DATED JANUARY 31, 2011 Way Fast Holdings Limited as Chargor - and - Tianjin Cube Xindao Equity Investment Fund Partnership (LLP), Tianjin Cube Xinde Equity Investment Fund Partnership (LLP), Tianjin Cube Xinren Equity Investment Fund Partnership...
DATED JANUARY 31,
2011
Way
Fast Holdings Limited
as
Chargor
-
and -
Tianjin
Cube Xindao Equity Investment Fund Partnership (LLP),
Tianjin
Cube Xinde Equity Investment Fund Partnership (LLP),
Tianjin
Cube Xinren Equity Investment Fund Partnership (LLP),
and
Tianjin
Cube Xinyi Equity Investment Fund Partnership (LLP)
individually,
as Lender
SHARE
CHARGE (BORROWER)
Solicitors
and International Lawyers
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CONTENTS
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Number
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Clause Heading
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Page
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1.
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Interpretation
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1
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2.
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Charge
of Shares
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3
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3.
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Continuing
Security
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4
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4.
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Representations
and Warranties
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4
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5.
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Undertakings
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6
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6.
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Power
of Sale
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7
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7.
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Dividends
and Voting Rights
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8
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8.
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Claims
by Chargor
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8
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9.
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Taxes
and Other Deductions
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8
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10.
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Costs,
Charges and Expenses
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8
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11.
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Indemnity
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9
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12.
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Further
Assurance
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9
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13.
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Power
of Attorney
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10
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14.
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Receiver
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10
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15.
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Evidence
of Debt
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12
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16.
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Suspense
Account
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13
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17.
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Waiver
and Severability
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13
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18.
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Miscellaneous
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13
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19.
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Assignment
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15
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20.
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Notices
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15
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21.
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Governing
Law and Jurisdiction
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16
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Schedules
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Schedule
1 Particulars of Shares
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18
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Schedule
2 Form of Letter of Resignation
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19
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Schedule
3 Form of Letter of Authority and Undertaking
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20
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Schedule
4 Form of Written Resolutions
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21
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Execution
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18
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THIS DEED is made on the 31st
day of January 2011
BETWEEN:
(1) Way Fast Holdings Limited, a
company with limited liability incorporated under the laws of the British Virgin
Islands with its registered address at P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands as chargor (the “Chargor”); and
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(2)
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Tianjin Cube Xindao Equity
Investment Fund Partnership (LLP); Tianjin Cube Xinde Equity Investment
Fund Partnership (LLP); Tianjin Cube Xinren Equity Investment Fund
Partnership (LLP); and Tianjin Cube Xinyi Equity Investment Fund
Partnership (LLP), limited partnerships incorporated in Tianjin,
China, under the laws of the People’s Republic of China with its
registered address at (Room J314-317, 3/F, Building No.6, Binhai Finance
Street, No. 52 ▇▇▇ ▇▇▇▇▇ West Road, TEDA, Tianjin), as lender
(individually, the “Lender” and
collectively, the “Lenders”).
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WHEREAS:
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(A)
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By
a project finance agreement (the “Loan Agreement”) dated
January 31, 2011 made between (1) (Xian Xinxing Real Estate Development
Co., Ltd), a China-incorporated subsidiary of the Chargor (the “Borrower”) and (2) the
Lenders and all transaction agreements related to the Loan Agreement (the
“Finance
Document”), the Lenders have collectively agreed to make available
to the Borrower a loan facility of approximately RMB200,000,000 (Two
Hundred Million Renminbi Yuan) (the “Facility”) in aggregate
amount upon the terms set out
therein.
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(B)
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In
connection with the structure of the Facility, the Lenders shall entrust
(Construction Bank of China, Shanxi Branch) to act on their behalf in
making the Loan to the Borrower.
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(C)
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It
is a condition precedent to the Lender making the Facility available to
the Borrower that the Chargor enters into this
Deed.
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NOW THIS DEED WITNESSES as
follows:
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1.
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INTERPRETATION
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1.1
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Definitions and
Construction. In this Deed, unless the context requires
otherwise:
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(a)
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terms
and expressions defined in or construed for the purposes of the Loan
Agreement shall have the same meanings or be construed in the same manner
when used in this Deed;
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(b)
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“Company” means Clever
Advance Limited, a company with limited liability under the laws of Hong
Kong with its registered address at P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin
Islands;
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(c)
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“Dividends” means all
dividends, interest and other sums which are or may become payable by the
Company to any person in its capacity as shareholder of the Company and
includes:
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(i)
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the
right to receive any and all such sums and all claims in respect of any
default in paying such sums; and
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(ii)
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all
forms of remittance of such sums and any bank or other account to which
such sums may be paid or credited;
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(d)
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“Event of Default” has
the meaning as set forth in the Relevant Finance Documents including the
Loan Agreement.
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(e)
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“Potential Event of
Default” has the meaning as set forth in the Relevant Finance
Documents including the Loan
Agreement.
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(f)
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“Property Ordinance”
means the Conveyancing and Property Ordinance (Cap. 219 of the Laws of
Hong Kong);
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(g)
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“Receiver” means a
receiver and manager or a receiver, in either case, appointed under this
Deed;
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(h)
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“Secured Indebtedness”
means all and any sums (whether principal, interest, fees or otherwise)
which are now or at any time may become payable by the Borrower under any
Finance Document to which it is a party and all other monies hereby
secured; and
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(i)
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“Shares” means all those
shares constituting the entire issued share capital from time to time of
the Company, the particulars of which are set out in Schedule 1 and, where
the context permits, includes the Dividends and those stocks, shares,
rights, monies and other property referred to in Clause
2.4.
