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Dated the 14th day of March 2017
Future Master Investments Limited
and
Joywell Holdings Limited
and
Cordoba Homes Limited
AGREEMENT
FOR SALE AND PURCHASE
OF SHARES AND DEBTS IN
SUPREME ACCESS INTERNATIONAL LIMITED
CHEUNG TONG & ROSA SOLICITORS Notary Public and China-Appointed Attesting Officer
Agents for Trade Marks and Patents
Room 501, 5/F., Sun Hung Kai Centre
30 Harbour Road Hong Kong
Tel: (852) 2868 0393 Fax: (852) 2810 0556
Email: [email protected]
Ref.: A170114(4)/ATR/MBMC/RYWL/AYNK
Form: G:\GENERAL\PRACTICE\STYLEDOC.DOC [Jun 00]
Disk : U:\ATR\Yugang\2017\Acquisition of properties\Agt\Share Sale Agreement (Supreme Access)-OFF.docx
TABLE OF CONTENTS
RECITALS - .................................................................................................................... 1
INTERPRETATION ....................................................................................................... 3
SALE & PURCHASE OF SALE SHARES .................................................................. 7
ASSIGNMENT OF DEBTS ........................................................................................... 7
CONSIDERATION ......................................................................................................... 7
COMPLETION ............................................................................................................... 8
CONDITIONS PRECEDENT TO COMPLETION .................................................... 8
NON-COMPLETION ................................................................................................... 10
DUE DILIGENCE AND ACCOUNTANTS' INVESTIGATION ............................. 10
WARRANTIES UNDERTAKING AND INDEMNITIES ......................................... 11
GUARANTEE ............................................................................................................... 11
CLAIMS: LIMITATIONS & ADJUSTMENTS ......................................................... 12
TERMINATION AND BREACH ................................................................................ 12
NO THIRD PARTY INTEREST ................................................................................. 13
THE PROPERTY ......................................................................................................... 13
NOTICES & SERVICE OF PROCESS ...................................................................... 14
LEGAL REPRESENTATION...................................................................................... 14
STAMP DUTY & COSTS ............................................................................................. 14
GENERAL PROVISIONS ........................................................................................... 15
THIRD PARTY RIGHTS ............................................................................................. 16
GOVERNING LAW & JURISDICTION ................................................................... 16
SCHEDULE 1 ................................................................................................................ 17
(Particulars of the Target Group) ............................................................................ 17
SCHEDULE 2 ................................................................................................................ 18
(Directors and Secretary) .......................................................................................... 18
SCHEDULE 3 ................................................................................................................ 20
(Completion Requirements) ..................................................................................... 20
SCHEDULE 4 ................................................................................................................ 23
(Warranties) ............................................................................................................... 23
SCHEDULE 5 ................................................................................................................ 30
(Description of the Property A) ................................................................................ 30
EXECUTION PAGE ..................................................................................................... 31
ANNEXURE 1 ................................................................................................................. 1
(Form of Assignment of Debt) .................................................................................... 1
ANNEXURE 2 ................................................................................................................. 1
(Target Co Management Accounts) ........................................................................... 1
ANNEXURE 3 ................................................................................................................. 1
(Asset Holding Co Management Accounts) ............................................................... 1
ANNEXURE 4 ................................................................................................................. 1
(Tenancy Agreement A) ............................................................................................... 1
Execution version
1
THIS AGREEMENT is made the fourteenth day of March, Two thousand and
Seventeen
B E T W E E N : -
1) Future Master Investments Limited, a company incorporated in the British Virgin
Islands with limited liability with company number 1511952 and having its
registered office at Coastal Building, Wickham's Cay II, P.O. Box 2221, Road Town,
Tortola, British Virgin Islands (the "Vendor");
2) Joywell Holdings Limited, a company incorporated in the British Virgin Islands
with limited liability with company number 554090 and having its registered office
at P.O. Box 3152, Road Town, Tortola, British Virgin Islands (the "Purchaser");
and
3) Cordoba Homes Limited, a company incorporated in the British Virgin Islands with
limited liability with company number 1396844 and having its registered office at
Coastal Building, Wickham's Cay II, P.O. Box 2221, Road Town, Tortola, British
Virgin Islands (the "Guarantor").
RECITALS -
A) The Purchaser is an indirect wholly-owned subsidiary of Yugang International
Limited, a company incorporated in Bermuda with limited liability having its
registered office at Clarendon House, Church Street, Hamilton HM 11, Bermuda
and principal place of business in Hong Kong at Rooms 3301-3307, China
Resources Building, 26 Harbour Road, Wanchai, Hong Kong, the shares of which
are listed on the main board of The Stock Exchange of Hong Kong Limited (stock
code: 613) (the "Listed Company").
B) The Guarantor is the legal and beneficial owner of the entire issued share capital of
the Vendor.
C) Supreme Access International Limited (BVI company number: 1439033) is a
company incorporated in the British Virgin Islands on 23 October 2007 whose
registered office is at Coastal Building, Wickham's Cay II, P.O. Box 2221, Road
Town, Tortola, British Virgin Islands (the "Target Company").
D) The shareholding structure of the Target Company as registered in the share register
thereof is as follows and the issued shares have been credited as fully paid:
2
Shareholder(s) Class of
Share
No. of
Issued
Share(s)
Amount
Outstanding
(USD)
Amount Paid or
Credited as
fully Paid
(USD) The Vendor Ordinary 2 Nil 2
E) Sharp Light International Limited (company number: 1182140) is a company
incorporated in Hong Kong on 6 November 2007 whose registered office is at 32/F,
China United Centre, 28 Marble Road, North Point, Hong Kong (the "Asset
Holding Company").
F) The shareholding structure of the Asset Holding Company as registered in the share
register thereof is as follows and the sole issued share is credited as fully paid:
Shareholder(s) Class of
Share
No. of
Issued
Share(s)
Amount
Outstanding
(HKD)
Amount Paid or
Credited as
fully Paid
(HKD) The Target Company Ordinary 1 Nil 1
G) As at the date of this Agreement:
1) The Asset Holding Company is the sole legal and beneficial owner of
Property A (as defined herein); and
2) Property A is currently subject to Property Charge A (as defined herein) and
Rent Assignment A (as defined herein) created by Asset Holding Company in
favour of the Bank (as defined herein) to secure the due payment of the Bank
Loan A (as defined herein). As at the date of this Agreement, the outstanding
amount (excluding interest accrued) of Bank Loan A is approximately
HK$26,832,960.
H) It is agreed by the Parties that the Vendor will advance a shareholder's loan to the
Target Company to discharge Bank Loan A prior to Completion, and the Vendor
will assign all outstanding amount owed by the Target Company together with such
shareholder's loan which will form part of the Debts (as defined herein) to the
Purchaser immediately prior to Completion.
I) The Parties hereto have agreed to the following on the terms and conditions
hereinafter mentioned:-
1) the sale by the Vendor to the Purchaser of the Sale Shares (as defined herein);
and
2) the sale by the Vendor to the Purchaser of the Debts (as defined herein).
