GLORY KEEN HOLDINGS LIMITED
2022 年 6
月 15 日
签署版本
GLORY KEEN HOLDINGS LIMITED
（作为卖方）与
世纪金花商业控股有限公司
（CENTURY GINWA RETAIL HOLDINGS LIMITED）
（作为买方）
关于
世纪金花商业控股有限公司
（CENTURY GINWA RETAIL HOLDINGS LIMITED）
可换股优先股的买卖协议
269180596v.13
目录
页码
本股份买卖协议（“本协议”）由下列双方于 2022 年 6 月 15 日订立：
(1) GLORY KEEN HOLDINGS LIMITED，一家依据英属处女群岛法律成立的有限公司，其注册地址为 Kingston Chambers, PO Box 173, Road Town, Tortola,
British Virgin Islands （简称“卖方”）；及
(2) 世纪金花商业控股有限公司（ CENTURY GINWA RETAIL HOLDINGS LIMITED），一家依据百慕达法律成立的有限公司，其注册地址为 Clarendon House, 2 Church Street, Hamilton, HM11, Bermuda（简称“买方”）。
鉴于：
(A) 于本协议日期，买方已发行 1,149,694,715 股普通股和 1,177,068,181 股可换股优先股。
(B) 于本协议日期，卖方持有买方之 1,177,068,181 股可换股优先股（简称“出让股份”）。
(C) 卖方同意按本协议的条款和条件向买方出售出让股份。
(D) 买方同意按本协议的条款和条件从卖方购买出让股份。
(E) 根据回购守则，本交易构成买方之场外股份回购（简称“股份回购交易”）。买方应根据回购守则规则 2 向执行人员提出申请，以批准股份回购交易。
双方达成协议如下:
1. 释义
1.1. 除非上下文另有要求外，在本协议中，下述的词语具有下述含义：
“营业日”指香港的银行一般开门营业的日子（不包括星期六、星期天和公众假日）；
“交割”指本协议第 5 条项下的交易的完成；
“交割日期”，即交割发生之日，指列于第 4.1.1 条及第 4.1.2 条的先决条件满足后
的第 5 个营业日或由双方同意的其他日期；
“最后终止日”指 2022 年 12 月 31 日或由双方同意的其他日期；
“先决条件”指第 4.1 条项下的先决条件；
“权益负担”指任何权利主张、押记、抵押、担保、留置、质押或其他第三方权利；
“港元”指港元，香港的法定货币；
“香港”指中华人民共和国香港特别行政区；
“普通股”指买方股本中每股面值 0.10 港元之普通股；
“可换股优先股”指买方已发行每股面值 0.10 港元之无投票权可换股优先股；
“双方”指买方及卖方；“一方”是指本协议一方； “对价”具有第 3.1 条赋予的含义；及
“出让股份”具有鉴于（B）赋予的含义；
“执行人员”指证券及期货事务监察委员会企业融资部执行董事或执行董事之任何授权代表；
“回购守则” 指香港股份回购守则；
“上市规则” 指香港联合交易所有限公司证券上市规则；
“承兑票据” 指由买方发出到期日为发行日一周年的无利息的承兑债券，其格式及内容载于附件 1；
“GCX” 指 Golden Chance (Xian) Limited，一家xx属处女群岛注册成立之公司，于本协议日期为买方之全资拥有附属公司；
“GCX 股份质押” 指由买方于交割日期签立及交付卖方之股份押记，据此，买方对买方持有之 GCX 全部已发行股本质押卖方为受益人，其格式及内容载于附件 2；
“本交易”指按照交易文件项下的条款及条件拟议进行的交易；
“交易文件”指本协议、承兑票据、与本协议或本协议拟议交易有关的文件及其他卖方指定的文件;
“继续有效条款”指第 1 条、第 4.3 条、第 8 条及第 10 条至 16 条。
1.2. 除非上下文另有要求外，在本协议中：
1.2.1. 提及某人士时，应包括个人、法人组织（无论已登记注册成立与否）、未注册的实体或合伙企业；
1.2.2. 各条款的标题不得影响本协议的解释；
1.2.3. 提及本协议时，应包含本协议的鉴于条款；提及条款、条、款、项、附录时，应被理解为其提及的是本协议的条款、条、款、项、附录；
1.2.4. 提及某一性别的词，同时指所有其他性别；提及单数词同时指该词的复数；反之亦然；
1.2.5. 提及任何法律或法律规定时，应包括不时对该等法律或法律规定的任何修订、修改、整合或从新颁布，但前提是该修订、修改、整合或重新颁
布是适用于或可适用于在交割前按本协议订立的任何交易，并（如就该等交易存在任何义务或可能产生任何义务的情况下）包括任何被该法律或法律规定直接或间接取代的先前的法律或法律规定;
1.2.6. 所指的时间均为香港时间；及
1.2.7. 所称或所定义的任何文件指该文件按其条款不时修订的版本。
1.3. 本协议中所提及的每一方将包含其各自的继任人和准许受让人。
1.4. 任何付款到期应付的日期如非营业日，则应于同一日历月份的下一个营业日
（如有）或上一个营业日（如其后并无营业日）支付。任何本金或未付款额的到期应付日如按上文延展，在延展的期间内有关本金或未付款额按原到期日应付的息率计付利息。
2. 协议出售出让股份
2.1. 受限于本协议的条款及条件，卖方作为实益拥有人同意向买方出售出让股份，而买方同意从卖方购买出让股份。
2.2. 卖方向买方承诺，自本协议日期起至交割日期及本协议终止日期两者之间较早者为止，除本交易以外，卖方将不会行使出让股份所附之转换权，亦不会出售、转让、妨碍或以其他方式处置任何出让股份。
3. 对价
3.1. 受限于第 3.3 条，出让股份的总对价为港元 247,184,318（“对价”）。
3.2. 对价将由买方于交割当天向卖方发行承兑票据支付并完成在票据持有人名册上的正式登记。
3.3. 若买方于交割日期之前宣派任何就出让股份的股息或分派，而该等股息或分派之记录日期为交割日期之前，则对价应减除该等股息或分派的金额。
4. 先决条件
4.1. 交割应按以下条件获满足为前提：
4.1.1. 执行人员已就股份回购交易根据回购守则规则 2 批准相关股份回购（而该批准并未获撤回或撤销及该批准的条件（如有）己获达成）；
4.1.2. 买方已根据回购守则于其特别股东大会上获得至少四份之三之无利害关系股东以亲身或委派受委代表投票方式表决批准股份回购交易；
4.1.3. 买方已签订及交付 GCX 股份质押，据此买方对买方持有之 GCX 全部已发行股本质押予卖方为受益人，同时双方签订释放契据（其格式及内容载于附件 3），取消双方此前于 2012 年 12 月 27 日签立，就 GCX 的股份押记；及
4.1.4. 卖方根据本协议所提供之保证于各方面仍属真实、准确且并无误导成份。
4.2. 卖方可于交割日前的任何时间以书面通知买方有条件或无条件豁免第 4.1.3 条的先决条件。买方可于交割日前的任何时间以书面通知卖方有条件或无条件豁免第 4.1.4 条的先决条件。
4.3. 如果任何先决条件未在最后终止日或之前满足或获豁免，本协议将会自动终止，在此情况下，本协议和本协议项下的所有权利和义务应终止，惟于终止前在本协议项下已经产生的权利和义务和继续有效条款除外。
5. 交割
5.1. 受限于第 4 条的条款，交割应于交割日期早上 11 点或本协议双方同意的其他时间发生，届时将进行以下事项：
5.1.1. 卖方应向买方交付由卖方正式签署、受让人为买方的关于出让股份的转让文书（instrument of transfer）；
5.1.2. 卖方应向买方交付代表有关出让股份的所有股份证书及卖方董事会批准股份回购交易的董事会决议的核证副本；及
5.1.3. 买方应根据本协议第 3.2 条向卖方出具承兑票据。
6. 声明及保证
6.1. 卖方向买方声明及保证以下事项在本协议日期及在交割日期均为真实及准确，并知悉买方是依赖该等声明及保证以签署本协议：
6.1.1. 卖方在其所属司法管辖区合法成立及注册，并有效存续；
6.1.2. 卖方拥有合法权利和全部权力及授权签订和履行交易文件、及与交易文件有关的任何其他文件，且该等文件一经签署，即根据其条款构成对买方有效及有约束力的义务；
6.1.3. 卖方有权按本协议的条款向买方出售及转让出让股份而无需要取得任何第三方的同意；
6.1.4. 出让股份未受任何权益负担所规限；及
6.1.5. 卖方签署和交付交易文件以及履行其在交易文件的义务，均符合及不会导致违反卖方的公司章程、或任何适用的法律或法规、或任何适用于卖方及/或其资产的法院、政府机构或监管机构发出的任何命令、指令或判决及/或对卖方具有约束力的重大合约义务的条文。
6.2. 买方向卖方声明及保证以下事项在本协议日期及在交割日期均为真实及准确，并知悉卖方是xxx等声明及保证以签署本协议：
6.2.1. 买方在其所属司法管辖区合法成立及注册，并有效存续；
6.2.2. 买方拥有合法权利和全部权力及授权签订和履行交易文件、及与交易文件有关的任何其他文件，且该等文件一经签署，即根据其条款构成对买方有效及有约束力的义务；
6.2.3. 买方有权按本协议的条款从卖方购买出让股份，除第 4.1 条所需的同意外，并无须得到任何第三者的同意；及
6.2.4. 买方签署和交付交易文件以及履行其在交易文件的义务，均符合及不会导致违反买方的公司章程、或任何适用的法律或法规、或任何适用于买方及/或其资产的法院、政府机构或监管机构发出的任何命令、指令或判决及/或对买方具有约束力的重大合约义务的条文。
6.3. 卖方于第 6.1 条所载的每一项声明及保证，以及买方于第 6.2 条所载的每一项声明及保证，将为个别及独立的，除非有明确规定外，并将不受任何对本第 6 条的其他段落的提述或本协议的任何条文所限。
7. 赔偿
7.1. 在不限制一方的权利或以其他方式影响一方以其他理由提出任何权利主张的能力的情况下，如果另一方作出的任何保证被违反或（视情况而定）证明为不真实或具有误导性，或一方违反交易文件项下其任何义务而导致另一方遭受损失，违约方应向守约方支付：
7.1.1. 守约方的所有直接损失，以使守约方处于如果违约方作出的任何保证没有被违反或（视情况而定）证明为真实且不具有误导性，或违约方没有违反交易文件项下其任何义务，其本应处于的地位；及
7.1.2. 守约方与上述违反相关或由此产生的所有费用和支出，以及因任何违反而在与下列各项有关的任何行动开始之前或之后可能发生的任何费用
（包括律师费用及其他专业顾问费用）、支出或其他责任，即（i）守约方就交易文件提出的任何法律程序；或（ii）与该权利主张有关的任何和解或判决的执行。
8. 保密
8.1. 在符合第 10 条和第 8.2 条的规定前提下：
8.1.1. 双方均应将因进行本交易及订立交易文件而收到或取得的有关以下内容的任何信息视为保密信息，而且不得披露或使用：
(a) 交易文件的条款；或
(b) 有关交易文件的谈判及磋商。
8.2. 如发生下列情形且以下列情形为限，第 8.1 条的规定不得禁止披露或使用任何信息：
8.2.1. 法律、任何政府、监管或监督机构或作出披露的一方及其关联方必须遵守其规定的具适当管辖权力的任何政府、监管或监督机构或机关要求披露或使用有关信息时，包括买方根据上市规则及回购守则规定而作出的披露；
