DATED as of June 26, 2023 BUCKWHEAT INVESTMENTS LIMITED (as Borrower) AND BURBERLON VANTAGE CAPITAL LIMITED (as Lender) LOAN AGREEMENT in respect of HK$[26,000,000] Loan Facility

Exhibit 10.15

 

 

 

 

DATED as of June 26, 2023

 

 

 

BUCKWHEAT INVESTMENTS LIMITED

(as Borrower)

 

 

 

AND

 

 

 

BURBERLON VANTAGE CAPITAL LIMITED

(as Lender)

 

 

 

 

LOAN AGREEMENT

in respect of HK$[26,000,000] Loan Facility

 

 

 

 

 

 

THIS AGREEMENT is dated as of June 26, 2023 and made

 

BETWEEN:

 

(1)

Buckwheat Investments Limited, a company incorporated under the laws of the British Virgin Islands with company number: 1997672 and with registered office at Vistra Corporate Services Centre, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as borrower (the “Borrower”);

 

(2)

Sibo Holding Limited, a company incorporated under the laws of the Cayman Islands with company number: 345846 and with registered office at Walkers Corporate Limited, Cayman Corporate Centre, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ -▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as guarantor (the “Guarantor” );

 

(3)

Burberlon Vantage Capital Limited, a company incorporated under the laws of the Hong Kong with company number: 1966657 and with registered office at ▇▇▇▇/▇▇▇▇ ▇▇▇▇, ▇▇/▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, as lender (the “Lender”).

 

(the Borrower, the Guarantor and the Lender, together the “Parties”, and each a “Party”)

 

WHEREAS:

 

I.

The Borrower desires to borrow up to an aggregate principal amount of HK$26 million from the Lender for financing the general working capital of the Borrower’s Group (as defined below), in accordance with the terms and conditions of this Agreement.

 

II.

As at the time of this Agreement, the total amount owing by the Borrower to the Lender HK$25,100,000.

 

NOW IT IS HEREBY AGREED as follows:

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	Definitions. In this Agreement, unless the context requires otherwise:

 

“Advance” means an advance made under the Loan pursuant to Clause 3;

 

“Dollars” and “HK$” mean the lawful currency for the time being of Hong Kong;

 

“Encumbrance” means:

 

(a)

any mortgage, charge, pledge, lien, encumbrance, hypothecation or other security interest or security arrangement of any kind;

 

(b)

any arrangement whereby any rights are subordinated to any rights of any third party;

 

 

 

(c)

any contractual right of set-off; and

 

(d)

the interest of a vendor or lessor under any conditional sale agreement, lease, hire purchase or other title retention arrangement other than an interest in a lease or hire purchase agreement which arose in the ordinary course of business;

 

“Event of Default” means any event or circumstance specified as such in Clause 9;

 

“Group” means the Guarantor, the Borrower and it wholly-owned subsidiary, Storm Harbour Securities (Hong Kong) Limited (“Storm Harbour”);

 

“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China;

 

“Loan” means the loan to be made available under this Agreement.

 

1.2	Construction. In this Agreement, unless the context requires otherwise, any reference to:

 

an “authorisation” includes any approvals, consents, licences, permits, franchises, permissions, registrations, resolutions, directions, declarations and exemptions;

 

an Event of Default which is “continuing” means an Event of Default which has not been remedied or waived;

 

“including” or “includes” means including or includes without limitation;

 

“indebtedness” includes any obligation of any person for the payment or repayment of money, whether present or future, actual or contingent, including but not limited to any such obligation:

 

(a)

Under or in respect of any acceptance, bill, bond, debenture, note or similar instrument;

 

(b)

under or in respect of any guarantee, indemnity, counter-security or other assurance against financial loss;

 

(c)

in respect of the purchase, hire or lease of any asset or service; or

 

(d)

in respect of any indebtedness of any other person whether or not secured by or benefiting from an Encumbrance on any property or asset of such person;

 

“law” and/or “regulation” includes any constitutional provisions, treaties, conventions, statutes, acts, laws, decrees, ordinances, subsidiary and subordinate legislation, orders, rules and regulations having the force of law and rules of civil and common law and equity;

 

if a day is specified to be a (or more) “month(s)” after a certain date, and there is no numerically equivalent day in the calendar month the specified number of month(s) after that certain date, then the day shall be the last day of the calendar month the specified number of month(s) after that certain date;

 

 

 

an “order” includes any judgment, injunction, decree, determination or award of any court, arbitration or administrative tribunal;

 

a “person” includes any individual, company, body corporate or unincorporate or other juridical person, partnership, firm, joint venture or trust or any federation, state or subdivision thereof or any government or agency of any thereof;

 

“tax” includes any tax, levy, duty, charge, impost, fee, deduction or withholding of any nature now or hereafter imposed, levied, collected, withheld or assessed by any taxing or other authority and includes any interest, penalty or other charge payable or claimed in respect thereof and “taxation” shall be construed accordingly.