NOW IT IS HEREBY AGREED as follows:-
3
INTERPRETATION
1. In this Agreement the following expressions shall have the following meanings
except where the context otherwise requires:-
"Accounts" means collectively the Asset Holding Co Audited
Accounts, Management Accounts and Completion
Management Accounts;
"Asset Holding Co
Audited Accounts"
means the audited financial statements of the Asset
Holding Company for the year ended 31 March 2016
which have been prepared in accordance with the Hong
Kong Financial Reporting Standard provided to the
Purchaser and have been initialled for the purposes of
identification by the Parties hereto;
"Asset Holding Co
Management Accounts"
means the unaudited financial statements of the Asset
Holding Company for the period from 1 April 2016 to
28 February 2017, copies of which are annexed hereto
as Annexure 3;
"Asset Holding
Company"
means Sharp Light International Limited (company
number:1182140), a company incorporated in Hong
Kong with limited liability, details of which are set out
in PART B of Schedule 1;
"Assignment of Debts" means the assignment of debts to be entered into among
the Vendor, the Purchaser and the Target Group in
relation to the assignment of Debts, the form of which
is annexed hereto as Annexure 1
"Bank" means The Hongkong and Shanghai Banking
Corporation Limited;
"Bank Loan A" means all the outstanding amount owed by Target
Group to the Bank from time to time, including all
outstanding principal and interests accrued (but shall
exclude any penalty for early repayment of such
outstanding amount);
"Bank's solicitors" means the solicitors firm which will act for the Bank in
the release/discharge of the Security Documents;
"Building A"/"Building" has the meaning given to it in Schedule 5;
"Business Day" means a day (excluding Saturdays and Sundays and a
day on which a tropical cyclone warning signal no. 8 or
above or a black rainstorm warning signal is issued in
Hong Kong at any time and remains in effect between
9:00 a.m. and 5:00 p.m.) on which licensed banks in
4
Hong Kong are generally open for business in Hong
Kong throughout their normal business hours;
"BVI" means the British Virgin Islands;
"Companies
Ordinance"
means the Companies Ordinance (Chapter 622, as
amended or re-enacted, of the Laws of Hong Kong);
"Completion" means completion of the sale and purchase of the Sale
Shares under this Agreement;
"Completion Date" means the fifth (5th) Business Days after the fulfilment
or waiver (if permitted) of all the Conditions Precedent
(other than the condition in Clause 9.4 which can be
satisfied only at Completion) or such other date as the
Parties may agree in writing;
"Completion
Management Accounts"
means the unaudited consolidated financial statements
of the Target Group for the period from 1 April 2016 to
immediately before Completion on Completion Date;
"Conditions Precedent" means the conditions set out in Clause 9;
"Consideration" means the aggregate of Debts Consideration and Share
Consideration;
"Debts" means the outstanding unsecured, interest-free loan
without any fixed term of repayment owed by Target
Group to the Vendor immediately prior to Completion;
"HK$"/ "HKD" means Hong Kong dollars, the lawful currency of Hong
Kong;
"Hong Kong" means the Hong Kong Special Administrative Region
of the People's Republic of China;
"Listing Rules" means the Rules Governing the Listing of Securities on
The Stock Exchange of Hong Kong Limited;
"Long Stop Date"
means 14 June 2017 (or such later date as the Parties
may agree in writing), being the deadline for fulfilment
of the Conditions Precedent;
"Management
Accounts"
means collectively the Target Co Management
Accounts and the Asset Holding Co Management
Accounts;
"Parties" the parties hereto and their respective successors and
permitted assigns and "Party" means any of them;
5
"Property A"/
"Property"
the property described in Schedule 5 hereto;
"Property A Security
Documents"/"Property
Security Documents"
means, collectively, Property Charge A and Rent
Assignment A, and each a "Property A Security
Document";
"Property Charge A" means the mortgage of Property A dated 20 June 2012
executed by Asset Holding Company in favour of the
Bank and registered in the Land Registry by Memorial
No. 12070602560285;
"Purchaser's Solicitors" means Messrs. Cheung Tong & Rosa Solicitors of
Room 501, 5th Floor, Sun Hung Kai Centre, 30 Harbour
Road, Hong Kong;
"Rent Assignment A" means the assignment of rental and revenues
(incorporating a charge on account) dated 20 June 2012
executed by Asset Holding Company in favour of the
Bank and registered in the Land Registry by Memorial
No. 12070602560292;
"Sale Shares" means 2 issued shares of US$1.00 each in the Target
Company;
"Security Documents
A"/"Security
Documents"
means Property A Security Documents;
"Share Consideration" has the meaning given to it in Clause 6.1 ;
"Stock Exchange" means The Stock Exchange of Hong Kong Limited;
"subsidiary" has the meaning given to it under the Companies
Ordinance, Cap. 622 of the Laws of Hong Kong, and
"subsidiaries" shall be construed accordingly;
"Target Co
Management Accounts"
means the unaudited financial statements of the Target
Company for the period from 1 April 2016 to 28
February 2017, copies of which are annexed hereto as
Annexure 2;
"Target Company" means Supreme Access International Limited (BVI
company number: 1439033), a company incorporated in
the BVI with limited liability, details of which are set
out in PART A of Schedule 1;
"Target Group" means the Target Company and its subsidiary (i.e. the
Asset Holding Company), and "a member of the Target
Group" shall be construed accordingly;
6
"Taxation" means and includes all forms of tax (including but not
limited to profit tax and property tax), levy, duty
(including but not limited to stamp duty), charge,
impost, fee, deduction or withholding of any nature now
or hereafter imposed, levied, collected, withheld or
assessed by any taxing or other authority no matter
whether such be statutory, governmental, state,
provincial, local governmental or municipal authority
whatsoever in Hong Kong and/or in any part of the
world and includes any interest, additional tax, penalty
other charge payable or claimed in respect thereof;
"Tenancy Agreement
A"/"Tenancy
Agreements"
means the tenancy agreement dated 1 July 2016 entered
into by Asset Holding Company as landlord and
Sharp Elegant Limited as tenant, a copy of which is
annexed hereto as Annexure 4;
"Title Deeds" has the meaning given to it in Clause 9.3; and
"US$ / USD" means United States dollars, the lawful currency of the
United States.
2. In this Agreement unless the context otherwise requires:
2.1. words importing the singular number shall include the plural number and vice
versa;
2.2. words importing any gender include all genders;
2.3. a reference to a person includes a reference to a body corporate and to an
unincorporated body of persons;
2.4. the name of this document and the clause headings herein are inserted for
convenience of reference only and in no way define, limit or describe the
scope of this document or the intent of any provision thereof;
2.5. each of the schedules and annexures shall have effect as if set out herein and
references to clauses schedules and annexures shall be construed as references
to clauses of and schedules and annexures to this Agreement, and references
to clauses made in schedules shall be construed as references to clauses of the
schedule in which the reference appears;
2.6. references to any document being in agreed terms are to that document in the
form signed on behalf of the Parties for identification;
2.7. the expressions the "Vendor" and the "Purchaser" shall include their
respective successors and permitted assigns; and
2.8. the Recitals and Schedules shall form an integral part of this Agreement and
shall have the same force and effect as if expressly set out in the main body
7
of this Agreement and any reference to this Agreement shall include the
Recitals and the Schedules.
SALE & PURCHASE OF SALE SHARES
3. Subject to the terms and conditions of this Agreement, the Vendor shall sell and the
Purchaser shall purchase, free from all charges, liens, encumbrances, equities and
other adverse claims and interests and with all rights now and hereafter attaching
thereto (including the right to all dividends hereafter paid declared or made in
respect thereof) the Sale Shares.
ASSIGNMENT OF DEBTS
4. Subject to the terms and conditions of this Agreement, the Vendor on the one part
shall sell and assign and the Purchaser (whether by itself or through its nominee
which should be a subsidiary of the Listed Company) on the other part shall
purchase the full benefit and advantage of the Debts free from all charges, liens,
encumbrances, equities and other adverse claims and interests and with all rights
which are now or hereafter attaching thereto.
5. It is expressly agreed and understood by all Parties that the following transactions
shall be completed simultaneously:
5.1. the sale and purchase of the Sale Shares; and
5.2. the assignment of the Debts.
CONSIDERATION
6. Amount: The total consideration payable by the Purchaser for the transactions
contemplated in this Agreement shall be HK$136,100,000.00 ("Consideration"),
and comprise the following:-
6.1. the consideration for assignment of the Debts (the "Debts Consideration"),
which shall be the sum equivalent to the aggregate outstanding amounts of
the Debts immediately prior to Completion, payable by the Purchaser to the
Vendor on a dollar for dollar basis; and
6.2. the consideration for transfer of the Sale Shares (the "Share Consideration")
payable by the Purchaser to the Vendor.
7. Manner of Payment: The Purchaser itself or through its nominee shall pay the
Consideration in the following manner:-
7.1. HK$13,610,000 shall be paid to the Vendor, or the Vendor's nominee as the
Vendor may direct, by the Purchaser itself or through its nominee upon
signing of this Agreement by way of cash, cheque or by any other methods as
the Parties may mutually agree; and
8
7.2. HK$122,490,000 shall be paid to the Vendor, or the Vendor's nominee as the
Vendor may direct, by the Purchaser itself or through its nominee on
Completion by way of cash, telegraphic transfer or by any other methods as
the Parties may mutually agree,
which shall be allocated in satisfaction of the Debt Consideration and the Share
Consideration respectively with the same order PROVIDED THAT if the
transaction contemplated in this Agreement shall fail all the money paid by the
Purchaser herein shall be returned by the Vendor to the Purchaser within 5 Business
Days on demand.
