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EXHIBIT 10.12
[LOGO]
THE COMPANIES ORDINANCE
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CERTIFICATE OF REGISTRATION
OF
CHARGE
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I hereby certify that a Mortgage dated the 31st day of October, 1995
and created by EURO TECH (FAR EAST) LIMITED in favour of THE HONGKONG AND
SHANGHAI BANKING CORPORATION LIMITED for securing all moneys in respect of
general banking facilities
were this day registered pursuant to Section 80.
GIVEN under my hand this 21st day of November, 1995.
Miss H. Y. MA
for Registrar of Companies
Hong Kong
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[REGISTRAR SEAL]
THIS MORTGAGE is made this 31st day of October, One thousand nine hundred and
ninety five BETWEEN EURO TECH (FAR EAST) LIMITED [ILLEGIBLE] whose registered
office is situate at 18th Floor, Gee Chang Hong Centre, 65 Wong Chuk Hang Road,
Hong Kong (hereinafter called "the Borrower") of the one part, and THE HONGKONG
AND SHANGHAI BANKING CORPORATION LIMITED whose registered office is situate at
No. 1 Queen's Road Central, Hong Kong and having a branch office at 15th Floor,
Hennessy Centre, No. 500 Hennessy Road, Hong Kong (hereinafter called "the
Lender") of the other part.
WHEREAS:
The Borrower has applied to the Lender to grant to the Borrower general
banking facilities and the Lender has agreed to grant the same to such extent
and upon and subject to such terms and conditions as shall from time to time be
mutually agreed or be stipulated by the Lender ("the general banking
facilities") upon the Borrower entering into the covenants and obligations
hereinafter contained and charging the Property (as hereinafter defined) as
security for the due payment of all moneys payable or which may at any time
hereafter or from time to time become payable by the Borrower to the Lender or
which may be or become payable by the Borrower under any of the agreements,
covenants and conditions contained in this Charge and interest thereon as
hereinafter provided.
NOW THIS DEED WITNESSETH as follows:
1. DEFINITIONS AND INTERPRETATION
1.01 In this Charge if the context so permits or requires and where not
inapplicable the following terms shall have the following meanings:
(a) "Borrower" whenever used shall include (if the context permits)
the company specifically named and its successors and
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(c) "Crown Grant" means and includes the Crown Lease more
particularly described in the Schedule hereto and any variation
or modification thereof under which the Property is held from
the Crown at the date hereof by the Borrower;
(d) "Deed of Covenant" means and includes the Deed of Mutual
Covenant and Management Agreement more particularly described in
the said Schedule and any variation or modification thereof;
(e) "Lender" wherever used shall include, (if the context permits)
the Bank specifically named and its successors and assigns;
(f) "Property" means all or any part of the property registered or
to be registered in the name of the Borrower and the Borrower's
interest therein and more particularly described in the said
Schedule; and
(g) "Secured Indebtedness" means all sums from time to time advanced
by the Lender to the Borrower and outstanding in respect of the
general banking facilities and the interest thereon and all
other moneys and obligations in respect of moneys which the
Borrower covenants to pay to the Lender under the provisions of
Clause 2 hereof or otherwise under the terms of this Charge.
1.02 Words importing the singular number shall include the plural number and
vice versa, and words importing the masculine, feminine or neuter gender shall
include the others of them.
1.03 The Clause headings herein are inserted for convenience only and for
reference, and in no way define, limit or describe the scope of this document
or the intent of any provision thereof.
2. COVENANT FOR REPAYMENT OF SECURED INDEBTEDNESS
2.01 In consideration of the Lender agreeing to grant to the Borrower the
general banking facilities applied for the Borrower HEREBY COVENANTS with the
Lender that, subject as hereinafter provided, the Borrower will ON DEMAND by
notice in writing of the Lender made to the Borrower PAY make good and
discharge to the Lender:
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(i) all sums of money which at the date of such demand may be
outstanding and according to the books of the Lender, payable by
the Borrower to the Lender in respect of any account whatsoever
between the Borrower and the Lender; and
(ii) all sums of money for the time being owing to the Lender in
respect of:
(a) all bills of exchange or drafts (whether clean or
documentary) ("bills or drafts") drawn on the Borrower
by any person, firm or company in any place and which
may have been then purchased, discounted or otherwise
acquired by the Lender or may be in the hands of the
Lender for collection only;
(b) all bills or drafts drawn by the Borrower on any person,
firm or company in other places and which may be
purchased, discounted or otherwise negotiated or
acquired by the Lender;
(c) all promissory notes or other forms of negotiable
instruments which may be signed by the Borrower in
favour of the Lender or in favour of any other party and
the interest in which may have been purchased or
otherwise acquired by the Lender;
(d) all advances made by the Lender to or on account of the
Borrower or to others at the request of the Borrower in
respect of credits opened at the request of the Borrower
in favour of any person, firm or company in any place;
(e) all advances to be made from time to time to the
Borrower or to constituents, customers or agents of the
Borrower against documents of title representing goods
and merchandise consigned to the Borrower or to order or
belonging to or stored by the Borrower or belonging to
or stored by constituents, customers or agents of the
Borrower; and
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hereinafter delivering to the Borrower, or to others at the
request of the Borrower, any bills of Lading or other documents
of title relating to goods and merchandise and thereby enabling
the Borrower or such other persons as aforesaid to obtain
possession of the goods and merchandise referred to in such
documents of title prior to the payment of any bills or drafts
