EXHIBIT 10.26
Dated 1st March, 2000
---------------------
(1) CHINA BEARING HOLDINGS LIMITED
and
(2) ASEAN CAPITAL LIMITED
and
(3) CHINA INTERNATIONAL BEARING
HOLDINGS LIMITED
and
(4) SUNBASE ASIA, INC.
and
(5) SMITH ACQUISITION COMPANY, INC.
and
(6) SUNBASE INTERNATIONAL (HOLDINGS) LIMITED
and
(7) EXTENSIVE RESOURCES LIMITED
and
(8) GLORY MANSION LIMITED
and
(9) WARDLEY CHINA INVESTMENT TRUST
and
(10) MC PRIVATE EQUITY PARTNERS ASIA LIMITED
and
(11) CHINE INVESTISSEMENT 2000
________________________________________________
SUPPLEMENTAL AGREEMENT
in respect of certain
arrangements relating to
CHINA BEARING HOLDINGS LIMITED
________________________________________________
Chao and Chung
Table of Contents
-----------------
Description Page No.
----------- --------
1. INTERPRETATION 2
2. CONDITION 3
3. AGREEMENT 4
4. COMPLETION 4
5. EFFECT OF THIS AGREEMENT 6
6. COSTS AND EXPENSES 6
7. GOVERNING LAW AND JURISDICTION 6
8. GENERAL PROVISIONS 6
9. COUNTERPARTS 7
SCHEDULE 1 8
Form of the New Share Mortgage 8
SCHEDULE 2 19
Form of the Release 19
SIGNATURE PAGES 24
ANNEXURE 1
FORM OF THE ESCROW LETTER
ANNEXURE 2
FORM OF THE CONSENT
THIS AGREEMENT is made on the 1/st/ day of March, 2000.
(1) CHINA BEARING HOLDINGS LIMITED, the registered office of which is at Cedar
House, 41 Cedar Avenue Hamilton HM12, Bermuda (the "Company");
(2) ASEAN CAPITAL LIMITED, the registered office of which is at Omar Hodge
Building, Wickhams Cay I, P.O. Box 362, Road Town, Tortola, British Virgin
Islands ("ACL");
(3) CHINA INTERNATIONAL BEARING HOLDINGS LIMITED, the registered office of
which is at 19th Floor, 51-57 Gloucester Road, Wanchai, Hong Kong
("CIBHL");
(4) SUNBASE ASIA, INC., the registered office of which is at 1280 Terminal Way,
Suite 3, Reno Nevada 89502, United States of America ("SAI");
(5) SMITH ACQUISITION COMPANY, INC., a California corporation doing business as
Southwest Products Company, the registered office of which is at 2240 Buena
Vista, Irwindale, CA 91706, United States of America ("SPC");
(6) SUNBASE INTERNATIONAL (HOLDINGS) LIMITED the registered office of which is
at 19th Floor, 51-57 Gloucester Road, Wanchai, Hong Kong ("SIHL");
(7) EXTENSIVE RESOURCES LIMITED, the registered office of which is at P.O. Box
71, Craigmuir Chambers, Road Town, Tortola, British Virgin Islands ("ERL");
(the parties at (1), (2), (3), (4), (5), (6) and (7) hereinafter collectively
referred to as "Sunbase Parties");
(8) GLORY MANSION LIMITED, the registered office of which is at Craigmuir
Chambers, P.O. Box 71, Road Town, Tortola, British Virgin Islands ("GML");
(9) WARDLEY CHINA INVESTMENT TRUST, the registered office of which is at c/o
Suite 1610, P.O. Box 1016, 885 West Georgia Street, Vancouver B.C., V6C
3E8, Canada ("WCIT");
(10) MC PRIVATE EQUITY PARTNERS ASIA LIMITED the registered office of which is
at P.O. Box 309, Ugland House, South Church Street, Grand Cayman, Cayman
Islands, British West Indies ("MC Partners"); and
(11) CHINE INVESTISSEMENT 2000, a Luxembourg-registered Unit Trust, the
registered office of which is at L1118 Luxembourg, 14 Rue Aldringen ("CI
2000");
(the parties at (8), (9), (10) and (11) hereinafter collectively referred to as
the "Investors" and each an "Investor")
WHEREAS:-
(A) The parties hereto (except SIHL and ERL) entered into the Subscription
Agreement (as defined below) under which the Investors subscribed for
Debentures of an aggregate principal value of $11,500,000.
(B) The Sunbase Parties (except SIHL and ERL) breached certain of their
obligations under the Subscription Agreement and the Investors agreed not
to exercise their rights under the Subscription Agreement in relation
thereto subject to and upon the terms and conditions set out in the
Settlement Agreement (as defined below).
(C) Certain obligations of the Sunbase Parties under the Settlement Agreement
have not been complied with.
(D) SAI and SPC have entered into an agreement with William McKay as purchaser
and with Samuel T. Mok as voting trustee for all of the issued and
outstanding shares of capital stock of SPC whereby SAI will sell its entire
interests in its subsidiary, SPC.
(E) The parties hereto agree to supplement the repayment arrangements
contemplated in the Settlement Agreement on the terms and conditions set
out herein.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
--------------
(A) In this Agreement:-
"Completion" means performance by the parties hereto of their
respective obligations set out in Clause 4;
"Completion Amount" means the sum of $2,600,000 payable by the Company to
the Investors at Completion;
"Consent" means a letter of consent in the form annexed hereto
as Annexure 2 in connection with the Sale;
"Escrow Agent" means Jenkens & Gilchrist of 1919 Pennsylvania Avenue,
NW Suite 600, Washington D.C. 20006-3404;
2
"Escrow Letter" means an escrow letter in the form annexed
hereto as Annexure 1 given or to be given by
the Investors to the Escrow Agent in
connection with, inter alia, the Completion
Amount;
"Existing Share Mortgage" means the Deed of Mortgage dated 16/th/
October, 1998 relating to 1,000,000 issued
shares in the capital of Tianjin Development
Holdings Limited executed by ERL in favour of
Brilliant Future Holdings Limited pursuant to
the Settlement Agreement;
"New Share Mortgage" means the form of share mortgage set out in
Schedule 1;
"Release" means the release of the Guarantee in the
form as set out in Schedule 2;
"Sale" the sale by SAI of its entire interests in
SPC in accordance with the agreement referred
to in Recital (D);
"Settlement Agreement" means an agreement dated 16/th/ October, 1998
made between the parties hereto in respect of
the Debentures issued by the Company;
"Subscription Agreement" means an agreement dated 2nd August, 1996
relating to the subscription by the Investors
for the Debentures issued by the Company; and
"$" means United States dollars, the lawful
currency of the United States of America.
(B) In this Agreement, unless otherwise defined, words and expressions defined
in the Settlement Agreement (including the schedules thereto) or in the
Subscription Agreement as adopted for use in the Settlement Agreement, when
used in this Agreement, bear the same respective meanings in this
Agreement.
2. CONDITION
---------
The obligations of the respective parties hereto under this Agreement are
conditional on (i) the Consent being duly executed by the parties thereto
upon signing of this Agreement; (ii) the Release being duly executed by the
parties thereto upon signing of this Agreement and the same having been
delivered to the Escrow Agent by GML (as hereby expressly authorised by all
parties
3
hereto) pursuant to the Escrow Letter; and (iii) the Sale being completed
on or before 10/th/ April, 2000 (or such later date as may be agreed by the
Investors in writing), to the intent that none of the parties shall be
bound by any provisions herein unless the Sale is completed on or before
the said date.
3. AGREEMENT
---------
3.1 The parties hereto agree to supplement the terms and conditions of the
Settlement Agreement as follows:-
(A) the Company shall pay to the Investors on Completion the Completion
Amount in settlement of such part of the principal amount and interest
as equivalent to the Completion Amount comprised in those outstanding
repayment instalments specified in the Repayment Schedule which are
overdue for repayment as at the date of Completion (the "Overdue
Amount");
(B) the remaining balance of the outstanding overdue repayment instalments
shall remain immediately repayable and all subsequent repayment
instalments set out in the Repayment Schedule respectively falling due
for payment by the Company thereafter shall remain due and payable on
the respective dates specified therefor in the Repayment Schedule;
(C) ERL shall execute the New Share Charge in favour of Brilliant Future
Holdings Limited (as trustee for an on behalf of the Investors) in
replacement of the Existing Share Mortgage on Completion; and
(D) upon receipt of the New Share Charge duly executed, the Investors will
execute the Release, and will send by courier the Release to the
Escrow Agent in accordance with the terms of the Escrow Letter.
4. COMPLETION
----------
(A) Completion shall take place at the offices of Chao and Chung at Suites
2601-5, Asia Pacific Finance Tower, Citibank Plaza, 3 Garden Road, Hong
Kong on the second Business Day (or such other day as the Company, SAI and
the Investors may agree) following the last to occur (i) completion of the
Sale; (ii) receipt by the Investors from the Escrow Agent of the Completion
Amount pursuant to the Escrow Letter; and (iii) release of the Release by
the Escrow Agent pursuant to the Escrow Letter.
(B) At Completion, the following transactions shall take place:-
(1) the Company shall:-
(i) deliver to the Investors a certified copy of the board resolution
4
of the Company approving and authorising execution and
completion of this Agreement and resolving to effect and do all
that is necessary to give effect to this Agreement;
(ii) deliver to the Investors a certified copy of the board
resolution of SAI approving and authorising execution and
completion of this Agreement and resolving to effect and do all
that is necessary to give effect to this Agreement and the
Guarantee;
(iii) deliver to the Investors a certified copy of the board
resolution of CIBHL approving and authorising the execution and
completion of this Agreement and resolving to effect and do all
that is necessary to give effect to this Agreement and the
Guarantee;
(iv) deliver to the Investors a certified copy of the board
resolution of ACL approving and authorising the execution and
completion of this Agreement and resolving to effect and do all
that is necessary to give effect to this Agreement and the ACL
Undertaking;
(v) deliver to the Investors a certified copy of the board
resolution of SIHL approving and authorising the execution and
completion of this Agreement and resolving to effect and do all
that is necessary to give effect to this Agreement; and
(vi) deliver evidence satisfactory to the Investors that the Company
has effected payment by cashier order to Chao and Chung in
respect of all the costs and expenses referred to in Clause 6
hereof, the amount of which shall be notified to the Company by
the Investors prior to Completion;
(2) ERL shall execute and deliver to Brilliant Future Holdings Limited the
New Share Mortgage and the board resolution of ERL approving and
authorising the execution and completion of this Agreement and the New
Share Charge and resolving to effect and do all that is necessary to
give effect to this Agreement and the New Share Charge; and
(C) All the events which are to take place at Completion shall take place
simultaneously and no party shall be obliged to complete this Agreement
unless the other parties simultaneously comply with their respective
obligations contained in sub-clause (B) of this clause.
(D) For the avoidance of doubt, the continuing obligations of the Sunbase
Parties under the Settlement Agreement shall not cease as a result of
Completion other than for SPC, whose continuing obligations under the
Settlement Agreement are released by the operation and effect of the
Release after Completion.
5
5. EFFECT OF THIS AGREEMENT
------------------------
Provided that Completion takes place as provided in Clause 4 the Settlement
Agreement shall thenceforth be read and construed and will continue to take
effect subject only to the express modification provided herein and for
this purpose each of the Sunbase Parties hereby agrees, acknowledges and
declares that it shall continue to be bound of each and all of the
undertakings, covenants, obligations and agreements on its part undertaken
in (as the case may be) the Settlement Agreement, the Guarantee, the ACL
undertaking and the Existing Share Mortgage as the same is (and to the
extent) expressly modified by this Agreement. But if Completion shall fail
to take place as herein provided, all of the rights, obligations and
liabilities of the respective parties under and pursuant to the Settlement
Agreement, the Guarantee, the Undertaking and the Existing Share Mortgage
shall be preserved.
6. COSTS AND EXPENSES
------------------
The legal costs incurred in connection with the preparation and negotiation
of this Agreement and ancillary documentation shall be borne by the
Company.
7. GOVERNING LAW AND JURISDICTION
------------------------------
7.1 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and each party hereby submits to the non-exclusive
jurisdiction of the courts of Hong Kong as regards any claim or matter
arising under this Agreement.
7.2 Each of the parties hereto irrevocably agrees for the benefit of each of
the Investors that the courts of Hong Kong shall have jurisdiction to hear
and determine any suit, action or proceeding, and to settle any disputes,
which may arise out of or in connection with this Agreement and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
7.3 Each of the parties hereto irrevocably waives any objection it might now
or hereinafter have to the courts referred to in Clause 7.1 above nominated
as the forum to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that any of such courts is not a
convenient or appropriate forum.
8. GENERAL PROVISIONS
------------------
8.1 As regards any date or period time shall be of the essence of this
Agreement.
6
8.2 This Agreement shall be binding on and enure for the benefit of the
successors of each of the parties and shall not be assignable.
8.3 The exercise of or failure to exercise any right to remedy in respect of
any breach of this Agreement shall not, save as provided herein, constitute
a waiver by such party of any other right or remedy it may have in respect
of that breach.
8.4 Any right or remedy conferred by this Agreement on any party for breach of
this Agreement shall be in addition and without prejudice to all other
rights and remedies available to it in respect of that breach.
8.5 The Settlement Agreement as expressly modified by this Agreement
constitutes the entire agreement between the parties with respect to its
subject matter and shall (including the Repayment Schedule as modified as a
result of the application of the Completion Amount as provided in Clause
3.1(A) above) remain binding on and enforceable against the parties
thereto, and no variation of the Settlement Agreement as so modified shall
be effective unless made in writing and signed by all of the parties.
8.6 Save and except the Subscription Agreement, the Settlement Agreement, the
ACL Undertaking and the Guarantee or any other signed agreements in
connection with the aforesaid, this Agreement supersedes all and any
previous agreements, arrangement or understanding between the parties
relating to the matters referred to in this Agreement and all such previous
agreements, understanding or arrangements (if any) shall cease and
determine with effect from this date hereof.
8.7 If at any time any provision of this Agreement is or becomes illegal, void
or unenforceable in any respect, the remaining provisions hereof shall in
no way be affected or impaired thereby.
9. COUNTERPARTS
------------
This Agreement may be executed by the parties hereto in any number of
counterparts and on separate counterparts, each of which when so executed
shall be deemed an original but all of which shall constitute one and the
same instrument and is binding on all parties.
AS WITNESS whereof this Agreement has been duly executed on the date first above
written.
7
SCHEDULE 1
----------
Form of the New Share Mortgage
------------------------------
8
EXHIBIT 10.26(a)
Dated 1st March, 2000
---------------------------
Extensive Resources Limited
AND
Brilliant Future Holdings Limited
___________________________________
Deed of Mortgage
relating to
Shares in Tianjin Development Holdings Limited
___________________________________
Chao and Chung
Hong Kong
9
THIS DEED is made on the 1st day of March 2000
BETWEEN
(1) Extensive Resources Limited, a company incorporated in British Virgin
Islands and having its registered address at P.O. Box 71, Craigmuir
Chambers, Road Town, Tortola, British Virgin Islands (hereinafter
referred to as the Chargor); and
(2) Brilliant Future Holdings Limited, a company incorporated in British
Virgin Islands and having its registered address at the offices of
Offshore Incorporations Limited, P.O. Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin Islands (hereinafter
referred to as the "Chargee").
WHEREAS:-
(A) The Chargor is the beneficial owner of the Mortgaged Shares (as
defined hereinafter).
(B) The Chargor agreed pursuant to the Settlement Agreement to charge in
favour of the Chargee the Mortgaged Shares and executed the Existing
Share Mortgage.
(C) The Chargor has agreed pursuant to the Supplemental Agreement to
execute this Deed in replacement of the Existing Share Mortgage.
IT IS HEREBY AGREED as follows:-
1. Interpretation
--------------
1.1 Except as otherwise expressly provided, terms defined in the
Supplemental Agreement shall have the same respective meanings when
used in this Deed.
1.2 In this Deed the following expressions shall have the following
meanings respectively:-
"Disposal" means, any sale, assignment, exchange, transfer,
concession, loan, lease, surrender of lease, tenancy, licence, direct
or indirect reservation, waiver, compromise, release, dealing with or
in or granting of any option, right of first refusal or other right or
interest whatsoever or any agreement for any of the same and Dispose
shall be construed accordingly;
"Encumbrance" means any mortgage, charge, pledge, lien (other than a
lien arising by statute or operation of law) or other encumbrance,
priority or security interest, deferred purchase, title retention,
leasing, sale-and repurchase
10
or sale-and leaseback arrangement whatsoever or in any assets, rights
or interest of whatsoever nature and includes any agreement for any of
the same;
"Mortgaged Shares" means the 1,000,000 shares in the capital of
Tianjin Development held by the Chargor to be mortgaged hereunder and
for the time being subject to the charge created hereunder;
"Settlement Agreement" means a settlement agreement dated 16th
October, 1999 as modified by a supplemental agreement dated 1st March,
2000 relating to certain repayment arrangements of the Company; and
"Tianjin Development" means Tianjin Development Holdings Limited, a
company incorporated in Hong Kong and listed on The Stock Exchange of
Hong Kong Limited.
1.3 In this Deed, unless the context otherwise requires:-
(a) words and expressions defined in the Companies Ordinance (Cap.
32) of the Laws of Hong Kong shall bear the same meanings when
used herein;
(b) references to any statutes or statutory provision shall include
any statute or statutory provision which amends, replaces or re-
enacts, or has amended, replaced or re-enacted, it, and vice
versa, and shall include any statuary instrument, order,
regulation or other subordinate legislation made thereunder.
(c) references to Clauses, paragraphs, Recitals and Schedules are to
clauses and paragraphs of, and recitals and schedules to, this
Agreement and references to sub-clauses are to sub-clauses of the
clause in which the reference appears;
(d) references to a "company' shall be construed so as to include any
company, corporation or other body corporate, wherever and
however incorporated or established;
(e) references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of a
state, local or municipal authority or government body or any
joint venture, association or partnership (whether or not having
separate legal personality); and
(f) words importing the singular include the plural and vice versa,
words importing one gender include every gender.
11
2. Share Mortgage
--------------
2.1 The Chargor, as beneficial owner, mortgages and agrees to mortgage to the
Chargee (as trustee for and on behalf of the Investors) by way of first
mortgage all of the Mortgaged Shares as a continuing security for the
discharge of such obligations of the Company under the Settlement Agreement
as shall fall to be performed.
2.2 In furtherance of the security constituted by this Deed the Chargor shall
deliver to the Chargee the share certificates representing the Mortgaged
Shares (and the Chargee hereby acknowledge receipt thereof) together with
duly executed but undated sold notes, instruments of transfer in respect of
the Mortgaged Shares in favour of the Chargee and/or its nominees.
3. Covenants
---------
3.1 The Chargor covenants with the Chargee:-
(a) to reimburse to the Chargee all costs, charges and expenses which may
be incurred by it under or arising out of this Deed or in connection
with the Mortgaged Shares (but excluding any costs, charges and
expenses incurred by the Chargee in connection with the preparation
and negotiation of this Deed);
(b) at all times to comply in all respects with any law or directive and
any conditions in relation to this Deed and the Settlement Agreement;
and
(c) on demand made at any time after the security constituted by this Deed
becomes enforceable, procure that the Mortgaged Shares are transferred
into and registered in the share register of Tianjin Development in
the name of the Chargee and/or its nominees.
3.2 The Chargor covenant with the Chargee that it will not create or permit to
subsist any Encumbrance over or Dispose of the Mortgaged Shares (or the
equity of redemption in relation to the same) except with the prior consent
of the Chargee.
4. Share Rights
------------
4.1 Until the security constituted by this Deed becomes enforceable, the
Chargor shall be entitled to exercise any voting rights in respect of the
Mortgaged Shares provided that the Chargor will not exercise, or permit the
exercise of, voting rights in respect of any of the Mortgaged Shares in
such manner as will, in the opinion of the Chargee, contravene any of the
provisions of, or jeopardise any of the security created by this Deed and
the Settlement Agreement.
12
4.2 Upon the security constituted by this Deed becoming enforceable the Chargee
or its nominees, may (to the entire exclusion of the Chargor) at any time,
at the Chargee's discretion, exercise any voting rights in respect of the
Mortgaged Shares and all the powers given to trustees by Section 11(4) and
(5) of the Trustee Ordinance (Cap.29) in respect of securities subject to a
trust and all powers or rights which may be exercised by the person or
persons in whose name or names the Mortgaged Shares are registered under
the terms hereof or otherwise.
4.3 The Chargor (or as appropriate his nominee) shall be entitled to retain for
its own benefit any dividends, distributions or other monies paid (and
which the Chargee has agreed should be paid) on or in respect of the
Mortgaged Shares prior to the security constituted by this Deed becoming
enforceable. All dividends, distributions or other monies paid or payable
on or in respect of the Mortgaged Shares at any other time or without the
prior approval of the Chargee, if received by the Chargor or its nominee,
shall be paid over to (and pending such payment shall be held on trust for)
the Chargee.
5. Enforcement
-----------
5.1 The Chargee shall be entitled to declare all or any part of the security
constituted by this Deed enforceable at any time immediately upon the
breach of any of the obligations of the Company under the Settlement
Agreement as the same is certified in writing by the Chargee.
5.2 Upon or at any time after the security constituted by this Deed has become
enforceable, the Chargee shall have the right, at any time, without notice
or any other action with respect to the Chargor, to take such steps as are
necessary to effect a transfer of the Mortgaged Shares to itself (and/or
its nominees) and/or sell the Mortgaged Shares or any of them in such
manner, at such price or prices, without being responsible for any loss, as
the Chargee may at its absolute discretion deem expedient, and the Chargee
shall not be responsible for any loss from or through brokers or others
employed in the sale of the Mortgaged Shares or for any loss or
depreciation in value of any of the Mortgaged Shares arising from or
through any cause whatsoever. The Chargee shall be entitled to reimburse
itself out of the proceeds of sale all costs, charges and expenses incurred
by it in such sale and is authorised to apply any net proceeds of the
Mortgaged Shares towards payment of the outstanding principal and interest
due from the Company to the Investors under the Settlement Agreement in
proportion to the principal amounts of the Debentures held by each of the
Investors respectively.
5.3 The Chargor agrees that upon any Disposal of the Mortgaged Shares or any
other rights under this Deed, the Chargee may make or purport to make a
statement in writing signed by the Chargee that this Deed is enforceable
and that the power of sale has become exercisable which statement shall be
conclusive evidence of the fact in favour of any purchaser or other person
acquiring any of the Mortgaged Shares or other rights and every purchaser
will
13
take the same free of any rights of the Chargor. The Chargor shall
indemnify the Chargee against any claims or demands which may be made
against the Chargee by such purchaser and any liability, loss, cost or
expense which the Chargee may suffer or incur by reason of any defect in
the Chargor's title to the Mortgaged Shares.
5.4 The Chargor agrees to waive any right to require that, prior to the
enforcement of the security constituted by this Deed, proceedings be taken
against the Chargor so that action be taken to realize the security held
pursuant to this Deed.
6. Power of Attorney
-----------------
6.1 The Chargor, by way of security, irrevocably appoints the Chargee and each
of its directors, officers and managers for the time being, with full power
of substitution and delegation, to be his attorney acting singly or
together and in his name, on his behalf to do all such assurances, acts or
things as he ought to do under the covenants and provisions contained in
this Deed and generally in his name and on his behalf to exercise all or
any of the powers, authorities and discretions conferred by or pursuant to
this Deed on the Chargee and generally to execute, seal and deliver and
otherwise perfect any deed, assignment, transfer, assurance, agreement,
instrument, or act which may in the opinion of the Chargee (or any
substitute attorney) be required or considered proper, necessary or
desirable for any of the purposes of this Deed.
6.2 The Chargor ratifies and confirms and agrees to ratify and confirm whatever
any attorney mentioned in this clause does in the exercise or purported
exercise of all or any of the powers, authorities and discretions under
this clause.
7. Termination
-----------
This Deed shall terminate automatically upon performance of all the
obligations of the Company under the Settlement Agreement whereupon the
Chargee shall:-
(a) redeliver to the Chargor the share certificates and instruments of
transfer in respect of the Mortgaged Shares or the remainder of them
(if any);
(b) generally take such other action as may be reasonably required at the
cost of the Chargor to release the Chargor from and to discharge this
Deed.
8. Indulgence
----------
This Deed and the rights of the Chargee under it shall not be discharged or
in any way affected by:-
14
(a) any time, indulgence, waiver or consent at any time given to, or any
compromise or composition entered into or made with, the Chargor or
any other person or any other release (conditional or otherwise) of
the Chargor or any other person;
(b) any amendment, variation, supplement or notation, to or of the
Settlement Agreement or any of them (whether or not the change
effected by such amendment, variation, supplement or notation is
material);
(c) any assignment by the Chargee of their rights and obligations under
the Settlement Agreement;
(d) any defect, irregularity or deficiency in any provision of any of the
Settlement Agreement, or the obligations of any party thereunder being
or becoming terminated, invalid, illegal or unenforceable at any time
and/or for any reason (whether or not known to the Subscriber);
(e) any party thereto not being bound by the terms of the Settlement
Agreement, whether as a result of any failure to execute, or any
deficiency in the execution of, the same or as a result of any defect
in or insufficiency or want of the necessary powers or any irregular
or improper exercise thereof, whether or not known to the Chargee or
for any other reason whatsoever; or
(f) the insolvency, bankruptcy, dissolution, winding-up, liquidation,
amalgamation, reconstruction, reorganization, charge in constitution,
death or incapacity of the Chargor.
9. General
-------
9.1 The rights and remedies provided in this Deed are cumulative and not
exclusive of any rights or remedies provided by law or under the Settlement
Agreement.
9.2 Any provision of this Deed may be amended only if the Chargor and the
Chargee agree in writing.
9.3 (A) Any notice or other communication given or made under this Agreement
shall be in writing.
(B) Any such notice or other communication shall be addressed as provided
in sub-clause (C) and, if so addressed, shall be deemed to have been
duly given or made as follows:-
(i) if sent by personally delivery, upon delivery at the address of
the relevant party;
15
(ii) if sent by post, two clear Business Days (if within Hong Kong)
or 7 Business Days (if overseas) after the date of posting; and
(iii) if sent by facsimile, when despatched;
PROVIDED THAT if, in accordance with the above provisions, any such
notice or other communication would otherwise be deemed to be given or
made outside working hours, such notice or other communication shall
be deemed to be given or made at the start of working hours on the
next Business Day. "Working hours" means 9:00a.m. to 5:30p.m. on the
Business Day.
(C) The relevant addressee, address and facsimile number of each party for the
purposes of this Agreement are:-
(i) in the case of the Chargor:-
Address: c/o China International Bearing Holdings Limited
19th Floor, First Pacific Bank Centre
51-57 Gloucester Road, Hong Kong
Facsimile: (852) 2865 4293
Attention: Mr. Roger Li / Mr. Chen Hong Fei
(ii) in the case of the Chargee:-
Address: c/o HPEM, Level 17, 1 Queen's Road,
Central, Hong Kong
Facsimile: (852) 2845 9992
Attention: Mr. George Raffini/Ms. Glory Gunawan
or in each case at or to such other address, facsimile number of individual
as the receiving party may have notified the sending party provided that
such notification shall only be effective on the date specified in the
notification as the date on which the change is to take place or if no date
is specified or the date specified is fewer than five clear Business Days
after the date on which notice if given, the date falling five clear
Business Days after notice of any change has been given.