COMPLETION
8. Subject to the fulfilment of the Conditions Precedent to Completion under Clause
9 herein (other than the condition in Clause 9.4 which can be satisfied only at
Completion), Completion shall take place at Rooms 3301-7, China Resources
Building, 26 Harbour Road, Wanchai, Hong Kong at 3:00 p.m. (or such other venue
and time as the Parties may agree in writing) on the Completion Date. At
Completion, each Party shall perform all (but not some only) of its respective
obligations as set out in Schedule 3.
CONDITIONS PRECEDENT TO COMPLETION
9. Completion under this Agreement is subject to the following conditions being
fulfilled:
9.1. Due Diligence: The Purchaser shall have notified the Vendor in writing that
in reliance, inter alia, on the warranties and representations set forth in
Schedule 4 it is satisfied upon inspection and investigation as to:
(a) the financial, corporate, taxation and trading positions of the Asset
Holding Company;
(b) the title of the Asset Holding Company to Property A; and
(c) the results of its searches and replies to its enquiries with regard to the
Property A.
9.2. Certificate of Good Standing and Certificate of Incumbency: The Vendor shall
have delivered to the Purchaser:
(a) an original Certificate of Good Standing dated no earlier than the date
of this Agreement in respect of itself, the Guarantor and the Target
Company issued by the Registrar of Corporate Affairs in the BVI in
customary form; and
(b) an original Certificate of Incumbency issued by the respective agents of
itself, the Guarantor and the Target Company dated no earlier than the
date of this Agreement in respect of itself and the Target Company
which shall contain, among other things, information as regards the
director(s), shareholder(s), share capital and register of charges.
9
9.3. Title to Property A: The Vendor shall have given, proved and shown Asset
Holding Company's title to the Property A in accordance with Sections 13 and
13A of the Conveyancing and Property Ordinance (Chapter 219 of the Laws
of Hong Kong) and made and furnished to the Purchaser the originals or
certified copies (as the case may be) of such deeds and documents of title,
will and matters of public records as may be necessary to complete and prove
such title (the "Title Deeds") and there shall be no breach of (a) Clauses 31
to 35 herein and (b) Paragraph 2 of PART A of Schedule 4 hereto.
9.4. Completion Management Accounts: The Vendor shall have caused and / or
procured the delivery to the Purchaser for inspection the original Completion
Management Accounts to the satisfaction of the Purchaser.
9.5. Listed Company Matters: The Listed Company shall have obtained all
necessary waiver, consent, approval, licence, authorization, qualification,
permission, order and exemption (if required) from the relevant governmental
or regulatory authorities or other third parties which are necessary in
connection with the execution and performance of this Agreement and any of
the transactions contemplated under this Agreement.
9.6. Supply of Information: The Vendor shall have supplied all information
relating to the Vendor and the Asset Holding Company for the Purchaser to
comply with all disclosure requirements under the Listing Rules.
9.7. Confirmation of Independence: The Vendor shall have confirmed that it is
independent of and not connected with any directors, chief executives,
controlling shareholders and substantial shareholders of the Listed Company
or any of its subsidiaries and their respective associates under the Listing
Rules.
9.8. Discharge of Bank Loan A: The Vendor shall have caused the Target Group
to discharge Bank Loan A and shall supply all information relating to the same
to the satisfaction of the Purchaser.
10. Subject to Clause 12, in the event of any of the conditions in Clause 9 not being
fulfilled by the relevant Party or waived by the Party as stated in Clause 11
(condition as set out in Clause 9.5 could not be waived) prior to the Long Stop Date,
then at the option of the non defaulting Party exercisable by notice in writing from
the non defaulting Party to the other Party(ies), to elect either
10.1. that this Agreement and everything herein contained (other than the general
clauses and this clause) shall, subject to the liability of any Party to the other
or others in respect of any breaches of the terms hereof, including the
obligations under Clause 12, antecedent thereto, be null and void and of no
effect, and the Vendor shall return to the Purchaser all the money paid by the
Purchaser pursuant to Clause 7 herein forthwith on demand; or
10.2. that Completion be proceeded with (without prejudice to the non defaulting
Party's rights hereunder).
10
11. At any time by notice in writing to the Vendor, the Purchaser may waive all or any
conditions in Clause 9 (other than condition as set out in Clause 9.5).
12. The Parties hereto shall use all reasonable endeavours to ensure that the conditions
set out in Clause 9 shall be fulfilled by the Long Stop Date.
13. Notwithstanding any provision herein to the contrary, if any of the conditions set
out in Clause 9 has not been fulfilled or waived pursuant to the terms herein, none
of the Parties may make any claim whatsoever against any of the other Parties
whether for the non-fulfilment of any of such conditions or any breach of the
warranties or otherwise in respect of such matters, whether Completion is
proceeded with or this Agreement is terminated.
NON-COMPLETION
14. If the documents required to be delivered by the Vendor on Completion are not
forthcoming for any reason or if in any other respect the provisions of Clause 8 are
not fully complied with by the Vendor, the Purchaser shall be entitled to elect to
rescind this Agreement or to effect completion so far as practicable having regard
to the defaults which have occurred or to fix a new date for completion (not being
more than (28) twenty-eight days after the agreed date for Completion).
15. If the documents required to be delivered by the Purchaser and/or the Listed
Company on Completion are not forthcoming for any reason or if in any other
respect the provisions of Clause 8 are not fully complied with by the Purchaser
and/or the Listed Company, the Vendor shall be entitled to elect to rescind this
Agreement or to effect completion so far as practicable having regard to the defaults
which have occurred or to fix a new date for completion (not being more than
twenty-eight (28) days after the agreed date for Completion).
DUE DILIGENCE AND ACCOUNTANTS' INVESTIGATION
16. The Vendor shall procure the Asset Holding Company to provide the Purchaser and
its professional advisers with corporate information and any other information and
documents of the Asset Holding Company as are reasonably required by the
Purchaser and/or its professional advisers within 14 Business Days from the signing
of this Agreement on a confidential basis and for the purpose of the transaction
contemplated hereunder only.
17. The Purchaser is entitled to review such items as statutory compliance, financial
and taxation history, physical asset condition and human resources of the Asset
Holding Company. To facilitate this process, the Vendor shall procure the Asset
Holding Company to grant to the Purchaser such access, as it reasonably requires
to all books, records, facilities and personnel in relation to the Asset Holding
Company on a confidential basis and for the purpose of the transaction
contemplated hereunder only.
18. For the purposes of the due diligence exercise, the Purchaser shall be entitled to
carry out an accountant’s investigation of the Asset Holding Company by the
11
accountants or auditors appointed by the Purchaser on a confidential basis and for
the purpose of the transaction contemplated hereunder only.
WARRANTIES UNDERTAKING AND INDEMNITIES
19. Each of the Vendor and Guarantor hereby warrants and undertakes jointly and
severally to and with the Purchaser and its successor in title in relation to the Asset
Holding Company in accordance with and subject to the terms and provisions of
Part A of Schedule 4 hereto and each of the Vendor and the Guarantor agrees that
the Purchaser may treat each of the said warranties and undertakings as a condition
of this Agreement.
20. The Vendor and the Guarantor shall jointly and severally indemnify the Purchaser
against all losses, costs and/or expenses which may be incurred by the Purchaser in
connection with successfully enforcing any claim for any breach of any warranty,
undertaking or obligation of the Vendor and/or the Guarantor under this Agreement.
21. The Purchaser hereby warrants and undertakes to and with the Vendor and its
successor in title in relation to itself in accordance with and subject to the terms and
provisions of Part B of Schedule 4 hereto and the Purchaser agrees that the Vendor
may treat each of the said warranties and undertakings as a condition of this
Agreement.
22. The Purchaser shall indemnify the Vendor against all losses costs and/or expenses
which may be incurred by the Vendor in connection with successfully enforcing any
claim for any breach of any warranty, undertaking or obligation of the Purchaser or
any of them under this Agreement.
GUARANTEE
23. The Guarantor hereby irrevocably, absolutely and unconditionally:
23.1. guarantees to the Purchaser the due and punctual observance and performance
by the Vendor of all of the obligations of, or expressed to be assumed by, the
Vendor under or pursuant to this Agreement and the warranties given or
provided by the Vendor to the Purchaser under this Agreement are true,
accurate and correct;
23.2. undertakes and agrees to pay to the Purchaser from time to time, upon demand
by the Purchaser, any and all sums of money which the Vendor is at any time
liable, or expressed to be liable, to pay to the Purchaser under or pursuant to
this Agreement and which have become, or are expressed to have become,
due and payable but have not been paid at the time such demand is made as
if it was the principal obligor in respect to that amount; and
23.3. agrees that the Guarantor shall not be exonerated or discharged nor shall its
liability be affected by any forbearance, whether as to payment, time,
performance or by any variation of this Agreement or the obligations of the
Vendor.