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1.2
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Successors and
Assigns. The expressions “Chargor” and “Lender” shall where the
context permits include their respective successors and permitted assigns
and any persons deriving title under
them.
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1.3
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Miscellaneous.
In this Deed, unless the context requires otherwise, references to
provisions of any law or regulation shall be construed as references to
those provisions as replaced, amended, modified or re-enacted from time to
time; words importing the singular include the plural and vice versa and words
importing a gender include every gender; references to this Deed or any
other Finance Document shall be construed as references to such document
as the same may be amended, supplemented or novated from time to time;
unless otherwise stated, references to Clauses and Schedules are to
clauses of and schedules to this Deed and references to this Deed include
its Schedules. Clause headings are inserted for reference only and shall
be ignored in construing this
Deed.
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2
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2.
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CHARGE OF
SHARES
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2.1
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Charge. In
consideration of the Lender agreeing to make the Facility available to the
Borrower upon the terms and conditions of the Loan Agreement, the Chargor
as beneficial owner mortgages, charges and assigns by way of first legal
charge the Shares to the Lender as a continuing security for the due and
punctual payment of the Secured Indebtedness and the due and punctual
performance and observance by the Borrower of all other obligations of the
Borrower contained in any Finance Document to which it is a
party.
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2.2
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Deposit of Documents
and Notice to Registered Holder. For the purpose of enabling the
Lender to exercise its rights under this Deed, the Chargor undertakes
forthwith upon the execution of this Deed to deposit, or procure that
there be deposited, with the
Lender:
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(a)
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the
certificates in respect of the Shares together with instruments of
transfer and contract notes in respect thereof, duly executed in
blank;
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(b)
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a
signed but undated letter of resignation from each director of the Company
in the form set out in Schedule 2;
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(c)
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a
signed and dated letter of authority and undertaking from each director of
the Company in the form set out in Schedule 3;
and
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(d)
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an
undated written resolutions of the board of directors of the Company duly
signed by all of the directors of the Company in the form set out in
Schedule 4.
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2.3
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Registration in Name
of Lender. The Chargor agrees that at any time after an Event of
Default occurs the Lender may, at the cost of the Chargor, register the
Shares in the name of the Lender or its
nominee.
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2.4
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Dividends and
Accretions. This Deed shall, subject as provided in Clause 7,
extend to and include all Dividends and all stocks, shares (and the
Dividends in respect thereof), rights, monies or other property accruing
or offered at any time by way of redemption, substitution, bonus,
preference, option or otherwise to or in respect of any of the Shares and
all allotments, accretions, offers, rights, benefits and advantages
whatsoever at any time accruing, made, offered or arising in respect of
any of the same and all further shares in the capital of the Company
issued subsequent hereto. If the Chargor shall acquire any such
other stocks or shares as aforesaid, it shall forthwith deliver or procure
that there be delivered to the Lender the certificates in respect thereof
together with instruments of transfer and contract notes in respect
thereof duly executed in blank to enable the same to be registered in the
name of the Lender or its
nominee.
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3
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2.5
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No Liability for
Calls. Nothing in this Deed shall be construed as placing on the
Lender any liability whatsoever in respect of any calls, instalments or
other payments relating to any of the Shares or any rights, shares or
other securities accruing, offered or arising as aforesaid, and the
Chargor shall indemnify the Lender in respect of all calls, instalments or
other payments relating to any of the Shares and to any rights, shares and
other securities accruing, offered or arising as aforesaid in respect of
any of the Shares.
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2.6
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Discharge. Upon
payment in full of all the Secured Indebtedness to the satisfaction of the
Lender and cancellation of the Facility, the Lender shall, at the request
and cost of the Chargor, and in such form as the Lender shall approve,
discharge the security created by this
Deed.
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2.7
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Registration.
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(a)
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(b)
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The
Chargor will procure that this Deed be promptly delivered to the Hong Kong
Companies Registry for registration upon the Chargor becoming registered
as a non-Hong Kong company under Part XI of the Companies Ordinance
(Chapter 32 of the Laws of Hong Kong) and in any event within five (5)
weeks of the date of becoming so
registered.
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3.
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CONTINUING
SECURITY
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This Deed
shall be a continuing security and shall remain in full force and effect until
the Secured Indebtedness has been paid in full, notwithstanding the insolvency
or liquidation or any incapacity or change in the constitution or status of the
Chargor or any other person or any intermediate settlement of account or other
matter whatsoever. This Deed is in addition to, and independent of,
any encumbrance, guarantee or other security or right or remedy now or at any
time hereafter held by or available to the Lender.
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4.
