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Wanfuteng Bank

Security Agreement

1. Nature of Security Interest and charge

1.1 Nature of Security Interest in Personal Property The Security Interest in Personal Property created or provided for by this deed is a Security Interest, and this deed is a Security Agreement, each for the purposes, and within the meaning, of the Act. In relation to Accounts Receivable, the Security Interest takes effect as a transfer.

1.2 Nature of charge The charge created by this deed over the Personal Property is a fixed charge and, to the extent to which the fixed charge intended to be created is not effective, is a floating charge until such time as it may crystallize.

2. Payments

2.1 Payment The Debtor must pay the Secured Money to the Secured Party on time. The Debtor must pay the Secured Money on demand, except where a Bank Document provides otherwise, in which case the Debtor must pay in the manner agreed on in that other Bank Document.

2.2 Expenses The Debtor agrees to reimburse the Secured Parties, every Officer, every employee of the Secured Party and each Receiver and Attorney on demand for their expenses in relation to:

  • the Secured Property or the Secured Money;

  • the preparation, execution, completion and registration of each Bank Document, and any subsequent consent, approval, waiver, amendment or release;

  • any valuation or inspection of, or report on or concerning, the Secured Property;

  • any contemplated, attempted or actual enforcement or defense of any Bank Document or Power;

  • any enquiry by a Governmental Agency concerning the Debtor or related to a Bank Document;

  • the necessity for or desirability of registering a Financing Statement or Financing Change Statement or taking action to protect its position in relation to the Secured Property;

  • complying with a demand given under section 162 of the Act.

This includes expenses incurred in any review or environmental audit, in reimbursing or indemnifying any Receiver or Attorney, or in retaining consultants to evaluate matters of concern to the Secured Party. It also includes administrative time and costs, including the time of Officers and other employees of the Secured Party (whose time and costs are to be charged at reasonable rates). It also includes, in each case, legal fees and expenses on a full indemnity basis plus goods and services tax on all expenses.

2.3 Costs The Debtor indemnifies the Secured Party, every Officer, every employee of the Secured Party and each Receiver and Attorney on demand against any loss, cost, expense, charge, damage, claim or liability which the Secured Party, an Officer, an employee of the Secured Party, a Receiver or an Attorney may suffer or incur as a direct or indirect consequence of:

  • an Event of Default or Potential Event of Default;

  • any contemplated, attempted or actual exercise or defense of any Power or the failure to exercise any Power;

  • a Secured Party receiving an amount under any Bank Document on a date other than the due date; or

  • their interest in, or possession of, the Secured Property or any control or Power over the Secured Property or the Debtor.

2.4 Interest The following will apply except to the extent that the Secured Party and the Debtor agree otherwise:

  • interest will accrue on all parts of the Secured Money at the rate which applies to the Secured Money under the relevant Bank Document. If there is no such rate, interest will accrue at the rate certified by an Officer to be the relevant Secured Party’s Variable Lending Rate (or the rate declared by the relevant Secured Party to be in substitution for it) plus the margin then applicable to similar accounts. If that rate changes, the changed rate will apply from the day on which the changed rate becomes generally applicable;

  • interest will accrue on a daily basis based on a year of 365 days, apart from USD and EURO facilities where the interest will accrue based on 360 days. It will be calculated on the outstanding balance of each sum included in the relevant Secured Party’s Secured Money, up to the date of actual payment from (and including) the date when that sum became owing by the Debtor. That date, in the case of an amount payable to cover a sum paid by a Secured Party to the Debtor or anyone else, will be taken to be the date when the Secured Party paid that amount;

  • no offset is allowed, for the purpose of calculation of interest, for credit balances in any account of the Debtor;

  • accrued interest is payable by the Debtor on demand;

  • a Secured Party may, at the end of any period determined by that Secured Party, debit any unpaid interest to any account of the Debtor. That interest will bear interest as provided in this clause;

  • the obligations in this clause apply after as well as before any judgment of a court.

2.5 Government charges The Debtor must pay any government duties, taxes and charges on the Bank Documents and payments and receipts under them. If a Secured Party pays any such amount the Debtor must reimburse it on demand.

2.6 Payments in the wrong currency

If for any reason:

  • a Secured Party receives or recovers an amount under a Bank Document in a currency other than the currency in which it should have been paid; and

  • after that Secured Party has converted that other currency to the correct currency there is not enough to pay off the full amount then due under the Bank Document, the Debtor must pay that Secured Party the full amount of the shortfall.

2.7 Deduction from payments The Debtor must not make any payment subject to any condition, restriction or claim it may have against the Secured Party. The Debtor may make a withholding or deduction (including by way of set-off or counterclaim) from money it pays to a Secured Party under this deed only if that withholding or deduction is required by law. If the law requires the Debtor to make a withholding or deduction then the following rules apply:

  • the Debtor must make sure that the withholding or deduction is for not more than the minimum amount required by that law;

  • the Debtor must make sure that the withholding or deduction is paid to the relevant Governmental Agency by the due date for payment;

  • the Debtor must send the relevant Secured Party, within 30 days of the withholding or deduction, a receipt showing that the withholding or deduction has been paid to the relevant Governmental Agency;

  • the Debtor must increase the amount it pays to the relevant Secured Party so that the Secured Party receives the amount it would have received had there been no withholding or deduction.