held by the Lender, and for the due payment of which the goods
and merchandise referred to in such documents of title as well
as such documents of title are held by the Lender as security;
and
(iv) the amount of all advances and all moneys which may from time to
time become due to the Lender on all contracts and engagements,
including the payment of all bills or drafts and promissory
notes, the due and punctual payment of which may from time to
time be guaranteed by the Borrower to the Lender or may be
inferred to be so guaranteed; and
(v) all principal and interest and all costs, charges and expenses
which may be incurred under or in connection with any guarantee
issued by the Lender in respect of any obligations of the
Borrower or any constituents, customers or agents of the
Borrower; and
(vi) the total amount of all re-exchange commission and other usual
bankers charges upon such bills or drafts and all landing
charges, insurance and storage charges incurred or to be
incurred by the Lender upon all goods and merchandise as are
pledged or hypothecated to the Lender as security for the
payment of such bills or drafts; and
(vii) all such sums of money as may from time to time become payable
to the Lender by the Borrower in respect of moneys advanced,
paid or payable in respect of bills or drafts, promissory notes
and/or goods of any description together with all other usual
or lawful charges; and
(viii) all principal, interest and any other moneys which are now or
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the Borrower relating to such loan facility, as amended from
time to time; and
(ix) all principal and interest or any other moneys outstanding and
payable by the Borrower under any term loan account maintained
with the Lender in the name of the Borrower; and
(x) all costs, charges and expenses which may be incurred under or
in connection with any other matter arising under or in
consequence of this Charge or in connection with the Property;
and
(xi) all moneys for the time being owing to the Lender in respect of
any liability whatsoever of the Borrower to the Lender which may
be incurred or arise in any manner howsoever, whether the actual
conditions under which such liability may be incurred or arise
have or have not been specifically mentioned and provided for by
the agreements, covenants and conditions in this Charge and
whether such liability shall be a liability incurred or
arising;-
(a) under circumstances or conditions incidental to any form
of contractual relationship between the Borrower and the
Lender which comes properly and strictly within the
meaning of the term "general banking facilities"; or
(b) under circumstances or conditions incidental to any
other form of contractual relationship whatsoever; or
(c) through the tort or fraud of the Borrower or of any of
the Borrower's constituents, agents or correspondents
and whether such tort or fraud shall be connected with
or dependent upon, or unconnected with and independent
of, any contractual relationship between the Borrower,
or of any of the Borrower's constituents, agents or
correspondents, and the Lender
PROVIDED HOWEVER that:-
(A) where the Lender shall hold any bill draft or
other document against which the Lender may have
discounted or purchased, or against which the
Lender
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may have made any advances, and which reserves a
rate of interest higher than the applicable rate
as hereinafter provided, nothing in this Charge
shall affect the right of the Lender to recover
the higher rate of interest reserved or, as the
case may be, the difference between the higher
rate reserved and the applicable rate as
hereinafter provided; and
(B) the Lender shall not be requested by the
Borrower to, nor shall be bound to make,
advances or payments or to incur liabilities in
respect of the general banking facilities to be
granted to the Borrower or to such person, firm
or company as aforesaid under or by virtue of
this Charge beyond such sum as the Lender shall
in the absolute discretion of the Lender
consider to be safe; and
(C) the Lender shall be entitled at any time after
the execution and completion of this Charge to
open credits in favour of such person, firm or
company as the Borrower may desire for such
length of time and at such places as the lender
shall think fit and the Borrower shall not be at
liberty to determine this Charge or the security
hereby affected or require any such credits to
be closed save upon six (6) calendar months'
previous notice in writing to be served upon the
Lender in Hong Kong; and
(xii) interest on all sums advanced and all other moneys payable
hereunder at such rate(s) per annum as is/are applicable under
the terms relating to any facility(ies) granted to the Borrower
as is determined by the Lender which determination shall be
conclusive and binding on the Borrower. Such interest shall
accrue from day to day and shall be computed on the basis of a
year of three hundred and sixty five (365) days and for the
actual number of days elapsed and shall be paid monthly in
arrears on such date in each succeeding calendar month as the
Lender shall stipulate.
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3. CHARGE OF PROPERTY
3.01 In consideration of the premises and with the object and intent of
affording to the Lender a security for the Secured Indebtedness and the due
fulfilment by the Borrower of the agreements, covenants and conditions
contained in this Charge: -
(a) the Borrower as Beneficial Owner HEREBY CHARGES the Property to
the Lender SUBJECT as is more particularly specified in the
Schedule hereto and to and with the benefit of all leases,
tenancies, rights, licenses, covenants, conditions and other
incidents of tenure affecting the Property; and
(b) the Borrower HEREBY ASSIGNS or agrees to assign unto the Lender
the full benefit and all rights of all the terms and conditions
more particularly specified in the said Schedule and of any
payment, covenant, agreement, undertaking or indemnity contained
in any sale and purchase agreement, lease, or other document,
agreement or undertaking whatsoever in respect of or relating to
the Property now subsisting or to be created hereafter TO HOLD
the same unto the LENDER absolutely
SUBJECT nevertheless to the proviso for redemption hereinafter contained.