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REPRESENTATIONS AND
WARRANTIES
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4.1
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Representations and
Warranties. The Chargor represents and warrants to the Lender
that:
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(a)
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the
Chargor is a company duly incorporated with limited liability and validly
existing under the laws of the British Virgin Islands, and has full power,
authority and legal right to own its property and assets and to carry on
its business;
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(b)
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the
Chargor has full power, authority and legal right to enter into and engage
in the transactions contemplated by this Deed and has taken or obtained
all necessary corporate and other action and consents to authorise the
execution and performance of this
Deed;
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4
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(c)
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this
Deed constitutes legal, valid and binding obligations of the Chargor
enforceable in accordance with its
terms;
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(d)
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neither
the execution of this Deed nor the performance by the Chargor of any of
its obligations or the exercise of any of its rights hereunder will
conflict with or result in a breach of any law, regulation, judgment,
order, authorisation, agreement or obligation applicable to it or cause
any limitation placed on it or the powers of its directors to be exceeded
or result in the creation of or oblige the Chargor to create an
encumbrance in respect of the Shares (except in favour of the Lender under
or pursuant to this Deed);
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(e)
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all
authorisations required from any governmental or other authority or from
any shareholders or creditors of the Chargor for or in connection with the
execution, validity and performance of this Deed have been obtained and
are in full force and effect and there has been no default under the
conditions of any of the same;
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(f)
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no
litigation, arbitration or administrative proceeding is currently taking
place or pending or, to the knowledge of the Chargor, threatened against
the Chargor or its assets or
revenues;
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(g)
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except
for the entry of the details of this Deed in the [Register of Mortgages
and Charges] of the Chargor in accordance with section
[ ] of the Companies Law of the British
Virgin Islands, it is not necessary in order to ensure the validity,
enforceability, priority or admissibility in evidence in proceedings of
this Deed in Hong Kong, the British Virgin Islands or any other relevant
jurisdiction that it or any other document be filed or registered with any
authority in Hong Kong, the British Virgin Islands or elsewhere or that
any tax be paid in respect thereof;
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(h)
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as
at the date of this Deed, the Chargor is not registered, and there is no
application pending for its registration, as a non-Hong Kong company under
Part XI of the Companies Ordinance (Chapter 32 of the Laws of Hong
Kong);
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(i)
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the
particulars of the Shares set out in Schedule 1 are accurate and the
Shares described therein constitute the entire issued share capital of the
Company at the date hereof and all the Shares have been validly issued and
are fully paid up;
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(j)
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subject
to this Deed, the Chargor is the sole beneficial owner of the Shares and
is the legal owner of all such Shares and the Chargor has good and
marketable title thereto;
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(k)
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no
encumbrance exists over all or any part of the Shares (except as created
under or pursuant to this Deed);
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(l)
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the
Chargor has not granted in favour of any other person any interest in or
any option or other rights in respect of any of the
Shares;
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5
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(m)
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the
Borrower has not issued or resolved or agreed to issue or granted any
option or other right to acquire any additional shares to any person;
and
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(n)
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the
Chargor is generally subject to civil and commercial law and to legal
proceedings and neither the Chargor nor any of its assets or revenues is
entitled to any immunity or privilege (sovereign or otherwise) from any
set-off, judgment, execution, attachment or other legal
process.
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4.2
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Continuing
Representation and Warranty. The Chargor also represents and
warrants to and undertakes with the Lender that the foregoing
representations and warranties will be true and accurate throughout the
continuance of this Deed with reference to the facts and circumstances
subsisting from time to time.
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5.
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UNDERTAKINGS
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The
Chargor undertakes and agrees with the Lender throughout the continuance of this
Deed and so long as the Secured Indebtedness or any part thereof remains owing
that the Chargor will, unless the Lender otherwise agrees in
writing:
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(a)
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not
create or attempt or agree to create or permit to arise or exist any
Encumbrance over all or any part of the Shares or any interest therein or
otherwise assign, deal with or dispose of all or any part of the Shares
(except under or pursuant to this
Deed);
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(b)
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not
grant in favour of any other person any interest in or any option or other
rights in respect of any of the
Shares;
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(c)
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ensure
that no person holding any of the Shares as its nominee for the time being
does any of the acts prohibited in paragraphs (a) and (b)
above;
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(d)
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procure
that the Company shall not issue or resolve or agree to issue or grant any
option or other right to acquire shares to any person other than the
Chargor (and subject always to this
Deed);
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(e)
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at
all times remain the beneficial owner of the
Shares;
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(f)
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procure
that no amendment or supplement is made to the memorandum or articles of
association of the Company;
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(g)
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immediately
upon the appointment of any new director of the Company, deposit or
procure that there be deposited with the Lender a signed undated letter of
resignation by such director in the form set out in Schedule 2; a signed
and dated letter of authority and undertaking by such director in the form
of Schedule 3 and an undated written resolutions of the board of directors
of the Company duly signed by all of the directors of the Company in the
form set out in Schedule 4;
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(h)
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do
or permit to be done every act or thing which the Lender may from time to
time require for the purpose of enforcing the rights of the Lender
hereunder; and
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6
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(i)
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not
do or cause or permit to be done anything which may in any way depreciate,
jeopardise or otherwise prejudice the value of the Lender’s security
hereunder.
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6.
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POWER OF
SALE
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6.1
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Enforceability.
Upon the occurrence of an Event of Default, the Lender or its nominee may,
without further notice or authority, sell or dispose of all or any part of
the Shares and may apply the proceeds of any such sale or disposition in
or towards the discharge of the costs thereby incurred and of the Secured
Indebtedness in such manner as it in its absolute discretion thinks
fit.
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6.2
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Sale of Shares.
The Lender shall be entitled to exercise such power of sale in such manner
and at such time or times and for such consideration (whether payable
immediately or by instalments) as it shall in its absolute discretion
think fit (whether by private sale or otherwise) and so that the Shares
(or any relevant part thereof) may be sold (i) subject to any conditions
which the Lender may think fit to impose, (ii) to any person (including
any person connected with the Company, Borrower, the Chargor or the
Lender) and (iii) at any price which the Lender, in its absolute
discretion, considers to be the best obtainable in the circumstances
taking into account the nature of the Company as a private
company.