If a Secured Party receives a Tax credit, refund or allowance resulting from an increased amount the Debtor paid under this clause 2.7, the relevant Secured Party will provide the Debtor with that part of the Tax credit, refund or allowance that it determines was obtained as a result of the increased amount the Debtor paid. This will be calculated so that the Secured Party is in no better or worse position than it would have been had no amount been required to be paid under this clause 2.7.

However, the Secured Parties are under no obligation to disclose any information relating to the calculation of their Tax position, liability or benefits. Also, this clause does not interfere with the Secured Party' right to arrange their Tax affairs as they wish. In particular, the Secured Party may apply Tax credits, refunds and allowances available to them as they like.

3. Undertakings

3.1 Term of obligations Each obligation in this deed continues from the date of this deed until the Secured Money is fully and finally repaid and whether or not a Secured Party has exercised any Power.

3.2 Undertakings relating to Secured Property The Debtor undertakes to the Secured Parties as follows, except to the extent that the Secured Parties consent or, as expressly permitted in the Bank Documents:

a) negative pledge: The Debtor will not create, or permit to subsist, a Charge in, or over, any Secured Property other than:

  • as created by this deed or any Collateral Security;

  • a Security Interest over assets securing all or part of the purchase price of those assets created in the ordinary course of business of the Debtor where the amount secured is paid within 90 days; or

  • a lien arising only by operation of law in the ordinary course of business of the Debtor.

b) disposal of assets: Except as expressly permitted by paragraph (a) above, the Debtor will not sell, lease, create or waive any interest in, or part with possession or otherwise dispose of, any Secured Property other than for disposals of Inventory and the collection of Accounts Receivable, in each case in the ordinary course of business of the Debtor and prior to a Secured Party giving notice following an Event of Default or Potential Event of Default that such disposals and collections are no longer permitted.

c) set-off: Other than in the ordinary course of business of the Debtor and prior to a Secured Party giving notice following an Event of Default or Potential Event of Default that such are no longer permitted, the Debtor will not create or allow to exist any right of set-off, netting or combination in respect of any of its Accounts Receivable.

d) accessions and fixtures: The Debtor will not allow any Secured Property:

  • to be or become an Accession other than to Secured Property; or

  • to become attached to Land or buildings other than Secured Property in such a way as to become a fixture.

e) pay outgoings: The Debtor will promptly pay all outgoings payable by it relating to the Secured Property (including rates and Taxes) except where it satisfies the Secured Party that it is contesting such outgoings in good faith and that failure to pay cannot have a Material Adverse Effect and is otherwise appropriate.

f) maintenance: The Debtor will look after the Secured Property and protect and maintain it in a good state of repair.

g) insurance: The Debtor will make sure that the Secured Property is insured at all times to the Secured Party satisfaction:

  • with a Vanuatu insurer approved by the Secured Party;

  • against fire, earthquake, flood, riot, explosion, weather damage, theft, burglary, marine risks and other risks as it is prudent in accordance with best commercial practice to insure against;

  • against third party liability as is prudent in accordance with best commercial practice;

  • for an amount at least equal to its full replacement cost or on another basis acceptable to the Secured Party; and

  • in Wanfuteng’s name as the holder of a Charge.

The Debtor will give the policy or a certificate of currency to the Secured Party on request.

The Debtor will pay the insurance premiums when due and provide evidence of payment to the Secured Party on request.

The Debtor will do everything necessary or desirable, in the opinion of the Secured Party, to enable the Secured Party to claim under any insurance policy and to collect or recover money due.

The Debtor will hold any proceeds of the policy on trust and pay them to a Secured Party (for the benefit of the Secured Party). The Secured Party may at their option:

  • apply them towards payment of the Secured Money, including principal, even though the Secured Money may not yet be due for payment; or

  • pay them into an interest-bearing account from which they can apply them (and interest credited to the account) in restoring the Secured Property.

The Debtor will not do, fail to do or permit anything which might prejudice the insurance cover, or settle any claim under any insurance policy.

The Debtor will provide the Secured Party with such information in relation to insurance as the Secured Party may from time to time require.

h) protect security: The Debtor will do everything (including things outside Vanuatu) necessary or which the Secured Party reasonably ask to maintain, preserve and protect:

  • the Secured Property and its value; and

  • the Debtor’s and the Secured Party' rights, interests and priorities in the Secured Property.

If anyone, other than the Secured Party, lodges a caveat or registers a Financing Statement in relation to a Charge not permitted by this deed, the Debtor must do everything in its power to remove it.

And, in addition, in relation to Secured Property which is Securities:

3.3 General undertakings

The Debtor undertakes to the Secured Party as follows, except to the extent that the Secured Party consent:

a) bank documents: The Debtor will comply fully with its obligations under the Bank Documents.

b) compliance with law: The Debtor will comply with all laws binding on it where non-compliance, in the opinion of the Secured Party, may have a Material Adverse Effect.

c) environmental law: The Debtor will maintain procedures which, in the opinion of the Secured Party, are adequate to monitor:

  • its compliance with Environmental Law; and

  • circumstances which may give rise to a claim, to a requirement of substantial expenditure by it, or to a requirement that it cease or materially change its activities.

The Secured Party may have an audit conducted of the Secured Property, the Debtor’s procedures and any circumstances in relation to the Secured Property where the Secured Party reasonably suspect that:

  • the Debtor is not complying, or might not in future comply, with an Environmental Law or this paragraph (c); and

  • such non-compliance may have a Material Adverse Effect.