3.02 The charge herein contained shall be a legal charge in so far as the
Property is a legal estate.
4. PROVISO FOR REDEMPTION
4.01 If the Borrower shall on demand as aforesaid or otherwise pay to the
Lender the Secured Indebtedness and shall have duly performed and observed all
the terms, covenants and agreements herein provided THEN THE LENDER SHALL at the
request cost and charge of the Borrower execute a receipt or otherwise discharge
the security hereby constituted.
5. EVENTS OF DEFAULT
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(i) the Borrower makes default in the payment of the Secured
Indebtedness or any part thereof following demand duly made; or
(ii) the Borrower makes default in the payment on the due date and in
accordance with the terms and conditions relating thereto of any
principal or interest or other moneys outstanding and payable by
the Borrower under any term loan account (whether demanded or
not); or
(iii) there shall be any breach of or omission to observe any of the
agreements covenants or obligations under this Charge; or
(iv) the Borrower becomes bound to repay prematurely any other loan
or similar obligation for borrowed money, after any applicable
grace period, by reason of a default by the Borrower in the
Borrower's obligations in respect of the same or fails to make
any payment in respect thereof on the date, after any applicable
grace period, such payment becomes due unless contested in good
faith; or
(v) (if applicable) a petition is presented or an order is made or
an effective resolution is passed or analogous proceedings are
taken for the winding up of the Borrower save for the purposes
of an amalgamation, merger or reconstruction the terms whereof
have previously been approved by the Lender; or
(vi) the Borrower convenes a meeting for the purpose of making, or
proposes and/or enters into, any arrangement or composition for
the benefit of the Borrower's creditors; or
(vii) (if applicable) the Borrower shall become bankrupt or otherwise
become insolvent or make any arrangement or composition with the
Borrower's creditors; or
(viii) an encumbrancer takes possession or a receiver or other similar
officer is appointed of the whole or any part of the assets, or
the undertaking (if applicable) of the Borrower or
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(ix) the Borrower shall without the consent in writing of the Lender
stop payment to creditors generally or (if applicable) the
Borrower shall (otherwise than for the purpose of such an
amalgamation, merger or reconstruction as is referred to in
paragraph (v) of this sub-clause) cease or threaten to cease to
carry on the Borrower's business or any substantial part thereof
or (if applicable) shall be deemed, for the purposes of Section
178 of the Companies Ordinance or any statutory modification or
re-enactment thereof for the time being in force, to be unable
to pay its debts or disposes or threatens to dispose of the
whole or a substantial part of its undertaking or assets; or
(x) the Crown or any competent authority shall re-enter or threaten
to re-enter upon and take back possession of the Property
provided that the provision of this Sub-clause (x) shall apply,
mutatis mutandis, to any competent authority that extends or
agrees to extend the terms of the Crown grant or grants,
regrants or agrees to grant or regrant to the Borrower the
Property
then and in any such case the Borrower will notify the Lender forthwith in
writing of the occurrence of such event and regardless of whether notice of such
event has or has not been given by the Borrower to the Lender as required above,
an Event of Default shall have occurred.
5.02 Notwithstanding anything to the contrary, express or implied, contained
in any facility letter, instrument, or other agreement or document to which the
Borrower and/or the Lender is a party, the Lender shall be under no liability
at any time after the occurrence of an Event of Default to honour any further
obligations hereunder and the Secured Indebtedness, and all term loans and other
moneys, obligations and liabilities hereby secured not otherwise so repayable,
shall become repayable immediately on demand, together with interest accrued
thereon to the date of repayment in full, and cash cover shall be provided on
demand for all contingent liabilities ???????????????
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6. LENDER'S POWERS
6.01 If any Event of Default shall have occurred then it shall be lawful for
the Lender at any time thereafter without any consent on the part of the
Borrower or of any person to:-
(i) enter into and upon and take possession of the Property and for
that purpose to take any legal proceedings and thenceforth to
hold, possess and enjoy the Property and to receive the rents
and profits thereof without any lawful interruption or
disturbance by the Borrower or any other person;
(ii) (subject to any lease or tenancy lawfully granted by the
Borrower) lot or lease the Property at such rent, for such
period and upon such terms and conditions as the Lender shall
think fit and appoint any person at such reasonable and proper
remuneration as the Lender shall determine to collect the rents
and profits of the Property on behalf of the Lender and
surrender and accept the surrender of tenancies or leases of the
Property;
(ii) (whether or not the Lender shall have made such entry or taken
possession as aforesaid) sell, assign, call in, collect and
convert into money the Property or any interest therein free
from this Charge and any other estates interests and rights to
which this Charge has priority with full power to sell the
Property either together or in parcels and either by public
auction or tender or private contract and partly by one of such
methods and partly by the other one or more of such methods of
sale with power upon any such sale to make any stipulations as
to title or evidence of commencement of title or otherwise in
such manner and subject to such lawful conditions as the Lender
shall think expedient and either for a lump sum or for a sum to
be paid by installments or for a sum on account and subject to a
charge or other security for the balance and with full power to
give any option to purchase the same or to buy in or rescind or
vary any contract of sale of the same and to re-sell the same
without being responsible for any loss which may be occasioned
thereby with power for the Lender to enter into a Deed of Mutual
Covenant or sub-deed of Mutual Covenant or supplemental Deed of
Mutual Covenant and/or Management Agreement and/or any other
documents of a similar
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nature or grant any rights easements or privileges as the Lender
shall in its absolute discretion think fit and with full power
to compromise and effect compositions, and for the purposes
aforesaid or any of them to execute and do all such assurances
and things as the Lender shall think fit.