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6.3
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Dividends. At
any time after the power of sale has arisen, any Dividends which have been
or may be received or receivable by the Lender or any nominee of the
Lender may be applied by the Lender as though they were proceeds of sale
hereunder.
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6.4
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Purchaser Not Bound to
Enquire. The Lender is authorised to give a good discharge for any
moneys received by it pursuant to the exercise of its power of sale and a
purchaser shall not be bound to enquire whether the power of sale has
arisen as herein provided nor be concerned with the manner of application
of the proceeds of sale.
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6.5
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No Liability for
Losses. The Chargor shall not have any claim against the Lender or
its nominee in respect of any loss arising out of any such sale or any
postponement thereof howsoever caused and whether or not a better price
could or might have been obtained upon the sale of the Shares or any of
them by deferring or advancing the date of such sale or otherwise
howsoever.
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6.6
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Waiver of Pre-Emption
Rights. The Chargor waives any right it may have under the articles
of association of the Company or otherwise to purchase the Shares or any
of them in the event that they are sold or otherwise disposed of pursuant
to the power of sale contained in this
Clause.
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7
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7.
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DIVIDENDS AND VOTING
RIGHTS
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7.1
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Dividends and Voting
Rights. If the Shares or any of them are registered in
the name of the Lender or its nominee, the Lender shall have complete
discretion to retain the Dividends received by the Lender and to exercise
or abstain from exercising all voting and other rights and powers
attaching to the Shares as the Lender in its absolute discretion thinks
fit without being liable for any losses which the Chargor may suffer as a
result thereof. If an Event of Default occurs and is continuing
but the Shares or any of them are not yet registered in the name of the
Lender or its nominee, the Chargor shall and shall procure that any person
holding any of the Shares as its nominee holds the Dividends received by
the Chargor or such nominee for the account of the Lender and shall pay
such Dividends to the Lender as soon as practicable after
receipt.
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7.2
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Authority to Sign
Proxies. If an Event of Default occurs, the Chargor
irrevocably authorises the Lender to sign on its behalf any proxies or
other documents which the Lender may require to enable the Lender to
exercise such voting and other rights and powers attaching to the
Shares.
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8.
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CLAIMS BY
CHARGOR
|
The
Chargor represents to and undertakes with the Lender that it has not taken and
will not take any security in respect of its liability under this Deed whether
from the Company or any other person. So long as any sum remains
owing by the Borrower to the Lender, the Chargor shall not exercise any right of
subrogation or any other rights of a surety or enforce any security or other
right or claim against the Borrower (whether in respect of its liability under
this Deed or otherwise) or any other person who has guaranteed or given any
security in respect of the Secured Indebtedness or claim in the insolvency or
liquidation of the Borrower or any such other person in competition with the
Lender. If the Chargor receives any payment or benefit in breach of
this Clause, it shall hold the same upon trust for the Lender as a continuing
security for the Secured Indebtedness.
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9.
|
TAXES AND OTHER
DEDUCTIONS
|
All sums
payable by the Chargor under this Deed shall be paid in full without set-off or
counterclaim or any restriction or condition and free and clear of any tax or
other deductions or withholdings of any nature. If the Chargor or any
other person is required by any law or regulation to make any deduction or
withholding (on account of tax or otherwise) from any payment, the Chargor
shall, together with such payment, pay such additional amount as will ensure
that the Lender receives (free and clear of any tax or other deductions or
withholdings) the full amount which it would have received if no such deduction
or withholding had been required. The Chargor shall promptly forward
to the Lender copies of official receipts or other evidence showing that the
full amount of any such deduction or withholding has been paid over to the
relevant taxation or other authority.
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10.
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COSTS, CHARGES AND
EXPENSES
|
The
Chargor shall from time to time forthwith on demand pay to or reimburse the
Lender for:
8
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(a)
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all
costs, charges and expenses (including legal and other fees on a full
indemnity basis and all other out-of-pocket expenses) incurred by the
Lender in connection with the preparation, execution and registration of
this Deed, any other documents required in connection herewith and any
amendment to or extension of, or the giving of any consent or waiver in
connection with, this Deed; and
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(b)
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all
costs, charges and expenses (including legal and other fees on a full
indemnity basis and all other out-of-pocket expenses) incurred by the
Lender in investigating any event which it reasonably believes is an Event
of Default or Potential Event of Default or in exercising any of its
rights or powers hereunder or in suing for or seeking to recover any sums
due hereunder or otherwise preserving or enforcing its rights hereunder or
in defending any claims brought against it in respect of this Deed or in
releasing or re-assigning this Deed upon payment of all monies hereby
secured,
|
and,
until payment of the same in full, all such costs, charges and expenses shall be
secured by this Deed.
|
11.
|
INDEMNITY
|
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11.1
|
General
Indemnity. The Chargor shall indemnify the Lender against all
losses, liabilities, damages, costs and expenses incurred by it in the
execution or performance of the terms and conditions hereof and against
all actions, proceedings, claims, demands, costs, charges and expenses
which may be incurred, sustained or arise in respect of the non performance
or non observance
of any of the undertakings and agreements on the part of the Chargor
herein contained or in respect of any matter or thing done or omitted
relating in any way whatsoever to the
Shares.