The Debtor will do everything necessary to facilitate that audit and it will be at the Debtor’s expense.

Where the monitoring procedures or the audit referred to above reveal any non-compliance with Environmental Law or any circumstances requiring remedial action, the Debtor must remedy any non-compliance or take the necessary remedial action immediately and at its cost.

d) authorisations: The Debtor will apply for, obtain and keep in force all Authorisations, and any renewals of Authorisations, which may be necessary or expedient for the ownership, use or operation of the Secured Property or the carrying on of its business. The Debtor will comply with all Authorisations and maintain procedures which in the Secured Party opinion are adequate to monitor its compliance with all Authorisations.

e) pay taxes: The Debtor will pay all Taxes payable by it when due, but:

  • it need not pay Taxes for which it has set aside sufficient reserves and which are being contested in good faith, except where failure to pay those Taxes may have a Material Adverse Effect or could give rise to a preferential claim over any of the Secured Property or where payment is required by law; and

  • on the final determination or settlement of the contest it must pay the contested Taxes which it is liable to pay.

f) conduct of business: The Debtor will not materially change the nature or scope of its business.

g) records and accounts: The Debtor will keep records and accounts relating to itself and its business and will prepare financial statements and, on request, have them audited in accordance with the law and current accounting practice even where the law does not require it to appoint an auditor.

h) inspection: The Debtor will allow the Secured Party, or persons authorised by the Secured Party or by an Officer, at any time during normal business hours to inspect assets, premises and records of the Debtor and the Secured Property and require the provision of copies of the records. The Debtor must do everything in its power to assist that inspection and provide those copies.

i) acquisition of assets: The Debtor will immediately notify the Secured Party if it enters into an agreement to purchase, or otherwise acquire, an estate or interest in Land (other than a Lease for a term (including all renewal options) of less than three years).

j) reporting and information: The Debtor will provide to the Secured Party:

  • as soon as practicable (and in any event not later than 180 days) after the close of each of its financial years copies of its financial statements for that financial year, all of which must be audited unless the Secured Party agree otherwise; and

  • promptly (and in any event within seven days after request by the Secured Party) any other information in relation to the Secured Property or the Debtor’s financial condition or business which the Secured Party may request.

k) accounting standards: The Debtor will ensure that the financial statements of the Debtor at any time delivered to the Secured Party:

  • are prepared in accordance with current accounting practice;

  • give a true and fair view of its financial position and operations (and those of its Subsidiaries, if any) as at the date, and for the period, to which the financial statements relate;

  • together with the notes to them, disclose all liabilities (actual or contingent) of the Debtor and its Subsidiaries (if any); and

  • are prepared and delivered to all relevant persons within the period in which they are required by law or under any agreement to be delivered.

l) notify events of default: The Debtor will notify the Secured Party, immediately upon becoming aware of it, of the occurrence of any Event of Default or Potential Event of Default, giving full details of the event and of any action taken (or to be taken) in respect of it.

m) full disclosure: The Debtor will notify the Secured Party, immediately it becomes aware of them, of any facts or circumstances which might adversely affect the decision of a person considering whether or not to continue to provide Indebtedness to the Debtor.

n) related parties: The Debtor will procure that each other Related Party complies with paragraphs (b) to (i) and (o) to (s) (all inclusive) of this clause 3.3 and clause 26 as applicable, as though the obligations contained were obligations of each other Related Party and references to the Debtor were references to each other Related Party.

And, in addition, if the Debtor is a Company:

o) corporate existence: The Debtor will do everything necessary to maintain its corporate existence and will not transfer its jurisdiction of incorporation.

p) amalgamation: The Debtor will not enter into or become the subject of an amalgamation under the Companies Act.

q) shares and shareholder assistance: The Debtor will not:

  • acquire or redeem any of the shares in the Debtor;

  • give financial assistance for the purpose of, or in connection with, the purchase of shares issued or to be issued by the Debtor, or by its holding company (within the meaning of the Companies Act) whether directly or indirectly; or

  • cancel or reduce the liability of a shareholder to the Debtor in relation to a share held by the shareholder.

r) distributions: Except to the extent that it is complying with any financial covenants, applicable ratios or minimum capital requirements imposed by the Secured Party in a Bank Document, the Debtor will not make any Distribution other than dividends paid out of profits in accordance with current accounting practice.

s) unpaid capital: The Debtor will not call up, or receive in advance of calls, any Unpaid Capital, and it will apply Unpaid Capital, when paid, only towards payment of the Secured Money.

t) subsidiary: The Debtor will immediately notify the Secured Party if it creates or acquires a Subsidiary. If required by the Secured Party the Debtor must immediately do everything necessary to ensure that the Subsidiary gives a first-ranking Charge over its assets and a guarantee, each in the form specified by the Secured Party and to the satisfaction of the Secured Party.

4. Further assurances

4.1 General Whenever the Secured Party request the Debtor to do anything or to provide information for more satisfactorily securing or protecting the Secured Property and the Charges and priorities provided for in this deed, or for aiding the exercise of any Power, the Debtor undertakes to do it immediately at its own cost. This may include:

  • the provision of information;

  • the execution or registration of any Bank Document or any other document or agreement;

  • the delivery of any Secured Property, documents or evidence

  • of title;

  • the execution and delivery of blank transfers; and

  • the informing of potential holders of any Charge, purchasers and lessees of the Debtor’s assets and any other persons of any relevant information including that this deed prohibits certain transactions and dealings with the Secured Property.

