Exhibit 10.23
Dated 16th October, 1998
------------------------
(1) CHINA BEARING HOLDINGS LIMITED
and
(2) ASEAN CAPITAL LIMITED
and
(3) CHINA INTERNATIONAL BEARING
HOLDINGS LIMITED
and
(4) SUNBASE ASIA, INC.
and
(5) ▇▇▇▇▇ 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
________________________________________
SETTLEMENT AGREEMENT
in respect of certain
convertible debentures issued by
CHINA BEARING HOLDINGS LIMITED
________________________________________
CHAO AND ▇▇▇▇▇
Table of Contents
-----------------
Description Page No.
----------- --------
1. INTERPRETATION 2
2. AGREEMENT 3
3. COMPLETION 4
4. SPECIFIC UNDERTAKING BY SIHL 6
5. SPECIFIC UNDERTAKING BY ACL 6
6. UNDERTAKINGS 6
7. SPECIFIC UNDERTAKINGS BY SAI 7
8. CORPORATE GOVERNANCE 8
9. NOTICES 8
10. EVENTS OF ▇▇▇▇▇▇▇ ▇▇
▇▇. COSTS AND EXPENSES 11
12. GOVERNING LAW AND JURISDICTION 11
13. GENERAL PROVISIONS 14
14. COUNTERPARTS 14
SCHEDULE 1 15
Corporate Chart 15
SCHEDULE 2 16
Form of written resolution of the sole
shareholder of the Company 16
SCHEDULE 3 17
Repayment Schedule 17
SCHEDULE 4 21
Form of Guarantee 21
SCHEDULE 5 30
Undertaking by ACL 30
SCHEDULE 6 38
Form of Deed of Share Mortgage 38
SIGNATURE PAGE 49
THIS AGREEMENT is made on the 16th day of October, 1998.
(1) CHINA BEARING HOLDINGS LIMITED, the registered office of which is at ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (the "Company");
(2) ASEAN CAPITAL LIMITED, the registered office of which is at ▇▇▇▇ ▇▇▇▇▇
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 ▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
("CIBHL");
(4) SUNBASE ASIA, INC., the registered office of which is at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("SAI");
(5) ▇▇▇▇▇ ACQUISITION COMPANY, INC., a California corporation doing business as
Southwest Products Company, the registered office of which is at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("SPC");
(6) SUNBASE INTERNATIONAL (HOLDINGS) LIMITED the registered office of which is
at ▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("SIHL");
(7) EXTENSIVE RESOURCES LIMITED, the registered office of which is at ▇.▇. ▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ Town, Tortola, British Virgin Islands ("ERL");
(the parties at (1), (2), (3), (4) and (5) hereinafter collectively referred to
as "Default Parties");
(8) GLORY MANSION LIMITED, the registered office of which is at ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Virgin Islands "(GML");
(9) WARDLEY CHINA INVESTMENT TRUST, the registered office of which is at ▇/▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇.▇., ▇▇▇
▇▇▇, ▇▇▇▇▇▇ ("WCIT");
(10) MC PRIVATE EQUITY PARTNERS ASIA LIMITED the registered office of which is
at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 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, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ("▇▇
▇▇▇▇");
(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 Default Parties have breached certain of their obligations under the
Subscription Agreement and the Investors have agreed not to exercise their
rights under the Subscription Agreement in relation thereto subject to and
upon the terms and conditions set out herein.
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
--------------
(A) In this Agreement:-
"ACL Undertaking" means an undertaking or guarantee to be given
by ACL in favour of the Investors in the form
or substantially the same form as set out in
Schedule 5 hereof;
"Completion" means performance by the parties hereto of
their respective obligations set out in
Clause 3 upon the signing of this Agreement;
"Deed of Share Mortgage" means the form of share mortgage set out in
Schedule 6;
"Guarantee" means the guarantee to be given by the
Guarantors in the form or substantially the
same form set out in Schedule 4 hereof;
"Hong Kong" means the Hong Kong Special Administrative
Region of the People's Republic of China;
"Principal" means the amount of $13,173,490, being the
amount the Investors have, subject to and
upon the terms and conditions set out herein,
accepted as the principal aggregate amount
due to the Investors as at the date of this
Agreement;
2
"Repayment Schedule" means the schedule of instalments of
repayment to be made by the Company to
the Investors set out in Schedule 3;
"Subscription Agreement" means an agreement dated 2nd August, 1996
relating to the subscription by the Investors
for the Debentures issued by the Company and
made between the parties hereto; and
"$" 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 Subscription Agreement (including the schedules thereto), when used
in this Agreement, bear the same respective meanings in this Agreement.
2. AGREEMENT
---------
In consideration of the Investors agreeing not to exercise their rights
against the Default Parties in accordance with the terms and conditions of
the Subscription Agreement and the Debentures:-
(A) the parties hereto agree that the Company shall repay by instalments
to the Investors in respect of the Principal and interest on that part
thereof that is outstanding for the time being calculated at 10% per
annum in accordance with the Repayment Schedule PROVIDED THAT the
right of the Company to repay an amount in addition to the what is
provided in the Repayment Schedule ("Additional Payment") shall not be
prejudiced and in which case the Repayment Schedule may be adjusted
(based on the same interest rate and on the basis that the Additional
Payment shall be applied towards discharging the part of the principal
amount comprised in each outstanding repayment instalment which bears
the same proportion to the said principal amount as stated in the
Repayment Schedule as the total amount of the Additional Payment bears
to the aggregate amount of the Principal and interest then
outstanding) as to be advised by the Investors;
(B) SAI will, on Completion, issue in favour of the Investors (or as they
may direct) 466,667 new shares in the common stock of SAI which may
not be sold within a period of three years commencing from the date
hereof (the certificates for which shall bear a legend to the same
effect) ("SAI Shares");
(C) the Default Parties jointly and severally undertake to procure that
50% of any public market funds raised by the Company or any member of
the SAI Group shall be applied immediately towards discharging the
3
then outstanding part of the Principal and the interest accrued
thereon (whereupon the Repayment Schedule shall be adjusted as if the
application of such funds was an Additional Payment subject to the
provisions of sub-clause (A) of this Clause) as to be advised by the
Investors;
(D) ERL shall grant a charge over one million issued shares in the capital
of Tianjin Development Holdings Limited (the "Tianjin Shares") held by
it in favour of Brilliant Future Holdings Limited (as trustee for and
on behalf of the Investors) to secure the performance of the
obligations of the Company under this Agreement upon such terms and
conditions as set out in the Deed of Share Mortgage;
(E) the Investors agree that upon the Default Parties' fulfilment of all
their obligations under this Agreement, the Debentures issued to the
Investors pursuant to the Subscription Agreement shall be returned to
the Company for cancellation and in the meantime provided that none of
the Default Parties is in default of any of their respective
obligations under this Agreement the Investors shall refrain from
exercising any of their rights under the Subscription Agreement or
under the Conditions; and
(F) the Investors agree that as amongst themselves, their respective
entitlements thereunder to be repaid by the Company and/or issued with
SAI Shares shall be in proportion to the principal amounts of the
Debentures held by them respectively.