PROVIDED HOWEVER that where the Event of Default relates to the
payment of any moneys payable hereunder no such sale,
calling-in, collection or conversion into money shall be put
into effect until the Lender shall have previously served on the
Borrower or one of several borrowers a notice requiring payment
of the Secured Indebtedness and default has been made in payment
thereof for a period of one calendar month after such service;
(iv) exercise any powers or rights incidental to the ownership of the
Property;
(v) settle, adjust, refer to arbitration, compromise and arrange any
claim, demand or dispute relating to the Property;
(vi) bring, prosecute, enforce, defend, compromise and abandon any
claim, action, distress, suit or proceedings in relation to the
Property;
(vii) do all things necessary or desirable to preserve, maintain and
manage the Property; and
(viii) do all things necessary or desirable for realizing the Property
or any part thereof.
6.02 Upon any letting, leasing or sale purporting to be made in pursuance of
the aforesaid powers in that behalf and upon the exercise by the Lender of any
of the aforesaid powers, a tenant or purchaser or any other person dealing with
the Lender in connection therewith, shall not be bound to see or enquire
whether any default has been made in payment of the Secured Indebtedness at the
time hereinbefore appointed for payment thereof or whether any money remains
owing on the security of this Charge, or whether due ?????????
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6.03 Notwithstanding any impropriety or irregularity whatsoever in the
exercise of such powers the same shall, as far as regards the safety and
protection of any such tenant or purchaser or any other person dealing with the
Lender, be deemed to be within the aforesaid powers in that behalf and shall be
valid and effectual accordingly.
6.04 The remedy of the Borrower in respect of any breach of the clauses or
provisions hereinbefore contained or any legal obligations imposed by law upon
the Lender from time to time with respect to the exercise of any such powers
shall be in damages only.
6.05 The aforesaid powers may be exercised by any person who for the time
being shall be entitled to receive and give a discharge for the moneys owing on
the security of this Charge.
6.06 Subject as aforesaid the Lender shall not be answerable for any
involuntary losses which may happen in the exercise of the aforesaid powers and
trusts or any of them.
6.07 The provisions of this Clause 6 shall continue to apply mutatis
mutandis after the expiry of the term granted under the Crown Grant in so far
as an extension of the term under the Crown Grant or a grant or regrant of the
Property has been made to the Borrower by any competent authority and subject
to such terms and conditions as may be imposed by such competent authority.
7. BORROWER'S FURTHER COVENANTS AND AGREEMENTS
7.01 The Borrower HEREBY FURTHER COVENANTS AND AGREES with the Lender as
follows, namely that:-
(i) The Crown Grant and the Deed of Covenant are now good, valid
and subsisting and in nowise void or voidable and that the
moneys due under any covenant relating to the Property have been
paid and any other covenants, terms, conditions and obligations
relating to the Property to be performed and observed by the
Borrower have been duly paid performed and observed up to the
date hereof;
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(iii) the Borrower will at all times keep and maintain the Property in
good and tenantable repair and condition to the satisfaction of
the Lender and the relevant government authorities and will
allow the Lender and his servants or agents to enter and view
the state of repair of the Property at all reasonable times
without the Lender by so doing only being deemed to have taken
possession of the Property;
(iv) the Borrower will effect and maintain insurance of the Property
against loss or damage by fire and such other risks as the
Lender shall think fit in its full replacement value in some
local insurance company or such other insurance company or
office as the Lender shall first approve of in writing and if so
required by the Lender in the joint names of the Lender and the
Borrower and will punctually pay all premiums or sums of money
necessary for effecting and keeping up such insurance
immediately upon the same becoming due and will at any time on
demand made for that purpose on the Borrower as hereinafter
provided endorse over to, produce to or leave with the Lender
such policy of such insurance and the receipt for every such
payment and the Lender shall have a lien on the same and on all
moneys thereby assured; PROVIDED ALWAYS that if the Borrower
shall fail to insure the Property in accordance with the
provisions contained in this Charge the Lender may insure the
Property upon such terms and conditions as the Lender shall in
its absolute discretion think fit and any money paid for such
insurance shall be a charge on the Property in addition to the
Secured Indebtedness with the same priority and with interest at
the same rate;
(v) in the event of the Property being destroyed by fire the
Borrower shall, unless otherwise agreed in writing by the
Lender, lay out the insurance money received and at the
Borrower's own expense make up any deficiency so as fully and
completely to rebuild or reinstate the same to its original
state and condition in accordance with the plans and
specifications as shall be approved by the Lender and the
relevant government departments;
(vi) the Borrower shall make payment of (a) the rents, management and
maintenance charges, instalments of premiums (if any) and other
monies or proportions thereof payable in respect of the
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Property under the Crown Grant and the Deed of Covenant (b) the
charges for power, lighting, water and all rates and taxes
assessed on the Property and (a) expenses for all repairs of the
Property as may be necessary under the Crown Grant or the Deed
of Covenant and shall produce to the Lender receipts or other
evidence of such payments;
(vii) the Borrower shall fully and completely perform and observe the
terms, covenants, conditions and obligations contained in the
Crown Grant and the Deed of Covenant;
(viii) if default shall be made by the Borrower in any of the
obligations specified herein it shall be lawful for the Lender
to pay or perform the same;
(ix) the Borrower will at all times keep the Lender indemnified
against all actions, suits, claims, costs and expenses which may
be incurred, or sustained on account of the non-payment of the
premium or other moneys (if any) or crown rent, property tax,
rates, charges, outgoings and impositions or any part thereof or
the breach or non-performance of the covenants, obligations and
agreements herein contained;
(x) the Borrower will not, without the prior written consent of the