9.4 The illegality, invalidity or unenforceablility of any provision of this
Deed under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
16
9.5 This Deed shall enure to the benefit of the parties hereto and their
respective permitted successors, assignees and transferees.
9.6 The Chargor and the Chargee may not assign or transfer any or all of their
rights or obligations under this Deed.
10. Law
---
This Deed shall be governed by and construed in accordance with the laws of
Hong Kong.
AS WITNESS whereof this Deed has been duly executed on the date first above
written.
17
SEALED WITH THE COMMON SEAL )
OF EXTENSIVE RESOURCES LIMITED )
in the presence of:- )
SIGNED BY Tien-yo Chao )
AS DULY AUTHORISED ATTORNEY )
FOR AND ON BEHALF OF )
BRILLIANT FUTURE HOLDINGS LIMITED )
in the presence of:- )
18
SCHEDULE 2
----------
Form of the Release
-------------------
19
Exhibit 10.26(b)
Dated 1st March 2000
--------------------------------------------
(1) Glory Mansion Limited
and
(2) Wardley China Investment Trust
and
(3) MC Private Equity Partners Asia Limited
and
(4) Chine Investissement 2000
and
(5) Sunbase Asia, Inc.
and
(6) China International Bearing Holdings Limited
and
(7) Smith Acquisition Company, Inc
_____________________________________
RELEASE
_____________________________________
20
THIS RELEASE is made this 1st day of March 2000
BY:
(1) Glory Mansion Limited, the registered office of which is at Craigmuir
Chambers, P.O. Box 71, Road Town, Tortola, British Virgin Islands ("GML");
(2) Wardley China Investment Trust, the registered office of which is at c/o
Suite 1610, P.O. Box 1016, 885 West Georgia Street, Vancouver B.C., V6C
3E8, Canada ("WCIT");
(3) MC Private Equity Partners Asia Limited, the registered office of which is
at P.O. Box 309, Ugland House, South Church Street, Grand Cayman, Cayman
Islands, British West Indies ("MC Partners");
(4) Chine Investissement 2000, a Luxembourg-registered Unit Trust, the
registered office of which is at L1118 Luxembourg, 14 Rue Aldringen ("CI
2000");
(The parties referred to at (1), (2), (3) and (4) hereinafter collectively
referred to as "Investors" and each an "Investor")
(5) Sunbase Asia, Inc., the registered office of which is at 1280 Terminal Way,
Suite 3, Reno Nevada 89502, United States of America ("SAI");
(6) China International Bearing Holdings Limited, the registered office of
which is at 19th Floor, 51-57 Gloucester Road, Wanchai, Hong Kong
("CIBHL");
(The parties referred to at (5) and (6) hereinafter collectively referred
to as "Continuing Guarantors" and each a "Continuing Guarantor").
(7) Smith Acquisition Company, Inc., a California corporation doing business as
Southwest Products Company, the registered office of which is at 2240 Buena
Vista, Irwindale, CA 91706, United States of America ("SPC");
WHEREAS:-
(A) SPC and the Continuing Guarantors signed a guarantee in favour of the
Investors dated 16/th/ October, 1998 (the "Guarantee") securing payment of
certain amounts (the "Debt") and performance of certain obligations.
(B) In consideration of the Debt being partially discharged pursuant to a
Supplemental Agreement dated 1/st/ March, 2000 executed between, inter
alia, SPC, the Continuing Guarantors, the Investors and certain other
parties, the Investors have agreed to discharge and release the obligations
of SPC under the Guarantee on the terms and conditions contained herein.
21
NOW THIS RELEASE WITNESSETH that:
1. In consideration of the Debt being partially discharged pursuant to the
Supplemental Agreement as referred to in Recital (B) above, the Investors
hereby discharge and release SPC from all liabilities and obligations due
and owing as at the date hereof by SPC to the Investors under the Guarantee
or any other documents in connection with the Debt including without limit
the Settlement Agreement dated 16/th/ October, 1998 and the Supplemental
Agreement (the "Debt Documents").
2. Each of the Continuing Guarantors hereby acknowledges that its continuing
obligations under the Guarantee shall remain notwithstanding the execution
of this Release and that it shall have no rights against SPC under the
Guarantee upon signing of this Release.
3. This Release is governed by the laws of the Hong Kong Special
Administrative Region of the People's Republic of China.
