate this Deed and in the event of death or
disability of one or more of us, given by the personal or legal
representative(s) of such person(s) jointly together with all of us who
survive or are not under disability (if any). For the avoidance of doubt,
during the period of the required three months' notice, I/we and/or my/our
estate(s) shall be fully liable under this Deed for the liabilities of the
Bank Undertaking (whether actual or contingent) incurred during the same
period.
7.12 Liabilities on determination: Determination of this Deed as provided in
Clause 7.11 or by whatever reason shall not release me/us and/or my/our
estate(s) from this Deed in respect of any liability incurred by the Bank
for account of the Beneficiary of the Bank Undertaking during the currency
of this Deed (including those incurred during the period of the required
three months' notice of determination as stipulated in Clause 7.11)
whether such liability is actual or contingent, accrued or not yet accrued
and whether or not such liability matures or becomes due or payable or
accrues only after the expiration of the required three months' notice of
determination as stipulated in Clause7.11. Without prejudice to the
generality of the foregoing, I/we hereby expressly admit and declare that
where the Bank has incurred any irrevocable obligation to make any advance
to, or incur any liability for account of, the Beneficiary of the Bank
Undertaking prior to the expiration of the required three months' notice
of determination as stipulated in Clause 7.10, the Bank shall have the
right to continue making the advance to or incurring the liability for
account of the Beneficiary of the Bank Undertaking after the said
expiration of the required three months' notice of determination and such
advance or liability shall form part of the liability incurred by the Bank
for account of the Beneficiary of the Bank Undertaking during the currency
of this Deed and I/we shall be fully liable therefor notwithstanding the
determination of this Deed.
7.13 No demand prior to determination: I/We hereby expressly agree that my/our
obligations to indemnify the Bank against the liabilities of the
Beneficiary of the Bank Undertaking shall not in any way be affected by
the Bank not making a demand on me/us before the determination of this
Deed and that the Bank may make a demand on me/us at any time whether
before or after the determination of this Deed whereupon I/we shall
promptly pay the Bank the amount demanded.
7.14 Joint signatories: If this Deed is signed or intended to be signed by or
on behalf of more than one person (such persons being hereinafter called
"the Original Signatories") and any one or more of the Original
Signatories is/are not bound by the provisions of this Deed (whether by
reason of his or their lack of capacity or improper execution of this Deed
or failing to sign/execute this Deed or for any other reason whatever),
the remaining Original Signatory or Signatories shall continue to be bound
by the provisions of this Deed as if such other Original Signatory or
Signatories had never intended to be party hereto.
7.15 Conditions to discharge: Any settlement or discharge between the Bank and
me/us shall be subject to the condition that no security or payment to the
Bank by the Beneficiary of the Bank Undertaking or any other person shall
be avoided or reduced by virtue of any provisions or enactments relating to
bankruptcy, liquidation or insolvency for the time being in force and if
any such security or payment shall be so avoided or reduced the Bank shall
be entitled to recover the value or amount of it from me/us subsequently
just as if such settlement or discharge had not occurred. For the purpose
of this Clause 7.15, the Bank shall be entitled to retain this
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Deed for a period of twenty-five (25) months after the full payment, or
satisfaction of all debts and liabilities due and owing by me/us hereunder
and if during the said twenty-five months' period, bankruptcy, liquidation
or insolvency proceedings have been commenced against the Beneficiary of
the Bank Undertaking or any other person making the payment, the Bank is
entitled to retain this Deed for such further period as the Bank deems
fit.
7.16 Indulgence: My/Our liability under this Deed shall not be affected by any
arrangement which the Bank may make with the Beneficiary of the Bank
Undertaking or with any other person which (but for this provision) might
operate to diminish or discharge the liability of or otherwise provide a
defence to a surety. Without prejudice to the generality of the forgoing
the Bank is to be at liberty at any time without reference to me/us to
give time for payment or to grant any other indulgence and to give up,
deal with, vary, exchange or abstain from perfecting or enforcing any
other security or guarantees held by the Bank at any time and to discharge
any party to them, and to realize such security or guarantees or any of
them, as the Bank thinks fit and to compound with, accept compositions
from and make any other arrangements with the Beneficiary of the Bank
Undertaking or any person or persons liable on bills, notes or other
security or guarantee held or to be held by the Bank without affecting
my/our liability under this Deed.
7.17 No proof in competition with the Bank: If any sums become payable by me/us
under this Deed, I/we shall not, until all sums whatsoever payable by the
Beneficiary of the Bank Undertaking have been finally paid in full, in the
event of the bankruptcy, liquidation or insolvency of the Beneficiary of
the Bank Undertaking prove in competition with the Bank but will give the
Bank the benefit of such proof and all monies to be received in respect of
it.