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11.2
|
Payment and
Security. The Lender may retain and pay out of any money in the
Lender’s hands all sums necessary to effect the indemnity contained in
this Clause and all sums payable by the Chargor under this Clause shall
form part of the monies hereby
secured.
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12.
|
FURTHER
ASSURANCE
|
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12.1
|
Further
Assurance. The Chargor shall at any time and from time to time
(whether before or after the security hereby created shall have become
enforceable) execute such further legal or other mortgages, charges or
assignments and do all such transfers, assurances, acts and things as the
Lender may require over or in respect of the Shares to secure all monies,
obligations and liabilities hereby covenanted to be paid or hereby secured
or for the purposes of perfecting and completing any assignment of the
Lender’s rights, benefits or obligations hereunder and the Chargor shall
also give all notices, orders and directions which the Lender may
require.
|
9
|
12.2
|
Agreement to Execute
Further Documents. Without limiting the foregoing, the Chargor
agrees from time to time to execute and sign or to procure that the person
for the time being holding any of the Shares as the Chargor’s
nominee executes and signs all transfers, powers of attorney, proxies and
other documents which the Lender may require for perfecting the Lender’s
title to any of the Shares or for vesting or enabling it to vest the same
in itself, its nominee or in any purchaser including, without limitation,
procuring to be duly passed such resolutions by the directors of the
Company and such resolutions by the Chargor or the person holding any of
the Shares as the Chargor’s nominee in an extraordinary general meeting of
the Company as the Lender shall require for the purposes of approving and
passing for registration any transfers of any of the Shares, altering the
Company’s memorandum or articles of association, removing any directors of
the Company, appointing new directors of the Company nominated by the
Lender or for such other purposes as the Lender shall from time to time
require.
|
|
12.3
|
Enforcement of
Lender’s Rights. The Chargor will do or permit to be done
everything which the Lender may from time to time require to be done for
the purpose of enforcing the Lender’s rights hereunder and will allow the
name of the Chargor to be used as and when required by the Lender for that
purpose.
|
|
13.
|
POWER OF
ATTORNEY
|
The
Chargor irrevocably appoints the Lender by way of security to be its attorney
(with full power of substitution) and in its name or otherwise on its behalf and
as its act and deed to sign, seal, execute, deliver, perfect and do all deeds,
instruments, acts and things which may be required or which the Lender shall
think proper or expedient for carrying out any obligations imposed on the
Chargor hereunder or for exercising any of the powers hereby conferred or for
giving to the Lender the full benefit of this security and so that the
appointment hereby made shall operate to confer on the Lender authority to do on
behalf of the Chargor anything which it can lawfully do by an
attorney. The Chargor ratifies and confirms and agrees to ratify and
confirm any deed, instrument, act or thing which such attorney or substitute may
execute or do.
|
14.
|
RECEIVER
|
|
14.1
|
Appointment of
Receiver.
|
|
|
(a)
|
The
Lender may appoint any one or more persons to be a Receiver of all or any
part of the Shares if:
|
|
|
(i)
|
this
Deed has become enforceable; or
|
|
|
(ii)
|
the
Chargor so requests the Lender in writing at any
time.
|
|
|
(b)
|
Any
appointment under paragraph (a) above may be by deed under seal or in
writing under its hand.
|
|
14.2
|
Removal. The
Lender may by writing under its hand remove any Receiver appointed by it
and may, whenever it thinks fit, appoint a new Receiver in the place of
any Receiver whose appointment may for any reason have
terminated.
|
10
|
14.3
|
Remuneration. The
Lender may fix the remuneration of any Receiver appointed by
it.
|
|
14.4
|
Agent of the
Chargor. A Receiver will be deemed to be the agent of
the Chargor for all purposes and accordingly will be deemed to be in the
same position as a Receiver duly appointed by a mortgagee under the
Property Ordinance. The Chargor is responsible for the
contracts, engagements, acts, omissions, defaults and losses of a Receiver
and for liabilities incurred by a
Receiver.
|
|
14.5
|
Relationship with the
Lender. To the fullest extent allowed by law, any right,
power or discretion conferred by this Deed (either expressly or impliedly)
or by law on a Receiver may after this Deed becomes enforceable be
exercised by the Lender in relation to the Shares without first appointing
a Receiver and notwithstanding the appointment of a
Receiver.
|
|
14.6
|
General.
|
|
|
(a)
|
A
Receiver has all of the rights, powers and discretions set out below in
this Clause in addition to those conferred (or deemed by this Deed to be
conferred) on him by any law, including all the rights, powers and
discretions conferred on a receiver under the Property
Ordinance.
|
|
|
(b)
|
If
there is more than one Receiver holding office at the same time, each
Receiver may (unless the document appointing him states otherwise)
exercise all of the powers conferred on a Receiver under this Deed
individually and to the exclusion of any other
Receiver.
|
|
14.7
|
Possession. A
Receiver may take immediate possession of, get in and collect the Shares
and without prejudice to the foregoing, cause to be registered all or any
part of the Shares in his own name or in the name of his nominee(s) or in
the name of any purchaser(s)
thereof.
|
|
14.8
|
Agents.
|
|
|
(a)
|
A
Receiver may appoint and discharge managers, officers, agents,
accountants, servants, workmen and others for the purposes of this Deed
upon such terms as to remuneration or otherwise as he thinks
fit.