8.2.2. 向任何一方为本协议项下的交易之目的所委聘的审计师或专业顾问进行披露时，条件是该等审计师或专业顾问如同其为本协议的当事方一样遵守第 8.1 条中有关该等信息的规定；
8.2.3. 有关信息已进入公众领域时（但非因违反本协议所致）；
8.2.4. 其他方已事先书面批准披露或使用有关信息时；或
8.2.5. 有关信息是其独立开发的，
但前提条件是，在不违反第 10 条的前提下，依据第 8.2.1 条规定披露或使用任何信息之前，有关的一方应及时将有关要求通知其他方，目的是让其他方有机会就上述披露或使用提出反对意见或与其他方约定上述披露或使用的时间以及信息内容。
9. 修改
9.1. 本协议的任何修改，只有以书面形式作出的，且经双方或其各自代表签字的，方为有效。
9.2. 一切修改均不构成对本协议任何条款的放弃，也不得被视为是对修改日以前根据本协议条款，或在本协议项下的已产生的任何权利、义务、责任构成任何影响，并且双方根据本协议条款，或在本协议项下享有的权利和承担的义务，除被修改的部分外，应持续并完全有效。
10. 公告
除法律或作出公告或披露的一方必须遵守其规定的具适当管辖权力的政府、监管或监督机构或机关或任何对买方及其附属公司、本协议双方或本交易享有管辖权的证券交易所要求发布或披露外（不论具法律效力与否），任何一方在未经其他方事先书面同意的情况下（该同意不得被无理拒绝或拖延），不得就本交易及交易文件的存在或本交易及交易文件的题述的事项发布任何公告或对外进行任何披露。
11. 费用
每一方应承担其各自就商议、准备和完成交易文件及本交易而发生的费用（包括税款）。
12. 通知
12.1. 所有由一方发给其他方的根据本协议或与本协议有关的通知或通讯都应以书面方式作出，并由发出通知的一方签署或以其名义签署，并以传真方式发至第
12.2 条中的号码，或以专人送达、预先付费的邮件或挂号邮件送达至第 12.2 条的地址，由第 12.2 条中列明的相关方接收（或递送到根据本 12 条另行通知的其他地址或接收方)。任何以上述方式专人递送、传真或邮寄的通知，在下列情况下被视为已适当送达：
12.1.1. 如以专人递送,在送达时；
12.1.2. 如以传真方式发出，在收到传输成功确认时；
12.1.3. 如以电子邮件发送，通知于电子邮件到达对方服务器时视为送达；及
12.1.4. 如以预先付费邮件或挂号邮件寄出，在邮寄日后第三个营业日上午十时，但是如以专人递送或传真方式发出的任何通知是于任何营业日下午六时之后或于任何非营业日任何时候发出的，则应被视为于接收地的下一个营业日的上午九时三十分送达。
本 12.1 条所指时间均为收件人所在国家的当地时间。
12.2. 第 12.1 条所指的双方地址、传真号码、电邮地址如下：卖方:
地址： xxxxxxx 0 xxxxxxxxx 00 x 06-11 室传真：
收件人： Xxxxx Xx（转xxx）
买方:
地址： xxxxxxxx 000 x协成行湾仔中心 3 楼 301 室传真：
收件人： 公司秘书
12.3. 为本 12 条之目的,一方可通知其他方变更其名称、收件人、地址或传真号码，上述通知仅在下述时间生效：
12.3.1. 通知中具体提到的变更生效日；或
12.3.2. 如果未提到具体生效日，或提到的具体日期早于通知发出日之后五个营业日，则为通知发出日后的第五个营业日；或
12.3.3. 本协议项下的或与本协议有关的一切通知均应以中文作出。
13. 第三者权利
13.1. 除非本协议中另有规定，非本协议的签署方不会享受合约（第三者权利）条例
（香港法例第 623 章）项下的权利，不可执行或受益于本协议的任何条款。
13.2. 尽管本协议的任何条款另有规定，在任何时候，本协议的签署方不需要获得任何非本协议的签署方的同意才可撤销或更改本协议。
14. 管辖法律和司法管辖权
14.1. 本协议由香港法律管辖并按香港法律解释。
14.2. 凡因本协议产生或与本协议有关的争议、争执或索偿，或本协议的存在、效力、解释、履行、违反或终止，或因本协议引起的或与之相关的任何非合同性争议，应由双方友好协商解决。
14.3. 如双方在争议后三十个营业日内未能协商解决，则任何一方可提交由香港国际仲裁中心管理的机构仲裁，并按照提交仲裁通知时有效的并经《香港国际仲裁中心国际仲裁管理程序》修订的《联合国国际贸易法委员会仲裁规则》最终解决。主管当局为香港国际仲裁中心，仲裁将在香港进行，仲裁地点在香港的香港国际仲裁中心。仲裁员的数目为一名。仲裁程序使用的语言应为中文。仲裁员的决定为终局的，对双方均具有约束力。
14.4. 在不影响第 14.3 条的前提下，在等待裁决期间，任何一方均有权依法向有管辖权的法院申请权利或救济保护，或财产或证据保全或任何中间、临时或紧急措施或救济，且对上述措施或救济的申请不应视作与仲裁协议矛盾或对仲裁协议中相关权利义务的放弃。
15. 指定程序代理人
15.1. 卖方不可撤销的指定地址位于香港特别行政区xxxxxxx 0 xxxxxxxxx 00 x 06-11 室的Xxxxx Xx（转xxx）为诉讼程序文件的接收人，委托其代为接收因本协议引起的或与本协议有关的法律程序、诉讼而送达给卖方的诉讼文件。文件在送达给Xxxxx Xx 后，不论其是否被转递给卖方或卖方是否已经收到，均视为送达已经完成。卖方应将程序代理人地址的变更在变更后的 28日内以书面方式通知买方，并且上述地址变更在根据第 12 条送达或被视为送达前不能生效。如程序代理人无法履行职责或在香港不再有通讯地址，则卖方不可撤销地承诺在香港马上另行指定一家为买方所接受的新的程序代理人，并在 14 日内向买方送达一份程序代理人接受指定的书面通知。
15.2. 本协议的任何内容均不影响法律允许的其他送达程序文件的方式，也不影响在其他司法管辖区内为执行法庭判决或进行和解而提起有关诉讼程序的权利。
16. 其他条款
16.1. 除本协议另有规定外，未经其他方的事先书面同意，任何一方均无权转让其在本协议项下的任何权利或义务。
16.2. 交割之后，本协议所有条款仍有完全效力（双方于交割时已经履行完毕的条款除外）。
16.3. 本协议构成双方之间就本交易所达成的全部协议与谅解。本协议取代先前双方有关本协议主体事宜的所有协议或谅解，该等协议或谅解应失去效力。每一方均没有依赖任何没有列于本协议中或本协议没有提及的任何xx、保证或承诺，而签署本协议。
16.4. 本协议赋予任何一方的终止本协议的权利附加于而不损害该方所可享有的任何其他权利和救济（在不影响上述一般原则的前提下，不废止该方要求违约赔偿的权利）。任何一方行使或不行使上述终止权均不构成该方放弃上述任何其他权利或救济。
16.5. 时间在本协议的各方面均为主要的要素。本协议任何一方给予本协议任何其他方的时间宽限或赦免不应在任何情况下当作该协议方放弃任何权利或索赔。
16.6. 本协议以中文书就并由协议双方签署任何份数的副本。任何如此签署的副本将视为正本，且对双方皆具有约束力。
附件 1
承兑票据
证书编号：
世纪金花商业控股有限公司
（CENTURY GINWA RETAIL HOLDINGS LIMITED）
（于百慕达注册成立之有限公司）
无票息及有抵押港元247,184,318, 1年期的承兑票据
x证书之发行所针对的票据（其证书编号载于下文）乃由CENTURY GINWA RETAIL HOLDINGS LIMITED世纪金花商业控股有限公司（「本公司」）以记名形式发行，总本金额为247,184,318港元（「票据」），票據根據並受限於本附件随附之票据的条款及条件執行。
本公司仅此证明，姓名及地址列于下文的人士于本票据日期以本金金额载于下文的票据之持有人身份登记入票据持有人名册。
页码 | 票据持有人及地址 | 票据本金额 | 证书编号 | 发行日期 |
[•] | [•] | 247,184,318港元 | [•] | [•] |
本证书仅为权利凭证。仅于票据持有人名册上正式登记后，票据的所有权方告生效，仅正式登记持有人有权获得就本证书之发行所针对的票据的付款。
未经本公司同意，票据不得转让。
在由本公司或代表本公司签署之前，本证书不得就任何目的生效。本证书受到中华人民共和国香港特别行政区法律管辖及据其解释。
世纪金花商业控股有限公司
（CENTURY GINWA RETAIL HOLDINGS LIMITED）
签署人：
董事 | 董事 |
见证人:
签署人:
票据的条款及条件
世纪金花商业控股有限公司（CENTURY GINWA RETAIL HOLDINGS LIMITED）（
「本公司」）经本公司于 2022 年[•]月[•]日通过之董事会决议案授权发行无票息、有抵押金额为港元 247,184,318，1 年期的票据（「票据」）。
1. 地位及投票权
(A) 地位
x票据构成本公司的直接、无条件、非后偿及有抵押债务。本公司在票 据项下的付款责任， 除适用法律的强制性规定以及本公司与GLORY KEEN HOLDINGS LIMITED就Golden Chance (Xian) Limited签立，日期为 2022年[•]月[•]日的股份押记给予优先外，将一直至少与其所有其他现有 及未来的无抵押及非后偿债务享有同等地位。票据将不会提出上市申请。
(B) 投票权
票据持有人无权仅以票据持有人身份出席本公司任何会议或于会上投票。
2. 形式、面额及所有权
(A) 形式及面额
票据以记名形式发行，面额载于证书上。票据持有人将其登记持有的票 据获发票据证书（各为「证书」）。每份票据及每张证书均有识别号码，将载于相关证书及过户登记处代表本公司存置票据持有人登记名册上。
(B) 所有权
任何票据的持有人将（惟法律另行规定者除外）于所有情况而言（不论票据是否拖欠还款，及不论是否存在就有关票据或票据持有人登记名册中的任何登记所发出证书之任何拥有权、信托或其任何权益发出之任何通知，或所发出证书的任何文字，或该证书被盗窃或遗失）被当作票据之绝对拥有人，亦无人将会因以此方式对待持有人而需要承担责任。在该等条款及条件下，「票据持有人」及（就票据而言的）「持有人」指一份票据以其名称登记在票据持有人登记名册的人士。
3. 票据转让转让
未经本公司同意，票据持有人不得转让票据予他人或第三方。
4. 付款
(A) 登记账戸
就本条件而言，票据持有人的登记账戸指其或其代表在香港银行开立的港元账戸，账戸详情于付款到期日或赎回日前首个营业日营业结束时载于票据持有人登记名册上，而票据持有人的登记地址指当时载于票据持有人登记名册上的地址。
(B) 启动付款
倘付款将以过户至登记账戸方式作出，付款指示（到期日或赎回日，或倘该日并非营业日，其后首个营业日）将于付款到期日或赎回日作出，及倘付款将以支票形式作出，则支票将于付款到期日或赎回日寄发。
(C) 延迟付款
倘票据持有人延迟交回其证书（如须交回），或倘根据本条件邮寄之支票在付款到期日后收到，则票据持有人将无权就于到期日后延迟收取到期款项收取任何利息或其他付款（如到期日并非营业日）。倘就票据到期应付之本金及溢价（如有）未能悉数支付，本公司将在票据持有人登记名册内加上附注，注明实际应付之本金及溢利（如有）。
5. 赎回、到期及注销
(A) 提早赎回