7.18 New account: It shall be lawful for the Bank at any time after notice to
determine this Deed has been given or after payment of the money
indemnified by this Deed has been demanded or becomes payable by me/us to
continue any existing account or accounts or to open any new account or
accounts with the Beneficiary of the Bank Undertaking or any of them and
no money subsequently paid into such account or accounts shall be
appropriated in discharge of any money indemnified by this Deed unless it
is expressly directed in writing by the person paying the same at the time
of such payment to be so appropriated.
7.19 Invalidity of the Bank Undertaking: If any purported obligation or
liability of the Beneficiary of the Bank Undertaking to the Bank which if
valid would have been the subject of this Deed is not or ceases to be
valid or enforceable against the Beneficiary of the Bank Undertaking on
any ground whatsoever, whether or not known to the Bank, including but not
limited to any defect in or want of powers of the Beneficiary of the Bank
Undertaking or irregular exercise thereof or lack of authority by any
person purporting to act on behalf of the Beneficiary of the Bank
Undertakingor any legal or other limitation (whether under the Limitation
Ordinance or otherwise), disability, incapacity or any change in the
constitution of or any amalgamation or reconstruction or liquidation of
the Beneficiary of the Bank Undertaking, I/we shall nevertheless be
jointly and severally liable to the Bank in respect of that purported
obligation or liability as if the same were fully valid and enforceable
and I/we were the principal debtors in respect thereof.
7.20 No security received: I/We hereby warrant to the Bank that I/we have not
taken or received and undertake not to take or receive the benefit of any
security from the Beneficiary of the Bank Undertaking or any other person
liable for the obligation and liabilities of the Beneficiary of the Bank
Undertaking. If any such security is taken or I/we receive the benefit of
the same, I/we hereby agree forthwith to deposit an amount equal to the
value of the same with the Bank, failing which I/we declare that such
security is held in trust for the benefit of the Bank until such security
is released or benefit thereof returned to the Beneficiary of the Bank
Undertaking.
7.21 Payment not subject to deduction: All sums payable by me/us under this
Deed shall be paid to the Bank in Hong Kong or otherwise as the Bank may
from time to time direct, in full, free and clear of any present or future
taxes, levies, imposts, duties, charges, fees or withholdings and without
set off or counterclaim or any restriction, condition or deduction
whatsoever. If I/we are compelled by law to make any deduction or
withholding, I/we shall promptly pay to the Bank such additional amount as
will result in the net amount received by the Bank being equal to the full
amount which would have been receivable had there been no deduction or
withholding. Any additional amount paid under this Clause 7.21 shall not
be treated as interest but as agreed compensation.
7.22 Notice of subsequent incumbrance: If the Bank receives notice of any
subsequent mortgage, charges, assignment or any other disposition
affecting the Securities or any part thereof or interest thereon, the Bank
may open a new account for me/us, if the Bank does not open a new account
for me/us then unless the Bank gives notice to the contrary to me/us, it
shall nevertheless be treated as if the Bank had done so at the time when
the Bank received such notice and as from that time all payments made by
or on behalf of me/us to the Bank shall be credited or treated as having
been credited to the new account and shall not operate to reduce the
amount due from me/us to the Bank at the time when the Bank received
notice.
7.23 Change in constitution:
(a) If the Beneficiary of the Bank Undertaking or I/we am/are a
partnership or a company or a committee or association or other
unincorporated body, this Deed shall remain in full force and effect
notwithstanding any change in my/our constitution or the constitution
of the Beneficiary of the Bank Undertaking.
(b) This Deed shall continue to bind me/us notwithstanding any
amalgamation or merger that may be effected by the Bank with any other
company or companies and notwithstanding any re-construction by the
Bank involving the formation of and transfer of the whole or any part
of the Bank's undertaking and assets to a new company and
notwithstanding the sale or transfer of the whole or any part of the
Bank's undertaking and assets to another company, whether the company
or
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companies with which the Bank amalgamates or merges or the company or
companies to which the Bank transfers the whole or any part of its
undertaking and assets on a re-construction or sale or transfer as
stated above shall or shall not differ from the Bank in their or its
objects, character or constitution, it being the intent of me/us that
this Deed shall remain valid and effectual in all respects and that
the benefit of this Deed and all rights conferred upon the Bank by
this Deed may be assigned to and enforced by any such company or
companies and proceeded on in the same manner to all intents and
purposes as if such company or companies had been named in this Deed
instead of and/or in addition to the Bank.
7.24 Clauses severable: Each of the clauses and provisions of this Deed is
severable and distinct from the others and if at any time one or more of
such clauses or provisions is or becomes invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining clauses and
provisions hereof shall not in any way be affected or impaired thereby.
7.25 Notices:
(a) Any notice, request, certificate, demand or other communication to
me/us in connection herewith is to be sent to me or any one of us at
my/our last known address from time to time or to such other address
as may have been notified in writing by me/us to the Bank in
accordance with this Clause 7.25.