12
CLAIMS: LIMITATIONS & ADJUSTMENTS
24. If the Purchaser and/or the Asset Holding Company (after Completion) receives
from the Vendor and/or the Guarantor an amount pursuant to any claim in respect
of a breach of any of the Vendor and Guarantor’s warranties and the Purchaser
and/or the Asset Holding Company (after Completion) subsequently recovers from
a third party any sum which is referable to such a claim, the Purchaser shall within
a reasonable period of time pay to the Vendor and/or the Guarantor any sum they
receive from the third party to the extent that the aggregate of the sum received from
the Vendor and/or the Guarantor and the sum received from the third party exceeds
the aggregate of (1) the amount of the loss actually suffered by the Purchaser and/or
the Asset Holding Company with respect to any claim and (2) any reasonable costs
and expenses properly incurred by the Purchaser and/or the Asset Holding
Company in obtaining such sum from the third party.
25. If the Vendor receives from the Purchaser an amount pursuant to any claim in
respect of a breach of any of the Purchaser’s warranties and the Vendor
subsequently recovers from a third party any sum which is referable to such a claim,
the Vendor shall within a reasonable period of time pay to the Purchaser any sum
they receive from the third party to the extent that the aggregate of the sum received
from the Purchaser and the sum received from the third party exceeds the aggregate
of (1) the amount of the loss actually suffered by the Vendor with respect to any
claim and (2) any reasonable costs and expenses properly incurred by the Vendor in
obtaining such sum from the third party.
TERMINATION AND BREACH
26. If at any time before Completion the Vendor and/or the Guarantor comes to know
of any of the followings, the Vendor and/or the Guarantor shall give immediate
written notice thereof to the Purchaser in which event the Purchaser may within 5
Business Days of receiving such notice rescind this Agreement by written notice to
the Vendor:
26.1. any fact or event which is in any way inconsistent with any of the
undertakings given by the Vendor;
26.2. any fact or event which suggests that any fact warranted by the Vendor may
not be as warranted or may be misleading.
27. If at any time before Completion the Purchaser finds that any of the warranties,
undertakings or obligations of the Vendor and/or the Guarantor are incorrect or have
not been or are (in the reasonable opinion of the Purchaser) incapable of being
carried out the Purchaser may rescind this Agreement by written notice to the
Vendor.
28. If at any time before Completion the Purchaser comes to know of any of the
followings, the Purchaser shall give immediate written notice thereof to the Vendor
in which event the Vendor may within 5 Business Days of receiving such notice
rescind this Agreement by written notice to the Purchaser:
13
28.1. any fact or event which is in any way inconsistent with any of the
undertakings given by the Purchaser;
28.2. any fact or event which suggests that any fact warranted by the Purchaser may
not be as warranted or may be misleading.
29. If at any time before Completion the Vendor finds that any of the warranties,
undertakings or obligations of the Purchaser are incorrect or have not been or are
(in the reasonable opinion of the Vendor) incapable of being carried out the Vendor
may rescind this Agreement by written notice to the Purchaser.
30. Notwithstanding any other provision of this Agreement, no Party will be liable for
any indirect or special or consequential damages of the other Party(ies) (including
but not limited to loss of profits) arising out of any breach or non-performance by
it or any other Party(ies) (including without limitation to any breach of the
warranties).
NO THIRD PARTY INTEREST
31. The Vendor and the Guarantor hereby jointly and severally declare and confirm that
the Asset Holding Company is the sole legal and beneficial owner of Property A,
and no third party (whether related or otherwise) has any right or interest
whatsoever legal or equitable in Property A other than those disclosed herein. The
Vendor and the Guarantor further declare and confirm that the Asset Holding
Company has the absolute right and interest in Property A. In the event that there is
any third party claim to Property A (not disclosed herein) on or before Completion
and the Vendor and/or the Asset Holding Company shall be unable to clear such
claim on or before Completion, the Purchaser shall be entitled (in addition to and
without prejudice to any other rights or remedies available to it) to elect to rescind
this Agreement or to effect completion so far as practicable having regard to such
third party claim or to fix a new date for completion (not being more than twenty-
eight days after the agreed date for completion).
THE PROPERTY
32. Property A is held by the Asset Holding Company subject to and with the benefit of
the Tenancy Agreement A.
33. If the Tenancy Agreement A is terminated by the tenant for any reason or is expired
before Completion, the Vendor shall (a) forthwith inform the Purchaser in writing;
and (b) shall cause the Asset Holding Company not to enter into any new
tenancy(ies) without the prior written consent of the Purchaser.
34. The Vendor shall cause the Asset Holding Company not to without prior consent in
writing of the Purchaser accept or agree to accept any waiver modification or
variation of the terms and conditions contained in any of the Tenancy Agreement A
or the termination or surrender thereof.
14
35. Property A will be delivered to the Purchaser on an "as-is" basis on Completion if
Property A is vacant as a result of the Tenancy Agreement A being terminated by
the tenant for any reason before Completion.
NOTICES & SERVICE OF PROCESS
36. Each notice, demand or other communication or legal process including any writs
or originating summons or otherwise (which could only be given by hand) to be
given or made under this Agreement shall be in writing and delivered or sent to the
relevant Party at its following address or fax number set out below (or such other
Hong Kong address or fax number as the addressee has by five (5) Business Days’
prior written notice specified to the other Party):
To the Vendor:
32/F, China United Centre, 28 Marble Road, North Point,
Hong Kong
Fax Number: 2520 6123
Attention: Ms. Cheung Ka Yee
To the Purchaser:
Rooms 3301-3307, China Resources Building, 26
Harbour Road, Wanchai, Hong Kong
Fax Number: 2111 9522
Attention: Mr. Yuen Wing Shing
To the Guarantor 32/F, China United Centre, 28 Marble Road, North Point,
Hong Kong
Fax Number: 2520 6123
Attention: Mr. Rick Man
37. Any notice, demand or other communication or legal process including any writs
or originating summons (which could only be given by hand) so addressed to the
relevant Party(ies) shall be deemed to have been delivered (a) if given or made by
hand, when delivered to or left at the relevant address, (b) if given by prepared post
or airmail, 48 hours after posting or mailing or (c) if given or made by fax, when
despatched with a report of the sender confirming successful transmission.
LEGAL REPRESENTATION
38. The Parties hereto declare, acknowledge and agree that the Purchaser's Solicitors
only acts for the Purchaser in respect of this Agreement and the transaction related
hereto, and each of the Vendor and the Guarantor has been advised to obtain
independent legal advice and representation in respect of this Agreement and the
transaction related hereto.
STAMP DUTY & COSTS
39. All or any stamp duty payable on the instruments of share transfer and bought and
sold notes relating to the sale and purchase of the Sale Shares and the Debts shall
15
be borne as to one half by the Vendor and the Guarantor and as to the other half by
the Purchaser.
40. Save as otherwise expressly provided herein, each Party shall be responsible for its
own costs, fees, and disbursements arising out of the preparation and
implementation of this Agreement.
GENERAL PROVISIONS
41. Time: Time shall be of the essence of this Agreement.
42. Successors and assigns: This Agreement shall be binding on and enure for the
benefit of the Parties and their respective successors and permitted assigns. No
Party shall assign or transfer any of its rights or obligations under this Agreement
save with the prior written consent of the other Party.
43. Counterparts: This Agreement may be executed in any number of copies or
counterparts and shall be effective as of the date hereof.
44. Complete Agreement: This Agreement supersedes any previous agreement between
the Parties in relation to the acquisition of the Sale Shares or Property A and the
Parties acknowledge that no claim shall arise in respect of any agreement so
superseded by this Agreement.
45. Further Assurance: Each Party undertakes to the other Party to execute or procure
to be executed all such documents and to do or procure to be done all other acts and
things as may be reasonable and necessary to give full effect to the terms and intent
of this Agreement and to enable the Listed Company to comply with the Listing
Rules.
46. Variation: Any variation to this Agreement shall be binding only if it is recorded in
a document signed by the Parties hereto.
47. Waiver: The exercise of or failure to exercise any right or remedy in respect of any
breach of this Agreement shall not, save as provided herein, constitute a waiver by
such Party of any other right or remedy it may have in respect of that breach.