x公司可在向票据持有人发出不少于5日的通知后随时赎回该票据持有人持有的票据（全部或部分），赎回金额相等于票据的未偿还本金额。
(B) 到期
除非如本文所述已于先前赎回及注销，否则本公司或其任何附属公司将 于本票据首次发行第一周年（或如该日并非营业日，为其后首个营业日）
（「到期日」）下午四时整，按100%本金额将所有未偿还票据赎回。营业日指香港的银行一般开门营业的日子（不包括星期六、星期天和公众假日）。
(C) 注销
x公司或其任何附属公司赎回或购买之全部票据须随即注销。所有已注销票据之证书须转交本公司或按其指示处理，而该等票据（或本公司任何附属公司购买的任何票据）不得再次发行或转售。
6. 税项
x公司将有权自本公司支付的所有本金或利息（如有）中预扣适用法律、规则及法规就或因香港或其他司法管辖区或当中有税务权力的任何机关或代表该等机关施加或征收的任何现时或未来税项、征税、评税或任何性质的政府收费（包括但不限于基于票据持有人整体营业额、收入、税项收入或资本收益的税项作出的扣减或预扣（如有））而要求预扣的任何金额。
7. 强制执行
票据到期及可偿还后任何时间，在已获得票据持有人批准的前提下，票据持有人可在发出进一步通知及在其认为合适的情况下酌情对本公司提起有关法律程序强制偿还票据及执行。
8. 修改及豁免
(A) 修改及豁免
票据的修改可能仅可透过平边契据方式、由本公司签署及表示对契据的补充方可生效，及（除由本公司进行不会对票据项下票据持有人的权力造成不利影响的少量修改外）仅在其获票据持有人同意后方为有效。各相关补充契票据的备忘录须于契票据据签注。
(B) 票据持有人的权益
就行使其职能（包括但不限于有关任何建议修改或豁免职能）而言，本公司不应考虑有关行使对个别票据持有人的后果，及本公司无权要求且任何票据持有人亦无权索求本公司就任何有关行使对个别票据持有人任何税务后果进行赔偿或偿付。
9. 更换证书
倘任何证书出现残缺、污损、破坏、被盗或丢失，可在申索人支付据此可能产生的相关成本及本公司可能要求的证据及补偿及支付本公司可能决定的相关费用后在过户登记处的指定办事处更换。残缺或污损证书必须在更换证书出具前交回。
10. 通讯
(A) 票据持有人须向本公司登记位于香港或其他可向有关票据持有人发送通告地方之地址，及倘任何票据持有人未能如此行事，则有关通告可能以下述任何方式按该票据持有人之最后已知办事处或居住地址向其发出；
(B) 通知将以专人投递或预付邮资挂号邮件（如属空邮能送递之海外地址则以挂号空邮）送递。
(C) 以专人投递或预付邮资挂号邮件方式发出之通知将被视为于该投递或将信件送交邮政当局或邮筒后首日发出。
(D) 将通知寄送至票据持有人登记册所示票据持有人各自之地址，即属有效向彼等发出通知。
11. 管辖法律及司法管辖权
该等票据受香港法律管辖并按照香港法律解释。就票据而产生或与之有关的法律行动或法律程序而言，本公司于票据内不可撤回地愿受香港法院管辖。
代表
世纪金花商业控股有限公司 （CENTURY GINWA RETAIL HOLDINGS LIMITED | ) ) ) |
加盖公章 及签署 | ) ) ) |
董事 | ) ) ) |
董事 | ) ) ) |
见证人： | ) ) ) |
附件 2 GCX 股份质押
Execution Version
Between
Century Ginwa Retail Holdings Limited （世紀金花商業控股有限公司）
as Chargor and
Glory Keen Holdings Limited
as Chargee
SHARE CHARGE
relating to the issued shares of
the Company listed in Column A of Schedule 1
TABLE OF CONTENTS
Clause Heading Page Number
1. INTERPRETATION 1
2. FIXED CHARGE 4
3. RESTRICTIONS AND FURTHER ASSURANCE 5
4. CHARGED SHARES 9
5. GENERAL UNDERTAKINGS 10
6. REPRESENTATIONS AND WARRANTIES 12
7. ENFORCEMENT 14
8. RECEIVER 15
9. CHARGEE’S RIGHTS 18
10. APPLICATION OF PROCEEDS 18
11. POWER OF ATTORNEY 19
12. PROTECTION OF THIRD PARTIES 19
13. SAVING PROVISIONS 20
14. DISCHARGE OF SECURITY 20
15. EXPENSES, STAMP DUTY 21
16. PAYMENTS 21
17. SET-OFF 21
18. RIGHTS, AMENDMENTS, WAIVERS AND DETERMINATIONS 22
19. CHARGOR INTENT 22
20. PARTIAL INVALIDITY 22
21. NOTICES 22
22. CHANGES TO PARTIES 23
23. COUNTERPARTS 24
24. THIRD PARTY RIGHTS 24
25. GOVERNING LAW 24
26. DISPUTE RESOLUTION 24
SCHEDULE 1 SHARES 26
SCHEDULE 2 FORM OF INSTRUMENT OF TRANSFER 27
SCHEDULE 3 FORM OF LETTER OF RESIGNATION 29
SCHEDULE 4 FORM OF LETTER OF AUTHORITY AND UNDERTAKING 30
SCHEDULE 5 FORM OF RESOLUTIONS 31
SCHEDULE 6 FORM OF DEED OF APPOINTMENT OF PROXY AND POWER OF ATTORNEY 32
SCHEDULE 7 FORM OF LETTER OF IRREVOCABLE UNDERTAKING AND CONFIRMATION FROM THE CHARGED COMPANY REGISTERED IN THE BRITISH VIRGIN ISLANDS 33
SCHEDULE 8 FORM OF IRREVOCABLE LETTER OF INSTRUCTIONS FROM THE CHARGED COMPANY REGISTERED IN THE BRITISH VIRGIN ISLANDS TO ITS REGISTERED AGENT 34
SCHEDULE 9 RIGHTS OF THE CHARGEE 37
THIS DEED is dated 2022 and made
BETWEEN:
(1) Century Ginwa Retail Holdings Limited（ 世紀金花商業控股有限公司） , a company incorporated under the laws of Bermuda with limited liability, whose registered office is at Clarendon House, 2 Church Street, Hamilton HM11, Bermuda and its principal place of business in Hong Kong is at Unit 301, 0/X, XxxxxxXxxx@Xxx Xxxx, 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx, as chargor (the “Chargor”); and
(2) Glory Keen Holdings Limited, a business company incorporated under the laws of the British Virgin Islands (company number: 1569552) whose registered office is xx Xxxxxxxx Xxxxxxxx, XX Xxx 000, Xxxx Town, Tortola, British Virgin Islands (the “Chargee”).
BACKGROUND:
(A) On 2022, the Chargee as vendor and the Chargor as purchaser entered into an agreement (the “Sale and Purchase Agreement”) relating to the sale and purchase of the 1,177,068,181 non-voting convertible preferred shares of nominal value of HK$0.10 per share issued by the Company to Glory Keen (the “Preferred Share(s)”) at a price of approximately HK$0.21 per Preferred Share.
(B) Pursuant to the Sale and Purchase Agreement, the Chargor shall satisfy the consideration by issue of the interest-free promissory notes in an amount of HK$247,184,318 (the “Promissory Notes”) due on the first anniversary of the date of completion of the Sale and Purchase Agreement in favour of the Chargee.
(C) To secure the obligation of the Chargor under the Promissory Notes, it is the intention of the Chargor to charge the Shares (as defined below) to the Chargee in accordance with the terms of this Deed.
(D) The board of directors of the Chargor is satisfied that entering into this Deed is for the purposes and to the benefit of the Chargor.
(E) The Chargee and the Chargor intend this Deed to take effect as a deed of the Chargor (notwithstanding that the Chargee may have executed it under hand only).