|
|
|
(b)
|
A
Receiver may discharge any person appointed by the
Chargor.
|
|
14.9
|
Borrow
money. A Receiver may raise and borrow money either
unsecured or on the security of Shares either in priority to this Deed or
otherwise and generally on any terms and for whatever purpose which he
thinks fit.
|
|
14.10
|
Sale of
assets.
|
|
|
(a)
|
A
Receiver may sell, exchange, convert into money and realise the Shares by
public auction or private contract and generally in any manner and on any
terms which he thinks fit.
|
11
|
|
(b)
|
The
consideration for any such transaction may consist of cash, debentures or
other obligations, shares, stock or other valuable consideration and any
such consideration may be payable in a lump sum or by instalments spread
over any period which the Receiver thinks
fit.
|
|
14.11
|
Compromise. A
Receiver may settle, adjust, refer to arbitration, compromise and arrange
any claim, account, dispute, question or demand with or by any person who
is or claims to be a creditor of the Chargor or relating in any way to the
Shares.
|
|
14.12
|
Legal
actions. A Receiver may bring, prosecute, enforce,
defend and abandon any action, suit or proceedings in relation to the
Shares which he thinks fit.
|
|
14.13
|
Delegation. A
Receiver may delegate his powers in accordance with this
Deed.
|
|
14.14
|
Protection of
assets. A Receiver may effect insurance and do any other
act which the Chargor might reasonably do to protect the Shares in each
case as he thinks fit.
|
|
14.15
|
Other
powers. A Receiver
may:
|
|
|
(a)
|
do
all other acts and things which he may consider desirable or necessary for
realising the Shares or incidental or conducive to any of the rights,
powers or discretions conferred on a Receiver under or by virtue of this
Deed or law;
|
|
|
(b)
|
exercise
in relation to the Shares all the powers, authorities and things which he
would be capable of exercising if he were the absolute beneficial owner of
the Shares; and
|
|
|
(c)
|
use
the name of the Chargor for any of the above
purposes.
|
|
14.16
|
Any
moneys received by the Lender or any Receiver after this Deed has become
enforceable must be applied in the following order of
priority:
|
|
|
(a)
|
in
or towards payment of or provision for all costs and expenses incurred by
the Lender or any Receiver under or in connection with this Deed and of
all remuneration due to any Receiver under or in connection with this
Deed;
|
|
|
(b)
|
in
or towards payment of or provision for the Secured Indebtedness in
accordance with the relevant terms of the other Finance Documents;
and
|
|
|
(c)
|
in
payment of the surplus (if any) to the Chargor or other person entitled to
it.
|
This
Clause is subject to the payment of any claims having priority over this
Deed. This Clause does not prejudice the right of Lender to recover
any shortfall from the Chargor.
|
15.
|
EVIDENCE OF
DEBT
|
Any
statement of account purporting to show an amount due from the Company under any
Finance Document to which it is a party or from the Chargor under this Deed
and signed as correct by a duly authorised officer of the Lender
shall, in the absence of manifest error, be conclusive evidence of the amount so
due.
12
|
16.
|
SUSPENSE
ACCOUNT
|
|
16.1
|
Right to Credit
Suspense Account. The Lender may place and keep any monies received
by virtue of this Deed (whether before or after the insolvency or
liquidation of the Chargor or the Borrower) to the credit of a suspense
account for so long as the Lender may think fit in order to preserve the
rights of the Lender to ▇▇▇ or prove for the whole amount of its claims
against the Chargor, the Company, the Borrower or any other
person.
|
|
16.2
|
Subsequent
Encumbrances. If the Lender receives notice of any breach of
Clauses 5(a) or 5(c), the Lender may open a new account for the Company.
Whether or not it does so it shall be treated as if it had opened a new
account at the time of such breach (unless it gives written notice to the
contrary to the Chargor). As from the time of such breach all payments
made by or on behalf of the Company to or received pursuant to this Deed
by the Lender shall be credited or treated as having been credited to the
new account and shall not operate to reduce the amount due from the
Borrower to the Lender at the time of such
breach.
|
|
17.
|
WAIVER AND
SEVERABILITY
|
No
failure or delay by the Lender in exercising any right, power or remedy
hereunder shall impair such right, power or remedy or operate as a waiver
thereof, nor shall any single or partial exercise of the same preclude any
further exercise thereof or the exercise of any other right, power or
remedy. The rights, powers and remedies herein provided are
cumulative and do not exclude any other rights, powers and remedies provided by
law. If at any time any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction, the
legality, validity and enforceability of such provision under the law of any
other jurisdiction, and of the remaining provisions of this Deed, shall not be
affected or impaired thereby.
|
18.
|
MISCELLANEOUS
|
|
18.1
|
Continuing
Obligations. The liabilities and obligations of the Chargor under
this Deed shall remain in force notwithstanding any act, omission, event
or circumstance whatsoever, until full, proper and valid payment of the
Secured Indebtedness.