3. COMPLETION
----------
(A) Completion shall take place at the offices of Chao and ▇▇▇▇▇ at Suite 601,
Asia Pacific Finance Tower, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ upon
the signing of this Agreement.
(B) At Completion, the following transactions shall take place:-
(1) SAI in its capacity as the sole shareholder of the Company entitled to
vote at its general meetings shall pass in writing the resolution as
set out in Schedule 2 of this Agreement;
(2) the Company shall:-
(i) deliver to the Investors a certified copy of the Board resolution
of the Company and SIHL (i) approving and authorising execution
and completion of this Agreement; and (ii) resolving to effect
and do all that is necessary to give effect to this Agreement;
4
(ii) deliver to the Investors a certified copy of the Board
resolution of SAI (i) approving and authorising execution and
completion of this Agreement; (ii) approving and authorising the
execution of the Guarantee and the issue of the SAI Shares; and
(iii) 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 Board resolution
from each of CIBHL and SPC in each approving and authorising the
execution and completion of this Agreement and the Guarantee 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 Board resolution
from ACL approving and authorising the execution and completion
of this Agreement and the ACL Undertaking 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 Board resolution
from ERL 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 telegraphic transfer to the Investors of
the amount of $520,000.00 required to be paid by the Company on
completion as set out in the Repayment Schedule;
(3) ERL shall execute and deliver to Brilliant Future Holdings Limited the
Deed of Share Mortgage and the Board resolution of ERL approving its
execution of the same;
(4) SAI, CIBHL and SPC shall enter into the Guarantee in the form as set
out in Schedule 4 hereof; and
(5) ACL shall enter into the ACL Undertaking in the form as set out in
Schedule 5 hereof.
(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 Default
Parties under this Agreement shall not cease as a result of Completion.
5
4. SPECIFIC UNDERTAKING BY SIHL
----------------------------
SIHL hereby unconditionally and irrevocably undertakes to each of the
Investors that for so long as any of the obligations of the Company under
this Agreement remain outstanding, SIHL shall not, save with the prior
written approval of each of the Investors, reduce its current issued
beneficial shareholdings (being 100%) in the share capital of ACL carrying
rights to vote in ACL's general meetings.
5. SPECIFIC UNDERTAKING BY ACL
---------------------------
ACL hereby unconditionally and irrevocably undertakes to each of the
Investors that for so long as any of the obligations of the Company under
this Agreement remain outstanding:-
(i) ACL shall, directly or indirectly, (save with the prior written
approval of each of the Investors) remain the legal and beneficial
owner of not less than 51% of the Deemed Total Issued Share Capital of
SAI (as defined hereinafter) and retain control over not less than 51%
of the voting rights of SAI (which for this purpose shall exclude
Super-voting Rights but shall include a substitution of 100,000 votes
per Series A Preferred Stock held for the purposes of calculation
hereunder); and
(ii) no amounts are to be repaid in respect of the ACL Promissory Notes
save and except with the prior written approval of the Investors.
For the purpose of this clause, "Deemed Total Issued Share Capital of SAI"
means the total Share capital of SAI deemed to be in issue which for this
purpose shall be the then actual existing total issued Shared capital of
SAI and (if any Series A Preferred Stock or Series B Preferred Stock is
---
left outstanding) that number of Shares that would have been issued in
respect of Series A Preferred Stock and Series B Preferred Stock had the
same been all converted immediately prior to the relevant date under
consideration as if such Shares form part of the enlarged issued Share
capital of SAI in aggregate.
6. UNDERTAKINGS
------------
6.1 Each of the Company, the Guarantors, SIHL and ACL hereby further undertakes
and agrees that it shall procure that no member of the SAI Group shall at
any time and for so long as the obligations of the Company under this
Agreement remains outstanding (including the exercise of all such voting
powers and control it has, directly or indirectly over the members of the
SAI Group), save with the prior written approval from each of the
Investors, do anything or suffer anything to be done which shall result in
change(s) to the corporate structure of the SAI Group set out in Schedule
1.
6.2 Each of SAI and the Company hereby covenants, undertakes and agrees with
6
the Investors that:-
(a) certificates in respect of the SAI Shares shall be issued
and delivered to the respective Investors (or as they may
direct) no later than 90 days from the date of this
Agreement; and
(b) each Investor shall, if it is deemed to be an "affiliate"
under the U.S. Securities Act of 1933 of SAI (which
interpretation shall be determined by a U.S. law firm to be
agreed between the Investors and SAI or the Securities and
Exchange Commission as the case may be), have the right to
require SAI and/or the Company to file a registration
statement under the Securities Act for a public offering /
resale of all or any number of the SAI Shares held by the
Investor, such rights to be exercisable by the delivery of
a written notice to SAI and/or the Company (the "Notice")
specifying in detail the number of the SAI Shares required
to be made the subject of the registration, the identity of
the Investor and the intended method of resale of the SAI
Shares and SAI and/or the Company shall take all reasonable
steps to commence the procedure for such filing within five
(5) Business Days of receipt of the Notice.
7. SPECIFIC UNDERTAKINGS BY SAI
----------------------------
SAI hereby undertakes and agrees to ensure that all of the SAI
Shares will be duly and validly issued, fully paid and non-
assessable and will not be subject to pre-emptive rights and that
for a period of 3 years from the date hereof:-
(a) SAI shall not in any way modify the rights attached to the
Shares as a class or attach any special restrictions
thereto except with the prior written consent from the
Investors;
(b) SAI shall procure that at no time shall there be an issue
of Shares of differing nominal value except with the prior
written consent from the Investors;
(c) SAI shall not do anything voluntarily or on its own
initiative which may result in (or can reasonably be
foreseen to result in) the delisting of the issued Shares
on NASDAQ;
(d) SAI shall provide the Investors with a copy of its annual
reports, annual financial statements, interim reports and
all other statements and circulars sent by SAI to its
shareholders within fourteen days after SAI sends the same
to its shareholders; and
(e) SAI shall provide each Investor with a copy of every
document filed from the date hereof with the Securities and
Exchange Commission and the same shall be so provided to
each Investors within fourteen days of
7
the date of the filing of such document.