Lender and then only in conformity with any conditions
whatsoever the Lender may reasonably impose, part with the use,
occupation or possession of the Property in any way whatsoever
whether by way of letting, sub-letting, sub-dividing, lending,
sharing, assigning or other means whereby any person other than
the Borrower obtains the use, occupation or possession of the
Property, irrespective of whether any rental or other
consideration is given for such use, occupation or possession;
(xi) if at any time the power of sale herein contained shall become
exercisable by the Lender the Borrower will upon being given
notice so to do by the Lender forthwith quit and deliver up
vacant possession of the Property to the Lender or to whomsoever
the Lender may nominate or direct;
(xii) during the continuance of this security the Borrower will not
assign, mortgage, charge, sub-divide, let, underlet, lease or
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otherwise dispose, part with possession or make any arrangement
for the sharing of the Property or any interest therein or
accept surrender of any lease or tenancy thereof or cause or
permit any second or further Charge to be effected of the
Property or in any way encumber the equity of redemption therein
or diminish, jeopardise or prejudice the security hereby
afforded to the Lender or permit the same to be done without the
prior written consent of the lender:
(xiii) (if applicable) the Borrower will not create or agree to create
or permit to arise any mortgage, charge, debenture or pledge
creating any floating charge over or in respect of the
Borrower's present or future undertaking, properties, assets,
rights or revenues, or any part thereof, including its uncalled
capital (if any) for the time being unless the Property and all
rights and interests of the Borrower in respect of the Property
are expressly excluded therefrom;
(xiv) (if applicable) the Borrower will whenever requested so to do in
writing by the Lender apply to the Land Registrar for
apportionment of the Crown Rent and/or premium in respect of the
Property pursuant to the provisions of the Crown Rent and
Premium (Apportionment) Ordinance 1970;
(xv) (if applicable) the Borrower will if required (if necessary in
conjunction with the owners for the time being of the other
undivided shares of and in the Lot or lots more particularly
described in the said Schedule (hereinafter called "the said
Lot")) execute and take up the Crown Lease relating to the said
Lot when called upon so to do by the Land Registrar and pay the
due proportion of the costs and expenses in connection
therewith, and the Borrower shall execute a new charge of the
new lot, or the share owned by the Borrower of and in the new
lot, when such Crown Lease has been taken up in favour of the
Lender in substitution for this Charge;
(xvi) (if applicable) the Borrower will, not later than six months
before the expiration of the term agreed to be granted by the
Crown Grant, exercise any right of renewal [illegible]
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documents as shall be required to effectuate such renewal and
pay such fees as shall be demanded by the Registrar General
(Land Registrar) or other competent authority and will execute a
new charge to the Lender of the said Lot or any substituted lot
or the shares owned by the Borrower of and in the said Lot or
any substituted lot for such renewed term in substitution for
this Charge;
(xvii) in the event of the Borrower being or becoming entitled to,
and/or entitled to apply to any competent authority for, an
extension of the term agreed to be granted by the Crown Grant or
the Borrower being or becoming entitled to, and/or entitled to
apply to any competent authority for, a re-grant or new grant of
an interest in the whole or any part of the said Lot or of such
new or substituted lot as referred to in sub-clauses (xv) and
(xvi) hereof, the Borrower shall forthwith comply with any terms
and conditions affecting such entitlement (including the payment
of such fees as shall be demanded by the competent authority)
and/or shall forthwith make application to the competent
authority for such re-grant or new grant, and thereafter shall
do and perform all acts (including the payment of such fees as
aforesaid) and execute such deeds and documents as may be
necessary to secure an extension or new grant or re-grant as
aforesaid, and shall thereafter execute a new charge (or such
other security interest as the Lender shall require) to the
Lender of or in respect of the subject matter of such extension,
re-grant or new grant, as security for the Secured Indebtedness;
(xviii) if on the expiry of the term granted or agreed to be granted
under the Crown Grant the Borrower does not become or is not
entitled to an extension of the term granted by the Crown Grant,
and/or does not become or is not entitled to a re-grant or new
grant of an interest in the whole or any part of this said Lot
or of such new or substituted lot as referred to in sub-clauses
(xv) and (xvi) hereof, the Borrower shall forthwith furnish such
alternative security to the Lender as the Lender shall require;
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for the Lender to act on behalf of the Borrower, and for such
purposes the Borrower hereby irrevocably appoints the Lender's
authorised officer by way of security to be the attorney of the
Borrower to do such acts as may be necessary to ensure
performance by the Borrower of such obligations, and to execute
and sign, seal and, as the Borrower's act and deed, deliver such
deeds and to sign such documents and instruments as the Lender
shall consider necessary or desirable for such purpose and to
pay such fees on behalf of the Borrower as shall be demanded by
the Registrar General (Land Registrar) or by the competent
authority (which fees, if paid by the Lender on the Borrower's
behalf, shall be added to the Secured Indebtedness and shall
form part thereof) and to execute and to sign, seal and, as the
Borrower's act and deed, deliver a new charge in such form and
substance as the Lender shall require (or other security
interest or alternative security as aforesaid) to the Lender as
hereinbefore provided and to sign such documents and writing and
to do all such other matters and things the Lender shall
consider to be necessary or desirable for such purpose, and the
Borrower shall ratify and confirm all that the said attorney
shall lawfully do or cause to be done by virtue of the
provisions herein contained;
(xx) the Borrower shall provide the lender with copies of all notices
to or from all relevant government departments or otherwise
relating to the Property within seven (7) days of the service
of such notices by or on the Borrower or such other shorter
period as is reasonable in the circumstances and shall comply
with all governmental or other legal requirements and notices
whether statutory or otherwise in respect of the Property.
8. APPOINTMENT OF RECEIVER
8.01 If default in payment of the Secured Indebtedness or any other Event of
Default shall have occurred (and no delay or waiver of the right to exercise the
powers conferred hereby shall prejudice the future exercise of such powers) the
Lender may without further notice appoint in writing under the hand of the
[illegible]
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another or others in his place, and the following provisions shall have effect:-
(i) such appointment may be made either before or after the Lender
shall have entered into or taken possession of the Property;
(ii) such Receiver may be vested by the Lender with such powers and
discretions, including powers of management, as the Lender may
think expedient;
(iii) without prejudice to the generality of the foregoing, such
Receiver shall have power to complete any building (if any)
under construction on the Property and to generally complete the
development thereof and to demand and recover all the income of
the Property of which he is appointed receiver by action,
distress or otherwise in the name either of the Borrower or the
Lender to the full extent of the estate or interest which the
Borrower could dispose of and to give effectual receipts
accordingly for the same;
(iv) unless otherwise directed by the Lender, such Receiver may
exercise all the powers and authorities vested in the Lender
hereunder;
(v) such Receiver shall in the exercise of his powers, authorities
and discretions conform to any regulations and directions from
time to time made and given by the Lender;
(vi) the Lender may from time to time fix the remuneration of such
Receiver and the Receiver shall be entitled to retain out of any
money received by him that remuneration and all costs charges
and expenses properly incurred by him as Receiver;
(vii) the Lender may from time to time and at any time require any
such Receiver to give security for the due performance of his
duties as such Receiver and may fix the nature and amount of the
security to be so given, but the Lender shall not be bound in
any case to require any such security;
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(viii) declared of and concerning moneys which arise from any sale,
calling in, collection or conversion;
(ix) the Lender may pay over to such Receiver any moneys constituting
part of the Property or the income thereof to the intent that
the same may be applied for the purposes hereof by such
Receiver, and the Lender may from time to time determine what
funds the Receiver shall be at library to keep in hand with a
view to the performance of his duties as such Receiver;
(x) subject as hereinafter provided, any such Receiver may, for the
purpose of defraying any costs, charges, losses or expenses
(including his remuneration) which shall be incurred by him in
the exercise of the powers, authorities and discretion vested in
him and for all other purposes hereof or any of them, raise and
borrow money on the security of the Property or any interest
therein either in priority to the moneys hereby secured and the
security hereby constituted or otherwise and at such rate of
interest and generally on such terms and conditions as he may
think fit and no person lending any such money shall be
concerned to enquire as to the propriety or purpose of the
exercise of this power or to see to the application of any
moneys so raised or borrowed provided however that a Receiver
shall not exercise this present power without first obtaining
the prior written consent of the Lender;
(xi) every such Receiver shall be the agent of the Borrower for all
purposes and the Borrower alone shall be responsible for his
acts and defaults, loss or misconduct and for his remuneration
and the Lender shall not incur any liability therefor by reason
of the Lender making his appointment as such Receiver;
(xii) any Receiver may act in his own name or in the name of the
Borrower;
(xiii) every Receiver, attorney, manager, agent or other person
appointed by the Lender hereunder shall be entitled to be
indemnified out of the Property and the income thereof in
respect of all liabilities and expenses incurred by him in the
execution or purported execution of the terms and conditions of
this Charge and against all actions, proceedings, claims
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and demands in respect of any matter or thing done or omitted in
anywise relating to the Property and the Lender may retain and
pay out of any money in the Lender's hands arising from the
terms and conditions of this Charge all sums necessary to affect
such indemnity and all such sums shall be a charge on the
Property;
(xiv) where more than one Receiver is appointed in accordance with the
provisions herein contained any reference in this Charge to a
Receiver shall apply to both or all of the Receivers so
appointed, and the appointment of the Receivers shall be deemed
to be a joint and several appointment to the intent that the
rights, powers, duties and discretions vested in the Receivers
may be exercised jointly by the Receivers so appointed or
severally by each of them.