THIS DEED WITNESSES THE FOLLOWING:
1. INTERPRETATION
1.1 Definitions
Unless a contrary intention appears, the following terms shall have the following meanings:
“Authorisation” means an authorisation, consent, approval, licence or exemption.
“BVI BC Act” means the BVI Business Companies Act, 2004 of the British Virgin Islands (as amended).
“Business Day” means any day (other than Saturday, Sunday, a public holiday or a day on which a typhoon signal no. 8 or a “black” rainstorm warning is hoisted in Hong Kong) on which banks in Hong Kong, British Virgin Islands and Bermuda are open for business.
“Charged Assets” means the assets from time to time subject, or expressed to be subject, to the Charges or any part of those assets, including (without limitation) the Shares and Related Rights.
“Charged Company” means the company listed in Column A of Schedule 1 (Shares).
“Charges” means all or any of the Security Interest created or expressed to be created by or pursuant to this Deed.
“Companies Ordinance” means the Companies Ordinance (Cap. 622) of the Laws of Hong Kong.
“Companies (WUMP) Ordinance” means the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) of the Laws of Hong Kong.
“CPO” means the Conveyancing and Property Ordinance (Cap. 219) of the Laws of Hong Kong.
“Delegate” means a delegate or sub-delegate appointed under Clause 9.2 (Delegation).
“Enforcement Event” means any breach of, or an enforcement event or event of default howsoever described under the Promissory Notes, the Sale and Purchase Agreement and this Deed and a notice of enforcement is served by the Chargee on the Chargor.
“Parties” means the parties to this Deed, including their respective successors in title, permitted assigns and permitted transferees, and “Party” means each of them.
“Receiver’ means a receiver and/or manager (and/or any other analogous person under any relevant jurisdiction, including a judicial manager, administrative receiver, administrator or provisional supervisor) appointed pursuant to this Deed in respect of the Charged Assets.
“Related Rights” means, in respect of the Chargor, all present and future:
(a) dividends, distributions, interest and other income paid or payable of any kind including cash dividends, stock dividends, liquidating dividends, non-cash dividends and any other sum received or receivable in respect of any of the Shares owned by the Chargor;
(b) rights, shares, money, property or other assets accruing or offered by way of stock splits or reclassifications redemption, substitution, exchange, preference, bonus, option or otherwise at any time in respect of any of the Shares owned by the Chargor;
(c) allotments, offers, warrants and rights accruing or offered in respect of any of the Shares owned by the Chargor; and
(d) other rights and assets attaching to, deriving from or exercisable by virtue of the ownership of, any of the Shares owned by the Chargor.
“Secured Obligations” means the payment and performance (whether at stated maturity, by acceleration or otherwise) of all obligations and liabilities now or hereafter due, owing or incurred by the Chargor to the Chargee under the Promissory Notes (whether actually or contingently and whether as principal, surety or otherwise, denominated in HK$ or any other currency, or incurred in any current or other banking account or in any other manner whatsoever).
“Security Interest” means a mortgage, charge, pledge, lien, assignment or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“Shares” means:
(a) all present and future shares in the Charged Company which are owned (whether legally or beneficially) by the Chargor, including all the shares issued and outstanding as at the date of this Deed described in Column E of Schedule 1 (Shares);
(b) all warrants, options or other rights to subscribe for, purchase or otherwise acquire those shares; and
(c) any shares acquired in respect of the Shares by reason of a stock split, stock dividend, reclassification or otherwise.
1.2 Construction
(a) Unless a contrary indication appears, any reference in this Deed to:
(i) the Charges shall be and are “enforceable” in accordance with Clause 7 (Enforcement) only;
(ii) references to any form of property or asset shall include a reference to all or any part of that property or asset;
(iii) the word “including” is without limitation;
(iv) any reference to any agreement or instrument is a reference to that agreement or instrument as amended or novated;
(v) a provision of law is a reference to that provision as amended or re-enacted;
(vi) a time of day is a reference to Hong Kong time;
(vii) words denoting the singular number only shall include the plural number also and vice versa;
(viii) words denoting one gender only shall include the other genders;
(ix) the ejusdem generis principle of construction shall not apply to this Agreement, and general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class of acts, matters or things or by examples falling within the general words; and
(x) references to any action, remedy or method of judicial proceeding for the enforcement of the rights of creditors shall be deemed to include, in respect of any jurisdiction other than Hong Kong, references to such action, remedy or method of judicial proceeding for the enforcement of the rights of creditors available or appropriate in such jurisdiction as shall most nearly approximate to such action, remedy or method of judicial proceeding described or referred to in these presents.
(b) The words “other”, “or otherwise” and “whatsoever” shall not be construed ejusdem generis or be construed as any limitation upon the generality of any preceding words or matters specifically referred to.
2. FIXED CHARGE
2.1 Nature
All Security Interests and dispositions created or made by or pursuant to this Deed are created or made:
(a) in favour of the Chargee; and
(b) as continuing security for payment of the Secured Obligations.
2.2 Charge
The Chargor, as legal and beneficial owner of its Shares and as continuing security for the full and punctual payment and discharge of all Secured Obligations, charges in favour of the Chargee by way of a first fixed charge all its rights, title and interest present and future in and to the Shares and Related Rights which are at any time owned by the Chargor, or in which it from time to time has an interest.
2.3 Share certificates
The Chargor shall upon execution of this Deed, and where Shares are acquired by it after the date of this Deed, upon acquisition deliver to the Chargee, or as they direct, all certificates representing the Shares, instruments of transfer of the Shares duly executed with the dates and the details of the transferee left blank in respect of those Shares and shall promptly deliver to the Chargee any other documents relating to the Shares which the Chargee may require.
2.4 Share registration
The Chargor agrees that at any time after the Charges become enforceable, the Chargee may, at the cost of the Chargor, register the Shares in the name of the Chargee or its nominee(s).
2.5 Retention of documents
The Chargee shall be entitled to continue to hold any document delivered to it pursuant to Clause 3.3 (Delivery of documents) until the Charges are released.
2.6 Charged Assets only
3. RESTRICTIONS AND FURTHER ASSURANCE
3.1 Restrictions on dealing
The Chargor shall not do or agree to do any of the following without the prior written consent of the Chargee:
(a) create or permit to subsist any Security Interest on any Charged Asset; or
(b) take or permit the taking of any action which may result in:
(i) the rights attaching to any Charged Asset being altered; or
(ii) further securities in the Charged Company being issued.
3.2 Disposal
The Chargor shall not (nor agree to) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, withdraw, transfer or otherwise dispose of the Charged Assets except as permitted by this Deed.
(a) The Chargor shall deliver or procure that there shall be delivered to the Chargee such documents relating to the Charged Assets as the Chargee may require and the following documents upon the execution of this Deed, which may be held by the Chargee until the Charges are released:
(i) original valid and duly issued share certificate(s) or other documents of title in respect of the Shares;
(ii) original duly executed instruments of transfer in respect of the Shares substantially set out in the form set out in Schedule 2 (Form of Instrument of Transfer) but, in each case, with the dates and names of the transferees left blank;
(iii) original signed but undated letters of resignation of all the directors of the Charged Company substantially in the form set out in Schedule 3 (Form of Letter of Resignation);
(iv) original signed and dated letters of authority and undertaking from all the directors of the Charged Company substantially in the form set out in Schedule 4 (Form of Letter of Authority and Undertaking);
(v) original signed but undated resolutions of the directors of the Charged Company substantially in the form set out in Schedule 5 (Form of Resolutions);
(vi) original signed but undated deed of irrevocable appointment of proxy and irrevocable appointment of power of attorney from the Chargor substantially in the form set out in Schedule 6 (Form of Deed of Appointment of Proxy and Power of Attorney);
(vii) original signed and dated letter of irrevocable undertaking and confirmation from the Charged Company substantially in the form set out in Schedule 7 (Form of Letter of Irrevocable Undertaking and Confirmation from the Charged Company registered in the British Virgin Islands);
(viii) original signed and dated letter of irrevocable instructions from the Charged Company to its registered agent substantially in the form set out in Schedule 8 (Form of Irrevocable Letter of Instructions from the Charged Company registered in the British Virgin Islands to its Registered Agent);
(ix) certified copy of the register of members and the register of directors of the Charged Company; and
(x) all other documents necessary to enable the Chargee to register such Charged Assets in their name or in the name of their nominees or otherwise acquire a legal title to the Charged Assets.
(b) At any time after the Charges have become enforceable, the Chargee shall have the right to complete, date and put into effect the documents referred to in sub- paragraphs (a)(ii) to (a)(iii) and (a)(v) to (a)(vi) above and to appoint such persons as the Chargee shall think fit as directors of the Charged Company.
The Chargor shall, at its own expense, promptly do whatever the Chargee may reasonably require, to perfect or protect the Chargee’s rights under the Charges or the priority of the Charges.
3.5 Registration and security filings
Without prejudice to the generality of Clause 3.4 (Further assurance), the Chargor:
(a) in relation to the Charged Company, shall:
(i) procure the entry in the register of members of the Charged Company, pursuant to subsection 66(8) of the BVI BC Act, of a notation in respect of the Charges being created in respect of the Shares of the Charged Company, upon execution of this Deed;
(ii) provide a certified true copy of the register of members of the Charged Company to the Chargee, upon entry of such notation being made;
(iii) procure that the Charged Company and the registered agent of the Charged Company submit the Charged Company’s register of members (with the notations relating to the Charges) for registration by the Registrar of Corporate Affairs pursuant to section 43A of the BVI BC Act, upon execution of this Deed;
(iv) provide and procure that the registered agent of the Charged Company provides the Chargee with:
(1) upon execution of this Deed evidence that a copy of such Charged Company’s register of members (with the notations relating to the Charges) has been filed with the Registrar of Corporate Affairs; and
(2) after the register of members (updated in accordance with paragraph (i) above) has been filed in accordance with paragraph
(iii) above, a certified true copy of such Charged Company’s register of members filed with the Registrar of Corporate Affairs and stamped by the Registrar of Corporate Affairs as having been filed.
(b) in relation to the Chargor, it shall:
(i) register particulars of the Charges with the Companies Registry in Hong Kong within one month of the date of this Deed; and
(ii) provide the Chargee with a certificate of registration of charge in respect of the Charges issued by the Companies Registry in Hong Kong evidencing that the requirements under the relevant sections of the Companies Ordinance as to registration have been complied;
(c) shall:
(i) maintain and make entries in its register of charges with particulars of the Charges in the register of charges maintained by the Registrar of Companies of Bermuda in accordance with Section 55 of the Bermuda Companies Act, 1981 as amended, and provide the Chargee with a certified true copy of the updated register of charges of the Chargor, upon entry of such particulars; and
(ii) provide the Chargee with evidence of the filing referred to in paragraph
(i) above, upon such filing.