8. CORPORATE GOVERNANCE
--------------------
Unless the prior written approval from the Investors have been
obtained, each of the Company, the Guarantors, SIHL and ACL undertakes
that it shall and shall procure that each of them shall exercise all
such voting rights and other powers of control as is or shall be
available to them to procure that no member in the SAI Group (save and
except Harbin Bearing Company Limited for the purposes of sub-clauses
(a),(b),(c),(e) and (g) of this clause) shall:-
(a) acquire assets in excess of $3,000,000;
(b) borrow, lend or give any guarantee of any amount greater than
$3,000,000;
(c) sell assets having a fair market value in excess of
$3,000,000;
(d) make any dividend payments;
(e) give any charge, mortgage, pledge or other security interest
in excess of $3,000,000;
(f) enter into any related party transaction except where such
transaction (i) is a normal commercial arms length
transaction entered into in the ordinary course of the SAI
Group's business of the manufacturing and sales of bearing
products, or (ii) relates to the advancement of loan to any
member of the SAI Group for the purpose of enabling it to
fulfil its obligations under this Agreement;
(g) allow any of the events referred to in sub-clauses (a) to (e)
of this Clause to occur if such event will involve such an
amount or value (notwithstanding such amount may or may not
exceed the relevant limit specified for that event under this
Clause (a) to (e) hereof) when added to the existing
cumulative total of the value of that event occurring in the
preceding 12 months will take the overall cumulative total
over 15% of the net asset value of SAI as shown in the latest
audited consolidated accounts of SAI.
9. NOTICES
-------
Any notice required or permitted to be given by or under this Agreement
shall be in writing and shall be given by delivering it to the address
or facsimile number of the relevant party connected shown below:-
8
The Company : ▇/▇ ▇▇▇▇▇ International Bearing
----------- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
SAI : ▇/▇ ▇▇▇▇▇ International Bearing
--- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
ERL : ▇/▇ ▇▇▇▇▇ International Bearing
--- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
SIHL : ▇/▇ ▇▇▇▇▇ International Bearing
---- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
SPC : ▇/▇ ▇▇▇▇▇ International Bearing
--- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
ACL : ▇/▇ ▇▇▇▇▇ International Bearing
--- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
9
CIBHL : 19th Floor, First Pacific Bank Centre,
----- ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
GML : ▇/▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Tower,
--- ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / Mr. ▇▇▇▇▇ ▇▇▇
WCIT : ▇/▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Tower,
---- ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / Mr. ▇▇▇▇▇ ▇▇▇
MC Partners : c/o MC Capital Asia Pte Limited
----------- Unit No. 1002 C/D 10th Floor,
Tower ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
/ Mr. Tatsuya Kuroyanagi
CI 2000 : c/o Asian Asset Management Limited
------- ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address or facsimile number as the party concerned may
have notified to the other party pursuant to this Clause and may be given
by sending it by hand to such address or by facsimile transmission to such
facsimile number, or to such other address or facsimile number as the party
concerned may have notified to the other party in accordance with this
Clause. Such notice shall be deemed to be served on the day of delivery or
facsimile transmission (or, if the day of delivery or transmission is not a
Business Day or if the delivery or transmission is made after 5:00 p.m.
Hong Kong time, deemed to be served on the immediately following Business
Day), or if sooner
10
upon acknowledgement of receipt by or on behalf of the party to
which it is addressed.
10. EVENTS OF DEFAULT
-----------------
(A) Notwithstanding the repayment obligations of the Company in
accordance with the Repayment Schedule, if any of the following
events ("Event of Default") occurs the Principal shall
automatically become immediately due and payable in full by the
Company at its principal amount outstanding together with any
accrued but unpaid interest calculated up to and including the
date of payment the aggregate amount of which shall be notified
by the Investors to the Company and upon the settlement thereof
in accordance with this clause by the Company the repayment
obligations set out in the Repayment Schedule shall be deemed to
have been discharged by the Company.
(B) An Event of Default occurs when:-
(a) the Company defaults in repayment pursuant to the Repayment
Schedule;
(b) any of the Default Parties fails to perform any of its
obligations under this Agreement;
(c) any of the Guarantors fails to perform any of its
obligations under the Guarantee, and
(d) ACL fails to perform any of its obligations under the ACL
Undertaking.
11. COSTS AND EXPENSES
------------------
The legal costs incurred in connection with the preparation and
negotiation of this Agreement and ancillary documentation shall
be borne as to one-half by the Company and as to the other half
by the Investors.
12. GOVERNING LAW AND JURISDICTION
------------------------------
12.1 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.
12.2 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,
11
irrevocably submits to the jurisdiction of such courts.
12.3 Each of the parties hereto irrevocably waives any objection it might now or
hereinafter have to the courts referred to in sub-Clause 12.1 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 such courts
is not a convenient or appropriate forum.
12.4 Each of the Company, SAI, ACL, SIHL, ERL and SPC hereby irrevocably
appoints CIBHL (details of which are set out below) and CIBHL hereby
accepts such appointment as each of their process agent to receive and
acknowledge on its behalf service of any writ, summons, order, judgement or
other notice of legal process in Hong Kong. Each of GML, WCIT, MC Partners
and CI 2000 also hereby irrevocably appoints the persons set out against
its name below to be its process agent:-
Company - China International Bearing Holdings Limited
------- 19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
SAI - China International Bearing Holdings Limited
--- 19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
ERL c/o China International Bearing
--- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
SIHL - c/o China International Bearing
---- Holdings Limited
19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
12
ACL- : China International Bearing Holdings Limited
--- 19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
SPC- : China International Bearing Holdings Limited
--- 19th Floor, First ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇ / ▇▇. ▇▇▇▇▇ ▇▇
GML- : HPEM, 10th Floor, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
--- ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / Mr. ▇▇▇▇▇ ▇▇▇
WCIT- : HPEM, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
---- ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / Mr. ▇▇▇▇▇ ▇▇▇
MC Partners- : MC Capital Asia Pte Limited
----------- Unit No. 1002 C/D 10th Floor,
Tower ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ / Mr. Tatsuya Kuroyanagi
CI 2000 : Asian Asset Management Limited
------- ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
12.5 Each of the parties hereby consent generally in respect of any legal
action or proceeding arise out of or in connection with this Agreement
to the giving of
13
any relief or any issue of any process in connection with such action or
proceeding including, without limitation, the making, enforcement or
execution against any property whatsoever (irrespective of its use or
intended use) of any order or judgement which may be made or given in
such action or proceeding.
13. GENERAL PROVISIONS
------------------
13.1 As regards any date or period time shall be of the essence of this
Agreement.
13.2 This Agreement shall be binding on and enure for the benefit of the
successors of each of the parties and shall not be assignable.
13.3 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 or any other right or remedy it may
have in respect of that breach.
13.4 Any right or remedy conferred by this Agreement on any party for breach
of this Agreement (including without limitation the breach of any
representations and warranties) shall be in addition and without
prejudice to all other rights and remedies available to it in respect of
that breach.
13.5 This Agreement constitutes the entire agreement between the parties with
respect to its subject matter and no variation of this Agreement shall be
effective unless made in writing and signed by all of the parties.
13.6 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.
13.7 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.
14. 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.
14
SCHEDULE 1
----------
1. Corporate Chart
---------------
--------------------------------------
Sunbase Asia, Inc.
("SAI")
--------------------------------------
100% 100%
-------------------- ---------------------
China Bearing ▇▇▇▇▇ Acquisition
Holdings Limited Company Inc.
("CBH") ("SPC")
-------------------- ---------------------
100%
---------------------
China International
Bearing Holdings
Limited ("CIBHL")
---------------------
99% 99.90%
-------------------- -----------------------
Harbin Sunbase Harbin Xinhengli
Development Development
Company Limited Company Limited
("Harbin Sunbase") ("Harbin Xinhengli")
-------------------- -----------------------
10% 41.57%
-----------------
Harbin Bearing
Company Limited
("HBC")
-----------------
15
SCHEDULE 2
----------
Form of written resolution of the sole shareholder of
-----------------------------------------------------
China Bearing Holdings Limited
------------------------------
Resolution of the sole shareholder of China Bearing Holdings Limited adopted in
writing on [.], 1998
We, being the sole shareholder of the Company for the time being, do HEREBY
RESOLVE the following:-
"THAT:-
(a) the Company be authorised to execute and complete the Settlement Agreement
to be dated [.], 1998 in consideration of the Investors (as defined in the
Settlement Agreement) agreeing not to exercise their rights against the
Company and certain other parties under the Subscription Agreement dated
2nd August, 1996;
(b) ▇▇. ▇▇▇▇▇ ▇▇▇ be authorised to effect and do all that is necessary to give
effect to the Settlement Agreement for and on behalf of the Company".
Date 1998
----------------------------
Sunbase Asia, Inc.
16
SCHEDULE 3
----------
Repayment Schedule
------------------
1. Completion Principal repayment and Interest on Principal $ 520,000.00
2. 23/12/1998 Principal repayment $ 20,903.42
Interest on Principal $(13,091,590x10%/12) $ 109,096.58
------------
$ 130,000.00
3. 23/1/1999 Principal repayment $ 21,077.61
Interest on Principal $(13,070,686x10%/12) $ 108,922.39
------------
$ 130,000.00
4. 23/2/1999 Principal repayment $ 21,253.26
Interest on Principal $(13,049,609x10%/12) $ 108,746.74
------------
$ 130,000.00
5. 23/3/1999 Principal repayment $ 831,430.37
Interest on Principal $(13,028,355x10%/12) $ 108,569.63
------------
$ 940,000.00
6. 23/4/1999 Principal repayment $ 28,358.96
Interest on Principal $(12,196,925x10%/12) $ 101,641.04
------------
$ 130,000.00
7. 23/5/1999 Principal repayment $ 28,595.28
Interest on Principal $(12,168,566x10%/12) $ 101,404.72
------------
$ 130,000.00
8. 23/6/1999 Principal repayment $ 28,833.58
Interest on Principal $(12,139,971x10%/12) $ 101,166.42
------------
$ 130,000.00
9. 23/7/1999 Principal repayment $ 29,073.86
Interest on Principal $(12,111,137x10%/12) $ 100,926.14
------------
$ 130,000.00
10. 23/8/1999 Principal repayment $ 29,316.14
Interest on Principal $(12,082,063x10%/12) $ 100,683.86
------------
$ 130,000.00
17
11. 23/9/1999 Principal repayment $ 299,560.44
Interest on Principal $(12,052,747x10%/12) $ 100,439.56
---------------
$ 400,000.00
12. 23/10/1999 Principal repayment $ 302,056.78
Interest on Principal $(11,753,187x10%/12) $ 97,943.22
---------------
$ 400,000.00
13. 23/11/1999 Principal repayment $ 304,573.92
Interest on Principal $(11,451,130x10%/12) $ 95,426.08
---------------
$ 400,000.00
14. 23/12/1999 Principal repayment $ 307,112.03
Interest on Principal $(11,146,556x10%/12) $ 92,887.97
---------------
$ 400,000.00
15. 23/1/2000 Principal repayment $ 309,671.30
Interest on Principal $(10,839,444x10%/12) $ 90,328.70
---------------
$ 400,000.00
16. 23/2/2000 Principal repayment $ 312,251,89
Interest on Principal $(10,529,773x10%/12) $ 87,748.11
---------------
$ 400,000.00
17. 23/3/2000 Principal repayment $ 314,853.99
Interest on Principal $(10,217,521x10%/12) $ 85,146.01
---------------
$ 400,000.00
18. 23/4/2000 Principal repayment $ 317,477.78
Interest on Principal $(9,902,667x10%/12) $ 82,522.22
---------------
$ 400,000.00
19. 23/5/2000 Principal repayment $ 320,123.42
Interest on Principal $(9,585,189x10%/12) $ 79,876.58
---------------
$ 400,000.00
20. 23/6/2000 Principal repayment $ 322,791.12
Interest on Principal $(9,265,066x10%/12) $ 77,208.88
---------------
$ 400,000.00
21. 23/7/2000 Principal repayment $ 325,481.05
Interest on Principal $(8,942,275x10%/12) $ 74,518.95
---------------
$ 400,000.00
18
22. 23/8/2000 Principal repayment $ 328,193.39
Interest on Principal $(8,616,793x10%/12) $ 71,806.61
--------------
$ 400,000.00
23. 23/9/2000 Principal repayment $ 330,928.33
Interest on Principal $(8,288,600x10%/12) $ 69,071.67
--------------
$ 400,000.00
24. 23/10/2000 Principal repayment $ 333,686.07
Interest on Principal $(7,957,672x10%/12) $ 66,313.93
--------------
$ 400,000.00
25. 23/11/2000 Principal repayment $ 336,466.79
Interest on Principal $(7,623,986x10%/12) $ 63,533.21
--------------
$ 400,000.00
26. 23/12/2000 Principal repayment $ 339,270.68
Interest on Principal $(7,287,518.88x10%/12) $ 60,729.32
--------------
$ 400,000.00
27. 23/1/2001 Principal repayment $ 342,097.93
Interest on Principal $(6,948,248x10%/12) $ 57,902.07
--------------
$ 400,000.00
28. 23/2/2001 Principal repayment $ 344,948.75
Interest on Principal $(6,606,150x10%/12) $ 55,051.25
--------------
$ 400,000.00
29. 23/3/2001 Principal repayment $ 347,823.32
Interest on Principal $(6,261,201x10%/12) $ 52,176.68
--------------
$ 400,000.00
30. 23/4/2001 Principal repayment $ 350,721.85
Interest on Principal $(5,913,378x10%/12) $ 49,278.15
--------------
$ 400,000.00
31. 23/5/2001 Principal repayment $ 353,644.53
Interest on Principal $(5,562,656x10%/12) $ 46,355.47
--------------
$ 400,000.00
32. 23/6/2001 Principal repayment $ 356,591.57
Interest on Principal $(5,209,012x10%/12) $ 43,408.43
--------------
$ 400,000.00
19
33 23/7/2001 Principal repayment $ 4,852,420.26
Interest on Principal $(4,852,420x10%/12) $ 40,436.84
---------------
$ 4,892,857.10
Total Repayment & Interest
Principal $ 13,173,490.00
Interest on Principal $ 3,019,367.10
---------------
$ 16,192,857.10
===============
20
SCHEDULE 4
----------
Form of Guarantee
-----------------
21
THIS GUARANTEE dated the day of , 1998 is made between:-
(1) SUNBASE ASIA, INC., of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("SAI");
(2) CHINA INTERNATIONAL BEARING HOLDINGS LIMITED, of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("CIBHL");
(3) ▇▇▇▇▇ ACQUISITION COMPANY, INC. of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("SPC");
(The parties referred to at (1), (2) and (3) hereinafter referred to as the
"Guarantors" and each a "Guarantor".)
(4) GLORY MANSION LIMITED, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Virgin Islands ("GML");
(5) WARDLEY CHINA INVESTMENT TRUST, of ▇/▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇ ▇.▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇.▇., ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
("WCIT");
(6) MC PRIVATE EQUITY PARTNERS ASIA LIMITED of ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ Church Street, Grand Cayman, Cayman Islands, British West Indies
("MC Partners"); and
(7) CHINE INVESTISSEMENT 2000, of L1118 Luxembourg, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ("▇▇
▇▇▇▇");
(The parties referred to at (4), (5), (6) and (7) hereinafter collectively
referred to as "Investors" and each an "Investor")
WHEREAS:-
(A) By a settlement agreement dated [*], 1998 (the "Settlement Agreement")
and made between (1) China Bearing Holdings Limited (the "Company");
(2) Asean Capital Limited ("ACL"); (3) China International Bearing
Holdings Limited ("CIBHL"); (4) Sunbase Asia, Inc. ("SAI"); (5) ▇▇▇▇▇
Acquisition Company Inc. ("SPC"); (6) Sunbase International (Holdings)
Limited ("SIHL"); (7) Extensive Resources Limited ("ERL"); (8) Glory
Mansion Limited ("GML"); (9) Wardley China Investment Trust ("WCIT");
(10) MC Private Equity Partners Asia Limited ("MC Partners") and (11)
Chine Investissement 2000 ("CI 2000"), the Investors agreed not to
exercise their rights against the Default Parties under the
Subscription Agreement.
(B) It is stipulated in the Settlement Agreement that the Guarantors shall
execute the Guarantee in respect of the obligations of the Company and
the other parties (not being the Investors) under the Settlement
Agreement at
22
Completion. Accordingly, this Guarantee supplements the Settlement
Agreement.
(B) Expressions defined in the Settlement Agreement shall, unless specifically
defined or re-defined herein or the context otherwise requires, bear the
same meanings when used herein.
NOW THIS GUARANTEE WITNESSETH AND IT IS HEREBY AGREED as follows:-
1. Guarantee
---------
(A) In consideration of the Investors agreeing not to exercise their rights
against the Default Parties, each of the Guarantors hereby as primary
obligor, irrevocably and unconditionally and together with each of the
other Guarantors (the "Other Guarantors") jointly and severally, guarantees
to each of the Investors:-
(i) the full due and punctual observance and performance of all the
terms, conditions and covenants on the part of the Company contained
in the Settlement Agreement including the due and punctual payment
of all sums now or subsequently payable under the Settlement
Agreement and agrees to perform or procure the performance of such
obligations of the Company from time to time and on demand by any of
the Investors pay any and every sum or sums of money which the
Company shall at any time be liable to pay to the Investors under or
pursuant to the Settlement Agreement;
(ii) the full due and punctual observance and performance of all the
terms, conditions and covenants on the part of each Other Guarantor
which such Other Guarantor is a party to the Settlement Agreement
and this Guarantee including the due and punctual payment of all
sums now or subsequently payable under the Settlement Agreement or
this Guarantee and agrees to perform or procure the performance of
such obligations of the Other Guarantors from time to time and on
demand by any of the Investors pay any and every sum or sums of
money which the Other Guarantors shall at any time be liable to pay
to the Investors under or pursuant to the Settlement Agreement or
this Guarantee as the case may be; and
(iii) to indemnify the Investors from time to time on demand by any of the
Investors from and against any loss incurred by the Investors or any
of them as a result of any of the obligations of the Company under
the Settlement Agreement or of any of the obligations of the Other
Guarantors under or pursuant to the Settlement Agreement or this
Guarantee not being fulfilled or performed or being or becoming
void,
23
voidable, unenforceable or ineffective as against the Company or any
of the Other Guarantors as the case may be for any reason
whatsoever, whether or not know to the Investors or any of them or
any other person.
The Guarantors' obligations hereunder is as if it is a principal debtor in
respect of any amount and liability and obligation and not merely a surety,
and without any requirement for the Investors first to have recourse
against the Company or any of the Other Guarantors as the case may be and
such liability shall not be impaired or reduced by any undertaking granted.
2. Preservation of Rights
----------------------
(A) The obligations of the Guarantors herein contained shall be in addition to
and independent of every other security which the Investors or any of them
may at any time hold in respect of any of the Company or the Guarantors'
obligations hereunder.
(B) The obligations of each of the Guarantors herein contained shall constitute
and be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever, and in particular but without limitation,
shall not be considered satisfied by any intermediate payment or
satisfaction of all or any of the obligations of the Company or any of the
Other Guarantors and shall continue in full force and effect until final
payment in full of all amounts owing by the Company or any of the Other
Guarantors hereunder and total satisfaction of all the Company's or any of
the Other Guarantors actual and contingent obligations hereunder.
(C) None of the obligations of any of the Guarantors herein contained nor the
rights, powers and remedies conferred upon the Investors by the Settlement
Agreement or this Guarantee or by law shall be discharged, impaired or
otherwise affected by:-
(i) the winding-up, dissolution, administration or re-organisation of
the Company or any of the Guarantors or any other person or any
change in its status, function, control or ownership;
(ii) any of the obligations of the Company or any of the Guarantors or
any other person hereunder or under any other security taken in
respect of any of its obligations hereunder being or becoming
illegal, invalid, unenforceable or ineffective in any respect;
(iii) time or other indulgence being granted or agreed to be granted to
the Company or any of the Guarantors or any other person in respect
of its obligations hereunder or under any such other security;
(iv) any amendment to, or any variation, waiver or release of, any
24
obligation of the Company or any of the Guarantors or any other
person hereunder or under any such other security;
(v) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of the Company,
any of the Guarantor's or any other person's obligations hereunder;
(vi) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken
in respect of the Company, any of the Guarantor's or any other
person's obligations hereunder; or
(vii) any other act, event or omission which, might operate to discharge,
impair or otherwise affect any of the obligations of any of the
Guarantors herein contained or any of the rights, powers or remedies
conferred upon the Investors or any of them by the Subscription
Agreement or the Debentures or by law.
(D) None of the Investors shall be obliged before exercising any of the rights,
powers or remedies conferred upon each of them hereunder or by law:-
(i) to make any demand of the Company or any of the Guarantors;
(ii) to take any action or obtain judgement in any court against the
Company or any of the Guarantors;
(iii) to make or file any claim or proof in a winding-up or dissolution of
the Company or any of the Guarantors; or
(iv) to enforce or seek to enforce any other security taken in respect of
any of the obligations of the Company or any of the Guarantors
hereunder.
(E) Each Guarantor agrees that, so long as any amounts are or may be owed by
the Company or the Other Guarantors hereunder or when any of the Company or
the Other Guarantors is under any actual or contingent obligations
hereunder, it shall not exercise any rights which it may at any time have
by reason of performance by it of its obligations hereunder:-
(i) to be indemnified by the Company or any of the Guarantors; and/or
(ii) to claim any contribution from the Other Guarantors; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Investors hereunder
or of any other security taken pursuant to, or in connection with,
the Settlement Agreement or the Debenture by all or any of the
Investors.
25
3. Representations and Warranties
------------------------------
Each of the Guarantors hereby represents and warrants to each of the
Investors that:-
(a) it is a company validly incorporated, duly organised and subsisting
and of good standing under the law of the jurisdiction under which it
was incorporated;
(b) it has the necessary capacity to give this Guarantee and to perform
and observe the obligations contained herein. The execution, delivery
and performance of this Guarantee have been duly authorised by all
necessary corporate action of the Guarantor and do not contravene the
constitution of the Guarantor under any applicable laws or
regulations. This Guarantee, as executed and delivered, constitutes
legal valid and binding obligations of the Guarantor;
(c) the execution and delivery of, and the performance of the provisions
of, this Guarantee does not and will not during the continuance of
this Guarantee (i) contravene any existing applicable laws, ordinance,
regulation, decree, instrument, franchise, concession, licence or
permit, or any order, judgement, decree or award, administrative or
governmental authority, department or agency presently in effect and
applicable, or (ii) contravene any contractual restrictions binding on
the Guarantors or any of its assets, or (iii) cause any limit on any
of the borrowing, guaranteeing, charging or other powers of the
Guarantor, or (iv) create or result in or obliged the Guarantor to
create any lien, charge, security interest or encumbrance on the whole
or any part of the Guarantor's property;
(d) all necessary governmental and other consents, authorities and
approvals to execute this Guarantee has been obtained and are in full
force, validity and effect;
(e) no litigation, attribution, administrative or other proceedings
pending before the court, tribunal, arbitrator or governmental agency
has been threatened against any of the Guarantor; and
(f) the obligations of each of the Guarantors under this Guarantee are
direct, general, and unconditional obligations and rank at least pari
passu with all such Guarantor's other present and future unsecured and
unsubordinated and other obligations.
4. Further Preservation of rights
------------------------------
Should any purported obligation of the Company or any of the Guarantors
being the subject of this Guarantee be or become wholly or in part invalid
or
26
unenforceable on any grounds whatsoever, the Guarantor shall nevertheless
be liable to the Investors in respect of such purported obligation or
liability as if the same were wholly valid and enforceable in each of the
Guarantors as the principal debtor in respect thereof. Each of the
Guarantors hereby agrees to keep each of the Investors fully indemnified
against all damages, loss, costs and expenses arising from any failure of
the Company or any of the Guarantors to carry out any of such purported
obligations.
5. Miscellaneous
-------------
(A) This Guarantee shall be binding on and for the benefit of each of the
parties' successor and assign and personal representatives (as the case may
be) but no assignment may be made of any of the rights obligations
hereunder of any party without the prior written consent of the other
parties.
(B) This Guarantee may be signed in any number of counterparts, each of which
shall be binding on the party who shall have executed it but which together
shall constitute one Agreement.
(C) Any notice required to be sent must be in writing and shall be given by
delivering it to the address or facsimile number as shown in Clause 9 of
the Settlement Agreement.
(D) This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereby submit to the non-exclusive
jurisdiction of the courts of Hong Kong. In relation to any legal action or
proceedings arising out of or in connection with this Guarantee, each of
the Guarantors has irrevocably submitted in the Settlement Agreement to the
courts of Hong Kong and in relation thereto has appointed an agent for
service of process.
IN WITNESS WHEREOF the Guarantors have duly executed this Guarantee the date
and year first above written.
27
The Common Seal of )
SUNBASE ASIA, INC. )
was hereunto affixed )
in the presence of:- )
The Common Seal of )
▇▇▇▇▇ ACQUISITION )
COMPANY 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 GLORY MANSION LIMITED )
in the presence of:- )
SIGNED by )
dulty authorized for and on behalf )
of WARDLEY CHINA )
INVESTMENT TRUST )
in the presence of:- )
28
SIGNED by )
duly authorised for and on behalf )
of MC PRIVATE EQUITY PARTNERS )
ASIA LIMITED )
in the presence of:- )
SIGNED by )
duly authorized for and on behalf )
of CHINE INVESTISSEMENT 2000 )
in the presence of:- )
29
SCHEDULE 5
----------
Undertaking by ACL
------------------
30
THIS UNDERTAKING dated the day of , 1998 is made between:-
(1) ASEAN CAPITAL LIMITED, of ▇▇▇▇ ▇▇▇▇▇ Building, Wickhams Cay I, P.O. Box
362, Road Town, Tortola, British Virgin Islands ("ACL");
(2) WARDLEY CHINA INVESTMENT TRUST, of ▇/▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇.▇., ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ("WCIT");
(3) GLORY MANSION LIMITED, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("GML");
(4) MC PRIVATE EQUITY PARTNERS ASIA LIMITED, of P.O. Box 309, ▇▇▇▇▇▇ House,
South Church Street, Grand Cayman, Cayman Islands, British West Indies ("MC
Partners"); and
(5) CHINE INVESTISSEMENT 2000, of L1118 Luxembourg, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇").
(The parties referred to at (2), (3), (4) and (5) hereinafter collectively
referred to as "Investors" and each an "Investor").