9. NON-LIABILITY OF RECEIVER OR LENDER
9.01 Neither the Lender nor any Receiver shall be liable, by reason of any
entry into possession of the Property to account as mortgages in possession or
for anything except actual receipts or be liable for any loss on realisation or
for any default or omission for which a mortgagee in possession might be liable.
10. THIRD PARTY ENQUIRIES
10.01 No person dealing with the Lender or any Receiver appointed by the
Lender or with its or his attorneys or agents shall be concerned to enquire
whether any event has occurred to authorise the Receiver to act or the security
hereby constituted has become enforceable or whether the power exercised or
purported to be exercised has become exercisable or whether any moneys remain
due upon the security of this Charge or as to the necessity or expediency of
the stipulations and conditions subject to which any sale shall be made, or
otherwise as to the propriety or regularity of any sale, calling in, collection
or conversion or power exercised or to see to the application of any money paid
to the Lender or to any Receiver or its or his attorneys or agents, and in the
absence of fraud on the part of such person such dealing shall be deemed so far
as regards the safety and protection of such person to be within the powers
hereby conferred and to be valid and effectual accordingly and the remedy of the
Borrower in respect of any irregularity or impropriety whatsoever in the
exercise of such powers shall be in damages only.
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11. LENDER'S OR RECEIVER'S RECEIPT
11.01 Upon any such letting, leasing, sale, calling in, collection or
conversion as aforesaid and upon any other dealing or transaction under the
provisions herein contained the receipt of the Lender or any Receiver for the
rent or proceeds thereof and for any other moneys paid to it or him shall
effectually discharge the tenant, lessee, purchaser or person paying the same
therefrom and from being concerned to see to the application or being
answerable for the loss or misapplication thereof.
12. PROCEEDS OR SECURITY REALIZATION
12.01 The Lender or any Receiver so appointed shall hold the moneys arising
from any such letting, leasing, sale, calling in, collection or conversion or
dealing under the powers conferred upon the Lender or upon any Receiver after
the security hereby created has become enforceable upon trust:-
Firstly: in discharge of all rent, taxes, rates and other
outgoings due and affecting the Property; then
Secondly: unless the Property is sold subject to a prior
incumbrance in discharge of that prior incumbrance;
Thirdly: in payment of the Receiver's lawful remuneration, costs,
charges and expenses and all lawful costs and expenses
properly incurred in the sale or other dealing;
Fourthly: in payment of the Secured Indebtedness, and any residue
shall be paid to the person who immediately before any
sale or other dealing was entitled to the Property or
authorized to give a receipt for the proceeds of sale of
the Property.
13. FURTHER ASSURANCES AND ATTORNEY
13.01 The Borrower shall from time to time and at any time, whether before or
after the security hereby constituted shall have become enforceable, execute and
do all such transfers, assignments, assurances, acts and things as the Lender
may reasonably require for ??????
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security intended to be hereby constituted and for any part thereof and the
exercise by it of all the powers, authorities and discretions hereby conferred
on the Lender or any Receiver appointed by it, and the Borrower shall also give
all notices, orders and directions which the Lender may think expedient. For
the purposes of this Clause a certificate in writing signed by or on behalf of
the Lender to the effect that any particular transfer, assignment, assurance,
act or thing required by the Lender is reasonably required shall be conclusive
evidence of the fact.
13.02 The Borrower hereby irrevocably and by way of security appoints the
Lender and any Receiver jointly and each of them severally to be the Borrower's
attorney (with full power of substitution) and in the Borrower's name and on
the Borrower's behalf to execute, sign and do all deeds, instruments, acts and
things whatsoever which it shall in the opinion of the Lender (whose opinion
shall be conclusive and binding upon the Borrower) be necessary or expedient
that the Borrower should execute, sign or do for the purpose of carrying out
any trust or obligation hereby declared or imposed upon the Borrower or for
giving to the Lender on the Borrower's behalf the full benefit of any of the
provisions hereof and generally to use the Borrower's name in the exercise of
all or any of the powers hereby conferred on the Lender or any Receiver
appointed by the Lender hereunder. The Borrower covenants that the Borrower
will ratify and confirm all that the attorney shall lawfully do or cause to be
done by virtue of these presents.
14. NOTICES DEMANDS AND SERVICE OF PROCEEDINGS
14.01 Any demand for payment or notice by the Lender hereunder shall, without
prejudice to any other effective mode of giving or making the same, be deemed
to have been sufficiently given or made hereunder on the Borrower if left or
sent by prepaid post addressed to the Borrower at the Property or the
registered office or last known business or residential address of the Borrower
for the time being in Hong Kong, and shall be assumed to have reached the
Borrower within 48 hours of posting, and in proving such service it shall be
sufficient to prove that the notice or demand was properly addressed and posted
or properly left as the case may be.