 

1.3	Successors and Assigns. The expressions “Borrower” and “Lender” shall where the context permits include their respective successors and permitted assigns and any persons deriving title under them.

 

1.4

Miscellaneous. In this Agreement, unless the context requires otherwise, references to provisions of any law or regulation shall be construed as references to those provisions as replaced, amended, modified or re-enacted from time to time; words importing the singular include the plural and vice versa and words importing a gender include every gender; references to this Agreement shall be construed as references to such document as the same may be amended, supplemented or novated from time to time; unless otherwise stated, references to Clauses, Schedules and the Appendix are to clauses of and schedules and the appendix to this Agreement and references to this Agreement include its Schedules and the Appendix. Clause headings are inserted for reference only and shall be ignored in construing this Agreement.

 

2

THE LOAN

 

2.1

At the request of the Borrower, the Lender has established, as of the date hereof, a loan facility (the “loan”) in favour of the Borrower in accordance with the terms and conditions of this Agreement with a principal amount of HK$ [26 million] (the “Facility Amount”). The Loan is to be guaranteed in full by the Guarantor.

 

3.

ADVANCE

 

3.1	Amount drawn. As of the date of this Agreement, the Borrower has drawn HK$25,100,000 under the Loan. This amount due to the Lender is undisputed and is hereby acknowledged by the Lender and the Borrower.

 

3.2	Availability of Advance. Subject to the Lender’s consent, ▇▇▇▇▇▇▇▇ may request further Advances up to a total of HK$900,000, the remaining undrawn amount under the Loan.

 

4.

INTEREST

 

4.1	Interest. No interest is applicable on this Loan. Subject to the Lender’s sole discretion, interest shall be charged at 12% per annum on the aggregate amount outstanding under the Loan in the event of change of the ownership of the Guarantor.

 

5

REPAYMENT

 

5.1	Repayment. Subject to Cl. 5.2, the term of the Loan is indefinite and shall continue until the entire Facility Amount has been repaid. Loan can be repaid at any time, in part or in full by the Borrower.

 

 

 

5.2	Mandatory Repayment.

 

(a)

In the event that the liquid capital of StormHarbour exceeds HK$10,000,000 in any month as indicated by its Financial Resource Rules filing to the Securities and Futures Commission in Hong Kong, the Borrower must direct any such excess capital above HK$10,000,000 to repay the aggregate amount outstanding under the Loan within 10 days;

 

(b)

In the event that there is a change of the ownership of the Guarantor exceeding 10%, the Lender may request the Borrower to repay the Loan within 3 years of such a change with interest applicable pursuant to Clause 4.1.

 

6.	PAYMENTS AND EVIDENCE OF DEBT

 

6.1	The Loan. The amount to be advanced by the Lender under this Agreement shall be made available to the Borrower by payment to the bank account as specified by the Borrower in such manner as the Borrower shall have previously agreed with the Lender.

 

6.2	Bank Account of the Lender. The Lender hereby designates the following bank account for loan disbursements and for the receipt of repayments by the Borrower:

 

	Bank:	China Minsheng Banking Corporation Ltd. Hong Kong Branch
	Bank #:	353
	Account name:	Burberlon Vantage Capital Limited
	Account number:	800032636-201

 

All repayments by the Borrower under this Agreement shall be made to the Lender to this Lender designated company bank account.