48. Remedies Cumulative: Any right or remedy conferred by this Agreement on any
Party for breach of this Agreement (including without limitation the breach of any
representations and warranties) shall be in addition and without prejudice to all
other rights and remedies available to it in respect of that breach.
49. Survival of Completion: Any provision of this Agreement which is capable of being
performed after Completion but which has not been fully and completely performed
at or before Completion and all representations and warranties and other
undertakings contained in or entered into pursuant to this Agreement shall remain
in full force and effect notwithstanding Completion.
50. Illegality: If at any time any one or more of the provisions of this Agreement is or
becomes invalid, illegal unenforceable or incapable of performance in any respect,
16
the validity, legality, enforceability or performance of the remaining provisions
hereof shall not thereby in any way be affected or impaired.
51. Separate Agreement: This Agreement shall be construed as a separate agreement
between the Vendor on the one hand and the Purchaser on the other hand.
52. Announcement: Save as required by law or by the Stock Exchange or by any
relevant regulatory authority, neither Party shall make or procure to be made any
announcement in relation to this Agreement or any transaction contemplated
hereunder or any matter in connection herewith without the prior written consent of
the other Party (such consent not to be unreasonably withheld).
THIRD PARTY RIGHTS
53. Subject to Clause 55, no person shall have any right under the Contracts (Rights of
Third Parties) Ordinance (Cap. 623 of the Laws of Hong Kong) (the "Third Parties
Ordinance") to enforce or enjoy the benefit of any of the provisions of this
Agreement and any contract associated therewith between such Parties.
54. Notwithstanding any provision of this Agreement, the consent of any person who
is not a party to this Agreement and its counterparts (if any) is not required to
rescind or vary this Agreement at any time.
55. Any holding company of the Purchaser, and any director of holding companies and
the Purchaser (each a "Designated Third Party") may, by virtue of the Third
Parties Ordinance, rely on any provision of this Agreement and any contract
associated therewith between Parties to this Agreement and its counterparts (if any)
only if and to the extent that such provision:-
55.1. expressly limits or excludes liability of that Designated Third Party; and/or
55.2. expressly confers other rights or benefits on that Designated Third Party
(including without limitation any indemnity).
56. No right or benefit under any provision of this document enforceable by a Third
Party under the Third Parties Ordinance shall be assigned by the Designated Third
Party to another person unless this document expressly provides otherwise.
GOVERNING LAW & JURISDICTION
57. This Agreement shall be governed by and construed in accordance with the law of
Hong Kong.
58. The Parties hereto agree to submit to the non-exclusive jurisdiction of the Hong
Kong courts.
17
SCHEDULE 1
(Particulars of the Target Group)
PART A
Particulars of the Target Company
Name : Supreme Access International Limited
Jurisdiction of
Incorporation
: BVI
Registered Office : Coastal Building, Wickham’s Cay II, P.O. Box 2221,
Road Town, Tortola, British Virgin Islands
Authorised Share Capital : 50,000 shares of a single class of a par value at USD1.00
Issued Share Capital :
No. of Share Amount
Fully Paid Up: 2 USD2
Unpaid : Nil Nil
PART B
Particulars of the Asset Holding Company
Name : Sharp Light International Limited
Jurisdiction of
Incorporation
: Hong Kong
Registered Office : 32/F, China United Centre, 28 Marble Road, North Point,
Hong Kong
Issued Share Capital :
No. of Share Amount
Fully Paid Up: 1 HK$1
Unpaid : Nil Nil
18
SCHEDULE 2
(Directors and Secretary)
PART A
The Current Secretary of the Target Company
Nil
The Current Director(s) of the Asset Holding Company
Wong Ying Seung Asiong, holder of Hong Kong Identity Card No. A908006(9), of Flat
D, 27/F, Bonham Mansion, 63 Bonham Road, Hong Kong
Cheung Ka Yee, holder of Hong Kong Identity Card No. V073981(2), of Flat C, 27/F,
Block 3, Broadview Court, 11 Shum Wan Road, Aberdeen, Hong Kong
PART B
The Current Corporate Secretary of the Asset Holding Company
Cordoba Homes Management Limited of 32/F, China United Centre, 28 Marble Road,
North Point, Hong Kong
The Current Director(s) of the Asset Holding Company
Wong Ying Seung Asiong, holder of Hong Kong Identity Card No. A908006(9), of Flat
D, 27/F, Bonham Mansion, 63 Bonham Road, Hong Kong
Cheung Ka Yee, holder of Hong Kong Identity Card No. V073981(2), of Flat C, 27/F,
Block 3, Broadview Court, 11 Shum Wan Road, Aberdeen, Hong Kong
PART C
The New Director(s) of the Target Company
Cheung Chung Kiu, holder of Hong Kong Identity Card No. H362097(4), of 1 Peak Road,
Mid-Levels, Hong Kong
Yuen Wing Shing, holder of Hong Kong Identity Card No. B912179(5), of Flat 1301,
13th Floor, Tai Hang Terrace, No. 5 Chun Fai Road, Hong Kong
Lam Hiu Lo, holder of Hong Kong Identity Card No. G195967(A), of Room 1002, 10/F.,
Block A, Villa Lotto, 18 Broadwood Road, Hong Kong
The New Secretary of the Target Company
Nil
19
PART D
The New Director(s) of the Asset Holding Company
Cheung Chung Kiu, holder of Hong Kong Identity Card No. H362097(4), of 1 Peak Road,
Mid-Levels, Hong Kong
Yuen Wing Shing, holder of Hong Kong Identity Card No. B912179(5), of Flat 1301,
13th Floor, Tai Hang Terrace, No. 5 Chun Fai Road, Hong Kong
Lam Hiu Lo, holder of Hong Kong Identity Card No. G195967(A), of Room 1002, 10/F.,
Block A, Villa Lotto, 18 Broadwood Road, Hong Kong
The New Secretary of the Asset Holding Company
Yuen Wing Shing, holder of Hong Kong Identity Card No. B912179(5), of Flat 1301,
13th Floor, Tai Hang Terrace, No. 5 Chun Fai Road, Hong Kong
20
SCHEDULE 3
(Completion Requirements)
Obligations of the Vendor
1. At completion the Vendor shall deliver to the Purchaser:-
1.1. Share Transfer: Such documents as may be required to give the Purchaser
good title to the Sale Shares and to enable the Purchaser or its nominee(s) to
become the registered holders thereof including:
(a) certified true copy of the resolutions of the board of directors of the
Vendor approving and authorising
(i) the executing and completion of this Agreement;
(ii) the sale of the Sale Shares to the Purchaser;
(b) certified true copies of the resolutions of the board of directors of the
Target Company approving the transfer of the Sale Shares;
(c) valid share certificates for the Sale Shares;
(d) duly executed and valid instruments of transfer in relation to the Sale
Shares in favour of the Purchaser and/or their nominee;
(e) all powers of attorney or other authorities (if any) under which the
instruments of transfer in respect of the Sale Shares have been executed.
1.2. Changes in Officers etc.: The following documents on changes in directors
and officers:
(a) Resolutions:
(i) certified true copies of the resolutions of the board of directors of
the Target Company approving (where appropriate) (i) the
resignation as directors and secretary of the Target Company the
persons as named in PART A of Schedule 2 hereto; and (ii) the
appointment as new director and secretary of the Target Company
the persons as named in PART C of Schedule 2 hereto and/or such
persons as the Purchaser may require, all with effect no later than
Completion;
(ii) certified true copies of the resolutions of the board of directors of
the Asset Holding Company approving (where appropriate) (i) the
resignation as directors and secretary of the Asset Holding
Company the persons as named in PART A of Schedule 2 hereto;
and (ii) the appointment as new director and secretary of the Asset
Holding Company the persons as named in PART D of Schedule
2 hereto and/or such persons as the Purchaser may require, all
with effect no later than Completion;
21
(b) Resignation Letters:
(i) certified true copies of the written resignations of the directors of
the Target Company as named in PART A of Schedule 2 hereto
resigning his/her/its appointments and confirming that he/she/it
has no claims against the Target Company whatsoever whether
for fees, disbursements or otherwise;
(ii) certified true copies of the written resignations of the directors
and secretary of the Asset Holding Company as named in PART
A of Schedule 2 hereto resigning his/her/its appointments and
confirming that he/she/it has no claims against the Asset Holding
Company whatsoever whether for fees, disbursements or
otherwise.