14.02 Any legal process including any writ or originating summons and any
other summons or notice in connection with this Charge to be served on the
Borrower by the Lender in any legal proceedings or action
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commenced in any court or tribunal shall be deemed to have been duly and
sufficiently served on the Borrower forty-eight (48) hours after the same
having been left or sent by ordinary prepaid post to the Borrower at the
Borrower's registered office or usual place of business or abode or at the
address of the Property and in proving such service it shall be sufficient to
prove that the legal process or summons or notice was properly addressed and
posted or properly left as the case may be irrespective of whether the same is
returned to the Lender through the post undelivered to the Borrower.
15. SUCCESSORS AND ASSIGNS
15.01 The terms of this Charge shall be binding upon and enure to the benefit
of the respective successors-in-title and assigns of the parties hereto
provided however that the Borrower may not assign any of the Borrower's rights
or obligations hereunder without the express prior written consent and approval
of the Lender.
16. WAIVERS
16.01 No failure to exercise and no delay in exercising on the part of the
Lender any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
17. FEES, COSTS AND EXPENSES
17.01 The Borrower shall (with the object and intention of affording to the
Lender a full indemnity for all amounts actually disbursed or incurred by the
Lender pursuant to the terms hereof) pay or reimburse to the Lender or (as the
case may be) to any Receiver, on demand:-
(i) all costs, charges and expenses incurred and all payments made
by the Lender or any Receiver in the lawful exercise of the
powers hereby conferred upon it or him (together with all
remuneration payable to the Lender or to any such Receiver); and
(ii) all reasonable expenses (including Legal expenses on solicitors
own client basis) incurred by the Lender in
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connection with the preparation and thereafter the
administration of this Charge and any other documents executed
pursuant to the terms hereof and incurred by the Lender in suing
for or recovering any sum due from the Borrower to the Lender
hereunder or in connection with the protection or enforcement of
this Security; and
(iii) all stamp and other duties and taxes (if any) to which this
Charge, any document of title relating to the Property and any
other document executed pursuant to the terms hereof, may be
subject;
and the same shall carry interest at the applicable rate as hereinbefore
provided from the date of the same being incurred or disbursed until payment and
all such costs, charges, expenses and remuneration and all interest thereon
shall be a charge on the Property and shall form part of the Secured
Indebtedness.
18. CONTINUING SECURITY
18.01 The security created herein shall be a continuing security and shall be
available to secure whatever may be the balance at any time or from time to
time due by the Borrower to the Lender pursuant to this Charge, and such
continuing security shall not be discharged by the release of any security or
additional security whatsoever which the Lender may for the time being hold or
which may hereafter be held by the Lender as security for the Secured
Indebtedness, and further the Lender has only agreed to grant the general
banking facilities hereunder up to such amount as it may in its absolute
discretion deem safe.
19. APPLICABLE LAW
19.01 This Charge shall be governed by and construed in accordance with Hong
Kong law and the parties hereto hereby irrevocably submit to the non-exclusive
jurisdiction of the Hong Kong Courts.
IN WITNESS whereof the Borrower has caused its Common Seal to be
hereunto affixed the day and year first above written.
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THE SCHEDULE ABOVE REFERRED TO
ALL THOSE 635 equal undivided 40,800th parts or shares of and in ALL
THOSE pieces or parcels of ground registered in the Land Registry as SUBSECTION
11 OF SECTION A OF INLAND LOT NO. 1367, THE REMAINING PORTION OF SECTION A OF
INLAND LOT NO. 1367, SUBSECTION 10 OF SECTION A OF INLAND LOT NO. 1367,
SUBSECTION 8 OF SECTION A OF INLAND LOT NO. 1367, THE REMAINING PORTION OF
SUBSECTION 9 OF SECTION A OF INLAND LOT NO. 1367 and SECTION A OF SUBSECTION 9
OF SECTION A OF INLAND LOT NO. 1367 And of and in the measuages erections and
buildings thereon now known as AT TOWER (illegible - Chinese characters) ("the
Building") No. 180 Electric Road (formerly known as Nos. 176, 178, 180, 182, 184
and 186 Electric Road), Hong Kong TOGETHER with the sole and exclusive right and
privilege to hold use occupy and enjoy ALL THAT OFFICE 2 on the FIFTEENTH FLOOR
of the Building AND TOGETHER with the benefit of a Deed of Mutual Covenant and
Management Agreement registered in the Land Registry by Memorial No. 6448422 AND
TOGETHER with all subsisting rights and rights of way HELD from the Crown for
the residue of the term of 999 years commencing from the 24th day of February
1896 created therein by a Crown Lease in respect of the whole of Inland Lot No.
1367 dated the 20th day of May 1897 and made between Her late Majesty Queen
Victoria of the one part and Dirk Cordes, Geldolph Adriaan de Lange and Abraham
Capadose of the other part SUBJECT to the payment of the due proportion of the
Crown rent and to the observance and performance of the covenants and conditions
reserved by and contained in the said Crown Lease AND SUBJECT to the said Deed
of Mutual Covenant and Management Agreement AND SUBJECT to all subsisting rights
and rights of way.
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SEALED with the Common Seal )
of the Borrower and SIGNED )
by Wong Siu Pang and )
Vong Lai Si, its Directors ) [SIG] [SEAL]
in the presence of: )
[SIG]
[SIG]
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Irene Y. S. Lau
Solicitor
Hong Kong