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BANK OF CHINA HONG KONG BRANCH
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(Incorporated in China with Limited Liability)
Date: March 17, 2000
BEIJING HOLDINGS LIMITED
IMPORTANT NOTICE: This letter sets out the terms and conditions upon which
our bank would provide term loan facility to you. You
are advised to read and understand the terms and
conditions before accepting the facilities.
Dear Sirs,
RE: TERM LOAN FACILITY UP TO AN EXTENT OF USD2,500,000.00
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We are pleased to offer you the captioned Banking Facility ("the Facility") on
the following terms and conditions.
1. Borrower :Beijing Holdings Limited.
2. Lender :Bank of China, Hong Kong Branch.
3. Facility :Term Loan up to the extent of USD2,500,000.00.
4. Purpose : To finance the Borrower for acquisition of shares
of Tramford International Limited.
5. Availability Period:Three (3) months from the date of this
letter having been duly countersigned by the
Borrower, or the date on which the Facility
is fully drawn or cancelled, whichever is
the earlier.
6. Drawdown :Subject to the due fulfillment and
observance of all conditions precedent
contained in Clause 13 and other procedures
from time to time required to be fulfilled,
advances under the Facility shall be made by
way of drawdowns against Drawdown notices
received by the Lender at least Three
Business Days
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(which shall mean a day on which commercial
banks in Hong Kong are open for business but
excluding Saturdays), prior to the relevant
drawdown dates during the Availability
Period duly signed by the authorized
signatories of the Borrower.
7. Final Maturity Date :Three (3) years from the end of the
Availability Period or the date on which the
Facility is fully drawn or cancelled,
whichever is the earlier.
8. Interest :
(a) Interest on the Facility will be charged at Two percent (2%) per
annum over London Interbank Offered Rate (LIBOR) for a Interest
Period of three months as quoted on the Reuters Screen LIBO Page two
days in which banks in London and Hong Kong are open for business
prior to drawdown, following the market practice in taking the
arithmetic mean of such quotations and rounded upwards to the
nearest 1/16 of one percent. If for any reason whatsoever, LIBOR is
not available or it does not reflect the cost to the Lender of
funding the Facility or the Lender is unable to obtain deposits to
fund the Facility, interest for the Facility shall be charged at Two
percent (2%) per annum over the Lender's cost of fund for the
Facility.
(b) Interest will accrue from day to day and be calculated on the basis
of the actual number of days elapsed and a 360-day year.
(c) All interest periods shall be of three months and accrued interest
shall be paid at the end of each interest period (Interest Payment
Date) and if not so paid shall be capitalized as principal advance
and bear interest at the same rate. Notwithstanding the foregoing
provision, no interest period shall extend beyond the Availability
Period and if any interest period shall extend beyond such period,
it shall end at the end of the Availability Period.
(d) The first Interest Payment Date of the last drawdown shall end on
the same day as the current Interest Payment Date of the previous
drawdown. Thereafter, all Interest Payment Dates shall be
co-terminus and all drawdowns shall be treated as one loan.
(e) In the event if any interest period shall end on a day not being a
Business Day, it shall end on the immediately succeeding Business
Day; and if it shall fall unto another calendar month, on the
immediately preceding Business Day.
(f) At the sole and absolute discretion of the Lender, due but unpaid
interest may be capitalized as principal advance which itself bears
interest at the rate as aforesaid.
9. Default Interest
(a) Time shall be of the essence of any payment/repayment to be made by
the Borrower. Any payment/repayment required to be made hereunder
which is not made when due shall bear default interest, payable in
the currency of such payment. Such default interest shall accrue and
be calculated from the date when the relevant payment was due to the
date of its final payment in full, on a day to day basis, at the
rate certified by the Lender's officers as being 6% PER ANNUM over
the Lender's prevailing prime rate for United States Dollars (the
"Prime Rate") as quoted by the Lender from time to time or the
Lender's cost of fund, whichever is higher, subject to fluctuation
provided that the Lender may vary the basis of calculation of such
rate upon 30 days' prior notice displayed or posted in the Lender's
banking halls.
(b) In addition to the default interest mentioned above, the Lender
reserves the right to charge the Borrower an administration fee of
HKD200.00 whenever the Borrower fails to make any instalment payment
on its due date, in order to cover the administrative costs incurred
by the Lender as a result of such failure.
10. Repayment
(a) All amounts borrowed under this Facility shall be repaid in full on
the Final Maturity Date (Repayment Date).
(b) In the event if the Repayment Date shall end on a day not being a
Business Day, it shall end on the immediately succeeding Business
Day; and if it shall end unto another calendar month, on the
immediately preceding Business Day.