1.3. Others: The following as regards the Target Group in order to pass control of
the Target Group to the Purchaser:
(a) the seal, statutory records and minute books, rubber chops, and other
records;
(b) the certificate of incorporation, the current business registration
certificate, all copies of the articles of association together with all
minutes of meetings, company's accounting and administration books,
statutory records, minutes books, share certificate book, statements,
cheques and receipts relating to bank accounts (if any) of the Asset
Holding Company;
(c) all the statutory books, books of account and financial records of each
of the Target Company and the Asset Holding Company duly written
up to the Completion Date;
(d) all books, records and documents of and relating to each of the Target
Company and the Asset Holding Company, including without limitation,
contracts and policies of insurance, cheque books and the current bank
statements up to the date immediately preceding Completion of all
relevant accounts;
(e) the Title Deeds;
(f) the Release(s);
(g) the documentations in relation to clause 3.41 of the Tenancy Agreement
A about status of Property A at the commencement date of the Tenancy
Agreement A;
(h) the original of Tenancy Agreement A duly stamped;
1.4. The Vendor shall deliver or procure the delivery to the Purchaser a certified
true copy of the resolutions of the board of directors of the Guarantor
approving the executing and completion of this Agreement and the
transactions contemplated hereunder.
22
1.5. Debt Assignment: Such documents as may be required to give the Purchaser
good title to the Debts and to enable the Purchaser or its nominees to become
the registered holders thereof including:
(a) that parts of original counterparts of the Assignment of Debts dated the
Completion Date and duly executed by the Vendor and the relevant
member of the Target Group in triplicate each; and]
Obligations of the Purchaser
2. Against compliance with the provisions of Clause 9 of this Agreement and Clause
1 of this Schedule 3:-
2.1. the Purchaser shall deliver to the Vendor a certified true copy of the board
resolutions and where applicable shareholders resolutions of the Purchaser,
approving and authorising
(a) the executing and completion of this Agreement;
(b) the purchase of the Sale Shares from the Vendor;
(c) the assignment of the Debts from the Vendor;
2.2. the Purchaser shall deliver to the Vendor the original counterparts of the
Assignment of Debts duly executed by the Purchaser in triplicate each and
dated the Completion Date;
2.3. the Purchaser shall pay the balance of the Consideration in accordance with
Clauses 6 and 7.2.
23
SCHEDULE 4
(Warranties)
PART A
1. Each of the Vendor and the Guarantor jointly and severally warrants to and
undertakes with the Purchaser that save as disclosed to the Purchaser:-
1.1. All information contained in this Agreement (including the Recitals) in
relation to itself and such other information (except those relating to the
Purchaser) is true and accurate and further, all information given or which
may at any time before Completion be given by it, each member of the Target
Group, its respective directors, officers, accountants, or other advisers, to the
Purchaser, the Purchaser's directors, officers, accountants, solicitors or other
advisers is and will be accurate in all respects and there are no facts which
have not been disclosed to the Purchaser which would make any such
information misleading or which may affect the willingness of the Purchaser
to proceed with the purchase of the Sale Shares and/or the Debts on the terms
of this Agreement.
1.2. The description and information in relation to the Target Group as set out in
Schedule 1 and Recital B) to F) are true and accurate in all respects, has
included all members in the Target Group and accurately described the
shareholding structure of the Target Group.
1.3. The Vendor has the right, power and authority to sell and transfer the Sale
Shares and the Debts free from all charges, liens, encumbrances, equities and
other adverse claims and interests and with all rights now and hereafter
attaching thereto.
1.4. The Vendor has right to request (but it will not request) the Target Group to
repay the Debts and the Purchaser will after Completion have the right to
request the Target Group to repay the Debts to it and will not by virtue of
anything done or omitted to be done by the Vendor lose such right..
1.5. There are no guarantees, pledges, mortgages, charges, liens, debentures,
encumbrances or unusual liabilities given, made or incurred by or on behalf
of the Target Group (and, in particular, but without limiting the foregoing, no
loans have been made by or on behalf of the Target Group to any of its
directors or shareholders), save and except for those expressly set out in this
Agreement or reflected in the Management Accounts.
1.6. Each member of the Target Group has no liabilities not required by generally
accepted accounting principles to be referred to in the Asset Holding Co
Audited Accounts and Completion Management Accounts, except those as
expressly set out in this Agreement and/or in the said accounts. Without
prejudice to the generality of the aforesaid, the Target Group does not have
any liabilities except those as expressly set out in this Agreement and/or in
the said accounts.
24
1.7. Each member of the Target Group has not granted any right to call for the
issue at any time of any share or loan capital, and no such right will be granted
before Completion and no further share or loan capital of the Target Group
(except the Debts advanced for the purpose of financing repayment of the
Bank Loan A, to be assigned to the Purchaser upon Completion) will before
Completion be created or issued or agreed to be issued.
1.8. Until Completion the Target Group:-
(a) will carry on its business as a going concern lawfully in the ordinary
course and will not depart from the ordinary course of its day to day
business,
(b) will not without the prior written consent of the Purchaser enter into any
long term or substantial obligations or unusual transactions,
(c) will not without the prior written consent of the Purchaser acquire any
assets from any persons.
1.9. Except as required by this Agreement no resolution of the directors or the
members of the Target Group shall be passed prior to Completion without the
written consent of the Purchaser (such consent shall not be unreasonably
withheld or delayed).
1.10. A copy of the respective articles of association (having attached thereto copies
of all resolutions and agreements relating to the same) of the members of the
Target Group has been handed to the Purchaser and the same is a true,
accurate and complete copy thereof in all respects, and none of the activities,
agreement, commitments or rights of the Asset Holding Company is ultra
vires, unauthorised, void or voidable.
1.11. As at the date of this Agreement, the Guarantor is the legal and beneficial
owner of the entire issued share capital of the Vendor.
1.12. The Guarantor is not deemed to be insolvent or unable to pay its debts within
the meaning of Section 178 of the Companies (Winding Up and
Miscellaneous Provision) Ordinance (Cap. 32 of the Laws of Hong Kong) or
any equivalent or similar legislation or regulations in other jurisdictions. The
Guarantor has not taken any action nor have any steps been taken or legal
proceedings been started or (to the best of its knowledge and belief)
threatened against the Guarantor for its insolvency or for the appointment of
a liquidator, official receiver or similar officer of the Guarantor or of any or
all of its assets or revenues.
1.13. The Guarantor has the right, power and authority to enter into this Agreement
and perform its obligations hereunder.
1.14. All the warranties and undertakings contained in this Paragraph 1 of Part A
of this Schedule 4 shall be true and accurate up to Completion.
25
2. In relation to the Property, each of the Vendor and the Guarantor hereby jointly and
severally warrants to the Purchaser that:-
2.1. The Vendor and the Target Group have not received and are not aware of
there being any notice or order from the Government or any other competent
authority or the manager or the management committee or the incorporated
owners of the Building requiring Asset Holding Company to repair renovate
demolish or reinstate any part of Property A, except the glass wall
replacement work to be carried out and having been disclosed in the
Management Accounts. If it should be discovered before the Completion that
Property A is affected by such notice or order, the costs incurred for the
compliance with the said notice or order shall be borne by the Vendor, except
to the extent of the costs for the glass wall replacement work to be carried out
and having been disclosed (if any) in the Management Accounts
2.2. The Vendor and the Asset Holding Company have not received and are not
aware of there being any notice or order from any government or other
competent authority or the manager or the management committee or the
incorporated owners of the Building requiring Asset Holding Company as
one of the co-owners of the Building to effect repair renovate demolish or
reinstate of any common part(s) or common facility(ies) of the Building. If it
should be discovered that any such notice or order existed or if any such
notice or order shall be served before the Completion, the cost to be
contributed by Asset Holding Company as one of the co-owners of the
Building for such repair renovation demolishment or reinstatement (as the
case may be) shall be borne by the Vendor.
2.3. The Vendor hereby declares that the Asset Holding Company has not received
any notice under the Lands Resumption Ordinance (Chapter 124 of the Laws
of Hong Kong) or the Mass Transit Railway (Land Resumption and Related
Provisions) Ordinance (Chapter 276 of the Laws of Hong Kong) or any other
form of notice of a similar nature under any other Ordinance relating to the
resumption of Property A and has no knowledge whatsoever as to whether or
not Property A is included in or affected by any lay-out plans (draft or
approved) or any other plans prepared under the Town Planning Ordinance
(Chapter 131 of the Laws of Hong Kong).