(b) Any notice, request, certificate, demand or other communication
delivered personally shall be deemed to have been given at the time of
such delivery. Any notice, request, certificate, demand or other
communication despatched by letter postage prepaid shall be deemed to
have been given forty-eight (48) hours after posting. Any notice,
request, certificate, demand or other communication sent by telex
shall be deemed to have been given at the time of despatch and any
notice sent by cable shall be deemed to have been given twenty-four
(24) hours after despatch.
7.26 Information:
(a) I/We undertake at all times to notify the Bank in writing of any
change of my/our particulars including but without limitation my/our
address, telephone number and facsimile number.
(b) I/We acknowledge that I/we have noted the content of a notice relating
to the Personal Data (Privacy) Ordinance issued by the Bank and
addressed to the Bank's customers (the "Notice") and agree that it is
necessary to supply the Bank with data under the First Schedule hereto
or as required by he Bank in order that the Bank will accept this
Deed. I/We further authorize the Bank to use my/our data for the
purposes set out in the Notice and note that data held by the Bank
will be kept confidential but permit the Bank to provide such
information to the persons listed in the Notice or any other persons
for the purposes set out in the Notice (including debt collecting
agents) or in compliance with any laws, regulations or directions
binding on the Bank or its branches/sub-branches. I/We further
authorize the Bank to contact any of my/our employers (if applicable),
banks, referees or any other sources for the purpose of obtaining or
exchanging any information and to compare the information provided by
me/us with other information collected by the Bank for checking
purposes. The Bank is entitled to use the result of such comparison to
take any action which may be adverse to the interest of or against me
or any of us. I/We consent to my/our data being transferred to another
jurisdiction outside Hong Kong.
(c) For the purpose of Clause 7.26(b) above, I/we shall be deemed to be
"Customers" as referred to in the Notice.
7.27 Debt collection: The Bank shall be entitled to employ debt collecting
agents to collect any sum due but unpaid by me/us hereunder. I/We hereby
agree, and acknowledge that I/we have been warned, that I/we shall
indemnify and keep the Bank indemnified on a full indemnity basis against
all costs and expenses which the Bank may incur in employing debt
collecting agents.
7.28 Law and Jurisdiction: This Deed shall be governed by and interpreted in
accordance with the laws of Hong Kong SAR. I/We hereby irrevocably and
unconditionally submit to the non-exclusive jurisdiction of the Hong Kong
SAR courts but without prejudice to the foregoing, this Deed may be
enforced in any court of competent jurisdiction.
7.29 Interpretation: In this Deed, where the context permits, the singular
includes the plural and vice versa, the masculine includes feminine and
neuter and vice versa and reference to persons include references to
companies.
7.30 Heading: In this Deed, headings to clauses are inserted for convenience
only and have no legal effect and reference to clauses and schedules are to
clauses and schedules of this Deed unless otherwise stated.
7.31 Language: The Chinese version of this Deed is for reference only and if
there is any conflict between the English and Chinese version, the English
version shall prevail.
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THE FIRST SCHEDULE ABOVE REFERRED TO
Particulars of the person(s) who execute(s) this Deed:
<TABLE>
<CAPTION>
Name Address Identification Document and number
---- ------- ----------------------------------
<S> <C> <C>
Beijing Holdings Limited Room 3401-3412, B.R. No.06113994
West Tower,
Shun Tak Centre,
200 Connaught Road C, HK
</TABLE>
THE SECOND SCHEDULE ABOVE REFERRED TO
The Bank Undertaking
The Bank agreeing at the request of the undersigned (the "Beneficiary
of the Bank Undertaking") to grant or continue to grant to the
Beneficiary of the Bank undertaking general banking facilities
(including but not limited to term loans, on-demand loans, overdraft,
hire purchase/lease facilities, issuance of bank
guarantees/bonds/standby letters of credit/letters of
credit/trust-receipt facilities, negotiation of bills of
exchange/documents, clean/documentary collections, foreign exchange
transactions and swap arrangements), forbearance, indulgence or other
accommodation of whatever nature, in whatever currency or currencies,
up to such extent, on such terms, conditions, manner or form, at such
time and for so long as the Bank may at its absolute discretion think
fit.
IN WITNESS WHEREOF, this Deed is executed by the party(ies) whose name(s)
appear(s) in the First Schedule hereto this day of , 200 .
-------- ------------- --
SEALED with the COMMON SEAL of the Company(ies) named in the First Schedule
hereto and SIGNED by:
COMPANY
NAME Beijing Holdings Limited COMMON SEAL:
------------------------------------
DIRECTOR/
AUTHORIZED PERSON SIGNATURE
--------------------------------
COMPANY
NAME Beijing Holdings Limited COMMON SEAL:
------------------------------------
DIRECTOR/
AUTHORIZED PERSON SIGNATURE
--------------------------------
Witnessed by:-
NAME SIGNATURE
---------------------------------------------