 

7.	REPRESENTATIONS AND WARRANTIES

 

7.1	Representations and Warranties. Each of the Borrower and Guarantor represents and warrants to the Lender that:

 

(a)

Duly incorporated: in respect of the Borrower, it is duly incorporated and validly existing under the laws of the Cayman Islands and has the power to own its assets and carry on the business it now conducts;

 

(b)

Power and authority: it has full capacity, power, authority and legal right to enter into and engage in the transactions contemplated by this Agreement to which he is a party and has taken or obtained all necessary act ion and consents to authorise the execution and performance of this Agreement;

 

(b)

Binding obligations: this Agreement to which it is a party constitute, or when executed and delivered will constitute, its legal, valid and binding obligations enforceable in accordance with their terms;

 

(d)

Authorisations: all authorisations required from any governmental or other authority or creditors for or in connection with the execution, validity and performance of this Agreement to which it is a party have been obtained and are in full force and effect, and will have been obtained and be in full force and effect and there has been no default under the conditions of any of the same;

 

(e)

No filings or taxes: it is not necessary in order to ensure the validity, enforceability, priority or admissibility in evidence in proceedings of this Agreement in Hong Kong that any of them or any other document be filed or registered with any authority in Hong Kong or that any tax be paid in respect thereof;

 

(f)

No litigation: no litigation, arbitration or administrative proceeding is currently taking place or pending or, to his knowledge, threatened against it or its assets or revenues;

 

(g)

No default: it is not in default under any law, regulation, judgment, order, authorisation, agreement or obligation applicable to it or its assets or revenues and no Event of Default or prospective Event of Default has occurred;

 

(h)

Ranking: The Loan made pursuant to this Agreement shall rank senior to and have priority over all other present and future indebtedness, liabilities, obligations, or claims of the Borrower, whether secured or unsecured.

 

 

 

7.2

Continuing Representation and Warranty. The Borrower and Guarantor also represents and warrants to and undertake with the Lender that the foregoing representations and warranties will be true and accurate throughout the continuance of this Agreement with reference to the facts and circumstances subsisting from time to time.

 

7.3	Acknowledgment of Reliance. The Borrower and the Guarantor acknowledges that the Lender has entered into this Agreement in reliance upon the representations and warranties contained in this Clause.

 

8.	UNDERTAKINGS

 

8.1	Affirmative Undertakings. The Borrower and the Guarantor undertakes and agrees with the Lender throughout the continuance of this Agreement and so long as any sum remains owing thereunder that it will, unless the Lender otherwise agrees in writing:

 

(a)

Notification of default: promptly inform the Lender of:

 

(i)

the occurrence of any Event of Default or prospective Event of Default;

 

(ii)

any litigation, arbitration or administrative proceeding as referred to in Clause 9.l(f);

 

(b)

Ranking of obligations: ensure that its obligations under this Agreement at all times shall rank senior to and have priority over all other present and future indebtedness, liabilities, obligations, or claims of the Borrower, whether secured or unsecured.

 

(c)

Payment obligations: comply with its obligations under this Agreement.

 

9.

GUARANTEE

 

9.1	Guarantee: The Guarantor guarantees to the Lender the due and punctual performance of all obligations of the Borrower under this Agreement. This guarantee (the “Guarantee”) is unconditional and irrevocable.

 

9.2	Agreement to pay: The Guarantor agrees to pay on demand each amount due by the Borrower which is unpaid. The demand on the Guarantor may be made at any time on or after the due date for payment. Payment will be made in the same currency as the amount due by the Borrower.

 

9.3	Continuing Guarantee: This Guarantee is a continuing guarantee. No payment or other settlement will discharge the Guarantor’s obligations until the Borrower’s obligations have been discharged in full.

 

9.4	Enforcement: This Guarantee may be enforced before any steps are taken against the Borrower or under any other guarantee or security interest given by the Guarantor in the Lenders’ favour, if any.

 

9.5

Preservation of rights: This Guarantee will be discharged only by the receipt of payment in full. It will not be discharged by any other action, omission or fact (without limitation and whether or not known to the Lender). The Guarantor’s obligations will, therefore, not be affected by the occurrence of any of the events set out in Sub-paragraphs (A) to (I) below:

 

(a)

The obligations of the Borrower are or become void, invalid, illegal or unenforceable.

 

(b)

There is any change, waiver or release of the Borrower’s obligations.

 

(c)

Any concession or time is given to the Borrower.

 

(d)

The Borrower is wound up or reorganised.

 

(e)

There is any change in the condition, nature or status of the Borrower.

 

(f)

Any of the above events occur in relation to another guarantor or provider of Security Interest or the obligations of that guarantor or provider given pursuant to this Agreement.

 

 

 

(g)

There is any failure to take, retain or enforce any other guarantee or Security Interest given in the Lenders’ favour hereunder.

 

(h)

Any circumstances affect or prevent recovery of amounts due by the Borrower.