|
|
18.2
|
Protective
Clauses. Without limiting Clause 18.1, neither the liability of the
Chargor nor the validity or enforceability of this Deed shall be
prejudiced, affected or discharged
by:
|
|
|
(d)
|
the
granting of any time or indulgence to the Company, the Borrower or any
other person;
|
13
|
|
(e)
|
any
variation or modification of any Finance Document or any other document
referred to therein;
|
|
|
(f)
|
the
invalidity or unenforceability of any obligation or liability of the
Company, the Borrower under any Finance Document to which it is a
party;
|
|
|
(g)
|
any
invalidity or irregularity in the execution of this Deed or any of the
other Finance Documents;
|
|
|
(h)
|
any
deficiency in the powers of the Borrower to enter into or perform any of
its obligations under any Finance Document to which it is party or any
irregularity in the exercise thereof or any lack of authority by any
person purporting to act on behalf of the
Borrower;
|
|
|
(i)
|
the
insolvency or liquidation or any incapacity, disability or limitation or
any change in the constitution or status of the Borrower or the
Chargor;
|
|
|
(j)
|
any
other Finance Document, Encumbrance, guarantee or other security or right
or remedy being or becoming held by or available to the Lender or by any
of the same being or becoming wholly or partly void, voidable,
unenforceable or impaired or by the Lender at any time releasing,
refraining from enforcing, varying or in any other way dealing with any of
the same or any power, right or remedy the Lender may now or hereafter
have from or against the Borrower, the Company or any other
person;
|
|
|
(k)
|
any
waiver, exercise, omission to exercise, compromise, renewal or release of
any rights against the Borrower, the Company or any other person or any
compromise, arrangement or settlement with any of the
same;
|
|
|
(l)
|
any
act, omission, event or circumstance which would or may but for this
provision operate to prejudice, affect or discharge this Deed or the
liability of the Chargor hereunder.
|
|
18.3
|
Unrestricted Right of
Enforcement. This Deed may be enforced without the Lender first
having recourse to any other security or rights or taking any other steps
or proceedings against the Company, the Borrower, the Chargor or any other
person or may be enforced for any balance due after resorting to any one
or more other means of obtaining payment or discharge of the monies,
obligations and liabilities hereby
secured.
|
|
18.4
|
Discharges and
Releases. Notwithstanding any discharge, release or settlement from
time to time between the Lender and the Chargor, if any security,
disposition or payment granted or made to the Lender in respect of the
Secured Indebtedness by the Chargor or any other person is avoided or set
aside or ordered to be surrendered, paid away, refunded or reduced by
virtue of any provision, law or enactment relating to bankruptcy,
insolvency, liquidation, winding-up, composition or arrangement for the
time being in force or for any other reason, the Lender shall be entitled
hereafter to enforce this Deed as if no such discharge, release or
settlement had occurred.
|
14
|
18.5
|
Amendment. Any
amendment or waiver of any provision of this Deed and any
waiver of any default under this Deed shall only be effective
if made in writing and signed by the
Lender.
|
|
18.6
|
Counterparts.
This Deed may be executed in any number of counterparts and by the
different parties to this Deed on separate counterparts, each of which
when executed and delivered shall be an original but all the counterparts
shall together constitute one and the same
instrument.
|
|
19.
|
ASSIGNMENT
|
|
19.1
|
The Chargor.
The Chargor shall not assign any of its rights
hereunder.
|
|
19.2
|
The Lender. The
Lender may assign, create Encumbrances or grant participations in or over
all or any part of its rights under this Deed and make disclosures in
accordance with the relevant provisions in the relevant Finance Document
but as if references therein to the Borrower were references to the
Chargor. This Deed will be binding upon and inure to the
benefit of the Chargor, the Lender and their respective successors and,
subject to this Clause, transferees and
assigns.
|
|
20.
|
NOTICES
|
|
20.1
|
Delivery. Each
notice, demand or other communication to be given or made under this Deed
shall be in writing and delivered or sent to the relevant party at its
address or fax number set out below (or such other address or fax number
as the addressee has by five (5) days’ prior written notice specified to
the other party):
|
|
To
the Chargor:
|
Way
Fast Holdings Limited
|
||
|
P.O.
Box 957, Offshore Incorporations Centre, Road Town,
|
|||
|
Tortola,
British Virgin Islands
|
|||
|
Email:
|
|||
|
Fax
Number
|
:
|
(▇▇▇)
▇▇▇▇ ▇▇▇▇
|
|
|
Attention
|
:
|
▇▇▇▇▇▇
▇▇▇▇
|
|
|
To
the Lender:
|
▇/▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Limited
|
||
|
▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
|||
|
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
|||
|
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
|||
|
Fax
Number
|
:
|
(▇▇▇)
▇▇▇▇ ▇▇▇▇
|
|
|
Attention
|
:
|
▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇
|
|
|
20.2
|
Deemed
Delivery. Any notice, demand or other communication so addressed to
the relevant party shall be deemed to have been delivered (a) if given or
made by letter, when actually delivered to the relevant address and (b) if
given or made by fax, when despatched with electronic confirmation of
complete and error-free transmission, Provided that, if such day is not a
working day in the place to which it is sent, such notice, demand or other
communication shall be deemed delivered on the next following working day
at such place.
|
15
|
21.
|
GOVERNING LAW AND
JURISDICTION
|
|
21.1
|
Law. This Deed
and the rights and obligations of the parties hereunder shall be governed
by and construed in accordance with the laws of Hong
Kong.
|
|
21.2
|
Jurisdiction.