3.6 Directors resolution
After the Charges have become enforceable, the Chargor shall procure to the extent that it is within its power as a shareholder of the Charged Company that any transfer to or by the Chargee or its nominee(s) of any of the Charged Assets is duly approved by the board of directors of the Charged Company and registered in the Charged Company’s shareholder register (if necessary), by replacing the board of directors of the Charged Company with directors nominated by the Chargee as it sees fit and giving all such instructions as may be required by the BVI registered agent.
3.7 Changes in directors
(a) If a new director of a Charged Company is appointed, the Chargor shall, on or prior to such appointment becoming effective, procure that such director signs and delivers to the Chargee the documents described in sub-paragraphs (a)(iii) to (a)(v) of Clause 3.3 (Delivery of documents); and
(b) if a director of a Charged Company resigns or is removed from such office, the Chargee shall promptly upon their becoming aware of the same and at the request of the Chargor return to the Chargor the documents signed by such director which were received by the Chargee pursuant to this Deed.
3.8 Charged Assets acquired after date of this Deed
(a) The Chargor shall, in relation only to any Charged Asset acquired after the date of this Deed as soon as is practicable after its acquisition of such Charged Asset by way of security for the Secured Obligations, deposit, or procure that there be deposited:
(i) original valid and duly issued share certificate(s) (or other document(s) of title or relevant paper(s)) in respect of any Charged Assets and all other securities of the Charged Company which become subject to this Deed after the date of this Deed, together with original duly executed but undated instrument(s) of transfer in respect thereof, all in a form and substance satisfactory to the Chargee and/or substantially in the form of those documents referred to in Clause 3.3(a)(ii) and such other documents as the Chargee may require for perfecting their title to the Charged Assets; and
(ii) original duly executed but undated power of attorney from the Chargor with the name(s) of attorney(ies) left blank substantially in the form of those documents referred to in Clause 3.3(a)(vi).
3.9 Other documents
4. CHARGED SHARES
4.1 Voting and other rights
Until the Charges have become enforceable, the Chargor shall be entitled to exercise or direct the exercise of the voting and other rights attached to the Shares as it sees fit provided that:
(a) it does so for a purpose not inconsistent with this Deed; and
(b) the exercise or failure to exercise those rights would not have a material adverse effect on the value of the Shares.
4.2 Voting and other rights if the Charges become enforceable
At any time after the Charges become enforceable:
(a) the Chargee or any Receiver shall be entitled to exercise or direct the exercise of the voting and other rights attached to any Share as they see fit; and
(b) the Chargor shall comply or procure the compliance with any directions of the Chargee or any Receiver in respect of the exercise of those rights.
4.3 Dividends
(a) Until the Charges have become enforceable, the Chargor shall be entitled to retain all cash dividends, stock dividends, liquidating dividends, non-cash dividends, shares or stock resulting from stock splits or reclassifications, rights issues, warrants, options, other distributions (whether similar or dissimilar to the foregoing) and other monies receivable in respect of the Shares. When the Charges have become enforceable, the Chargor shall pay to the Chargee all dividends or other distributions in respect of any of the Shares, whether in cash or otherwise, received by the Chargor, upon receipt.
(b) The Chargor shall promptly notify the Chargee of its acquisition of, or agreement to acquire, any Shares and any declaration, payment, allotment, offer or issue of any Related Rights.
4.4 Communications
The Chargor shall, forthwith after receipt, deliver to the Chargee a copy of every circular, notice, report, set of accounts or other documents received by it or its nominee in connection with the Shares or in connection with or from the Charged Company, in each case in its capacity as a shareholder of the Charged Company.
4.5 Payment of calls etc.
(c) Any sums so paid by the Chargee shall be repayable by the Chargor to the Chargee on demand.
4.6 Power of attorney
5. GENERAL UNDERTAKINGS
5.1 Authorisations
(a) The Chargor shall promptly:
(i) obtain, comply with and do all that is necessary to maintain in full force and effect; and
(ii) supply certified copies to the Chargee of,
any Authorisation required under any applicable law or regulation to enable it to perform its obligations under this Deed and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of this Deed (subject to any general principles of law limiting its obligations or the enforceability of the Charges).
(b) The Chargor shall promptly make or file any of the registrations specified in Clause 3.5 (Registration and security filings) within any prescribed time limit(s), if any.
5.2 Compliance with laws
The Chargor shall comply in all material respects with all laws to which it is subject, if failure so to comply would materially impair its ability to perform its obligations under this Deed.
5.3 No prejudicial conduct
The Chargor shall not do, and shall not permit to be done, anything which may in any way depreciate, jeopardise or otherwise prejudice the value of any Charged Asset (or make any omission which has such an effect).
5.4 Notification
The Chargor shall:
5.5 Information
(a) The Chargor shall provide the Chargee with all information which it may request in relation to the Charged Assets.
(b) Without limiting its obligations under sub-clause (a) above, the Chargor shall comply with all requests for information relating to a Charged Asset which is within its knowledge and which are made under applicable laws or under any similar provision contained in the constitutional documents of the Charged Company and, if it fails to do so, the Chargee may provide such information as it may have on behalf of the Chargor.
5.6 No new Encumbrance, etc.
The Chargor will procure that the Charged Company will not, unless prior written consent is obtained from the Chargee:
5.7 Taxation
The Chargor shall duly and punctually pay and discharge all taxes imposed upon it or its assets within the time period allowed without incurring penalties.
5.8 Merger
The Chargor shall not enter into any amalgamation, demerger, merger or corporate reconstruction, except with the prior consent of the Chargee.
5.9 Change of business
The Chargor shall procure that no material change is made to the nature and scope of its business from that carried on at the date of this Deed.
6. REPRESENTATIONS AND WARRANTIES
The Chargor makes the representations and warranties set out in this Clause 6 to the Chargee on the date of this Deed.
6.1 Status and capacity
(a) It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.
(b) It has the power, authority and legal right to own its assets and carry on its business as it is being conducted.
6.2 Binding obligations
The obligations expressed to be assumed by it in this Deed are legal, valid, binding and enforceable, subject to any general principles of law limiting its obligations or the enforceability of the Charges.
6.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, this Deed do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) any of its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its assets,
nor (except for the Charges) result in the existence of, or oblige it to create, any Security Interest over any of the Charged Assets.
6.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this Deed and the transactions contemplated thereby.
6.5 Validity and admissibility in evidence
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and comply with its obligations in this Deed;
(b) to make this Deed admissible in evidence in its jurisdiction of incorporation; and
(c) to enable it to create the Charges and to ensure that the Charges have and will have the priority and ranking which they are expressed to have,
have been obtained or effected and are in full force and effect.
6.6 Legal and beneficial ownership
The Chargor:
(a) is the sole beneficial owner; and
(b) is the sole legal owner, of the Charged Assets.
6.7 Shares fully paid etc.
The particulars set out in Schedule 1 (Shares) are true and accurate in all respects. The shares described in Schedule 1 (Shares) and to the extent applicable, the other Charged Assets, are duly authorised, validly issued and fully paid, and are not subject to any option to purchase or similar rights.
6.8 Issued share capital
The Charged Assets represent 100% of the issued share capital of the Charged Company.
6.9 The share
To the best of the Chargor’s actual knowledge, no material litigation, arbitration or administrative proceeding had taken place or is currently pending or threatened against the Chargor, or the Charged Assets.
6.10 No existing Security
Except for the Charges, no Security Interest exists on or over the Charged Assets.
6.11 Times for making representations and warranties
(a) The representations and warranties set out in this Deed (including in this Clause) are made on the date of this Deed.
(b) When a representation and warranty is repeated, it is applied to the circumstances existing at the time of repetition.
The Charges shall be immediately enforceable and, save as may be provided in this Deed, the powers conferred to the Chargee in this Deed shall be immediately exercisable following the occurrence of an Enforcement Event and shall remain so for so long as such Enforcement Event is continuing.
After the Charges have become enforceable, the Chargee:
(a) may enforce all or any part of any Charges (at the times, in the manner and on the terms they think fit) and take possession and hold or dispose of all or any part of the Charged Assets; and
(b) whether or not they have appointed a Receiver, may exercise all or any of the powers, authorities and discretions given to mortgagees and Receivers by the CPO as varied or extended by this Deed or otherwise conferred by law.
The statutory power of sale, of appointing a Receiver and other statutory powers conferred on mortgagees by Section 51 (Powers of mortgagee and receiver) and Section 53 (Sale by mortgagee) of the CPO and the Fourth Schedule (Powers of mortgagee and receiver) to the CPO as varied and extended by this Deed shall only arise after the Charges become enforceable. No restriction imposed by any ordinance or other statutory provision in relation to the exercise of any power of sale, including but not limited to Paragraph 11 of the Fourth Schedule of the CPO, shall apply to this Deed.
7.4 No liability as mortgagee in possession
(a) Neither the Chargee nor any Receiver shall be liable (i) in respect of all or any part of the Charged Assets or (ii) for any loss or damage which arises out of the exercise or the attempted or purported exercise of, or the failure to exercise any of, their respective powers (unless such loss or damage is caused by their gross negligence or wilful misconduct).
(b) Without prejudice to the generality of sub-clause (a) above, neither the Chargee nor any Receiver shall be liable, by reason of entering into possession of a Charged Asset, to account as mortgagee in possession or for any loss on realisation or for any default or omission for which a mortgagee in possession might be liable.
8. RECEIVER
8.1 Appointment of Receiver
(a) Without prejudice to the provisions of Clauses 7.1 (When enforceable), 7.2 (Discretion) and 7.3 (Power of sale) above, the Chargee may appoint any one or more persons to be a Receiver of all or any part of the Charged Assets if the Charges have become enforceable.
(b) Any appointment under paragraph (a) above may be by deed, under seal or in writing under its hand.
8.2 Removal
The Chargee may by writing under its hand remove any Receiver appointed by it and may, whenever it thinks fit, appoint a new Receiver in the place of any Receiver whose appointment may for any reason have terminated. If the Chargee appoints more than one person as Receiver, the Chargee may give those persons power to act either jointly or severally.