2.4. As at the date of this Agreement, the Vendor and the Asset Holding Company
have not entered into any agreement to sell or grant any option to sell any
interest in any of the Property A or any part thereof. The Vendor and the Asset
Holding Company shall not after signing of this Agreement enter into any
agreement to sell or grant any option to sell any interest in Property A or any
part thereof prior to Completion.
2.5. As at the date of this Agreement, there is no breach of the relevant occupation
permit deed of mutual covenant or government lease by the Asset Holding
Company and/or the tenant under the Tenancy Agreement A. The Asset
Holding Company and the said tenant shall continue to observe and perform
its obligations under the relevant occupation permit deed of mutual covenant
and government lease up to and inclusive of the Completion Date.
26
2.6. At Completion, Property A shall not be subject to any encumbrance
whatsoever (including but not limited to any mortgage, charge, assignment of
rental and revenues, lien or debenture, whether fixed or floating, option, right
or pre-emption, agreement for sale and purchase), save and except for the
Tenancy Agreement A, the deed of mutual covenant in relation to Property A.
2.7. Property A is at present subject only to Property A Security Documents
(which shall be duly released or discharged before Completion), the Tenancy
Agreement A, the deed of mutual covenant and government lease in relation
to Property A.
2.8. Before Completion, either
(a) the deed(s) of release(s)/discharge(s) (the "Release(s)") of the Property
A Security Documents duly executed and attested shall be duly
registered at the Land Registry. The Release(s) shall be delivered to the
Purchaser's Solicitors before Completion; or
(b) the Bank's Solicitors shall produce evidence that the Property A
Security Documents have been duly released or discharged and give an
undertaking in accordance with the Law Society's Standard Forms of
Undertakings to send to the Purchaser's Solicitors within 21 days from
the date of Release(s), among others, the Release(s) duly executed and
attested together with the memorial thereof duly completed and signed
by the Bank's Solicitors and the Bank's Solicitor's cheques drawn in
favour of "The Government of the Hong Kong Special Administrative
Region" covering the land registration fees and the filling fees (where
applicable) payable on the Releases.
2.9. In the event that the Bank shall execute the Release(s) by its lawful attorney
pursuant to powers under a power of attorney ("the Power of Attorney"), a
certified copy of the Power of Attorney together with the Release(s); and if
the Release(s) is/are executed more than twelve (12) months after the Power
of Attorney came into operation, a certified copy of the written confirmation
from the Bank that that the Power of Attorney is still valid at the relevant time.
2.10. As at the date of this Agreement, there is no breach of the Property A Security
Documents by the Asset Holding Company. The Asset Holding Company
shall continue to observe and perform its obligations under the Property A
Security Documents until they are discharged or released.
2.11. Subject to the terms of this Agreement and save as those disclosed, the Vendor
and the Target Group will not after signing of this Agreement assign,
mortgage charge or let underlet lease or otherwise dispose of or part with
possession of Property A or any part or interest thereof or therein or create
any further charge/mortgage or other encumbrances against Property A or any
part or interest thereof or therein or create any encumbrance over shares of
the Target Group prior to Completion nor increase the liabilities outstanding
under the Security Documents A.
27
2.12. There is and shall be no trespassers or squatters on or at any part of Property
A on Completion. For avoidance of doubt, Property A on Completion will
be used by the Tenant under the Tenancy Agreement A.
2.13. No payment of rent in advance of one month has been paid or will be paid
pending Completion hereinunder the Tenancy Agreement A.
2.14. Up to the date of this Agreement, the Tenant under the Tenancy Agreement A
is not in arrears with any rent or other sums payable pursuant to the Tenancy
Agreement A.
2.15. There is no warranty given by the Asset Holding Company to the tenant under
the Tenancy Agreement A as to the use of the Property A save as disclosed in
the Tenancy Agreement A. There is no consent given by the Asset Holding
Company to the tenant under the Tenancy Agreement A as to the use and there
is no acquiescence in relation to the use.
2.16. As at the date of this Agreement and up to Completion, Property A is not and
will not be subject to any outgoings, other than rates, Government Rent,
utilities charges and service or management charges.
2.17. Asset Holding Company has paid the Government Rent Rates and service or
management charges and observed and performed the covenants on the part
of the lessee and the conditions contained in the government lease relating to
the Property A and on the part of an owner contained in any deed of mutual
covenant subject to which the Property A is held and will continue to pay the
same up to and inclusive of the Completion Date.
All warranties in this Paragraph 2 of Part A of this Schedule 4 in respect of the state
of matters as at the date of this Agreement shall be repeated at Completion in respect
of the state of affairs as at Completion and not just as at the date of this Agreement.
3. Apart from those as set out in Recital G) and the Management Accounts, the Target
Group owes no more debt to any persons as at the date of this Agreement. The
Vendor shall procure the Target Group not to borrow any money from any persons
from the date of this Agreement up to Completion.
4. The aggregate amount of the total liabilities (actual, contingent or otherwise) of the
Target Group as at Completion shall not exceed the aggregate amount of the total
liabilities as shown in the Management Accounts by HK$50,000. For the purpose
of this Paragraph 4, "total liabilities" shall not include the Debts, Bank Loan A and
any deferred tax liabilities.
5. The Accounts shall,
5.1. insofar as the Asset Holding Co Audited Accounts is concerned, be prepared
in accordance with Hong Kong Financial Reporting Standard for Private
Entities and audited in accordance with the Hong Kong Standards on
Auditing issued by the Hong Kong Institute of Certified Public Accountants
from time to time;
28
5.2. be prepared to give and shall give a true and fair view of the Target Group's
state of affairs; and
5.3. be in compliance with all applicable legislation.
6. In respect of Taxation,
6.1. The Target Group has paid or accounted for all Taxation (if any) due to be
paid or accounted for to the Inland Revenue Department or other fiscal
authority before the date of this Agreement. In respect of its shares in the
Asset Holding Company, the Vendor has paid or accounted for all Taxation
(if any) due to be paid or accounted for to the Inland Revenue Department or
other fiscal authority before the date of this Agreement.
6.2. Each of the Vendor (insofar as its shares in the Target Company is concerned)
and members of the Target Group has complied with all relevant legal
requirements relating to registration or notification or payment for Taxation
purposes. The returns which ought to have been made by or in respect of the
Target Group for any Taxation purposes have been made and all such returns
are up-to-date correct and on a proper basis and are not the subject of any
dispute with any taxation or other relevant authority. There are no present
circumstances which are likely to give rise to any such dispute and there is no
fact or matter which might result in any such dispute or any liability for
taxation (present or future) not provided for in its audited accounts and the
Target Group are under no liability to pay any penalty or interest in connection
therewith.
6.3. The provisions (if any) included in the Accounts are sufficient to cover all
Taxation including deferred or provisional taxation liable to be assessed on
the Target Group for the accounting period ended on the date of issue of the
related Accounts or for any subsequent period (on the basis of the rates of tax
and taxation statues in force at the date of issue of the related Accounts) in
respect of any transaction, event or omission occurring or any income or
profits or gains earned, accrued or received by the Target Group on or prior
to the date of issue of the related Accounts.
PART B
7. The Purchaser warrants to and undertakes with the Vendor that save as disclosed to
the Vendor:-
7.1. All information contained in this Agreement (including the Recitals) relating
to the Purchaser is true and accurate and further, all information given or
which may at any time before Completion be given by the Purchaser, its
directors, officers, accountants, or other advisers, to the Vendor, the Target
Group, their directors, officers, accountants, solicitors or other advisers is and
will be accurate in all respects and there are no facts which have not been
disclosed to the Vendor which would make any such information misleading
or which may affect the willingness of the Vendor to proceed with the sale of
29
the Sale Shares and/or the Debts (as the case may be) on the terms of this
Agreement.
7.2. The Purchaser has the right, power and authority to purchase the Sale Shares
and the Debts free from all charges, liens, encumbrances, equities and other
adverse claims and interests and with all rights now and hereafter attaching
thereto.
7.3. All the warranties and undertakings contained in Part B of this Schedule 4
shall be true and accurate up to Completion.