 

(i)

Any other matter exists which might, but for the operation of this Clause 9.5, discharge the Guarantors.

 

Any receipt from any person other than the Guarantors will reduce the outstanding balance only to the extent of the amount received and not refunded.

 

9.6	Representations of the Guarantor: The Guarantor confirms that as at the date hereof it does not have the benefit of any security interest in respect of this Guarantee.

 

9.7

Principal debtor: The Guarantor undertakes with the Lender that whenever the Borrower does not pay any amount when due under or in connection with this Agreement, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor. For the avoidance of doubt, the Guarantor’s obligation to pay herein shall only become effective if and only if the Borrower has failed to make any payment in accordance with the terms of this Agreement.

 

9.8	Guarantor’s Indemnity:

 

(a)

Indemnity: The Guarantor agrees that if the Borrower fails to make a payment expressed to be due under the terms of this Agreement on its due date it will reimburse the person entitled to the payment for the losses and expenses (including loss of profit) that person incurs, or will incur, as a result. The Guarantor also agrees to reimburse the Lender for all losses and expenses arising from any obligations of the Borrower being or becoming void, invalid, illegal or unenforceable.

 

(b)

Amount of loss: For the purposes of this Clause the Lender will be presumed to have suffered a loss equal to the amount which is expressed as being due to it by the Borrower and unpaid, together with interest accruing thereon. The presumption may be rebutted by the Lender producing evidence of its loss.

 

10.	EVENTS OF DEFAULT

 

10.1	Events of Default. Each of the following events and circumstances shall be an Event of Default:

 

(a)

Non-payment: the Borrower fails to pay any sum when due or otherwise in accordance with the provisions thereof, unless payment is made within 5 days of its due date;

 

(b)

Other obligations: the Borrower fails duly and punctually to perform or comply with any of his obligations or undertakings under this Agreement and, in respect only of a failure which in the opinion of the Lender is capable of remedy and which is not a failure to pay money, does not remedy such failure to the Lender’s satisfaction within 10 days (or such longer period as the Lender may approve) after receipt of written notice from the Lender requiring it to do so;

 

(c)

Misrepresentation: any representation or warranty made or deemed to be made by the Borrower in or in connection with this Agreement proves to have been incorrect or misleading;

 

(d)

Cross default: the Borrower defaults or receives notice of default under any agreement or obligation relating to his borrowing or any indebtedness of the Borrower becomes payable or capable of being declared payable before his stated maturity or is not paid when due or any Encumbrance, guarantee or other security now or hereafter created by any Borrower becomes enforceable;

 

(e)

Authorisation: if any law, regulation, judgment or order (or the repeal or modification of any of the foregoing) suspends, varies, terminates or excuses performance by the Borrower of any of his obligations under this Agreement or purports to do any of the same;

 

(f)

Creditor’s process: a creditor takes possession of all or any part of the business or assets of any Borrower or any execution or other legal process is enforced against the business or any asset of the Borrower and is not discharged within seven (7) days;

 

 

 

(g)

Liquidation proceedings: a petition is presented or a proceeding is commenced or an order is made or an effective resolution is passed or any other step is taken by any person for the winding up or liquidation of the Borrower or for the appointment of a liquidator, receiver, administrator, trustee or similar officer of the Borrower or of all or any part of his business or assets;

 

(h)

Suspension of payments: the Borrower stops or suspends payments to his creditors generally or is unable or admits his inability to pay his debts as they fall due or seeks to enter into any composition or other arrangement with his creditors or is declared or becomes bankrupt or insolvent;

 

(i)

Unlawfulness: this Agreement or any provision hereof ceases for any reason to be in full force and effect or is terminated or jeopardised or becomes invalid or unenforceable or if there is any dispute regarding the validity or enforceability of the same or if there is any purported termination or repudiation of the same or he becomes impossible or unlawful for the Borrower to perform any of his obligations thereunder or for the Lender to exercise all or any of his rights, powers and remedies thereunder or any undertaking is not enforceable as such and the Borrower fails to do, or fails to refrain from doing, the activity which he purported to undertake to do or, as the case may be, not to do.

 

10.2	Declarations. If an Event of Default has occurred the Lender may, by written notice to the Borrower:

 

(a)

declare the Loan and all other sums payable hereunder to be, whereupon they shall become, immediately due and payable without further demand, notice or other legal formality of any kind; and/or

 

(b)

declare the Loan terminated whereupon the obligation of the Lender to make any Advance hereunder (if not yet made) shall immediately cease.