8.3 Remuneration
The Chargee may fix the remuneration of any Receiver appointed by it which it thinks fit. The Chargor shall be liable for the remuneration and all other costs, losses, liabilities and expenses of the Receiver in connection with the applicable Charged Assets.
8.4 Relationship with Chargee
To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Charges become enforceable be exercised by the Chargee in relation to any Charged Asset without first appointing a Receiver and notwithstanding the appointment of a Receiver.
8.5 Agent of Chargor
Any Receiver shall be the agent of the Chargor. The Chargor shall be solely responsible for his acts and defaults and for the payment of his remuneration. The Chargee shall
incur no liability (either to the Chargor or to any other person) by reason of the appointment of a Receiver or for any other reason.
(a) General
(i) A Receiver has all of the rights, powers and discretions set out below in this Clause 8.6 (Powers of the Receiver) in addition to those conferred on it by any law, and may exercise such rights, powers and discretions subject to any restriction imposed by any ordinance or other statutory provision.
(ii) If there is more than one Receiver holding office at the same time, each Receiver may (unless the document appointing him states otherwise) exercise all of the powers conferred on a Receiver under this Deed individually and to the exclusion of any other Receiver.
(b) Possession
A Receiver may take immediate possession of, get in and collect any Charged Asset and without prejudice to the foregoing, cause to be registered all or any part of the Charged Assets in its own name or in the name of its nominee(s) or in the name of any purchaser(s) thereof.
(c) Employees
(i) A Receiver may appoint and discharges managers, officers, directors, agents, accountants, servants, employees, workmen and others for the purposes of this Deed upon such terms as to remuneration or otherwise as he thinks fit.
(ii) A Receiver may discharge any person appointed by the Chargor provided that prior notice of not less than one month is given to the Chargor.
(d) Borrow money
A Receiver may raise and borrow money either unsecured or on the security of any Charged Asset generally on any terms and for whatever purpose which he thinks fit.
(e) Sale of assets
(i) A Receiver may sell, exchange, convert into money and realise any Charged Asset by public auction or private contract and generally in any matter and on any terms which he thinks fit.
(ii) The consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable
consideration and any such consideration may be payable in a lump sum or by instalments spread over any period which he thinks fit.
(f) Compromise
A Receiver may settle, adjust, refer to arbitration, compromise and arrange any claim, account, dispute, question or demand with or by any person who is or claims to be a creditor of the Chargor or relating in any way to any Charged Asset in such manner as he thinks fit.
(g) Legal actions
A Receiver may bring, prosecute, enforce, defend and abandon any action, suit or proceedings in relation to any Charged Asset which he thinks fit.
(h) Receipts
A Receiver may give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Charged Asset.
(i) Delegation
A Receiver may delegate his powers in accordance with this Deed.
(j) Covenants, guarantees and indemnities
A Receiver may enter into bonds, covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, make all payments needed to effect, maintain or satisfy such obligations or liabilities and use the company seal(s) (if any) of the Chargor and the Charged Company to the extent reasonable and necessary for the purposes of this Deed.
(k) Acquisitions
A Receiver may purchase, lease, hire or otherwise acquire any assets or rights of any description that he considers necessary and desirable for the improvement or realisation of the whole or any part of the Charged Assets or otherwise for the benefit of the whole or any part of the Charged Assets.
(l) Protection of assets
A Receiver may effect any repair or insurance and do any other act which the Chargor might do in the ordinary conduct of its business to protect, preserve, maintain, manage or improve any Charged Asset as he thinks fit.
(m) Other powers
A Receiver may:
(i) do all other acts and things which he may consider desirable and necessary for realising any Charged Asset or incidental to any of the
rights, powers or discretions conferred on a Receiver under or by virtue of this Deed or law;
(ii) exercise in relation to any Charged Asset all the powers, authorities and things which he would be capable of exercising if he were the absolute beneficial owner of that Charged Asset; and
(iii) use the name of the Chargor for any of the above purposes.
9. CHARGEE’S RIGHTS
9.1 Rights of Chargee
After the Charges become enforceable, the Chargee shall have the rights set out in Schedule 9 (Rights of the Chargee). Each of such rights shall be distinct and shall not be limited by the order in which they appear.
(a) The Chargee may delegate in any manner to any person any rights exercisable by the Chargee under this Deed. Any such delegation may be made upon such terms and conditions (including power to sub-delegate) as the Chargee thinks fit.
(b) Any Receiver may delegate in any manner to any person any rights exercisable by any Receiver under this Deed. Any such delegation may be made upon such terms and conditions (including power to sub-delegate) as any Receiver thinks fit.
9.3 Realisation
(a) If the Chargee or any Receiver exercises the rights conferred on them by this Deed, the same shall not be treated as an absolute appropriation of or foreclosure on the Charged Assets to the exclusion of the Chargor and in extinguishment of its interests therein, unless the Chargee or any Receiver shall otherwise notify the Chargor before the relevant appropriation or foreclosure will be effected, in which event the Secured Obligations shall be reduced by an equivalent amount;
(b) The Chargee shall not be obliged to exercise any of the rights or powers vested in it by this Deed.
10. APPLICATION OF PROCEEDS
10.1 Application
All monies received by the Chargee or any Receiver under or in connection with this Deed or the Charged Assets after the Charges have become enforceable shall (subject to the rights and claims of any person having a security ranking in priority to the Security Interest created hereunder) be applied in the following order:
(a) first, in satisfaction of, or provision for, all costs, charges and expenses incurred and payments made by the Chargee or any Receiver and of all remuneration due to the Receiver in connection with this Deed or the Charged Assets;
(b) secondly, in or towards the satisfaction of the remaining Secured Obligations; and
(c) thirdly, in payment of any surplus to the Chargor or other person entitled to it.
The Chargor by way of security irrevocably appoints the Chargee and any Receiver severally as its attorney (with full power of substitution) on its behalf and in its name or otherwise, at such time and in such manner as the attorney thinks fit:
(a) to do anything which the Chargor is obliged to do (but has not done) under this Deed (including to execute charges over, transfers, conveyances, assignments and assurances of, and other deed, instruments, notices, orders and directions relating to, the Charged Assets); and
(b) to exercise any of the rights conferred on the Chargee or any Receiver or any Delegate in relation to the Charged Assets or under this Deed, the CPO, the Companies (WUMP) Ordinance or generally under Hong Kong law.
11.2 Removal
The Chargee may by writing under its hand remove any Delegate appointed by it and may, whenever it thinks fit, appoint a new Delegate in the place of any Delegate whose appointment may for any reason have terminated.
11.3 Ratification
12. PROTECTION OF THIRD PARTIES
12.1 No duty to enquire
No person dealing with the Chargee or any Receiver or any Delegate shall be concerned to enquire:
(a) whether the power or rights conferred by or pursuant to this Deed are exercisable;
(b) whether any consents, regulations, restrictions or directions relating to such rights have been obtained or complied with;
(c) otherwise as to the propriety or regularity of acts purporting or intended to be in exercise of any such rights; or
(d) as to the application of any money borrowed or raised.
12.2 Protection to purchasers
Subject to the provisions of this Deed, all the protection to purchasers contained in Sections 52 (Protection of purchaser), 53 (Sale by mortgagee) and 55 (Mortgagee’s receipt) of the CPO or in any other applicable legislation shall apply to any person purchasing from or dealing with the Chargee or any Delegate or any Receiver.
13. SAVING PROVISIONS
13.1 Continuing Security
Subject to Clause 14 (Discharge of Security), the Charges are continuing Security Interests and will extend to the ultimate balance of the Secured Obligations, regardless of any intermediate payment or discharge in whole or in part.
13.2 Reinstatement
If any payment by the Chargor or any discharge given by the Chargee (whether in respect of the obligations of any person or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency, liquidation or any similar event:
(a) the liability of the Chargor and the Charges shall continue or be reinstated as if the payment, discharge, avoidance or reduction had not occurred; and
(b) the Chargee shall be entitled to recover the value or amount of that security or payment from the Chargor, as if the payment, discharge, avoidance or reduction had not occurred.
13.3 Additional Security
The Charges are in addition to and are not in any way prejudiced by any other guarantees or security now or subsequently held by the Chargee.
14.1 Release
(a) After the Secured Obligations have been paid or discharged in full, the Chargee shall at the request and cost of the Chargor promptly release, reassign or discharge (as appropriate) the Charged Assets from the Charges.
(b) For those Charged Assets which have been transferred and registered under the name of the Chargee or its nominee, the Chargee shall be obliged to return the share certificate(s) then representing the Charged Assets not yet disposed of or realised by the Chargee pursuant to its powers under this Deed with the
instruments of transfer duly executed in favour of the Chargor or such other person as the Chargor may direct.
14.2 Retention of Security
15. EXPENSES, STAMP DUTY
15.1 Enforcement costs
Each Party shall be responsible for their own costs and expenses (including legal fees and fees of any experts and agents) incurred in relation to this Deed (including the administration, protection, realisation, enforcement or preservation of any rights under or in connection with this Deed).
16. PAYMENTS
16.1 Payments
All payments by the Chargor under this Deed (including damages for its breach) shall be made in such currency as the Chargee may require and to such account, with such financial institution and in such other manner as the Chargee may direct.
16.2 Continuation of accounts
At any time after:
(a) the receipt by the Chargee of notice of any subsequent Security Interest or other interest affecting the Charged Assets; or
(b) any step is taken in relation to the liquidation of the Chargor,
the Chargee may open a new account in the name of the Chargor with a bank it chooses (whether or not it permits any existing account to continue). If the Chargee does not open such a new account, it shall nevertheless be treated as if it had done so when the relevant event occurred. No moneys paid into any account, whether new or continuing, after that event shall discharge or reduce the amount recoverable pursuant to this Deed.
17. SET-OFF
The Chargee may (but shall not be obliged to) set off any matured obligation due from the Chargor under this Deed (to the extent beneficially owned by the Chargee) against any matured obligation owed by the Chargee to the Chargor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Chargee may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
18. RIGHTS, AMENDMENTS, WAIVERS AND DETERMINATIONS
18.1 Ambiguity
Where there is any ambiguity or conflict between the rights conferred by law and those conferred by or pursuant to this Deed, the terms of this Deed shall, to the extent allowed by applicable law, prevail.
18.2 Remedies and waivers
No failure to exercise, nor any delay in exercising, on the part of the Chargee or Delegate any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.
18.3 Amendments and waivers
Any term of this Deed may be amended or waived only with the consent of the Chargee and the Chargor.
18.4 Determinations
Any determination by or certificate of the Chargee or any Delegate under or in connection with this Deed shall, in the absence of any manifest error, be conclusive evidence of the matters to which it relates.
19. CHARGOR INTENT
The Chargor expressly confirms that it intends that the Charges and dispositions created or made by or pursuant to this Deed shall extend from time to time to any (however fundamental) amendment, variation, increase, extension or addition of or to the Promissory Notes and/or any liability of Chargor under the Promissory Notes.
20. PARTIAL INVALIDITY
If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
21. NOTICES
21.1 Communications in writing
Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by fax, letter or e-mail.
The address, fax number and e-mail address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with this Deed are those identified with its name on the signature pages of this Deed or any substitute address, fax number, e-mail address or department or officer as any Party may notify the other Party by not less than five (5) Business Days’ notice.
21.3 Delivery
(a) Any communication or document made or delivered by one person to another under or in connection with this Deed will be effective:
(i) if by way of fax, only when received in legible form; or
(ii) if by way of letter, only when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
(iii) if by way of e-mail, only when it has been sent to the correct address;
and, if a particular department or officer is specified as part of its address details provided under Clause 21.2 (Addresses and numbers), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to any Party will be effective only when actually received by that Party and then only if it is expressly marked for the attention of the department or officer identified on the signature pages of this Deed (or any substitute department or officer as any Party shall specify for this purpose).
21.4 English language
(a) Any notice given under or in connection with this Deed must be in English.
(b) All other documents provided under or in connection with this Deed must be:
(i) in English; or
(ii) if not in English, and if so required by any Party, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
22. CHANGES TO PARTIES
The Parties shall not and shall not agree to transfer or assign all or any part of its rights and/or obligations under this Deed to any person unless with the other Party’s consent in writing.
23. COUNTERPARTS
This Deed may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.
24. THIRD PARTY RIGHTS
Unless expressly provided in this Deed, a person who is not a party under this Deed shall not have any rights under the Contracts (Rights of Third Parties) Ordinance (Cap. 623 of the Laws of Hong Kong) to enforce, or enjoy the benefit of, any term of this Deed.
25. GOVERNING LAW
This Deed is governed by and shall be construed in accordance with Hong Kong law.
26.1 Arbitration
(a) Any dispute, controversy or claim (each, a “Dispute”) arising out of or relating to this Deed, or the interpretation, breach, termination, validity or invalidity thereof, shall be referred to arbitration upon the demand of either party to the dispute with notice (the “Arbitration Notice”) to the other.
(b) The Dispute shall be settled by arbitration in Hong Kong by the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “HKIAC Rules”) in force when the Arbitration Notice is submitted in accordance with the HKIAC Rules. There shall be one (1) arbitrator.
(c) The arbitral proceedings shall be conducted in English. To the extent that the HKIAC Rules are in conflict with the provisions of this Clause 26, including the provisions concerning the appointment of the arbitrators, the provisions of this Clause 26 shall prevail.
(d) Each Party to the arbitration shall cooperate with each other Party to the arbitration in making full disclosure of and providing complete access to all information and documents requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on such party.
(e) The award of the arbitral tribunal shall be final and binding upon the Parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.
(f) The arbitral tribunal shall decide any Dispute submitted by the Parties to the arbitration strictly in accordance with the substantive laws of Hong Kong (without regard to principles of conflict of laws thereunder) and shall not apply any other substantive law.
(g) Any Party to the Dispute shall be entitled to seek preliminary injunctive relief, if possible, from any court of competent jurisdiction pending the constitution of the arbitral tribunal.
(h) During the course of the arbitral tribunal’s adjudication of the Dispute, this Deed shall continue to be performed except with respect to the part in dispute and under adjudication.
In witness whereof this Deed has been executed as a deed on the date stated at the beginning.
Column A | Column B | Column C | Column D | Column E | Column F |
Companies the shares of which are subject to the Charges | Place of incorporatio n of Charged Company | Name of registered shareholder(s ) | Place of incorporation of registered shareholder(s ) | No. of shares | Percent age |
Golden Chance (Xian) Limited | British Virgin Islands | Century Ginwa Retail Holdings Limited （世紀金花商業控股有限公 司） | Bermuda | 1 | 100% |
SCHEDULE 1 SHARES
SCHEDULE 2
FORM OF INSTRUMENT OF TRANSFER INSTRUMENT OF TRANSFER
Golden Chance (Xian) Limited
(the “Company”)
I/We |
of |
in consideration of the Sum of Dollars |
paid to me/us by (name in full) |
of (full address) |
(hereinafter called “the said Transferee”) do hereby transfer to the said Transferee the |
share(s) numbered |
standing in my/our name in the Register of the Company to hold unto the said Transferee or (his/her Executors or Administrators/its Assigns), subject to the several conditions upon which I/we hold the same at the time of execution hereof. And I/we the said Transferee do hereby agree to take the said Share(s) subject to the same conditions. |
Witness our hands the day of .
Signed by the Transferor | ) | |
) | ||
in the presence of the witness :- | ) | |
Witness’ full name | ) | |
) | ||
) | ||
Witness’ address | ) | |
) | Signature: | |
) | ||
) | (Transferor) | |
Witness’ signature | ) |
Signed by the Transferee | ) |
) | |
in the presence of the witness :- | ) |
) | |
Witness’ full name | ) |
) |
Witness’ address | ) | |
) | Signature: | |
) | ||
) | (Transferee) | |
Witness’ signature | ) |
SCHEDULE 3
FORM OF LETTER OF RESIGNATION
The Board of Directors
Golden Chance (Xian) Limited
Dear Sirs
Resignation
Date: [ ]
I hereby tender my unconditional and irrevocable resignation as director of the Company with effect from the date of this letter. I confirm that I have no claims whatsoever against the Company for compensation for loss of office or for fees or otherwise howsoever.
Yours faithfully
by [ ]
SCHEDULE 4
FORM OF LETTER OF AUTHORITY AND UNDERTAKING
Date: [*]
To:
[NAME AND ADDRESS OF CHARGEE]
Attention: [●]
Dear Sirs
Golden Chance (Xian) Limited (the “Company”)
I irrevocably authorise you or any of your officers to complete, date and put into effect:-
(1) the attached resignation letter signed by me; and
(2) the attached resolution signed by me,
in accordance with the provisions of the share charge (the “Share Charge”) relating to,
inter alia, the Company dated [*].
I also irrevocably undertake to vote in favour of any resolution approving that any Shares of the Company comprised in the Charged Assets (as defined in the Share Charge) be registered in your name or in the name of your nominees and, after the security constituted by the Share Charge has become enforceable, in the name of any purchaser of those shares or its nominee.
Yours faithfully
[Name of Director of Golden Chance (Xian) Limited]
SCHEDULE 5 FORM OF RESOLUTIONS
Form of resolutions for Charged Company (incorporated in the BVI)
Golden Chance (Xian) Limited (the “Company”)
WRITTEN RESOLUTION OF ALL THE DIRECTORS made pursuant to Article [ ] of the Articles of Association of the Company.
TRANSFER OF SHARES
NOTED that the instrument of transfer (the “Transfer”) executed by [NAME OF XXXXXX], transferring [ ] ordinary share in the Company, was provided to the directors of the Company.
IT IS RESOLVED that the share transfer evidenced by the Transfer be approved, that upon presentation of the duly stamped (if applicable) instrument of transfer and the transferee named therein be entered in the register of the members of the Company in respect of the shares so transferred, that the registered agent be and is hereby authorized to cancel the existing share certificates and to issue new share certificates in respect of such shares be sealed with the common seal of the Company in accordance with the Articles of Association of the Company and issued to the transferee as appropriate.
CHANGES IN DIRECTORS
IT IS RESOLVED that the following be appointed additional directors of the Company with immediate effect:
IT IS RESOLVED that the resignation of the following persons as directors of the Company be accepted with immediate effect:
IT IS RESOLVED that the registered agent of the Company be and is hereby authorized and directed to file the above amendments with the Registrar of Corporate Affairs (British Virgin Islands) and to take any and all actions which may be necessary or desirable in connection therewith.
[Name of Director of the Charged Company] Date:
SCHEDULE 6
FORM OF DEED OF APPOINTMENT OF PROXY AND POWER OF ATTORNEY
Form of deed of irrevocable appointment of proxy and irrevocable appointment of power of attorney
We, Century Ginwa Retail Holdings Limited（世紀金花商業控股有限公司）, hereby:
1. irrevocably appoint Glory Keen Holdings Limited (the “Chargee”) as our proxy to vote at meeting of the shareholders of Golden Chance (Xian) Limited (the “Company”) in respect of any existing or further shares in the Company which may have been or may from time to time be issued and/or registered in our name; and
2. irrevocably (for so long as the share charge executed between us and the Chargee dated on or about the same date as this instrument is in full force and effect) appoint the Chargee as our duly authorised representative and duly appointed attorney-in-fact to sign resolutions in writing of the Company in respect of our existing or further shares in the Company which may have been or may from time to time be issued and/or registered in our name.
This power of attorney granted hereunder is irrevocable by reason of being coupled with the interest of the Chargee as chargee of the aforesaid shares.
IN WITNESS whereof this instrument has been duly executed as a deed this [*] day of [*].
EXECUTED AS A DEED BY )
)
)
)
)
) Name:
)
) Title:
In the presence of:
Signature of Witness
Name:
Address:
Occupation:
SCHEDULE 7
FORM OF LETTER OF IRREVOCABLE UNDERTAKING AND CONFIRMATION FROM THE CHARGED COMPANY REGISTERED IN THE BRITISH VIRGIN ISLANDS
[Date]
Glory Keen Holdings Limited Dear Sirs
Golden Chance (Xian) Limited (the “Company”)
We refer to the share charge dated [•] (the “Share Charge”) entered into between, inter alios, you as the chargee and Century Ginwa Retail Holdings Limited （世紀金花商業控股有限公
司） as the chargor (the “Chargor”) relating to, inter alia, a charge over the Chargor’s interest in the Shares (as defined in the Share Charge) in the Company.
Terms defined in the Share Charge have the same meaning in this letter.
This letter of undertaking and confirmation is given pursuant to the Share Charge.
1. For valuable consideration receipt of which is hereby acknowledged, the Company hereby irrevocably and unconditionally undertakes to register (and hereby permits you or your nominee(s), if you or your nominee have custody of the original register of members of the Company to register) in the Company’s register of members any and all share transfers to you or your nominee in respect of the Shares submitted to the Company by you.
2. The Company hereby confirms that it has instructed its registered agent to make an annotation of the existence of the Share Charge and the Charges created thereby in the Company’s register of members pursuant to the Share Charge.
SIGNED for and on behalf of )
)
)
)
by: ) Duly Authorised Signatory
)
) Name:
)
) Title:
SCHEDULE 8
FORM OF IRREVOCABLE LETTER OF INSTRUCTIONS FROM THE CHARGED COMPANY REGISTERED IN THE BRITISH VIRGIN ISLANDS TO ITS REGISTERED AGENT
[Date]
[Registered Agent] [Address details]
Dear Sirs
Golden Chance (Xian) Limited (the “Company”) – Instructions to registered agent
1. We irrevocably instruct that as from the date hereof, the following shall be an instructing party for the Company:
Glory Keen Holdings Limited
(the “New Instructing Party”), until such times as you are informed otherwise by the New Instructing Party. As from the period starting from the date on which the New Instructing Party (or any successor-in-title) informs you that an Enforcement Event (as defined in the share charge dated [•] (the “Share Charge”) entered into between, inter
alios, Century Ginwa Retail Holdings Limited （世紀金花商業控股有限公司） as
the chargor (the “Chargor”) and Glory Keen Holdings Limited as chargee (the “Chargee”)) has occurred as provided under the Share Charge and ending on the date on which the New Instructing Party (or its successor-in-title) informs you that such Enforcement Event no longer subsists, you will be irrevocably instructed to regard the New Instructing Party (or its successor-in-title) as the sole instructing party for the Company and without limiting the foregoing if at any time the New Instructing Party instructs you to register the Chargee or its nominee (or any successor-in-title) as the registered holder of any of the shares the subject of the Share Charge you are hereby authorised and instructed to do so and update the original register of members of the Company accordingly without notice to us or consent from us.
2. We irrevocably instruct you to make an annotation of the existence of the Share Charge and the charges created thereby in the Company’s register of members pursuant to the Share Charge and to file the same with the BVI Registrar of Corporate Affairs in accordance with section 231 of the BVI Business Companies Act, 2004.
3. Please confirm by countersigning below that you have received this correspondence and that you have actioned the above and updated your records accordingly.
Yours faithfully
[Name of Director] Director
Acknowledged and agreed.
[*]
For and on behalf of [Registered Agent]
Sole Shareholder For and on behalf of Century Ginwa Retail Holdings Limited （世紀金花商業控股有限公司） |
Name: Title: Director of Century Ginwa Retail Holdings Limited （世紀金花商 業控股有限公司） |
SCHEDULE 9 RIGHTS OF THE CHARGEE
After the Charges become enforceable, the Chargee and any Receiver shall have the right,
either in its own name or in the name of the Chargor or otherwise and in such manner and upon such terms and conditions as it thinks fit, and either alone or jointly with any other person:
(a) Take possession
to take possession of the Charged Assets, and to require payment to it of all Related Rights including without limitation, to complete any instruments of transfer and to procure the transfer of the Charged Assets into the name of the Chargee or its nominee and, if necessary, take possession of and collect the share certificates and/or other documents of title relating to the Charged Assets at the cost and risk of the Chargor;
(b) Deal with Charged Assets
to exercise the voting rights attached to the Charged Assets and to sell, transfer, assign, exchange or otherwise dispose of or realise the Charged Assets to any person either by public offer or auction, tender or private contract and for a consideration of any kind;
(c) Borrow money
to borrow or raise money either unsecured or on the security of the Charged Assets (either in priority to the Charges or otherwise);
(d) Rights of ownership
to exercise and do (or permit the Chargor or any nominee of it to exercise and do) all such rights and things as the Chargee would be capable of exercising or doing if it were the absolute beneficial owner of the Charged Assets;
(e) Claims
to settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands with or by any person relating to the Charged Assets;
(f) Legal actions
to bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Charged Assets;
(g) Redemption of Security
to redeem any Security (whether or not having priority to the Charges) over the Charged Assets and to settle the accounts of any person with an interest in the Charged Assets;
(h) Spend money
in the exercise of any of the above powers, to spend such sums as it may think fit and the Chargor shall immediately on demand pay to the Chargee or the Receiver (as the
case may be) all sums so spent together with interest on those sums at such rates as the Chargee may from time to time determine from the time they are paid or incurred, and those sums (together with such interest) shall be secured by the Charges; and
(i) Other powers
to do anything else it may think fit for the realisation of the Charged Assets or incidental to the exercise of any of the rights conferred on it under or by virtue of this Deed, the Companies (WUMP) Ordinance and other applicable statutory provisions and common law.
Share Charge
EXECUTED and DELIVERED as a DEED by )
Century Ginwa Retail Holdings Limited )
（世紀金花商業控股有限公司） )
)
in the presence of: ) _
) Name:
) Title:
Address: Unit 301, 0/X, XxxxxxXxxx @Xxx Xxxx, 000 Xxxxxxxx Xxxx, Xxx Xxxx, Xxxx Xxxx
Attention: Company Secretary
Share Charge
SIGNED by )
)
)
for and on behalf of )
Glory Keen Holdings Limited )
)
)
Address: Unit 6-11, 00/X, Xxx Xxxxxxxxxxxxx Xxxxxxx Xxxxxx, 0 Xxxxxxx Xx., Xxxxxxx, Xxxx Xxxx
Email: xxxxxxx@xxxxxxxxxxx.xxx Attention: Xxxxx Xx（转xxx）
附件 3 释放契据
Execution Version
DATED 2022
CENTURY GINWA RETAIL HOLDINGS LIMITED
as Chargor and
GLORY KEEN HOLDINGS LIMITED
as Chargee
DEED OF RELEASE
of a Share Charge dated 27 December 2012
over the entire issued share capital of Golden Chance (Xian) Limited
THIS DEED OF RELEASE (this “Deed”) is made on 2022
BETWEEN:
(1) Century Ginwa Retail Holdings Limited（世紀金花商業控股有限公司） , a company incorporated under the laws of Bermuda with limited liability, whose registered office is at Clarendon House, 2 Church Street, Hamilton HM11, Bermuda and its principal place of business in Hong Kong is at Unit 301, 0/X, XxxxxxXxxx@Xxx Xxxx, 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx, as chargor (the “Chargor”); and
(2) Glory Keen Holdings Limited, a business company incorporated under the laws of the British Virgin Islands (company number: 1569552) whose registered office is xx Xxxxxxxx Xxxxxxxx, XX Xxx 000, Xxxx Town, Tortola, British Virgin Islands (the “Chargee”).
WHEREAS:-
(A) Reference is made to a subscription agreement dated 22 October 2012 (the “Subscription Agreement”) entered into between the Chargor and the Chargee as subscriber.
(B) On 27 December 2012, a share charge (the “2012 Share Charge”) was entered into between the Chargor and the Chargee in relation to the Security Assets (as defined in the 2012 Share Charge) to secure the Secured Obligations (as defined in the 2012 Share Charge).
(C) The Chargor has requested that the Chargee release it from the security under the 2012 Share Charge and the Chargee agrees to such release on the terms and conditions of this Deed.
(D) The Parties intend for this Deed to take effect as a deed between the Parties (notwithstanding that, the Chargee may have executed it under hand only).
NOW THIS DEED WITNESSES THAT:-
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed words and expressions used in the 2012 Share Charge shall have the same meanings when used in this Deed and the following words and expressions have the meanings set out below:
“Party” means a party to this Deed.
1.2 Third party rights
(a) Unless expressly provided to the contrary in this Deed a person who is not a Party has no right under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) or otherwise to enforce or to enjoy the benefit of any term of this Deed.
(b) Notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
2. RELEASE
The Chargee hereby irrevocably and unconditionally:
(a) RELEASES all the Security Assets from the security created by or pursuant to the 2012 Share Charge;
(b) REASSIGNS, RELEASES AND DISCHARGES unto the Chargor all the Security Assets and to hold unto the Chargor all subject matters assigned/charged to the Chargee under the 2012 Share Charge, absolutely freed and discharged of and from the 2012 Share Charge;
(c) RELEASES AND DISCHARGES the Chargor from all his present and future covenants, obligations and liabilities under the 2012 Share Charge; and
(d) ACKNOWLEDGES AND AGREES that the power of attorney granted under the 2012 Share Charge is hereby revoked provided that nothing herein contained shall affect the validity of any act or thing done by the Chargee prior to the execution of this Deed.
3. FURTHER ASSURANCE
(a) The Chargee shall (at the expense of the Chargor) execute all such deeds and documents and do all such assurances, acts and things as the Chargor may reasonably require in connection with the releases contained in Clause 2 (Release) of this Deed.
(b) Notwithstanding the foregoing, the granting of the release, discharge and acknowledgement under this Deed is without prejudice to any right that the Chargee may have under the 2012 Share Charge prior to the date of this Deed.
4. MISCELLANEOUS
(a) This Deed may be executed in any number of counterparts, and this has the same effect as if the signatures were on a single copy of this Deed.
5. GOVERNING LAW
This Deed shall be governed by and construed in all respects in accordance with Hong Kong law.
THIS DEED has been executed by each Party as a deed and it shall take effect on the date stated at the beginning of this Deed.
[Signature pages to follow]
SIGNATURE PAGES
The Chargor
EXECUTED and DELIVERED as a DEED by )
Century Ginwa Retail Holdings Limited )
（世紀金花商業控股有限公司） )
)
in the presence of: )
) Name:
) Title:
Address: Unit 301, 0/X, XxxxxxXxxx @Xxx Xxxx, 000 Xxxxxxxx Xxxx, Xxx Xxxx, Xxxx Xxxx
Email: xxxxxx@xxxx.xxx.xx Attention: Company Secretary
The Chargee
EXECUTED and DELIVERED as a DEED by )
Glory Keen Holdings Limited )
)
)
in the presence of: )
) Name:
) Title:
Address: Unit 6-11, 00/X, Xxx Xxxxxxxxxxxxx Xxxxxxx Xxxxxx, 0 Xxxxxxx Xx., Xxxxxxx, Xxxx Xxxx
Email: xxxxxxx@xxxxxxxxxxx.xxx Attention: Xxxxx Xx（转xxx）