30
SCHEDULE 5
(Description of the Property A)
ALL THOSE 650 equal undivided 23,400th parts or shares of and in ALL THOSE pieces
or parcels of ground registered in the Land Registry as SUBSECTION 2 OF SECTION
A OF INLAND LOT NO.3504, SECTION B OF SUBSECTION 3 OF SECTION A OF
INLAND LOT NO.3504, THE REMAINING PORTION OF SUBSECTION 3 OF
SECTION A OF INLAND LOT NO.3504, SECTION A OF SUBSECTION 3 OF
SECTION A OF INLAND LOT NO.3504, SUBSECTION 5 OF SECTION A OF
INLAND LOT NO.3504, SUBSECTION 4 OF SECTION A OF INLAND LOT NO.3504,
THE REMAINING PORTION OF SECTION A OF INLAND LOT NO.3504, THE
REMAINING PORTION OF SECTION A OF SUBSECTION 1 OF SECTION A OF
INLAND LOT NO.3504, SUBSECTION 5 OF SECTION A OF SUBSECTION 1 OF
SECTION A OF INLAND LOT NO.3504, SUBSECTION 3 OF SECTION A OF
SUBSECTION 1 OF SECTION A OF INLAND LOT NO.3504, SUBSECTION 2 OF
SECTION A OF SUBSECTION 1 OF SECTION A OF INLAND LOT NO.3504,
SUBSECTION 4 OF SECTION A OF SUBSECTION 1 OF SECTION A OF INLAND
LOT NO.3504 AND SUBSECTION 6 OF SECTION A OF SUBSECTION 1 OF
SECTION A OF INLAND LOT NO.3504 (collectively the "Land") and of and in the
buildings thereon known at the date hereof as "NO.28 MARBLE ROAD (馬寶道 28號)"
(the "Building") TOGETHER with the right to the exclusive use occupation and
enjoyment of ALL THAT the ELEVENTH FLOOR of the Building AND TOGETHER
with the benefit a Deed of Mutual Covenant and Management Agreement registered in
the Land Registry by Memorial No. UB7292568 AND TOGETHER with the benefit of
a Deed of Dedication registered in the Land Registry by Memorial No.UB6683610 AND
TOGETHER with the benefit of a Licence and Works Agreement registered in the Land
Registry by Memorial No.UB6294649 AND TOGETHER with the benefit of an
Operating and Management Agreement registered in the Land Registry by Memorial No.
UB7322007 AND TOGETHER with all subsisting rights and rights of way HELD from
the Government for the residue of the term of 75 years commencing from the 17th
October 1932 with a right of renewal for a further term of 75 years created by a
Government Lease which was deemed to have been granted by virtue of Section 14 of
the Conveyancing and Property Ordinance (Cap.219) upon compliance with the
conditions precedent contained in certain Agreement and Conditions of Sale deposited
and registered in the Land Registry as Conditions of Sale No. UB3369 (as varied or
modified by a Modification Letter registered in the Land Registry by Memorial
No.UB6695127) SUBJECT to the payment of the due proportion of the Government rent
and the performance and observance of the covenants and conditions reserved by and
contained in the said Government Lease AND SUBJECT to the said Deed of Mutual
Covenant and Management Agreement, the said Deed of Dedication, the said Licence
and Works Agreement and the said Operating and Management Agreement AND
SUBJECT to all subsisting rights and rights of way AND SUBJECT ALSO to and with
the benefit of the existing letting and tenancy thereof
Annexure 1-1
Annexure 1
(Form of Assignment of Debt)
Annexure 1-1
THIS ASSIGNMENT is made the day of , 20[*]
BETWEEN:-
A) Future Master Investments Limited, a company incorporated in the British Virgin
Islands with limited liability with company number 1511952 and having its
registered office at Coastal Building, Wickham's Cay II, P.O. Box 2221, Road Town,
Tortola, British Virgin Islands (the "Assignor");
B) Joywell Holdings Limited, a company incorporated in the British Virgin Islands
with limited liability with company number 554090 and having its registered office
at P.O. Box 3152, Road Town, Tortola, British Virgin Islands (the "Assignee"); and
C) Supreme Access International Limited, a company incorporated in the British
Virgin Islands with company number 1439033 whose registered office is at Coastal
Building, Wickham's Cay II, P.O. Box 2221, Road Town, Tortola, British Virgin
Islands (the "Company").
WHEREBY IT IS HEREBY AGREED as follows:-
DEFINITIONS
1) This Assignment sets out the terms and conditions on and subject to which the
Assignor sells, assigns and transfers, and the Assignee purchases and takes an
assignment and transfer, of the Debt (as hereinafter defined) and the Company
consents to the same.
2) In this Assignment, unless the context otherwise requires:-
a) the following expressions shall have the following meanings:
Expression Meaning
"Debt" a debt [without any fixed term of repayment and
interest free] made by the Assignor to the Company
having an outstanding amount as at the date hereof
of HK$[*]
b) references to Clauses and the parties are to clauses of and the parties to this
Assignment;
c) references to writing shall include typewriting, printing, lithography,
photography, telefax and telex messages and other modes of reproducing
words in a legible and non-transitory form;
Annexure 1-2
d) words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons include
bodies corporate or unincorporate; and
e) headings are for convenience only and shall not affect the construction of this
Assignment.
REPRESENTATIONS AND WARRANTIES
3) The Assignor and the Company hereby jointly and severally represent, warrant and
confirm to the Assignee that the Debt is now duly owing without any default thereof
by the Company to the Assignor.
ASSIGNMENT
4) The Assignor, as beneficial owner, hereby sells, assigns and transfers to the
Assignee absolutely, and the Assignee purchases and accepts an assignment and
transfer of, all the Assignor’s right, title, benefit and interest in and to the Debt to
the intent that the Assignee shall as from the date hereof be solely and absolutely
entitled to the same to the exclusion of the Assignor.
CONFIRMATION OF THE COMPANY'S OBLIGATIONS
5) The Company hereby acknowledges and confirms to the Assignee that as from the
date hereof the Debt is owed by it to the Assignee and the Company will henceforth
make all payment due under the Debt, and discharge all of their respective
obligations in respect thereof, to the Assignee.
6) This Assignment shall serve as an express notice to the Company as debtor under
Section 9 of the Law Amendment and Reform (Consolidation) Ordinance, Chapter
23 of the Laws of Hong Kong.
SUCCESSORS AND ASSIGNS
7) This Assignment shall be binding upon and enure for the benefit of each party’s
successors and assigns.
LEGAL REPRESENTATION
8) The Assignor and the Assignee hereto declare, acknowledge and agree that Messrs.
Cheung, Tong & Rosa Solicitors only acts for the Assignee in respect of this
Assignment and the transaction related hereto and the Assignor has been advised to
obtain independent legal advice and representation in respect of this Assignment
and the transaction related hereto.
THIRD PARTY RIGHTS
9) No person shall have any right under the Contracts (Rights of Third Parties)
Ordinance (Cap. 623 of the Laws of Hong Kong) (the "Third Parties Ordinance")
to enforce or enjoy the benefit of any of the provisions of this Assignment and any
contract associated therewith between such parties.
Annexure 1-3
LAW AND JURISDICTION
10) This Assignment shall be governed by and construed in accordance with the law of
the Hong Kong Special Administrative Region of the People's Republic of China
("Hong Kong").
11) The parties hereto agree to submit to the non-exclusive jurisdiction of the Hong
Kong courts.
Annexure 1-4
IN WITNESS whereof the parties hereto have executed this document as a deed
the day and year first above written.
EXECUTED AS A DEED AND
DELIVERED by [*name] [and *name], the
[director(s) [and/or] person(s)] of Future
Master Investments Limited signing and
affixing its Common Seal for and on its behalf
duly authorised by [the board of directors / a
written resolution of the directors] of Future
Master Investments Limited in the presence
of :-
)
)
)
)
)
)
)
)
)
EXECUTED AS A DEED AND
DELIVERED by [*name] [and *name], the
[director(s) [and/or] person(s)] of Joywell
Holdings Limited signing and affixing its
Common Seal for and on its behalf duly
authorised by [the board of directors / a
written resolution of the directors] of Joywell
Holdings Limited in the presence of :-
)
)
)
)
)
)
)
)
[EXECUTED AS A DEED AND
DELIVERED] by [*name] [and *name], the
[director(s) [and/or] person(s)] of Supreme
Access International Limited signing and
affixing its Common Seal for and on its behalf
duly authorised by [the board of directors / a
written resolution of the directors] of
Supreme Access International Limited in the
presence of :-
)
)
)
)
)
)
)
)
)
Annexure 2-1
Annexure 2
(Target Co Management Accounts)
Annexure 3-1
Annexure 3
(Asset Holding Co Management Accounts)
Annexure 4- 1
Annexure 4
(Tenancy Agreement A)
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