The Debtor consents to the Secured Party searching the Register in relation to information about the Debtor or the Secured Property at any time.

4.2 Interest in Land On acquiring any interest in Land the Debtor undertakes that, on request by the Secured Party, the Debtor will execute a mortgage over that interest (being a registrable mortgage in the case of a registrable or registered interest) to secure the Secured Money. That mortgage must be in the form and substance (including as to priority) required by the Secured Party and the Debtor undertakes to register it promptly under the Land Leases Act of Vanuatu (as amended) with the priority required by the Secured Party.

4.3 Title documents Subject to the rights of any holder of a prior Charge, the Debtor undertakes to immediately deliver to the Secured Party all Documents of Title, Negotiable Instruments, Chattel Paper and Securities which it has or receives.

The Debtor may satisfy its delivery obligations under this clause if it delivers such Documents of Title, Negotiable Instruments, Chattel Paper and Securities to the Officer of a Secured Party who has responsibility for and knowledge of the transaction to which this deed relates.

5. Default

5.1 Events of Default

Each of the following is an Event of Default (whether or not it is within the control of the Debtor):

a) payment: The Debtor fails to pay any Secured Money when due (time being of the essence).

b) obligations under bank documents: The Debtor fails to comply with any of its other obligations under a Bank Document.

c) obligations of guarantor: A Guarantor fails to comply with any of its obligations under a Bank Document.

d) cross-default: Any Indebtedness of the Debtor or any Guarantor to anyone is not paid when due (or within an applicable grace period) or becomes due or capable of being declared due and payable before its stated maturity.

In the case of unsecured Indebtedness in respect of the purchase price of an asset or service purchased in the ordinary course of business of the Debtor, this will apply only if it is not paid within 90 days of the due date or if the vendor has earlier taken any step to recover the asset or withdraw the service.

Any facility or obligation to provide loans or credit to the Debtor or a Guarantor or to acquire or underwrite Indebtedness is terminated early.

Any other Charge affecting the Secured Property is enforced or becomes enforceable.

Any Lease of any of the Secured Property becomes liable to forfeiture or any obligation under any Lease is breached.

e) insolvency; bankruptcy; death: The Debtor is unable to pay its debts, or is deemed or presumed to be unable to pay its debts, or stops or suspends or threatens to stop or suspend payment of all or any class of its debts.

Any step is taken for the Bankruptcy of the Debtor or any of its assets.

The Debtor dies or ceases to be of full legal capacity.

f) limitation of bank documents: All or any part of this deed, a Collateral Security or any other material Bank Document is terminated or is or becomes or is claimed to be illegal, invalid, unenforceable or of limited force and effect.

A party becomes entitled to terminate, limit, cancel, rescind or avoid all or any part of any such document.

g) material adverse change: Any event or series of events, whether related or not, occurs (including a change in the business, assets or financial condition of the Debtor or its Subsidiaries (if any) or the value of the Secured Property), which in the opinion of the Secured Party may have a Material Adverse Effect.

h) compulsory acquisition: All or any part of the Secured Property is compulsorily acquired or any step is taken for its acquisition, or possession (including as that term is defined in the Act) of any part of the Secured Property is taken by a holder of a Charge other than Wanfuteng.

i) environmental event: The Debtor or any other person breaches an Environmental Law or Authorisation and, in the opinion of the Secured Party, that breach may have a Material Adverse Effect on, or cause a claim or demand to be made against, the Debtor, the Secured Property or the Secured Party by a Governmental Agency or any other person, requiring either:

  • the cessation or modification of any activities being, or proposed to be, conducted by the Debtor; or

  • the carrying out of, or demand for payment for, any clean-up, rehabilitation or remediation of the Secured Property.

j) information: Any information provided by the Debtor to the Secured Party is untrue, misleading or deceptive in any material respect.

k) at risk: The Secured Party consider that any part of the Secured Property is at risk within the meaning of section 109 of the Act.

l) guarantor: A Guarantor gives notice terminating its obligations.

m) related party: Any event referred to in paragraph (e), (g), (h), (i), (j), (n), (o), (p) or (q) occurs in relation to any Guarantor or any other Related Party as though references to the Debtor in each paragraph were references to each Guarantor and any other Related Party.

And, in addition, if the Debtor is a Company:

n) investigation: An investigation into all or part of the affairs of the Debtor or a corporate Guarantor commences under companies legislation in circumstances material to its financial condition.

o) resolution restricting calls: Without the prior consent of the Secured Party, a resolution is proposed in a notice of meeting so as to prevent or restrict the calling-up of any Unpaid Capital of the Debtor.

p) change of control: In the opinion of the Secured Party, there is a material change in the direct or indirect ownership, management or control of the Debtor or of any corporate Guarantor.

q) pay debts of another company: An order is made requiring the Debtor, or any Subsidiary of the Debtor, to pay or contribute to any debts of another Company.

5.2 Consequences At any time after an Event of Default (and whether or not it is continuing), the Secured Party or any Officer or Attorney may do all or any of the following at any time and at the cost of the Debtor:

  • by notice to the Debtor declare any or all of the Secured Money immediately due and payable, and the Debtor must immediately pay that Secured Money;

  • by notice to the Debtor terminate any obligation of the Secured Party under any Bank Document to provide loans or credit;

  • (in the case of Wanfuteng) enforce the Security Interest and charge created by this deed by exercising Powers which are exercisable after an Event of Default, without notice where the law permits;

  • inspect the Secured Property; or

  • at the cost of the Debtor, appoint a firm of independent accountants or other experts to review and report to the Secured Party on the affairs, financial condition and business of the Debtor or any other Related Party, in which case:

    • the Debtor will do everything in its power to ensure the review and report can be carried out promptly, completely and accurately; and

    • the Debtor will co-operate fully with the review and ensure that the accountants and experts are given access to all premises and records of the Debtor and each other Related Party and are given all information concerning the Debtor or any other Related Party which they require from time to time.

6. Appointment of Receiver

6.1 Appointment To the extent permitted by law, at any time after an Event of Default (and whether or not it is continuing), the Secured Party or an Officer may appoint any person, or any two or more persons jointly or severally or both, to be a Receiver of all or any of the Secured Property, remove any Receiver, appoint another Receiver in addition to or in place of a Receiver, and fix or vary the remuneration of a Receiver.

6.2 Agent of Debtor To the extent permitted by law, every Receiver and any delegate of the Receiver is the agent of the Debtor and the Debtor alone is responsible for his or her acts and defaults.

6.3 Receiver’s Powers

In addition to any powers granted by law, and except to the extent specifically excluded by the terms of his or her appointment, every Receiver has power to do anything (whether done alone or with any other person or persons) in respect of the Secured Property that the Debtor could do. A Receiver may do any or all of the following things:

a) take possession and manage take possession of, get in and manage the Secured Property;

b) lease any of the Secured Property for any term (whether or not the Receiver has taken possession);

c) carry on business carry on or concur in carrying on any business;

d) acquire any asset acquire in any manner any asset (including by taking it on Lease). After the acquisition it will be included in the Secured Property;

e) maintain or improve the secured property do anything to maintain, protect or improve any of the Secured Property or to obtain income or returns from any of the Secured Property;

f) raise money borrow or raise any money from the Secured Parties or any other person approved by the Secured Party, give Guarantees, and, where the Receiver considers it desirable, grant any Charge over any of the Secured Property to secure that money or Guarantee.

That Charge may rank before, with or after the security created by this deed. It may be given in the name of the Debtor or otherwise;

g) lend money or provide loans or credit, whether on a secured or unsecured basis;

h) sell any of the Secured Property (whether or not the Receiver has taken possession), including on a deferred payment or vendor-finance basis;

i) options grant or take put or call options;

j) sever fixtures sever fixtures;

k) employ or discharge any person as employee, contractor, agent, professional adviser, consultant or auctioneer for any purpose;

l) compromise make or accept any arrangement or compromise;

m) give receipts give receipts for money and other assets;

n) perform and enforce agreements perform, enforce, exercise or refrain from exercising the Debtor’s rights and powers under, or obtain in other ways the benefit of, any document or agreement or rights which form part of the Secured Property and any document or agreement entered into in exercise of any Power;

o) apply for, take up, transfer or surrender any Authorisation or any variation of any Authorisation;

p) vary and terminate agreements vary, rescind, cancel or terminate any document or agreement (including surrendering or accepting the surrender of Leases);

q) take insolvency proceedings enforce debts and other obligations, make debtors bankrupt, liquidate or wind up entities and do anything in relation to any actual or contemplated Bankruptcy (including attending and voting at meetings of creditors and appointing proxies);

r) take proceedings commence, defend, conduct, settle, discontinue or compromise proceedings in the name of the Debtor or otherwise;

s) execute documents enter into and execute documents or agreements on behalf of himself or herself or the Debtor. This includes using the Debtor’s seal, if any;

t) operate bank accounts operate any bank account comprising part of the Secured Property, and open and operate any further bank account;

u) surrender and exchange secured property surrender, release or transfer any of the Secured Property or exchange with any person any of the Secured Property for other property;

v) promote companies promote the formation of Companies and subscribe for or otherwise acquire shares in any Company;

w) delegate to any person approved by the Secured Parties any of his or her Powers (including delegation);

x) have access have access to and make use of the assets, premises, and accounting and other services of the Debtor and the services of its officers and employees;

y) vote exercise any voting or other rights or powers in respect of any of the Secured Property and do anything in relation to Securities;

z) other outgoings pay any outgoing or Indebtedness of the Debtor or any other person;

aa) charges redeem any Charge or acquire it and any Indebtedness secured by it;

bb) make calls make and enforce calls on the members of the Debtor in respect of any Unpaid Capital;

cc) insure and make claims take out insurance and make, enforce, compromise and settle all claims in respect of insurance; and

dd) incidental power do anything incidental to the exercise of any other Power.

6.4 Powers exercisable by the Secured Party Whether or not a Receiver has been appointed, to the extent permitted by law, the Secured Party, in their own name or in the name of the Debtor or otherwise, may:

  • exercise any Power referred to in clause 6.3 as if they were a Receiver, at any time after an Event of Default (whether or not it is continuing) in addition to any of their Powers and without giving notice;

  • exercise those Powers and their other Powers without taking possession or being liable as mortgagee in possession; and

  • exercise those Powers and their other Powers directly or through one or more agents and in the latter event anything done or incurred by an agent will be taken to be done or incurred by the Secured Party.

6.5 Withdrawal The Secured Party may at any time give up possession of the Secured Property and may at any time withdraw or terminate any receivership.

7. Power of attorney

The Debtor appoints the Secured Party, every Officer and Receiver severally their Attorney to do what it agreed to do in any Bank Document but fails to do and, at any time after an Event of Default (and whether or not it is continuing), any of the things listed in clause 6.3 of this deed. Each Attorney may also delegate its Powers (including delegation). This appointment is made for valuable consideration and the Debtor may not revoke it.

8. Completion of blank documents

The Secured Party, any Officer, any Receiver or any Attorney may complete any document which at any time is executed by or on behalf of the Debtor and deposited with or provided to the Secured Party in respect of any Bank Document. It may complete that document in favour of the Secured Party, any purchaser or any nominee of either of them.

9. Performance of Debtor’s obligations

If at any time the Debtor fails to duly perform any obligation in any Bank Document, the Secured Party, any Officer, or any person authorised by the Secured Party, may do anything which in their opinion is necessary or expedient to make good or to attempt to make good that failure to their satisfaction. Any amount paid, or liability incurred, as a consequence will be part of the Secured Money.

10. Application of money received

10.1 Order To the extent permitted by law all money received or recovered by a Receiver, an Attorney or the Secured Party, under or by virtue of this deed or in relation to the Secured Money or Secured Property will be applied in the manner and order determined by the Secured Party (despite any direction to the contrary and whether before or after an Event of Default). If the Secured Party do not make a determination, the following order will apply:

  • first: all costs, charges and expenses of the Secured Party or a Receiver or Attorney in relation to this deed or any Collateral Security. This includes those which are incurred in or incidental to the contemplated, attempted or actual exercise or performance of a Power or this deed;

  • second: any other outgoings which the Receiver, Attorney or the Secured Party think fit to pay;

  • third: the Receiver’s remuneration;

  • fourth: to each holder of a Charge of which the Secured Party are aware and which has priority over this deed in relation to the relevant Secured Property, to the extent, and in order, of such priority;

  • fifth: to the Secured Party towards satisfaction of the Secured Money;

  • sixth: to each holder of a Charge of which the Secured Party are aware and which ranks after this deed in relation to the relevant Secured Property, to the extent, and in order, of priority; and

  • seventh: the surplus (if any) will be paid to the Debtor. The surplus will not carry interest. If the Secured Party pay the surplus to the credit of an account in the name of the Debtor with a Secured Party, none of the Receiver, Attorney or the Secured Party (except as banker for such account) will be under any further liability in respect of it, and any preferential payments required to be made by statute will be made in accordance with such statute.

10.2 Money actually received In the application of any money towards satisfaction of the Secured Money, the Debtor will be credited only with the money available for that purpose which is actually received by the Secured Party. The credit will date from the time of receipt by the Secured Party.

10.3 Amounts contingently due If any of the Secured Money is contingently owing to a Secured Party at the time of any application of any amount under clause 10.1, that Secured Party may retain any of that amount. If it does, it will place the amount retained on short-term interest-bearing deposit until the relevant Secured Money becomes actually due or ceases to be contingently owing, and it will pay to itself the amount which becomes actually due to it.

10.4 Notice of subsequent Charges If a Secured Party receives notice of another Charge affecting any of the Secured Property it may open a separate account in the name of the Debtor in the books of that Secured Party.

If the relevant Secured Party does not open a new account it will be treated as if it had done so at the time it received actual or constructive notice of the Charge.

Unless the Secured Party otherwise agree, from the time the new account is opened or is taken to be opened:

  • all advances and accommodation made available by the Secured Party to the Debtor;

  • all payments and repayments made by the Debtor to the Secured Party; and

  • money to be applied towards the Secured Money under clause 10.1,

will be or will be taken to be debited or credited, as appropriate, to the new account. Payments, repayments and other money will be applied in reduction of other Secured Money only to the extent that there is no debit balance in that account.

10.5 Conversion of currencies on application For the purpose of making an application under clause 10.1, the Secured Party, any Receiver or any Attorney may purchase one currency with another, whether or not through an intermediate currency, whether spot or forward, in the manner and at the time it thinks fit.

11. Other Charges over Secured Property

11.1 Reliance on certificate The Secured Party and (with the Secured Party consent) any Receiver or Attorney may rely on the certificate of a holder of another Charge affecting or purporting to affect the Secured Property as to the Indebtedness secured and property affected by the Charge, and the priority of the Charge.

11.2 Discharge of Indebtedness The Secured Party or (with the Secured Party consent) any Receiver may at any time pay the amount certified by the holder of a Charge or purported Charge to be necessary to discharge it or some of the Indebtedness secured by it or to acquire it. From the date of payment that Indebtedness will be part of the Secured Money. The Debtor agrees to indemnify the Secured Party and the Receiver on demand against that amount. This applies whether or not that Charge or purported Charge was valid or prior-, equal- or subsequent-ranking and whether or not the property or money stated in the certificate was affected or secured by it.

12. Set-off and combination

If the Debtor has any money in any account with the Secured Party, then the Secured Party may use it to pay the amounts the Debtor owes and which are payable to the Secured Party under any Bank Document, but need not do so. If there is an Event of Default, the Secured Party may use money held on deposit which has not yet matured and may convert money in the Debtor’s accounts in foreign currencies.

Subject to any applicable Bank Document, where the Debtor has two or more accounts with the Secured Party:

  • the Secured Party may at any time combine any two or more of those accounts. They may do so without notice and whether or not they have allowed a set-off for a calculation of interest between any of those accounts;

  • the Secured Party may at any time combine any two or more of those accounts even where one or more of the combined accounts are in different currencies and may effect currency exchanges appropriate to implement that combination; and

  • if the Secured Party combine two or more accounts, they may decline to pay cheques and they may otherwise act as if the combined accounts had always been one account.

To the maximum extent allowed by law, the Debtor gives up any right to set off any amounts the Secured Party owe the Debtor against the Secured Money including amounts the Debtor owes under this deed. The Secured Party Powers under this clause are in addition to any Powers which the Secured Party may have by operation of law.

13. Assignment

The Secured Party may transfer their rights and obligations under this deed, any Bank Document and all or part of the Secured Money to someone else, and may disclose information about the Debtor to any potential transferee. Following any transfer, this deed and any transferred Bank Document will apply to the transferee as if it were the transferring Secured Party.

To the maximum extent allowed by law, any transfer will be free of set-off, equity or counter-claim which the Debtor would have had against the transferring Secured Party or any transferee of any Bank Document but for this clause.

14. Exercise of Powers

No failure to exercise any Power and no delay in exercising any Power operates as a waiver. Nor does any single or partial exercise of any Power preclude any other or further exercise of that Power or any other Power.

The Powers in this deed and each Collateral Security are in addition to, and do not exclude or limit, any right, power or remedy provided by law.

Except where expressly stated otherwise, the Secured Party may give or withhold, or give conditionally, approvals and consents, may be satisfied or unsatisfied, may form opinions and may exercise their Powers, at their absolute discretion.

15. Obligations continue

The obligations of the Debtor under this deed continue after its Bankruptcy and after the Secured Party learn of it.

16. Notices

Any Officer may sign a demand, certificate or other document for a Secured Party.

A Secured Party may:

  • deliver the document personally to the Debtor or the Debtor’s agent or personal representative;

  • send it through the post to the place where the Debtor (or the Debtor’s agent or personal representative):

    • resides; or

    • carries on business; or

    • has its registered office, or the place most recently known to the person signing the document as such a place or such other last known address of the Debtor;

  • leave it at any one of those places; or

  • send it by facsimile to the Debtor’s (or Debtor’s agent’s or personal representative’s) last known facsimile number.

If the document is sent through the post to the Debtor, it is to be regarded as having arrived on the third Banking Day after posting, even if it never arrived. If it is sent by facsimile, it is to be regarded as having arrived when the sending machine receives a confirmation that it has been sent in its entirety.

The Debtor may give notice to a Secured Party by delivering, posting, leaving or faxing the notice to the Officer at that Secured Party who has the responsibility for and knowledge of the transaction to which this deed relates. Where any document is given or appears to have been given by the Debtor to a Secured Party by facsimile, that Secured Party will have no obligation to make any enquiry or require any evidence as to the validity of that document even where that document proves not to have been authorised or not to have been signed or given by the person who appears to have signed or given it. The Secured Party are entitled to rely on any document given under this clause where it appears that that document has been signed by the Debtor or on behalf of the Debtor.

A notice given, or required to be given, under this deed to, or by, the Secured Party is validly given if it is given to, or by, one Secured Party only.

The Debtor is entitled to rely on such notice given by one Secured Party as being authorised by both Secured Party and will have no obligation to enquire as to whether any instructions have been given to that Secured Party or as to the terms of any such instruction.

17. Law of Property Act 1925 of the United Kingdom

For the avoidance of doubt (and subject always to the Act and notwithstanding anything contain herein) the provisions of the Law of Property Act 1925 of the United Kingdom shall be deemed to apply in the event of the appointment of a Receiver to a Debtor that is a Vanuatu Company but without the restrictions contained in section 103 of the said Act nor the need to observe any of the provisions of sections 99 and 100 of such Act.

18. Determination, statement and certificate conclusive

Except where this deed provides otherwise, any determination, statement or certificate by the Secured Party or an Officer provided for in this deed is conclusive and will bind the Debtor in the absence of manifest error. In particular, the Debtor agrees that a certificate from the Secured Party setting out the amount which it owes to them under this deed is proof that it owes the amount stated, unless it proves to the contrary.

19. Survival of indemnities

Each indemnity and reimbursement obligation in this deed will survive discharge of this deed.

20. Saving of deed

If any provision of this deed is not enforceable in any country because of the laws of that country then that will not affect:

  • the other provisions of this deed; or

  • the enforceability of that provision in any other country.

21. No merger

No Power and nothing in this deed or any Bank Document is adversely affected merely because of the existence of any other Bank Document, or by any judgment, right or remedy against any person which a Secured Party or someone claiming through a Secured Party may have at any time.

22. Protection of third parties

No person who is party to a dealing and no person asked to register a dealing is affected by express notice that the dealing is unnecessary or improper, nor is that person bound to enquire whether this deed has become enforceable, whether the dealing is valid or whether any Receiver or Attorney is properly appointed.

For the protection of any person who is party to a dealing or a person registering a dealing, the dealing will be taken to be authorised by this deed and it will be valid, even if there is something wrong with the dealing.

In this clause, a dealing is any payment to, or any delivery or handing over of an asset to, or any acquisition, incurring of debt, receipt, sale, Lease, disposal, creation of a Charge or other dealing by a Secured Party, any Receiver, any Officer or Attorney or any person who purports to be one.