IN WITNESS WHEREOF this Release has been executed this 1st day of March 2000
SIGNED by Tien-yo Chao )
duly authorised attorney for and on behalf )
of GLORY MANSION LIMITED )
in the presence of:- )
SIGNED by Tien-yo Chao )
duly authorised attorney for and on behalf )
of WARDLEY CHINA )
INVESTMENT TRUST )
in the presence of:- )
22
SIGNED by Mr. Yasushi Okahisa )
duly authorised for and on behalf )
of MC PRIVATE EQUITY PARTNERS )
ASIA LIMITED )
in the presence of:- )
SIGNED by Tien-yo Chao )
duly authorised attorney )
for and on behalf )
of CHINE INVESTISSEMENT 2000 )
in the presence of:- )
The Common Seal of )
SUNBASE ASIA, INC. )
was hereunto affixed )
in the presence of:- )
The Common Seal of )
CHINA INTERNATIONAL )
BEARING HOLDINGS LIMITED )
was hereunto affixed )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of SMITH ACQUISITION )
COMPANY, INC. )
in the presence of:- )
23
SIGNATURE PAGES
---------------
SIGNED by /s/ Roger Li )
duly authorised for and on behalf )
of CHINA BEARING ) /s/ Roger Li
HOLDINGS LIMITED )
in the presence of:- /s/ Hongfei Chen )
SIGNED by /s/ Roger Li )
duly authorised for and on behalf ) /s/ Roger Li
of ASEAN CAPITAL LIMITED )
in the presence of:- /s/ Hongfei Chen )
SIGNED by /s/ Roger Li )
duly authorised for and on behalf )
of CHINA INTERNATIONAL ) /s/ Roger Li
BEARING HOLDINGS LIMITED )
in the presence of:- /s/ Hongfei Chen )
SIGNED by /s/ Roger Li )
duly authorised for and on behalf ) /s/ Roger Li
of SUNBASE ASIA, INC. )
in the presence of:- /s/ Hongfei Chen )
SIGNED by )
duly authorised for and on behalf )
SMITH ACQUISITION COMPANY, INC. ) /s/ Samuel Mok Trustee
in the presence of:- )
24
SIGNED by Tien-yo Chao )
duly authorised attorney for and on behalf ) /s/ Tien-yo Chao
of GLORY MANSION LIMITED )
in the presence of:- /s/ Desmond Chow )
Desmond Chow
Solicitor
Hong Kong SAR
SIGNED by Tien-yo Chao )
duly authorised attorney for and on behalf )
of WARDLEY CHINA ) /s/ Tien-yo Chao
INVESTMENT TRUST )
in the presence of:- /s/ Desmond Chow )
Desmond Chow
Solicitor
Hong Kong SAR
SIGNED by Mr. Yasushi Okahisa )
duly authorised for and on behalf )
of MC PRIVATE EQUITY PARTNERS ) /s/ Mr. Yasushi Okahisa
ASIA LIMITED )
in the presence of:- /s/ Desmond Chow )
Desmond Chow
Solicitor
Hong Kong SAR
SIGNED by Tien-yo Chao )
duly authorised attorney )
for and on behalf ) /s/ Tien-yo Chao
of CHINE INVESTISSEMENT 2000 )
in the presence of:- /s/ Desmond Chow )
Desmond Chow
Solicitor
Hong Kong SAR
SIGNED by /s/ Roger Li )
duly authorised for and on behalf )
of EXTENSIVE RESOURCES ) /s/ Roger Li
LIMITED )
in the presence of:- /s/ Hengfei Chen )
25
SIGNED by /s/ Roger Li )
duly authorised for and on behalf )
of SUNBASE INTERNATIONAL ) /s/ Roger Li
(HOLDINGS) LIMITED )
in the presence of:- /s/ Hongtei Chen }
26
ANNEXURE 1
----------
FORM OF THE ESCROW LETTER
-------------------------
BY COURIER AND BY FAX (002-1-202-3261555)
- -----------------------------------------
1/st/ March, 2000
Jenkens & Gilchrist
1919 Pennsylvania Avenue, NW
Suite 600
Washington D.C. 200060
Attn: Mr. Andrew C. Lynch / Mr. Christopher E. Ondeck
- -----------------------------------------------------
Dear Sirs,
Re: Monies to be held in Escrow
-------------------------------
1. We refer to (i) the Stock Purchase Agreement dated 31/st/ January entered
into between Sunbase Asia, Inc ("SAI"), Samuel T. Mok, an investment group
led by William McKay (the "Buyer") and Smith Acquisition Company Inc
("SPC") in connection with the sale and purchase of shares of capital stock
of SPC (the "Sale"); and (ii) the Supplemental Agreement dated 1/st/ March,
2000 entered into between SAI, ourselves and certain other parties in
connection with certain supplemental arrangements relating to repayments
prescribed in a Settlement Agreement dated 16/th/ October, 1998.
2. For the purpose of facilitating completion of the Sale, we enclose a duly
executed release (the "Release"), to be dated the day as mentioned in
paragraph 4 below, in relation to the release of SPC from its obligations
under the Guarantee dated 16th October, 1998.
3. You are instructed to hold the Release in escrow pending the transfer by
you (solely from the proceeds of the Closing (as "Closing" is referred to
and defined in the said Stock Purchase Agreement)) of the following
respective amounts by telegraphic transfer into the following bank
accounts:-
The HSBC Private Equity Fund, L.P.
----------------------------------
--------------------------------------------------------------------------
Bank: HSBC Bank USA, New York
140 Broadway
New York NY10015
U.S.A.
SWIFT: MRMD US 33
--------------------------------------------------------------------------
Account name: HSBC International Trustee Limited a/c HPEF
(General)
--------------------------------------------------------------------------
Account no: 000-05073-3
--------------------------------------------------------------------------
Amount: US$1,356,522
--------------------------------------------------------------------------
Wardley China Investment Trust
------------------------------
--------------------------------------------------------------------------
Bank: Brown Brothers Harriman and Co., New York
--------------------------------------------------------------------------
Account name: Royal Trust Corporation of Canada, London
--------------------------------------------------------------------------
Account no: 7027436
--------------------------------------------------------------------------
SWIFT CODE: BBHCUS33
--------------------------------------------------------------------------
For further credit to: Wardley China Investment Trust
--------------------------------------------------------------------------
Account no: 877653
--------------------------------------------------------------------------
Amount: US$452,174
--------------------------------------------------------------------------
MC Private Equity Partners Asia
-------------------------------
--------------------------------------------------------------------------
Bank: Bangkok Bank Public Company Ltd Singapore
--------------------------------------------------------------------------
180 Cecil Street, Singapore 069546
--------------------------------------------------------------------------
Account no: 0700-388629-412
--------------------------------------------------------------------------
Account holder MC Private Equity Partners Asia
--------------------------------------------------------------------------
Currency Type US$ ACU Call
--------------------------------------------------------------------------
PIC of Bank Ms Sumalee (Tel: 65-229-7429)
--------------------------------------------------------------------------
Amount: US$452,174
--------------------------------------------------------------------------
Chine Investissement 2000
-------------------------
--------------------------------------------------------------------------
Bank: Bank of America New York
--------------------------------------------------------------------------
SWIFT: BWORFRPP
--------------------------------------------------------------------------
Account name: Banque Worms, Paris
--------------------------------------------------------------------------
For further credit to: Chine Investissement 2000
--------------------------------------------------------------------------
Account no.: 0356631361P
--------------------------------------------------------------------------
IBAN Code: FR60-3099-8000-0303-5663-1361-P76
--------------------------------------------------------------------------
Amount: US$339,130
--------------------------------------------------------------------------
4. Upon our receipt of the respective amounts and in the manner set out in
paragraph 3 which should not be later than 15/th/ April, 2000 and subject
to paragraph 5 below, we shall promptly notify you in writing and you may
release and deliver the Release to the Buyer and insert as the date of the
Release (which you are hereby authorised to do on our behalf) the day on
which the Release is so released and delivered to the Buyer. Save as
aforesaid, you shall not release or otherwise deal with the Release.
5. If we do not receive the sum and in the manner set out in paragraphs 3 on
or before 15/th/ April, 2000, we shall have the right by written notice to
you to demand the prompt return of the Release to us, whereupon you are
obliged to return the Release by courier to Glory Mansion Limited (on
behalf of itself and the rest of us), care of HSBC Private Equity (Asia)
Limited at Level 17, 1 Queen's Road Central, Hong Kong. If the Release is
not released pursuant to
this letter by April 30, 2000, you have the option of returning the Release
to us (by returning it to Glory Mansion Limited in the manner
aforementioned), and upon such return of the Release the obligations of you
arising from this letter shall cease and terminate.
6. You need to have no regard to the sufficiency, accuracy or genuineness of
any notice or confirmation received by you in your capacity as escrow agent
hereunder of any incapacity and limitation upon the powers of any person
signing and issuing such notice or confirmation which appears on its face
to be in order and may assume such notice or confirmation which appears on
its face to be in order is correct and properly made.
7. This letter shall be governed by and construed in accordance with the laws
of The Hong Kong Special Administrative Region of the People's Republic of
China ("Hong Kong"). All disputes in connection with this letter shall be
subject to the non-exclusive jurisdiction of the courts of Hong Kong.
8. This letter shall not be amended or varied except by written notification
duly executed by all parties hereto.
9. By signing and acknowledging the terms of this letter, you irrevocably
agree to strictly abide by and adhere to the provisions of this letter.
10. Please countersign below to acknowledge your agreement to the above.
Yours faithfully,
/s/ Tien-yo Chao /s/ Tien-yo Chao
- ------------------------------------ ---------------------------------
Tien-yo Chao Tien-yo Chao
Duly authorised attorney Duly authorised attorney
for and on behalf for and on behalf
of Glory Mansion Limited of Wardley China Investment Trust
/s/ Yasushi Okahisa /s/ Tien-yo Chao
- ------------------------------------ ----------------------------------------
Mr. Yasushi Okahisa Tien-yo Chao
for and on behalf Duly authorised attorney
of MC Private Equity Partners for and on behalf
Asia Limited of Chine Investissement 2000
We hereby acknowledge and
agree to the above terms.
/s/ Nikelars F. Schalbame
- -------------------------------
For and on behalf of
Jenkens & Gilchrist
Date:
ANNEXURE 2
----------
FORM OF THE CONSENT
-------------------
CONSENT
-------
THIS CONSENT (the "Consent") dated as of 1/st/ March, 2000 is delivered pursuant
-------
to that certain Stock Purchase Agreement (the "Stock Purchase Agreement"), dated
------------------------
January 31, 2000, by and among SMITH ACQUISITION COMPANY D/B/A SOUTHWEST
PRODUCTS COMPANY, INC., (the "Company"), SAMUEL T. MOK, as voting trustee,
-------
SUNBASE ASIA, INC., and WILLIAM MCKAY ("Buyer"), as such agreement may be
-----
amended.
Subject to (i) the Supplemental Agreement dated 1st March, 2000 entered
into among, inter alia, China Bearing Holdings Limited and several other parties
----------
with respect to certain supplemental repayment arrangements and (ii) our receipt
of an aggregate sum of U.S. Two Million Six Hundred Thousand Dollars (U.S.
$2,600,000) pursuant to an escrow letter signed between ourselves and Jenkens &
Gilchrist in connection with the above matter, the signatories hereto consent to
the sale of the Company to the Buyer, for a purchase price of not less than U.S.
Three Million Five Hundred Thousand Dollars (U.S. $3,500,000).
IN WITNESS WHEREOF, this Consent has been duly executed under seal by the
parties hereto effective as of the date first above written.
GLORY MANSION LIMITED
/s/ Tien-yo Chao
---------------------------------
By: Tien-yo Chao
Duly authorised attorney
for an on behalf of
GLORY MANSION LIMITED
WARDLEY CHINA INVESTMENT TRUST
/s/ Tien-yo Chao
----------------------------------
By: Tien-yo Chao
Duly authorised attorney
for an on behalf of
WARDLEY CHINA INVESTMENT TRUST
MC PRIVATE EQUITY PARTNERS ASIA LIMITED
/s/ Yasushi Okahisa
---------------------------------------
By: Mr. Yasushi Okahisa
Duly authorised
for an on behalf of
MC PRIVATE EQUITY PARTNERS ASIA
LIMITED
CHINE INVESTISSEMENT 2000
/s/ Tien-yo Chao
---------------------------------------
By: Tien-yo Chao
Duly authorised attorney
for an on behalf of
CHINE INVESTISSEMENT 2000