 

11.	WAIVER AND SEVERABILITY

 

Time is of the essence of this Agreement but no failure or delay by the Lender in exercising any right, power or remedy hereunder shall impair such right, power or remedy or operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and do not exclude any other rights, powers and remedies provided by law. If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity and enforceability of such provision under the law of any other jurisdiction, and of the remaining provisions of this Agreement, shall not be affected or impaired thereby.

 

12.	MISCELLANEOUS

 

12.1	Execution. This Agreement shall become effective as of the date hereof.

 

12.2	Entire Agreement. This Agreement constitute the entire obligation of the Lender and supersede any previous expressions of intent or understandings in respect of this transaction.

 

12.3	Amendments in Writing. Any amendment or waiver of any provision of this Agreement and any waiver of any default under this Agreement shall only be effective if made in writing and signed by both parties.

 

 

 

12.4	Counterparts. This Agreement may be executed in counterparts and by different parties on separate counterparts which when taken together shall be deemed to constitute one agreement.

 

13.	ASSIGNMENT

 

13.1	No assignment. The Borrower, Guarantor and the Lender shall not assign any of his rights hereunder without the prior written consent of all parties.

 

14.

NOTICES

 

14.1	Delivery. Each notice, demand or other communication to be given or made under this Agreement shall be in writing and delivered or sent to the relevant party at his address or email below.

 

	To the Lender:	Burberlon Vantage Capital Limited
	Address:	▇▇▇▇/▇▇▇▇ ▇▇▇▇, ▇▇/▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
	Email:	▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
	Attention:	▇▇▇ ▇▇
	To the Borrower:	Buckwheat Investments Limited
	Address:	▇▇▇▇▇ ▇▇▇▇, ▇▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
	Email:	▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
	Attention:	Water ▇▇▇▇▇▇
	To the Guarantor:	Sibo Holding Limited
	Address:	▇▇▇▇▇ ▇▇▇▇, ▇▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
	Email:	▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
	Attention:	Water ▇▇▇▇▇▇

 

14.2

Deemed Delivery. Any notice, demand or other communication so addressed to the relevant party shall be deemed to have been delivered (a) if given or made by letter, when actually delivered to the relevant address, (b) if given or made by email, when despatched with no error message within the following 12 hours. Provided that, if such day is not a working day in the place to which it is sent, such notice, demand or other communication shall be deemed delivered on the next following working day at such place.

 

15.	GOVERNING LAW AND JURISDICTION

 

15.1	Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of Hong Kong.

 

15.2	Third Party Rights. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Ordinance, Cap. 623, to enforce any term of this agreement.

 

15.3	Jurisdiction. The Borrower and Guarantor irrevocably agree for the benefit of the Lender that any legal action or proceeding arising out of or relating to this Agreement may be brought in the courts of Hong Kong and irrevocably submits to the exclusive jurisdiction of such courts.

 

15.4

No Limitation on Right of Action. Nothing herein shall limit the right of the Lender to commence any legal action against the Borrower, the Guarantor and/or its property in any other jurisdiction or to serve process in any manner permitted by law, and the taking of proceedings in any jurisdiction shall not preclude the taking of proceedings in any other jurisdiction whether concurrently or not.

 

15.5

Waiver, Final Judgment Conclusive. The Borrower and Guarantor irrevocably and unconditionally waives any objection which he may now or hereafter have to the choice of Hong Kong as the venue of any legal action arising out of or relating to this Agreement and agrees not to claim that any court thereof is not a convenient or appropriate forum. The Borrower also agrees that a final judgment against it in any such legal action shall be final and conclusive and may be enforced in any other jurisdiction, and that a certified or otherwise duly authenticated copy of the judgment shall be conclusive evidence of the fact and amount of his indebtedness.

 

<<Signature page to follow>>

 

 

 

IN WITNESS whereof this Agreement has been executed by the parties hereto on the date stated at the beginning of this Agreement.

 

THE BORROWER
SIGNED BY	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Water
On behalf of
Buckwheat Investments Limited
in the presence of:

 

THE GUARANTOR
SIGNED BY	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Water
On behalf of
Sibo Holding Limited
in the presence of:

THE LENDER
SIGNED BY	/s/ ▇▇▇ ▇▇
On behalf of
Burberlon Vantage Capital Limited
in the presence of: