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EXHIBIT 10.13
DATED: 7th September 1993
EURO TECH (FAR EAST) LIMITED
to
STANDARD CHARTERED BANK
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MORTGAGE
of
Unit No. 04 on 17th Floor of Xxxxxxxx Xxxxxx,
Xx. 00 Xxxxxxxxx Xxxx, Xxxx Xxxx.
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Produced to and registered by me this 9th day of September 1993.
[SIG]
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p. Registrer of Companies
Hong Kong
D E A C O N S
in association with
XXXXXX & XXXXX
and SLY & WEIGALL
[ILLEGIBLE COPY]
Xxxxxxxxx Xxxxx
0xx-0xx Xxxxxx
Xxxx Xxxx
LC:HCFL S93/489212
E:\CFL\93090005
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I N D E X
Content Page No.
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Parties 1
1. Interpretation 1
2. Covenant to Discharge Obligations 3
3. Charging Clause 3
4. Release 4
5. Representations and Warranties 4
6. Covenants 4
7. Events of Default 8
8. Appointment and Powers of Receiver 9
9. Provisions affecting Receiver 11
10. Lender's Powers 12
11. Lender's Entry into Possession 13
12. Power of Attorney 13
13. Third parties 13
14. Proceeds of Security Realisation 14
15. Security Additional 14
16. Suspense Account 14
17. Set-off 15
18. Indulgence 15
19. Settlement 16
20. Distribution of Payments 16
21. Expenses And Stamp Duty 16
22. Evidence 17
23. Assignment 17
24. Remedies, Waivers, Amendments and Consents 17
25. Communications 18
26. Partial Invalidity 18
27. Continuing Security 18
28. Counterparts 18
29. Governing Law 18
Schedule I 19
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[ILLEGIBLE COPY] MORTGAGE [ILLEGIBLE COPY]
PARTIES:
(1) EURO TECH (FAR EAST) LIMITED [illegible Chinese characters] whose
registered office is situate at 49-51 Xxxx Xxxx Hang Road, Flats A & E,
19th Floor, Xxxxxxx Industrial Building, Aberdeen, Hong Kong (the
"Mortgagor").
(2) STANDARD CHARTERED BANK a body corporate incorporated by Royal Charter
whose Head Office is at 0 Xxxxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx
having a branch office and carrying on business at Xx. 0-0X Xxx Xxxxx
Xxxx Xxxxxxx, Xxxx Xxxx (the "Lender").
RECITALS:
(A) This Mortgage is supplemental to the Facility Letter pursuant to which
the Lender has agreed to make the Facilities available to the Mortgagor.
(B) It is a condition of the Facility Letter that the Mortgagor enter into
this Mortgage.
THIS MORTGAGE WITNESSES as follows:-
1. Interpretation
1.1 In this Mortgage, including the Recitals, the following expressions
shall have the meaning assigned to them;-
"Crown Lease"
the Crown Lease referred to in Schedule I;
"Deed of Mutual Covenant"
the Deed of Mutual Covenant and Management Agreement (if
any) referred to in Schedule I;
"Dispose" and "Disposal"
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;
"Encumbrance"
any mortgage, charge, pledge, lien (otherwise than
arising by statute or operation of law), hypothecation
or other encumbrance, priority or security interest,
whatsoever over or in the Property;
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"Event of Default"
any event set out in Clause 7.1;
"Facilities"
the banking facilities to be made available to the
Mortgagor by the Lender pursuant to the Facility Letter;
"Facility Letter"
the letter or letters from the Lender to the Mortgagor
which from time to time govern the Facilities, as
amended or varied from time to time;
"Fixtures"
all fixed plant, fixed machinery and fixtures (including
trade fixtures), fittings, goods and materials (other
than those being personal chattels within the Bills of
Sales Ordinance (Cap.20)) from time to time on or in the
Property;
"Interest"
interest at such rate(s) per annum as is/are applicable
under the terms relating to the Facilities or as
determined by the Lender (which determination shall be
conclusive and binding on the Mortgagor);
"Mortgage"
this Mortgage as from time to time amended or modified;
"Obligations"
all principal, interest and other amounts from time to
time owing by the Mortgagor to the Lender on any current
and/or other account and all other liabilities
whatsoever of the Mortgagor to the Lender whether
present, future, actual and/or contingent;
"Property"
the property described in Schedule I and any part
thereof and Fixtures;
"Receiver"
a receiver or a receiver and manager for the time being
appointed by the Lender hereunder and includes any
permitted delegate or sub-delegate of the same;
"Regulations"
all planning, building, fire and other laws, regulations
and directives affecting the Property;
"Security Documents"
this Mortgage, the Facility Letter and all other
documents supplemental to, collateral with or derived
from them.
1.2 References in this Mortgage to: -
(a) the Lender includes its successors and assigns;
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(b) the Mortgagor includes its executors, administrators, successors
or assigns;
(c) clauses and the Schedules are references to clauses hereof and
the Schedule hereto;
(d) sub-clauses and paragraphs are, unless otherwise stated,
references to sub-clauses and paragraphs of the clause and
sub-clause in which the reference appears; and
(e) words denoting the singular shall include the plural and vice
versa and words denoting one gender shall include all genders.
1.3 Where the Mortgagor comprises two or more persons obligations expressly
or impliedly made by them shall be deemed to be made by such persons jointly
and severally.
1.4 Headings are for ease of reference only and shall be disregarded in
construing this Mortgage.
2. Covenant to Discharge Obligations
In consideration of the Lender agreeing to make available to the
Mortgagor the Facilities upon the terms and subject to the conditions contained
in the Facility Letter, the Mortgagor covenants to pay on demand all Obligations
to the Lender.
3. Charging Clause
The Mortgagor as beneficial owner and as continuing security for the
discharge of the Obligations and the observance and performance by the Mortgagor
of the agreements covenants and conditions contained in this Mortgage:-
(a) charges the Property to the Lender by way of first fixed
mortgage Provided that insofar as the Property comprises a legal
estate in land this mortgage shall be a legal charge over the
Property;
(b) (i) assigns to the Lender all the interest of the Mortgagor
in and the benefit to the Mortgagor arising out of all
insurances relating to the Property or any part thereof
and the right to receive any sums payable to the
Mortgagor in respect thereof;
(ii) agrees to assign legally to the Lender by a document in
a form and substance required by the Lender all
insurances relating to the Property of which the
Mortgagor is entitled to the benefit forthwith upon
notice by the Lender;
(c) assigns to the Lender, (and agrees to assign to the Lender and
will, if so required, execute a separate assignment or separate
assignments in such form and substance as the Lender may require
of), the sale proceeds, the rents and other sums of money and
deposits now or to become payable by virtue of each sale
agreement, lease, tenancy agreement or other Disposal now or
hereafter
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concluded in respect of the Property or any part thereof
together with power for the Lender to xxx for recovery and give
effectual discharges for the same in the name of the Mortgagor.
4. Release
If the Mortgagor shall repay to the Lender the Obligations hereby
secured in accordance in all respects with the covenants in that behalf herein
contained and observe and perform the covenants terms and conditions herein
contained and on the part of the Mortgagor to be observed and performed then
the Lender shall at the request and cost of the Mortgagor (including the
expense of making a certified true copy of any Power of Attorney under which
the Lender shall have executed or signed any deed or instrument) sign or
execute a receipt for the Obligations hereby secured or otherwise discharge or
release the security constituted by the Security Documents to the Mortgagor or
as the Mortgagor shall direct.
5. Representations and Warranties
The Mortgagor represents and warrants to the Lender that:-
(a) the Mortgagor is the beneficial owner of, has a good and
marketable title to, and has exclusive possession of the whole
of the Property;
(b) the Crown Lease is valid and subsisting and not voidable and has
not been amended or modified in any way;
(c) none of the Property has been Disposed of and, subject as
disclosed to the Lender in writing prior to the date hereof, the
Property is free from all Encumbrances;
(d) in respect of existing tenancies of the Property as disclosed to
the Lender in writing prior to the date hereof, no option to
renew or purchase has been granted to the tenants or any of them
and no advance payment of rent has been or will be demanded,
accepted or paid other than the monthly rent as and when it
falls due each calendar month;
(e) the covenants terms and conditions contained in the Crown Lease
and the Deed of Mutual Covenant so far as they relate to the
Property have been observed and performed up to the date hereof;
and
(f) each of the above representations and warranties and any implied
by law will be correct and complied with in all respects so long
as the Obligations remain payable under the Security Documents.
6. Covenants
6.1 The Mortgagor covenants with the Lender that the Mortgagor will:-
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(a) not make any Disposal or create or permit to subsist any
Encumbrance over the whole or any part or parts of the Property
except with the prior consent in writing of the Lender;
(b) observe and comply with:
(i) the covenants and conditions reserved and contained in
the Crown Lease and the Deed of Mutual Covenant; and
(ii) all Regulations;
(c) not agree to any modification or waiver of the Crown Lease or
Deed of Mutual Covenant or of any lease or tenancy agreement
affecting the Property without the prior written approval of the
Lender;
(d) take all necessary action to preserve the Property against
forfeiture, re-entry and re-possession by the Government of Hong
Kong;
(e) take out, maintain and comply with the terms of insurance in
respect of the Property which insurance shall:
(i) be in the joint names of the Mortgagor and the Lender;
(ii) be with such reputable insurance company carrying on
business in Hong Kong or with Lloyd's Underwriters as
the Lender may previously approve in writing;
(iii) be against loss or damage by fire, lightning, explosion,
xxxxx, xxxxxxx, flood, typhoon, impact, landslip,
subsidence, aircraft (other than hostile aircraft) and
other aerial devices or articles dropped therefrom,
earthquake, riot and strikes, malicious damage, third
party risks and such other risks and contingencies as
are normally covered by a comprehensive policy
maintained by a prudent company owning similar property
and carrying on similar business in Hong Kong and as the
Lender may from time to time reasonably require;
(iv) be to a minimum of the full reinstatement value of the
Property (including architect's and surveyor's fees and
demolition costs and the costs of shoring up), provided
that if the full reinstatement value referred to above
cannot be agreed between the Mortgagor and the Lender,
it shall be determined by a leading international firm
of surveyors and valuers or other appropriate expert
approved by the Lender at the expense of the Mortgagor;
and
(v) have clauses in a form satisfactory to the Lender to the
effect that:
(01) payment will be made to the Lender in full,
without any deductions, of all moneys and ex
gratis payments in respect thereof;
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(02) in the event that the Mortgagor becomes
insolvent or goes into liquidation or ceases to
carry on business, the insurer will, regardless
of such insolvency or liquidation or cessation
of business, assume liability on the same terms
and conditions and for the remaining period that
it would have assumed such liability in the
absence of such insolvency or liquidation or
ceasing to carry on business;
(03) the insurer undertakes to advise the Lender of:
(I) any alteration in, cancellation of,
termination of, or expiry of the
insurance at least 14 days before such
alteration, cancellation, termination or
expiry is due to take effect; and;
(II) any default in the payment of any
premium or failure to renew the
insurance at least 14 days prior to the
date of renewal thereof;
(04) with respect to the Lender, it shall be and
remain enforceable in respect of any claim
arising as a result of any act or thing
occurring less than 14 days prior to notice to
the Lender of any invalidity, avoidance or
unenforceability in whole or in part of the
insurance; and
(05) the Lender is not liable for the payment of
premiums;
(f) pay or cause to be paid the premiums and all other moneys
payable in connection with effecting or maintaining insurance
taken out pursuant to Clause 6.1(e) and on demand to endorse
over and deliver to the Lender the policy or policies of
insurance together with the latest premium receipt;
(g) keep or cause to be kept the Property in a good and substantial
state of repair and condition and allow the Lender and any
person nominated by the Lender to enter and to view the state of
repair of the same at all reasonable times (without thereby
becoming liable as a mortgagee in possession);
(h) promptly pay all rates, taxes, assessments and other outgoings
whatsoever assessed, imposed or charged on or in respect of the
Property;
(i) not without the prior written consent of the Lender carry out
any operation on or institute or continue any use of the
Property or any part or parts thereof for which the permission
of any Governmental body or other competent authority is
required or make any structural alterations or additions to the
Property;
(j) not commit any waste upon or injure or in any manner or by any
means lessen the value of the Property;
(k) forthwith deposit with the Lender all the deeds and documents of
title relating to any of the Property; and
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(I) promptly inform the Lender of any event or of the receipt of any
notice which may affect the title of the Mortgagor to the
Property or its rights or interest therein or any Fixtures or
fulfilment by the Mortgagor of any of the Mortgagor's covenants
or obligations hereunder, or which may affect the security
created by the Security Documents.
6.2 The Mortgagor further covenants with the Lender that:
(a) if the Mortgagor shall default in the performance of the
covenants and conditions contained in the Crown Lease or in
complying with its obligations under this Mortgage including but
not limited to its obligations in respect of insurance or in
keeping the Property in a good and substantial condition and
state of repair, or in duly complying with all Regulations then
and in any such case and so often as the same shall happen the
Lender shall be at liberty to perform the covenants in respect
of which such default shall be made, to effect such insurances
and to comply with all such Regulations and the Mortgagor will
forthwith repay on demand all moneys expended by the Lender
therefor and until such repayment the same shall form part of
the Obligations, shall have the benefit of the security
contained in Clause 3 and shall bear interest with effect from
the date of demand for payment until repayment in full (both
before and after judgment);
(b) upon the Lender being entitled so to do under the terms of this
Mortgage, the Property may be taken possession of, and during
the residue of the term of the Crown Lease (and any renewal
thereof) held and enjoyed by the Lender without any lawful
interruption or disturbance by the Mortgagor any person charging
by his direction or any person rightfully claiming through under
or in trust for the Mortgagor (other than in respect of an
estate or interest subject to which this Mortgage is expressly
made);
(c) the Mortgagor shall execute and do all such assurances, acts,
deeds and things as the Lender may require, and procure other
interested parties so to do, for protecting or perfecting the
security created by this Mortgage and to facilitate the exercise
of all powers, authorities and discretions vested in the Lender
or in any Receiver of the Property and shall in particular
execute all transfers, conveyances, assignments, assurances and
registrations, whether to the Lender or to its nominees or
purchasers, or sub-purchasers and give all notices, orders and
discretions which the Lender may think expedient and, for the
purposes of this Clause, a certificate in writing by the Lender
to the effect that any assurance or thing required by it is
reasonably required shall be conclusive evidence of such fact;
(d) in the event of the Hong Kong Government offering a renewal or
extension of the Crown Lease the Mortgagor shall:
(i) forthwith accept the offer;
(ii) fully observe and perform the conditions of the offer
and pay any premium or other consideration demanded;
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[MISSING COPY (iii)...]
Crown Lease execute a mortgage or the renewed or
extended Crown Lease to the Lender in the same form as
this Mortgage with such consequential amendments as the
circumstances require; and
(iv) pending execution of the mortgage pursuant to sub-clause
6.2(d)(iii) hold its interest in the Crown Lease as
renewed or extended in trust for the Lender.
7. Events of Default
7.1 The Lender shall be entitled to declare all or any part of this
security immediately enforceable at any time if:-
(a) the Mortgagor shall have failed to comply with a demand for
repayment of the Obligations or any part thereof; or
(b) the Mortgagor makes default in the payment on the due date and
in accordance with the terms and conditions relating thereto of
any principal or interest or other moneys outstanding and
payable by the Mortgagor under any term loan account (whether
demanded or not); or
(c) any representation, warranty or statement by the Mortgagor is
not complied with or proves to have been or to be incorrect; or
(d) the Mortgagor does not comply with any of the Mortgagor's
agreements, covenants or obligations under the Security
Documents; or
(e) the Mortgagor becomes bound to repay prematurely any other loan
or similar obligation for borrowed money by reason of a default
in its obligations in respect of the same or fails to make any
payment in respect thereof on the due date; or
(f) (if applicable) a petition is presented or an order is made or
an effective resolution is passed or analogous proceedings are
taken for the winding up of the Mortgagor save for the purposes
of an amalgamation, merger or reconstruction the terms whereof
have previously been approved by the Lender; or
(g) the Mortgagor convenes a meeting for the purpose of making, or
proposes and/or enters into, any arrangement or composition for
the benefit of its creditors; or
(h) an incumbrancer takes possession or a receiver or other similar
officer is appointed of the whole or any part of the assets, or
the undertaking (if applicable) of the Mortgagor or a distress
or execution is levied or enforced upon or sued out against any
of the chattels or property of the Mortgagor and is not
discharged within thirty days of being levied; or
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(i) the Mortgager shall without the consent in writing of the Lender
stop payment to creditors generally or (if applicable) the
Mortgagor shall (otherwise than for the purpose of such an
amalgamation, merger or reconstruction as is referred to in
sub-clause 7.1(f) cease or threaten to cease to carry on its
business or any substantial part thereof or (if applicable)
shall be deemed, for the purposes of Section 178 of the
Companies Ordinance or any statutory modification or
re-enactment thereof for the time being in force, to be unable
to pay its debts or disposes or threatens to dispose of the
whole or a substantial part of its undertaking or assets; or
(j) the Mortgagor shall commit any act of bankruptcy or become
insolvent or make any composition or arrangement with the
Mortgagor's creditors; or
(k) the Mortgagor shall have any judgment or order of Court made or
any execution levied against the Mortgagor's goods chattels or
property; or
(l) in the opinion of the Lender it has reasonable grounds to
consider all or any part of the Property to be in danger or
being seized or sold under any form of distress or execution
levied or threatened or otherwise to be in jeopardy; or
(m) there occurs a material adverse change in the Mortgagor's
financial condition which would, in the opinion of the Lender,
prevent it from performing in any material respect its
obligations under the Security Documents.
7.2 The Mortgagor covenants that it will notify the Lender forthwith in
writing of the occurrence of any Event of Default.
7.3 Notwithstanding anything to the contrary contained in any facility
letter, instrument, or other agreement or document to which the Mortgagor and
the Lender is a party, the Lender shall be under no liability at any time after
the occurrence of an Event of Default to honour any further obligations to
provide or to continue to make available banking facilities under any
arrangements relating to them and all term loans and other moneys, obligations
and liabilities hereby secured not otherwise so repayable, shall become
repayable immediately on demand, together with interest accrued thereon to the
date of repayment in full, and cash cover shall be provided on demand for all
contingent liabilities notwithstanding that the maturity thereon shall not have
arrived or that the Mortgagor shall not have been called upon to pay
thereunder.
8. Appointment and Powers of Receiver
8.1 Upon or at any time after this security has become enforceable, or if
so requested by the Mortgagor, the Lender may under seal or by writing under
the hand of any director, officer or manager of the Lender appoint any person
or persons to be a Receiver of the Property and may similarly remove any
Receiver or appoint another in his place.
8.2 Any Receiver so appointed shall in addition to all other powers and
rights implied by law have power either in his own name or in the name of the
Mortgagor:-
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(b) to Dispose of the Property or any part or parts thereof on such
terms and conditions as he may think fit and so that (without
prejudice to the generality of the foregoing) he may Dispose for
a consideration consisting of cash, debentures or other
obligations, shares, securities or other valuable consideration
and any such consideration may be payable in a lump sum or by
instalments spread over such period as he may think fit.
Fixtures may be severed and sold separately from the property
containing them without the consent of the Mortgagor;
(c) to enter into a deed of mutual covenant relating to the Property
and/or any other documents of a similar nature or grant or
except any rights, easements or privileges over or in respect of
the Property as the Lender shall in its absolute discretion
think fit;
(d) for the purpose of exercising any of the powers, authorities and
discretions conferred on him by or pursuant to the Security
Documents and/or of defraying any costs, charges, losses or
expenses (including his remuneration) which shall be incurred by
him in the exercise thereof or for any other purpose, to raise
and borrow money either unsecured or on the security of the
Property either in priority to the security constituted by the
Security Documents or otherwise and generally on such terms and
conditions as he may think fit Provided that:-
(i) no Receiver shall exercise such power without first
obtaining the written consent of the Lender and the
Lender shall incur no responsibility to the Mortgagor or
any other person by reason of its giving or refusing
such consent whether absolutely or subject to any
limitation or condition; and
(ii) no person lending such money shall be concerned to
enquire as to the existence of such consent or the terms
thereof or as to the propriety or purpose of the
exercise of such power or to see to the application of
any money so raised or borrowed;
(e) to exercise or permit the Mortgagor or any nominees of the
Mortgagor to exercise any powers or rights incidental to the
ownership of the Property in such manner as he may think fit;
(f) to make and effect all such repairs, alterations, improvements
and developments to and insurances of the Property as he may
consider fit;
(g) to commence, carry out and complete any building works, repairs,
reconstruction, furnishing or equipment of the Property at the
cost of the Mortgagor;
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(h) to enter into, perform or vary any contract or agreement for or
relating to the Property and to discontinue, repudiate or
rescind any such contract or agreement as aforesaid;
(i) to appoint, hire and employ contractors, builders, workmen,
managers, agents, officers, servants, solicitors, architects,
surveyors, quantity surveyors, estate agents and others for any
purpose on such terms and generally in such manner as he may
consider fit and to discharge any such persons and any such
persons appointed, hired or employed by the Mortgagor and/or the
Receiver;
(j) to purchase or acquire all materials for use in connection with
the exercise of his powers hereunder upon such terms and
conditions as he may in any case think fit;
(k) to require the Mortgagor, his agents, servants, solicitors,
architects, surveyors, quantity surveyors, estate agents and
others to deliver to the Lender all agreements, deeds,
documents, plans, drawings, specifications, papers and
information whatsoever in their possession which the Receiver
may in his absolute discretion require in connection with the
Property and generally to give instructions to any of the same;
(l) to obtain all consents as he shall in his absolute discretion
think fit;
(m) to settle, adjust, refer to arbitration, compromise and arrange
any claims, accounts, disputes, questions and demands with or by
any person who is or claims to be a creditor of the Mortgagor or
relating in any way to the Property;
(n) to bring, prosecute, enforce, defend, compromise and abandon all
claims, actions, suits and proceedings in relation to the
Property as may seem to him to be expedient; and
(o) to do all such other acts and things he may consider necessary
desirable in connection with the Property or for realising the
Property or incidental or conducive to any of the matters,
powers or authorities conferred on a Receiver under or by virtue
of this Mortgage and generally to exercise in relation to the
Property all such powers, authorities and things as he would be
capable of exercising and doing if he were the absolute
beneficial owner of the same.
9. Provisions affecting Receiver
The following provisions shall apply with regard to any Receiver so
appointed:-
(a) any such appointment may be made before or after the Lender
shall have entered into or taken possession of the Property;
(b) any Receiver may (at the absolute discretion of the Lender) be
appointed either Receiver of all of the Property or Receiver of
such part or parts thereof as may be specified in the
appointment and in such latter event the powers
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hereinbefore conferred on a Receiver shall have effect as though
every reference therein to the Property were limited to the part
or parts of the Property so specified;
(c) any Receiver shall in the exercise of his powers, authorities
and discretions conform to any regulations and directions from
time to time made and given by the Lender Provided that no
person dealing with the Lender or any Receiver shall be
concerned to enquire whether the Receiver has so conformed to
any such regulations and directions;
(d) any Receiver shall be the agent of the Mortgagor for all
purposes and the Mortgagor alone shall be responsible for his
contracts, engagements, acts, omissions, defaults, losses and
misconduct and for liabilities incurred by him and for his
remuneration and the Lender shall not incur any liability
therefor (either to the Mortgagor or to any other persons
whatsoever) by reason of its appointing such Receiver or of its
having made or given any requisition or direction pursuant to
the foregoing sub-paragraph or for any other reason whatsoever;
(e) if two or more persons are appointed Receiver the Lender may
provide that their rights, powers and remedies vest in them
jointly or jointly and severally;
(f) the Lender may from time to time fix the remuneration of any
Receiver and direct payment of such remuneration out of moneys
accruing to him in the exercise of his powers as such Receiver
but the Mortgagor alone shall be liable for the payment of such
remuneration;
(g) the Lender may from time to time and at any time require any
Receiver to give security for the due performance of his duties
as Receiver and may fix the nature and amount of the security to
be so given but the Lender shall not be bound in any case to
require any such security; and
(h) every Receiver, attorney, manager, agent or other person
appointed by the Lender hereunder shall be entitled to be
indemnified out of the Property and the income thereof in
respect of all liabilities and expenses incurred by him in the
execution or purported execution of his powers and against all
actions, proceedings, claims and demands in respect of any
matter or thing done or omitted in anywise relating to the
Property and the Lender may retain and pay out of any money in
the Lender's hands arising from the Property or out of its own
resources all sums necessary to effect such indemnity and all
such sums shall be a charge on the Property.
10. Lender's Powers
All or any of the powers, authorities and discretions which are
conferred either expressly or impliedly upon a Receiver of the whole or any part
or parts of the Property by law and this Mortgage may be exercised by the Lender
in relation to the whole or any part or parts of the Property without first
appointing a Receiver of the Property or norwithstanding the appointment of a
Receiver of the Property,
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11. Lender's Entry into Possession
11.1 If the Lender or any Receiver enters into possession of the Property, it
or he may from time to time go out of such possession.
11.2 The Lender shall not in any circumstances by reason of its taking
possession of the Property or for any other reason whatsoever, and whether as
mortgagee in possession or on any other basis whatsoever, be liable to account
to the Mortgagor for anything except its own actual receipts or be liable to the
Mortgagor for any loss or damage arising from any realisation of the Property or
from any act, default or omission in relation to the Property or from any
exercise or non-exercise by it of any power, authority or discretion conferred
upon it in relation to the Property unless such loss or damage shall be caused
by its own fraud.
11.3 All the provisions of sub-clause 11.2 shall apply in relation to the
liability of any Receiver of the Property in all respects as though every
reference in sub-clause 11.2 to the Lender were instead a reference to such
Receiver.
12. Power of Attorney
12.1 The Mortgagor by way of security irrevocably appoints the Lender, each
of the officers for the time being of the Lender and every Receiver of the
Property, each with full power of substitution and each with full power to act
alone, to be the Mortgagor's attorney and in the Mortgagor's name or in the name
of the attorney and on the Mortgagor's behalf to execute and as the Mortgagor's
act and deed or otherwise to do all such assurances, acts or things which the
Mortgagor ought to do under the covenants and provisions contained in the
Security Documents and generally in the Mortgagor's name and on the Mortgagor's
behalf to exercise all or any of the powers, authorities and discretions
conferred on the Lender or any such Receiver and (without prejudice to the
generality of the foregoing) to execute, seal and deliver and otherwise perfect
any deed, assignment, transfer, assurance, agreement, instrument or act which
may in the opinion of such attorney be required or deemed proper, necessary or
desirable in or for any of the purposes of the Security Documents.
12.2 The Mortgagor ratifies and confirms and agrees to ratify and confirm
whatever any such attorney as is mentioned in sub-clause 12.1 shall do or
purport to do in the exercise or purported exercise of all or any of the powers,
authorities and discretions referred to therein.
13. Third parties
13.1 No person dealing with the Lender or with any Receiver shall be
concerned to enquire whether any Event of Default has happened upon which any of
the powers, authorities, and discretions conferred by or pursuant to the
Security Documents in relation to the Property are or may be exercisable by the
Lender or by any such Receiver or otherwise as to the propriety or regularity of
acts purporting or intended to be in exercise of any such powers and as regards
any such person dealing with the Lender or any such Receiver, notwithstanding
that the requisite power, authority or discretion has not become exercisable or
any impropriety or irregularity whatsoever, such powers, authorities and
discretions shall be deemed to be duly and validly
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exercised and that the remedy (if any) of the Mortgagor in respect of any
breach of the provisions hereinbefore contained shall be in damages only.
13.2 Upon any Disposal by the Lender and/or the Receiver the receipt of the
Lender and/or the Receiver for the proceeds thereof shall effectually discharge
the person paying the same therefrom and from being concerned to see to the
application or being answerable for the loss or misapplication thereof.
14. Proceeds of Security Realization
The Lender or any Receiver so appointed shall apply the moneys arising
from any Disposal under the powers conferred upon the Lender or upon any
Receiver after the security hereby created has become enforceable:-
First : in discharge of all rent, taxes, rates and other
outgoings due and affecting the Property;
Secondly : unless the Property is sold subject to a prior
incumbrance, in discharge of that prior incumbrance;
Thirdly : in payment of the Receiver's lawful remuneration, the
Receiver's and the Lender's costs, charges and expenses
and all lawful costs and expenses properly incurred in
the Disposal;
Fourthly : in payment of the Obligations, and any residue shall be
paid to the person who immediately before any Disposal
was entitled to the Property or authorized to give a
receipt for the proceeds of any Disposal of the
Property.
15. Security Additional
The security conferred by this Mortgage is in addition to and shall not
affect or be affected by any other remedy lien security or guarantee which the
Lender may now or at any time hold or take from the Mortgagor or from any other
person in respect of the Obligations.
16. Suspense Account
The Lender may at any time place and keep for such time as it may think
prudent any moneys received, recovered or realised under the Security Documents
to and in a separate or suspense account to the credit of the Mortgagor or of
such other person or persons or transaction, if any, as it shall think fit
without any intermediate obligation on its part to apply the same or any part
thereof in or towards the discharge of the Obligations.
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Set-Off
The Mortgagor authorises the Lender to:-
(a) apply (without prior notice) any credit balance (whether or not
then due) to which the Mortgagor is at any time beneficially
entitled on any account at any office of the Lender in Hong Kong
and elsewhere; and
(b) set-off any liabilities of the Lender to the Mortgagor which are
due or to become due;
in or towards satisfaction of all or any of the Obligations.
For that purpose, the Lender is hereby authorised by the Mortgagor to
use all or any part of any such credit balance or liability to buy such other
currencies as may be necessary to effect such application or set-off.
18. Indulgence
This security and the rights of the lender under it shall not be
discharged or in any way affected by:-
(a) any time, indulgence, waiver or consent at any time given to the
Mortgagor or any other person;
(b) any amendment to any of the Security Documents or to any other
security, guarantee or indemnity;
(c) the making or the absence of any demand on the Mortgagor or any
other person for payment;
(d) the enforcement or absence of enforcement of or release of the
Security Documents or of any other security, guarantee or
indemnity;
(e) the dissolution, amalgamation, reconstruction, reorganisation or
change in the persons carrying on business in the name of the
Mortgagor or, as the case may be, death or incapacity of the
Mortgagor;
(f) the illegality, invalidity or unenforceability of or any defect
in any provision of the Security Documents or any of the
Mortgagor's obligations under them; or
(g) any party to any of the Security Documents not being bound by
any of the same by reason of failure to execute the same or
otherwise.
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19. Settlement
Any settlement, assignment, payment or discharge between the Lender and
the Mortgagor shall be conditional upon no security or payment to the Lender in
respect of the Obligations being avoided or reduced by virtue of any provisions
or enactments relating to bankruptcy, insolvency or liquidation for the time
being in force and in that event the Lender shall be entitled to recover the
value or amount of any such security or payment from the Mortgagor.
20. Distribution of Payments
20.1 Payments by the Mortgagor shall be treated for the purposes of the
Security Documents as if money received thereunder were applied to amounts
owing thereunder or with respect thereto in such manner as the Lender may from
time to time notify, notwithstanding that such moneys may in fact be applied or
directed by the payer to be applied in some other manner.
20.2 If the security becomes enforceable all moneys received by the Lender
in respect of the Obligations after the date conclusively determined by the
Lender to be the earliest date on which the Lender was entitled to call for the
immediate repayment of any principal not otherwise payable on demand or on which
there was an Event of Default shall be credited to a suspense account or
suspense accounts or treated as if so credited pending application thereof at
the discretion of the Lender.
21. Expenses And Stamp Duty
The Mortgagor shall be liable for and shall pay on demand:-
(a) all costs and expenses (including legal fees) incurred by the
Lender in connection with the preparation, printing,
negotiation, entry into of the Security Documents and/or any
amendment of or waiver in respect of the Security Documents;
(b) all costs and expenses (including legal fees) incurred by the
Lender in the administration of, or in preserving, exercising,
protecting or enforcing any rights under the Security Documents
or in relation to the Property; and
(c) any stamp, documentary, registration or similar duty or fee
payable in connection with the entry into, registration,
performance, enforcement or admissibility in evidence of the
Security Documents and shall indemnify the Lender against any
liability with respect to or resulting from any delay in paying
or omission to pay any such duty or fee;
to the intent that the Lender shall be afforded a full and unlimited indemnity
in respect thereof and until so repaid such costs, charges, expenses and other
sums and interest shall form part of the Obligations and shall have the benefit
of the security contained in Clause 3 (but without prejudice to any other
remedy, lien or security available to the Lender).
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22. Evidence
22.1 The entries made in the accounts maintained by the Lender in accordance
with its usual practice shall be conclusive evidence of the existence and
amounts of the Obligations of the Mortgagor therein recorded save for manifest
error.
22.2 A certificate by the Lender as to any sum payable to it under the
Security Documents and any other certificate, determination, notification or
opinion of the Lender provided for in the Security Documents, shall be
conclusive, save for manifest error.
23. Assignment
23.1 The Security Documents shall benefit and be binding on the parties,
their respective successors and any permitted assignee or transferee of some or
all of a party's rights or obligations thereunder. Any reference in the
Security Documents to any party shall be construed accordingly.
23.2 The Mortgagor may not Dispose of all or part of the Mortgagor's rights
or obligations under the Security Documents.
23.3 (a) The Lender may at any time Dispose to any one or more banks or
other financial institutions all or any part of its rights and
benefits under the Security Documents and in that event the
disposee shall have the same rights against the Mortgagor as it
would have had if it had been a party hereto.
(b) Any such disposee shall be and be treated as the Lender for all
purposes of the Security Documents and shall be entitled to the
full benefit of the Security Documents to the same extent as if
it were an original party in respect of the rights or
obligations Disposed of to it.
23.4 The Lender may disclose to a potential disposee or any other person
proposing to enter into contractual arrangements with the Lender in relation to
the Security Documents such information about the Mortgagor as it may think fit.
24. Remedies, Waivers, Amendments and Consents
24.1 Time shall be of the essence of the Security Documents but no failure on
the part of the Lender to exercise, and no delay on its part in exercising, any
right or remedy under the Security Documents will operate as a waiver thereof,
nor will any single or partial exercise of any right or remedy preclude any
other or further exercise thereof or the exercise of any other right or remedy.
The rights and remedies provided in the Security Documents are cumulative and
not exclusive of any rights or remedies provided by law.
24.2 Any provision of the Security Documents may be amended only if the
Mortgagor, and the Lender so agree in writing and any Event of Default may be
waived before or after it occurs only if the Lender agrees in writing. Any
waiver or consent shall be effective only in the instance and the purpose for
which it is given.
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25. Communications
25.1 Each communication to be made under the Security Documents shall be made
in writing but, unless otherwise stated, may be made by telex, facsimile or
letter but, if by telex by the Mortgagor, shall promptly be confirmed by letter.
25.2 Any communication or document to be made or delivered by one party to
another pursuant to the Security Documents shall be made or delivered to that
other party to the address specified herein or (if appropriate) its registered
office or in the case of the Mortgagor to the Property.
25.3 Any communication from the Mortgagor shall be irrevocable, and shall not
be effective until actually received by the Lender. Any communication to the
Mortgagor shall be deemed to be received by the Mortgagor (if sent by telex or
facsimile) on the next working day in the place to which it is sent or (in any
other case) when left at an address required by sub-clause 25.2 or 3 days after
being put in the post (by airmail if to another country), postage prepaid, and
addressed to it at that address.
26. Partial Invalidity
The illegality, invalidity or unenforceability of any provision of the
Security Documents 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.
27. Continuing Security
The security created herein shall be a continuing security and shall be
available to secure whatever may be the balance at any time or from time to
time due by the Mortgagor to the Lender pursuant to this Mortgage.
28. Counterparts
This Mortgage may be signed in any number of counterparts, all of which
taken together respectively and when delivered to the Lender shall constitute
one and the same respective instrument. Any party may enter into this Mortgage
by signing any such counterpart.
29. Governing Law
This Mortgage shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereby agree to submit to the non-exclusive
jurisdiction of the Hong Kong Courts.
This Mortgage has been executed by or on behalf of the Mortgagor.
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SCHEDULE I
1. The Property:-
(a) Lot number, section, undivided shares, description, address and
etc.;-
ALL THOSE 1270 equal undivided 14,074th parts or shares of and
in ALL THOSE 260 equal undivided 10,080th parts or shares of and
in ALL THOSE pieces or parcels of ground respectively registered
in the Land Registry as THE REMAINING PORTION OF INLAND XXX
XX.0000 xxx XXX XXXXXXXXX XXXXXXX XX XXXXXX LOT NO.2227 And of
and in the measuages erections and buildings thereon now known
as "CITICORP CENTRE" Xx.00 Xxxxxxxxx Xxxx ("xxx Xxxxxxxx")
TOGETHER with the sole and exclusive right and privilege to hold
use occupy and enjoy ALL THAT UNIT NO.04 on the SEVENTEENTH
FLOOR of the Building which said Unit is more particularly shown
coloured Pink on the 17th Floor Plan annexed to an Assignment of
even date in favour of the Mortgagor ("the Assignment").
(b) Exception and reservations, etc.:-
(i) Except and reserved as in the Crown Lease hereinafter
mentioned is excepted and reserved.
(ii) Subject to such exceptions and reservations as are set
out in the Assignment registered in the Land Registry by
Memorial No.4280160 and the Deed of Mutual Covenant
registered in the Land Registry by Memorial No.2462844
and a Supplemental Deed of Mutual Covenant registered in
the Land Registry by Memorial No.2476944 and a Sub-Deed
of Mutual Covenant registered in the Land Registry by
Memorial No.5677616.
(c) Easements and other appurtenant rights the benefit of which is
assigned with the Property:-
All rights rights of way (if any) and all other rights
privileges easements and appurtenances thereto belonging or
appertaining or therewith at any time used held occupied or
enjoyed AND all the estate right title interest property claim
and demand whatsoever of the vendor therein and thereto.
(d) Easements and other rights to which the Property is subject:-
All subsisting easements rights and rights of way (if any)
affecting the Property.
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2. The Crown Leases:-
(A) A new Crown Lease of Inland Lot No. 1936 was deemed to have been granted
under and by virtue of the Crown Lease Ordinance (Cap.40) for the
further term of 75 years commencing immediately after the expiration of
the original term of 75 years created under the old Crown Lease,
particulars of which are set out as follows:-
(a) Date : 14th June 1917.
(b) Parties : His late Majesty King Xxxxxx V of the one part
and Xxxxx Xxxx Hong Limited of the other part.
(c) Term : 75 years from the 21st day of March 1904 with a
right of renewal for a further term of 75 years.
(d) Lot : Inland Lot No. 1936.
As varied or modified by a Deed of Variation dated the 21st day of May
1982 and registered in the Land Registry by Memorial No. 2260925.
(B) A new Crown Lease of Inland Lot No. 2227 was deemed to have been granted
under and by virtue of the Crown Lease Ordinance (Cap.40) for the
further term of 75 years commencing immediately after the expiration of
the original term of 75 years created under the old Crown Lease,
particulars of which are set out as follows:-
(a) Date : 14th June 1917.
(b) Parties : His late Majesty King Xxxxxx V of the one part
and Xxxxx Xxxx Hong Limited of the other part.
(c) Term : 75 years from the 21st day of March 1904 with a
right of renewal for a further term of 75 years.
(d) Lot : Inland Lot No. 2227.
As varied or modified by a Deed of Variation dated the 21st day of May
1982 and registered in the Land Registry by Memorial No. 2260926.
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SEALED with the Common Seal )
of the Mortgagor and SIGNED )
by [SIG] ) [SIG] [SEAL]
)
in the presence of: )
[SIG]
XXXXX X. X. XXX
Solicitor, Hong Kong
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