The Chargor agrees that any legal action or proceeding arising out of or
relating to this Deed may be brought in the courts of Hong Kong and
irrevocably submits to the non-exclusive jurisdiction of such
courts.
|
|
21.3
|
No Limitation on Right
of Action. Nothing herein shall limit the right of the Lender to
commence any legal action against the Chargor and/or its property in any
other jurisdiction or to serve process in any manner permitted by law, and
the taking of proceedings in any jurisdiction shall not preclude the
taking of proceedings in any other jurisdiction whether concurrently or
not.
|
|
21.4
|
Waiver; Final Judgment
Conclusive. The Chargor irrevocably and unconditionally waives any
objection which it may now or hereafter have to the choice of Hong Kong as
the venue of any legal action arising out of or relating to this
Deed. The Chargor also agrees that a final judgment against it
in any such legal action shall be final and conclusive and may be enforced
in any other jurisdiction, and that a certified or otherwise duly
authenticated copy of the judgment shall be conclusive evidence of the
fact and amount of its
indebtedness.
|
|
21.5
|
Waiver of
Immunity. The Chargor irrevocably waives any immunity to which it
or its property may at any time be or become entitled, whether
characterised as sovereign immunity or otherwise, from any set–off or
legal action in Hong Kong or elsewhere, including immunity from service of
process, immunity from jurisdiction of any court or tribunal, and immunity
of any of its property from attachment prior to judgment or from execution
of a judgment.
|
[remainder
of page intentionally left blank]
16
IN WITNESS whereof this Deed
has been executed by the parties hereto and is intended to be and is hereby
delivered on the day and year first above written.
For
and on Behalf of
WAYFAST
HOLDINGS LIMITED
 |
|
Name:
|
|
Title:
|
|
For
and on Behalf of
|
For
and on Behalf of
|
|
|
(Tianjin
Cube Xindao Equity Investment
|
(Tianjin
Cube Xinde Equity Investment
|
|
|
Fund
Parnership (LLP))
|
Fund
Parnership (LLP))
|
|
|
|
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
|
For
and on Behalf of
|
For
and on Behalf of
|
|
|
(Tianjin
Cube Xinren Equity Investment Fund
|
(Tianjin
Cube Xinyi Equity Investment Fund
|
|
|
Parnership
(LLP))
|
Parnership
(LLP))
|
|
|
|
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
17
Schedule
1
Particulars of
Shares
|
Registered Holder
|
No. of Shares
|
|||
|
Way
Fast Holdings Limited
|
1,000 | |||
18
Schedule
2
Form of Letter of
Resignation
|
To:
|
The
Board of Directors of
|
Clever Advance Limited (the
“Company”)
I, ,
hereby resign my position as a director of the Company with effect from
____________________ 20 and waive all claims to fees or compensation
in connection with my resignation.
Dated
this day
of 20
|
SIGNED,
SEALED AND DELIVERED
|
)
|
|
as
a Deed by
|
)
|
|
)
|
|
|
in
the presence of:
|
)
|
[On
duplicate]
I certify
that the original of this notice was posted to the registered office of the
Company on ____________________ 20
_____________________________
19
Schedule
3
Form of Letter of Authority
and Undertaking
To: [Lender]
Dear
Sirs,
Re: Clever
Advance Limited
(the “Company”)
I
irrevocably authorise you or any of your officers at any time after the
occurrence of an Event of Default (as defined in the Share Charge referred to
below) to complete, date and put into effect the attached resignation letter
signed by me in accordance with the provisions of the share charge relating to
the Company dated ___________ 2011 and executed by Chargor in favour of
yourselves (the “Share
Charge”).
I also
irrevocably undertake to vote in favour of any resolution approving that any
Shares (as defined in the Share Charge) of the Company be registered in your
name or in the name of your nominees at any time after the occurrence of an
Event of Default (as defined in the Share Charge) and, after the security
constituted by the Share Charge has become enforceable, in the name of any
purchaser of those shares or its nominee.
Yours
faithfully,
|
by
|
|
Name:
|
|
Title: Director
|
|
Date: ____________20__
|
20
Schedule
4
Form of Written
Resolutions
CLEVER
ADVANCE LIMITED (the “Company”)
WRITTEN
RESOLUTIONS OF
THE
BOARD OF DIRECTORS OF THE COMPANY
Pursuant
to Article 109(a) of the Company’s Articles of Association
dated
_________________
We, the
undersigned, being all the Directors of the Company, hereby resolve
that:
|
1.
|
each
of the following transfers of the shares in the Company be approved and
that, upon the delivery to any director of the Company of a duly completed
and stamped instrument of transfer in respect of any of the following
transfers, the name of the relevant transferee be entered forthwith in the
register of members of the Company in respect of the relevant shares so
transferred and that new share certificates in respect of such shares be
issued forthwith to such transferee in accordance with the Articles of
Association of the Company:
[to be left
blank]
|
|
2.
|
each
of the following persons be appointed as an additional director of the
Company with immediate effect:
|
[to be left
blank]
|
3.
|
the
resignation of the following persons as directors of the Company be
accepted with immediate effect:
|
[to be left
blank]
|
4.
|
the
above changes in directorships of the Company be notified to the Registrar
of the Companies as soon as shall be practicable and that any director or
the secretary of the Company be authorised to sign and deliver any
relevant return in connection
therewith.
|
[all the directors of the Company to
state their names and sign]
21
|
THE CHARGOR
|
||
|
THE
COMMON SEAL of
|
)
|
|
|
Way
Fast Limited
|
)
|
|
|
was
affixed to this Deed
|
)
|
|
|
in
the presence of
|
)
|
|
THE LENDER
|
|
|
SIGNED
for and on behalf of
|
)
|
|
)
|
|
|
by
|
)
|
22