11. Prepayment
(a) The Borrower may prepay all or any part of the Facility on any
Repayment Date in minimum amount of USD500,000.00 or any higher
integral multiples of USD100,000.00 provided that seven (7) days'
prior written notice shall have been given to the Lender.
(b) Such prepayment of principal shall include all interest accrued
thereon and shall not be reborrowed.
(c) A prepayment fee of 0.25% FLAT on the amount prepaid shall be paid
by the Borrower on the date of prepayment.
12. Payment without Deduction
All payments made by the Borrower to the Lender are to be made in the currency
of the Facility in immediately available funds without set-off or counter-claim
and free and clear of and without withholding or deduction for any and all
present or future taxes, duties or other charges.
13. Conditions Precedent
The Facility will be available for drawing when the Lender has received the
following documents in form and content to its satisfaction:
(a) The signed copy of the duplicate of this letter together with Board
Resolutions indicating the Borrower's acceptance of the Facility on
terms and conditions set out in this letter.
(b) A Deed of Charge Over Securities confirming a first fixed charge of
3,523,306 shares of Tramford International Limited duly executed by
the Borrower's authorized officer(s) together with Board
Resolutions.
(c) Original duly stamped bought and sold note of the shares as
mentioned in Clause 13(b) above.
(d) An instrument of transfer of the shares as mentioned in Clause 13(b)
above duly signed by the Borrower's authorized officer(s).
(e) Written legal opinion issued by our USA counsel.
14. Other Conditions
(a) No material change is allowed in the existing registered or ultimate
beneficial shareholding of the Borrower without prior written
consent of the Lender.
(b) All necessary corporate resolutions required to be passed by the
Borrower and on the part of the Borrower's shareholders, directors
and officers to authorize this letter and its execution and
performance have been properly passed in accordance with the laws of
Hong Kong SAR and the Borrower's Memorandum and Articles of
Association and this letter constitutes legal, valid and binding
obligations on the Borrower's part.
Otherwise, no further advances is allowed and all amounts outstanding under the
Facility shall immediately become due and payable.
15. Representations and Warranties
The Borrower hereby makes the following representations and warranties to the
Lender:
(a) The Borrower is a company incorporated with limited liability under
the laws of Hong Kong SAR;
(b) The Borrower has the corporate power and authority and the legal
capacity to perform and observe its obligations hereunder;
(c) The obtaining of the Facility and/or the borrowing hereunder and/or
the acceptance of this letter has been (or when signed will have
been) duly authorized by all necessary action of the Borrower under
all applicable laws and regulations to which the Borrower is
subject. The terms and conditions contained in this letter
constitute (or when signed will constitute) valid and legally
binding obligations of the Borrower in accordance with its terms;
(d) The Borrower is not in default in the payment of any principal of or
interest on any indebtedness for borrowed money and is not in breach
of or in default under any other provision of any indenture, deed of
trusts, agreement or other instrument to which it is a party and
under or subject to which any such indebtedness for borrowed money
has been issued and is outstanding and no event, condition or act
which with the giving of notice or lapse of time, or both, would
constitute an event of default under any such indenture, deed of
trust, agreement or other instrument has occurred or is continuing
which has not been properly waived or remedied thereunder;
(e) No litigation, arbitration or administrative proceeding before or of
any court, tribunal arbitrator or governmental authority is
presently taking place, pending or to its knowledge (having made all
reasonable inquiries) threatened against the Borrower, or any of its
properties or assets, which could result in a material adverse
change in the business, assets or condition of the Borrower;
(f) The above representations and warranties shall continue in full
force and effect by reference to the facts and circumstances then
existing whilst any part of the advances under the Facility remains
outstanding and shall be repeated, where not inapplicable, on each
drawing of the Facility.
16. Affirmative Undertakings
The Borrower undertakes with the Lender that it will:
(a) Promptly on becoming aware of the occurrence of any Events of
Default or prospective Events of Default or any other events or
circumstances which might materially and/or adversely affect the
Borrower's operations, prospects, business or condition (financial
or otherwise) or the Borrower's ability to perform its obligations
under this letter or other security document(s) notify the Lender of
the same;
(b) Promptly and duly pay or cause to be paid all taxes, duties and
other governmental charges imposed upon the Borrower;
(c) Promptly supply or procure to be supplied to the Lender annually the
accounts (where appropriate, audited accounts) of the Borrower
prepared according to internationally accepted standards;
(d) Form time to time upon the demand of the Lender provide or procure
to be provided to the Lender such further security acceptable to the
Lender having current market value not less than the then
outstanding Facility;
(e) Ensure that the Borrower's obligations under this letter, whether
actual or contingent, are not subordinated to, and that they will at
all times rank at least pari passu in priority of payment and in all
other respects with any other of the Borrower's unsecured
obligations.
17. Negative Undertakings
The Borrower further undertakes with the Lender that the Borrower will not,
unless the Lender otherwise expressly agrees in writing:
(a) Merge, or consolidate with or into any other corporation or take any
step with a view to dissolution, liquidation or winding up;
(b) In any manner become or remain liable or contingently liable for any
indebtedness or other obligation of any other person except as may
be necessary in normal course of the Borrower's day to day business;
(c) Make any material change to the nature of the Borrower's business as
at present carried on;
(d) Make any material change to the existing registered or ultimate
beneficial shareholding of the Borrower. 18. Events of Default
All amounts advanced under the Facility will become immediately due and
repayable in any of the following events:
(a) The Borrower fails to pay any principal, interest or other costs and
expenses payable to the Lender hereunder on the due date; or
(b) The Borrower for any reason whatsoever fails promptly to discharge
any obligation under this letter to the Lender or be in breach of
any undertakings (affirmative or negative) hereunder however and
whenever arising; or
(c) Any representation or warranty by the Borrower hereunder or any
information or document delivered by the Borrower to the Lender is
shown to have been incorrect or misleading in any material respect
when made or given; or
(d) The Borrower fails to perform any obligations on its respective part
contained in this letter; or
(e) The equitable or legal interest in any shares in the Borrower is
transferred without the prior written consent of the Lender; or
(f) Any governmental, tax, monetary or other approval required by the
Borrower as mentioned aforesaid in this letter is withdrawn or is
changed in a way prejudicial to the Lender; or
(g) Any event occurs which constitutes or, with the passing of time or
the giving of notice or both, would constitute an event of default
under any other agreements to which the Borrower is a party and
which would have, in the opinion of the Lender, a material adverse
effect on the ability of the Borrower to perform its respective
obligations under this letter; or
(h) A receiver is appointed of any assets or property of the Borrower or
a resolution is passed or an order is made for the winding up of the
Borrower or if the Borrower otherwise becomes insolvent or bankrupt
under any court of law; or
(i) A distress, attachment, execution of other legal process is levied,
enforced or sued out on or against the assets of the Borrower and in
the opinion of the Lender such event has or could have a material
adverse effect on the Borrower; or
(j) Any present or future security on or cover the assets of the
Borrower becomes enforceable and in the opinion of the Lender such
event has or could have a material adverse effect on the Borrower;
or
(k) There occurs, in the opinion of the Lender, a material adverse
change in the financial position of the Borrower which would prevent
the Borrower from performing in any material respect its obligations
under this letter (as the case may be); or
(l) This letter is not in full force and effect.
If any of the Events of Default has occurred, then the Lender may by notice of
any form to the Borrower declare that an Event of Default has occurred and that
the advances under the Facility and all interest accrued thereon has become
immediately due and payable whereupon:
(a) the Lender shall not be required to make any further advances under
this letter; and
(b) all amounts outstanding under the Facility shall immediately become
due and payable.
19. Waivers and Rights Cumulative
No delay or omission on the part of the Lender in exercising any right, power,
privilege or remedy in respect of this letter 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 letter are
cumulative and not exclusive of any rights, powers, privileges or remedies
provided by law.
20. Set-off
(a) In addition and without prejudice to any general or banker's lien,
right of set-off or similar right to which the Lender may be
entitled, the Lender shall have the right and is hereby irrevocably
and unconditionally authorized, to the fullest extent permitted by
law, from time to time and at any time without notice to the
Borrower (any such notice being expressly waived) to set-off and
appropriate and apply any credit balance on any of the Borrower's
accounts (whether subject to notice or not and whether matured or
not) with the Lender against or on account of the Borrower's
obligations and liabilities hereunder.
(b) Where such combination, set-off or transfer requires the conversion
shall be calculated at the Lender's then prevailing spot rate of
exchange (as conclusively determined by the Lender) for purchasing
the currency in which the moneys, obligation or liabilities were due
owing or incurred with the existing currency so converted.
(c) The rights herein conferred on the Lender are in addition and
without prejudice to any rights conferred on the Lender under any
security documents at any time and from time to time given in favour
of the Lender.
21. Conclusive Statement of
(a) Any statement of account relating to the Facility signed as Account
correct by any of the duly authorized officer(s) of the Lender shall
be conclusive evidence of the Borrower's indebtedness to the Lender,
save for manifest errors.
(b) Any opinion, determination or decision by the Lender as to any
materiality, effect or otherwise howsoever relating to anything
herein mentioned or referred to shall be conclusive and binding on
the Borrower.
22. Authorization to debit account(s)
The Lender shall be entitled to debit at any time and from time to time all or
any of the interests, fees, charges, commissions, costs, expenses and other sums
due and payable by the Borrower hereunder to any of the Borrower's account(s)
without prior notice to the Borrower. Such sums shall be deemed duly drawn or
overdrawn from the account(s) by the Borrower.
23. Handling Charges
Handling charges of USD6,250.00 FLAT shall be paid by the Borrower upon
acceptance of this letter. Once paid, such handling charge shall not be
refundable under any circumstances.
24. Commitment Fee
Commitment fee of 0.25% PER ANNUM on the undrawn balance of the Facility shall
be paid by the Borrower which is calculated on a day-to-day basis during the
Availability Period. Such fee shall be payable at the end of the Availability
Period.
25. Cancellation Fee
(a) The Borrower may cancel the whole or part of the undrawn Facility in
a minimum amount of USD500,000.00 or any higher integral multiples
of USD100,000.00 provided that seven (7) days' prior irrevocable
written notice shall have been given to the Lender.
(b) A cancellation fee of 0.5% FLAT on the cancelled amount shall be
paid by the Borrower on the date of cancellation.
26. Expenses
All expenses including but not limited to legal fees, communications and other
out-of-pocket expenses incurred by the Borrower in connection with this Facility
or any enforcement, or attempted enforcement, of the Lender's rights under this
letter, are to be borne by the Borrower on a full indemnity basis.
27. Debt collection
The Lender shall be entitled to
employ debt collecting agent(s)
to collect any sum due but unpaid
by the Borrower hereunder. The
Borrower agrees, and acknowledges
that the Borrower has been
warned, that the Borrower shall
indemnify and keep the Lender
indemnified on a full indemnify
basis against all costs and
expenses which the Lender may
incur in the employment of debt
collecting agent(s). The Lender
shall be entitled to disclose to
such debt collecting agent(s) any
or all information relating to
the Borrower or this letter.
28. Governing Law
The laws of Hong Kong SAR
Please signify your understanding and acceptance of this offer by signing and
returning the duplicate of this letter to us on or before April 17, 2000,
failing which this offer shall lapse.
Should you have any queries, please do feel free to contact our Ms. Kanas Chong
at 2826 6892 at any time. We are here to serve you better.
Yours faithfully,
FOR BANK OF CHINA, HONG KONG BRANCH
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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
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 form and against 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 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 define din 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, installments 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 writes 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
with our 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 o 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; (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 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 willful 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 things
fit but not obligated 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 payment as well.
3.8 Rights issue:
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(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 taking 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 call 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 oar at any time hereafter may be due, owing the 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
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 covenants 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 license, 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:
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(a) The Bank and any of the Bank's nominees may without further notice
or reference tome/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 statue 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 installments 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.
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 an 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
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 thin 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 familiar
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:
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(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.
(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 if sot 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 estates) 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. 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.
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 ass if such settlement or
discharge had not occurred. For the purpose of this Clause 7.15, the
Bank shall be entitled to retain this 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 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 defense to a surety. Without prejudice to the
generality o the foregoing 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 Undertaking or 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 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 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 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:
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(a) If the Beneficiary of the Bank Undertaking or I/we am/are a
partnership or a company or a committee or association or
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 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 sand 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:
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(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 despatach and any
notice sent by cable shall be deemed to have been given twenty-four
(24) hours after despatch.
7.26 Information:
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(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 the 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.
<PAGE>
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.,
Hong Kong
</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)
appears) in the First Schedule hereto this day of , 2000.
SEALED with the COMMON SEAL of the Company(ies) named in the First Schedule
hereto and SIGNED by:
COMPANY
NAME COMMON SEAL:
-------------------------------------------------
DIRECTOR/
AUTHORIZED PERSON SIGNATURE
--------------------------------------
COMPANY
NAME COMMON SEAL:
-------------------------------------------------
DIRECTOR/
AUTHORIZED PERSON SIGNATURE
--------------------------------------
Witnessed by:
NAME SIGNATURE
---------------------------------------------------
<PAGE>
To: BANK OF CHINA, HONG KONG BRANCH
1 Garden Road Central
Hong Kong
Date:
Dear Sirs,
RE: SCHEDULE FOR DEED OF CHARGE OVER SECURITIES
DATED:
I/We refer to the above-named Deed of Charge Over Securities executed by me/us
in your favour. Words used herein shall have the same meaning as used in the
above-named Deed.
I/We hereby IRREVOCABLY certify that the following Securities are deposited with
and charged to you as security pursuant to the above-named Deed, namely:
<TABLE>
<CAPTION>
NAME OF SECURITIES DESCRIPTION/IDENTIFICATION QTY/NO. OF SHARES
<S> <C>
Tramford International Limited Common Stock 2,548,730
</TABLE>
Yours faithfully,
Name Beijing Holdings Limited Signature
Name Signature
-------------------------------------------------
Name Signature
-------------------------------------------------
*(Delete whichever is inapplicable)
EXHIBIT 2