WHEREAS:-
(A) By a settlement agreement dated [.], 1998 (the "Settlement Agreement") and
made between (1) China Bearing Holdings Limited (the "Company"); (2) Asean
Capital Limited ("ACL"); (3) China International Bearing Holdings Limited
("CIBHL"); (4) Sunbase Asia, Inc. ("SAI"); (5) ▇▇▇▇▇ Acquistion Company
Inc. ("SPC"); (6) Sunbase International (Holdings) Limited ("SIHL"); (7)
Extensive Resources Limited ("ERL"); (8) Glory Mansion Limited ("GML"); (9)
Wardley China Investment Trust ("WCIT"); (10) MC Private Equity Partners
Asia Limited ("MC Partners") and (11) Chine Investissement 2000 ("CI
2000"), the Investors agreed not to exercise their rights against the
Default Parties under the Subscription Agreement.
(B) It is stipulated in the Settlement Agreement that ACL shall execute the ACL
Undertaking in respect of the payment obligations of the Company under the
Settlement Agreement and accordingly, this Undertaking supplements the
Settlement Agreement.
(C) Expressions defined in the Settlement Agreement shall, unless specifically
defined or re-defined herein or the context otherwise requires, bear the
same meanings when used herein.
NOW THIS UNDERTAKING WITNESSETH AND IT IS HEREBY AGREED as follows:-
31
1. Guarantee
---------
In consideration of the Investors agreeing not to exercise their rights
against the Default Parties under the Subscription Agreement, ACL hereby as
primary obligor, irrevocably and unconditionally guarantees and undertakes
to each of the Investors:-
(i) the full due and punctual payment of all sums now or subsequently
payable under the Settlement Agreement by the Company and agrees to
perform or procure the performance of such payment obligations of the
Company from time to time and on demand by any of the Investors pay
any and every sum or sums of money which the Company shall at any time
be liable to pay to the Investors under or pursuant to the Settlement
Agreement as the case may be; and
(ii) to indemnify the Investors from time to time on demand by any of the
Investors from and against any losses or costs incurred by the
Investors or any of them as a result of any of the payment obligations
of the Company under the Settlement Agreement or any payment
obligations thereunder not being fulfilled or performed or being or
becoming void, voidable, unenforceable or ineffective as against the
Company or any of the Guarantors as the case may be for any reason
whatsoever, whether or not known to the Investors or any of them or
any other person.
ACL's obligations hereunder is as if it is a principal debtor in respect of
any amount and liability and obligation and not merely a surety, and
without any requirement for the Investors first to have recourse against
the Company or any of the Guarantors as the case may be and such liability
shall not be impaired or reduced by any undertaking granted.
2. Undertaking
-----------
ACL hereby further undertakes to use its best endeavours (including the
exercise of any voting rights and control it has) to ensure that the
obligations of SAI, CBHL, CIBHL and SPC under the Settlement Agreement and
of SAI, CIBHL and SPC under the Guarantee (including but without limitation
to the specific undertakings under Clause 7 of the Settlement Agreement)
will be observed, fulfilled and performed and shall do all that is
necessary so as to give effect to, render possible or assist in the
fulfilment or compliance with such provisions.
32
3. Preservation of Rights
----------------------
(A) The obligations of ACL herein contained shall be in addition to and
independent of every other security which the Investors or any of them may
at any time hold in respect of any of the Company's or the Guarantors'
obligations under the Guarantee.
(B) The obligations of ACL herein contained shall constitute and be continuing
obligations notwithstanding any settlement of account or other matter or
thing whatsoever, and in particular but without limitation, shall not be
considered satisfied by any intermediate payment or satisfaction of all or
any of the obligations of the Company or any of the Guarantors and shall
continue in full force and effect until final payment in full of all
amounts owing by the Company.
(C) None of the obligations of ACL herein contained nor the rights, powers and
remedies conferred upon the Investors by the Settlement Agreement or this
Undertaking or by law shall be discharged, impaired or otherwise affected
by:-
(i) the winding-up, dissolution, administration or re-organisation of
the Company or any of the Guarantors or any other person or any
change in its status, function, control or ownership;
(ii) any of the obligations of the Company or any of the Guarantors or
any other person hereunder or under any other security taken in
respect of any of its obligations hereunder being or becoming
illegal invalid, unenforceable or ineffective in any respect;
(iii) time or other indulgence being granted or agreed to be granted to
the Company or any of the Guarantors or any other person in respect
of its obligations hereunder or under any such other security;
(iv) any amendment to, or any variation, waiver or release of, any
obligation of the Company or any of the Guarantors or any other
person hereunder or under any such other security;
(v) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of the Company,
any of the Guarantor's or any other person's obligations
hereunder;
(vi) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken
in respect of the Company, any of the Guarantor's or any other
person's obligations hereunder; or
(vii) any other act, event or omission which, might operate to discharge,
impair or otherwise affect any of the obligations of any of the
33
Guarantors contained in the Guarantee or any of the rights,
powers or remedies conferred upon the Investors or any of them by
the Settlement Agreement or by law.
(D) None of the Investors shall be obliged before exercising any of the rights,
powers or remedies conferred upon each of them hereunder or by law:-
(i) to make any demand of the Company or any of the Guarantors;
(ii) to take any action or obtain judgement in any court against the
Company or any of the Guarantors;
(iii) to make or file any claim or proof in a winding-up or dissolution
of the Company or any of the Guarantors; or
(iv) to enforce or seek to enforce any other security taken in respect
of any of the obligations of the Company or any of the
Guarantors.
(E) ACL agrees that, so long as any amounts are or may be owed by the Company
or the Guarantors or when any of the Company or the Guarantors is under
any actual or contingent obligations to any of the Investors, it shall not
exercise any rights which it may at any time have reason of performance by
it of its obligations hereunder:-
(i) to be indemnified by the Company or the Guarantors; and/or
(ii) to claim any contribution from the Company or the Guarantors;
and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Investors
hereunder or of any other security taken pursuant to, or in
connection with, the Subscription Agreement or the Debenture by
all or any of the Investors.
4. Representations and Warranties
------------------------------
ACL hereby represents and warrants to each of the Investors that:-
(a) it is a company validly incorporated, duly organised and
subsisting and of good standing under the law of the jurisdiction
under which it was incorporated;
(b) it has the necessary capacity to give this Undertaking and to
perform and observe the obligations contained herein. The
execution, delivery and performance of this Undertaking have been
duly authorised by all necessary corporate action and do not
contravene the constitution of ACL under any applicable laws or
regulations. This Undertaking, as
34
executed and delivered constitutes legal valid and binding obligations
of ACL;
(c) the execution and delivery of, and the performance of the provisions
of, this Undertaking does not and will not during the continuance of
this Undertaking (i) contravene any existing applicable laws,
ordinance, regulation, decree, instrument, franchise, concession,
licence or permit, or any order, judgement, decree or award,
administrative or governmental authority, department or agency
presently in effect and applicable, or (ii) contravene any contractual
restrictions binding on ACL or any of its assets, or (iii) cause any
limit on any of the borrowing, guaranteeing, charging or other powers
of ACL, or (iv) create or result in or obliged ACL to create any lien,
charge, security interest or encumbrance on the whole or any part of
the ACL's property;
(d) all necessary governmental and other consents, authorities and
approvals to execute this Undertaking has been obtained and are in
full force, validity and effect;
(e) no litigation, attribution, administrative or other proceedings
pending before the court, tribunal, arbitrator or governmental agency
has been threatened against ACL; and
(f) the obligations of ACL under this Undertaking are direct, general, and
unconditional obligations and rank at least pari passu with all ACL's
other present and future unsecured and unsubordinated and other
obligations.
5. Further Preservation of rights
------------------------------
Should any purported payment obligation of the Company being the subject of
this Undertaking be or become wholly or in part invalid or unenforceable on
any grounds whatsoever, ACL shall nevertheless be liable to the Investors
in respect of such purported payment obligation or liability as if the same
were wholly valid and enforceable as the principal debtor in respect
thereof. ACL hereby agrees to keep each of the Investors fully indemnified
against all damages, loss, costs and expenses arising from any failure of
the Company to carry out any of such purported payment obligations.
6. Miscellaneous
-------------
(A) This Undertaking shall be binding on and for the benefit of each of the
parties' successor and assign and personal representatives (as the case may
be) but no assignment may be made of any of the rights obligations
hereunder of any party without the prior written consent of the other
parties.
35
(B) This Undertaking may be signed in any number of counterparts, each of which
shall be binding on the party who shall have executed it but which together
shall constitute one Agreement.
(C) Notices required to be sent pursuant to this Undertaking must be sent in
writing to the addresses or facsimile number of the parties contained in
Clause 9 of the Settlement Agreement.
(D) This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereby submit to the non-exclusive
jurisdiction of the courts of Hong Kong. In relation to any legal action or
proceedings arising out of or in connection with this Undertaking, ACL has
irrevocably submitted in the Settlement Agreement to the courts of Hong
Kong and in relation thereto has appointed an agent for service of process.
IN WITNESS WHEREOF ACL have duly executed this Undertaking the date and year
first above written.
36
The Common Seal of )
ASEAN CAPITAL LIMITED )
was hereunto affixed )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of GLORY MANSION LIMITED )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of WARDLEY CHINA )
INVESTMENT TRUST )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of MC PRIVATE EQUITY PARTNERS )
ASIA LIMITED )
in the presence of:- )
SIGNED by )
duly authorised for and on behalf )
of CHINE INVESTISSEMENT 2000 )
in the presence of:- )
37
SCHEDULE 6
----------
Form of Deed of Share Mortgage
------------------------------
38
Dated 1998
-----------------------------
Extensive Resources Limited
AND
Brilliant Future Holdings Limited
______________________________________________
Deed of Mortgage
relating to
Shares in Tianjin Development Holdings Limited
______________________________________________
Chao and Chung
Hong Kong
39
THIS DEED is made on the day of , 1998
BETWEEN
(1) Extensive Resources Limited, a company incorporated in British Virgin
Islands and having its registered address at ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (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 has agreed pursuant to the Settlement Agreement to charge in
favour of the Chargee the Mortgaged Shares.
IT IS HEREBY AGREED as follows:-
1. Interpretation
--------------
1.1 Except as otherwise expressly provided, terms defined in the Settlement
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 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;
40
"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 and agreement dated [.], 1998 relating to
the settlement of obligations of the Default Parties; 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 reference 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.
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 continuing security for
the discharge of such obligations of the Company under the Settlement
Agreement as shall fall to be
41
performed in the period up to 31st March, 1999.
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 together with duly executed but undated 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.
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 Chargees'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
42
otherwise.
43. 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 as shall fall to be
performed in the period up to 31st March, 1999 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 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.
43
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 as shall fall to
be performed in the period up to 31st March, 1999 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:-
(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
44
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 item
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;
(ii) if sent by post, two clear Business Days (if within Hong Kong) or
7 Business Days (if overseas) after the date of posting;
45
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: ▇/▇ ▇▇▇▇▇ International Bearing Holdings Limited
19th Floor, First Pacific Bank Centre
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇
(ii) in the case of the Chargee:-
Address: ▇/▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Mr. ▇▇▇▇▇ ▇▇▇
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 unenforceability 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.
9.5 This Deed shall enure to the benefit of the parties hereto and their
respective permitted successors, assignees and transferees.
46
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.
47
SEALED WITH THE COMMON SEAL )
OF EXTENSIVE RESOURCES LIMITED )
in the presence of:- )
SIGNED BY )
FOR AND ON BEHALF OF )
BRILLIANT FUTURE HOLDINGS LIMITED )
in the presence of:- )
48
SIGNATURE PAGE
--------------
SIGNED by Kan Chi ▇▇▇, ▇▇▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇ ▇▇▇ Chi Kin
of CHINA BEARING )
HOLDINGS LIMITED )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by Kan Chi ▇▇▇, ▇▇▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇ ▇▇▇ Chi Kin
of ASEAN CAPITAL LIMITED )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by Kan Chi ▇▇▇, ▇▇▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇ ▇▇▇ Chi Kin
of CHINA INTERNATIONAL )
BEARING HOLDINGS LIMITED )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by Kan Chi ▇▇▇, ▇▇▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇ ▇▇▇ Chi Kin
of SUNBASE ASIA, INC. )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by Kan Chi ▇▇▇, ▇▇▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇ ▇▇▇ Chi ▇▇▇
▇▇▇▇▇ AQUISITION COMPANY, INC. )
in the presence of:- )
)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
49
SIGNED by Tien-yo Chao, as attorney)
duly authorised for and on behalf ) /s/ Tien-yo Chao
of GLORY MANSION LIMITED )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by ▇▇▇▇▇ ▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇ ▇▇▇
of WARDLEY CHINA )
INVESTMENT TRUST )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by Tatsuya Kuroyanagi )
duly authorised for and on behalf ) /s/ Tatsuya Kuroyanagi
of MC PRIVATE EQUITY PARTNERS )
ASIA LIMITED )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
of CHINE INVESTISSEMENT 2000 )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
SIGNED by Kan Chi ▇▇▇, ▇▇▇▇▇ )
duly authorised for and on behalf ) /s/ ▇▇▇▇▇ ▇▇▇ Chi Kin
of EXTENSIVE RESOURCES )
LIMITED )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
50
SIGNED by Kan Chi ▇▇▇, ▇▇▇▇▇ )
duly authorised for and on behalf )
of SUNBASE INTERNATIONAL ) /s/ ▇▇▇▇▇ ▇▇▇ Chi Kin
(HOLDINGS) LIMITED )
in the presence of:- )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Solicitor
Hong Kong SAR
51