If a Secured Party, any Officer or any Receiver or Attorney (or any person who purports to be one) gives a receipt for any money or assets, that will save the person paying that money or handing over that asset from being concerned as to its application, or being liable or accountable for its loss or misapplication.

23. Protection of officers

To the extent permitted by law, neither the Secured Party nor any Officer, Receiver or Attorney will be liable in respect of any conduct, omission, delay, negligence or breach of duty in the exercise of or failure to exercise a Power or for any loss (including consequential loss) which results. However, such party will be liable where liability arises from its own fraud or willful misconduct.

24. Governing law and jurisdiction

The laws of Vanuatu (but excluding French laws) shall apply to this deed and the Charges it creates and provides for. The Debtor accepts the non-exclusive jurisdiction of its courts.

25. Continuing security

This deed is a continuing security until a final discharge has been given by Wanfuteng despite any payment or anything else.

The Debtor will not be entitled to request a final discharge of this deed and the Charges created by it until the Secured Party are satisfied that all Secured Money has been repaid in full, and that the Secured Party have no further obligation to advance any further Secured Money and have no contingent liability or obligation under any Bank Document, and that no payment may be voided, voidable or required to be repaid by the Secured Party under any law. In any event, the Debtor acknowledges that (subject to any law to the contrary) any request for a discharge must give the Secured Party 15 Banking Days’ notice.

If any payment or other transaction under this deed is void, voidable, or required to be repaid by any law, that payment or other transaction will be deemed not to have affected the Debtor’s liability to the Secured Party even if this deed has already been released. In those circumstances, the Secured Party will be restored to the position they had been in prior to that release, payment or other transaction. If that happens, the Debtor must do all things and sign all documents as may be necessary to restore the Secured Party to that position.

26. Trustees’ limitation of liability and undertakings

26.1 Limitation of liability In the case where the Debtor is a trust (or trustee(s) acting in relation to a trust), this deed will bind each trustee of that trust. Each trustee will also be bound personally unless that trustee is an independent trustee.

Each trustee confirms that he or she:

  • has the power to enter into this deed either under the terms of the trust document or under the powers given to him or her by the Trustee Act 1956;

  • has properly signed this deed in accordance with the terms of the trust; and

  • has a right of indemnity from the trust assets.

The Secured Party may bring proceedings against a trustee for breach of warranty if any of the above warranties are incorrect.

The Secured Party' rights against a trustee will be limited only if the trustee is an independent trustee. In that case, the Secured Party will only be entitled to recover Secured Money from that trustee’s personal assets if they are not able to recover the Secured Money from the trust assets because any of the warranties given by the trustee are incorrect. The Secured Party will only be entitled to recover from the trustee’s personal assets the amount it would have recovered from the trust assets had those warranties been correct.

Where a trustee is not an independent trustee, the Secured Party may seek to recover any Secured Money from that trustee’s personal assets as well as from trust assets.

For the purposes of this clause, a trustee is an independent trustee unless that trustee has any right to or interest in any of the assets of the trust except in their capacity as trustee of the trust.

26.2 Trustees’ undertakings Where the Debtor is a trust (or trustee(s) acting in relation to a trust), and in addition to the obligations in clause 3, the trustees will ensure that except to the extent that the Secured Party consent:

  • the trust deed is not amended or revoked;

  • no existing trustee is removed or retires as trustee of the trust;

  • no new or additional trustee of the trust is appointed;

  • the trustees duly and punctually comply with their obligations under the trust deed;

  • no vesting date under the trust deed is determined during the term of this deed; and

  • no restriction or limitation on the right of indemnity of any trustee of the trust is created.

27. No reliance on the Secured Party

The Debtor confirms that:

  • it has not entered into any Bank Document in reliance on, or as a result of, any conduct of any kind of or on behalf of the Secured Party or any Related Company of the Secured Party (including any advice, warranty, representation or undertaking); and

  • neither the Secured Party nor any Related Company of the Secured Party are obliged to do anything (including disclosing anything or giving advice), except as expressly set out in the Bank Documents or in writing signed by or on behalf of the Secured Party or any Related Company of the Secured Party.

28. Statutory powers; contracting out

The terms implied by law and powers conferred on a holder of a Charge by law (including by the Act) on Wanfuteng as the holder of the Security Interest and charge created by this deed:

  • are in addition to the Powers conferred by this deed or any Collateral Security;

  • (to the extent permitted by law) may be exercised by Wanfuteng at the time permitted by such law or otherwise immediately an Event of Default occurs and at any time subsequently (and whether or not it is continuing); and

  • are excluded or varied only so far as they are inconsistent with the express terms of this deed or any Collateral Security.

The Debtor waives its right to receive a copy of any Verification Statement in respect of any Financing Statement or Financing Change Statement registered by, or on behalf of, Wanfuteng in relation to any Security Interest created by this deed and agrees, to the extent permitted by law, that as between the Debtor and Wanfuteng

  • sections 114(1)(a), 133 and 134 of the Act will not apply;

  • the Debtor will have none of the rights referred to in paragraphs (c) to (e) and (h) and (i), all inclusive, of section 107(2) of the Act; and

  • where Wanfuteng has rights in addition to, or existing separately from, those in Part 9 of the Act, those rights will continue to apply and, in particular, will not be limited by section 109 of the Act.

The provisions of the Consumer Guarantees Act 1993 are contracted out of to the maximum extent permitted by that Act.

Despite any other provision of this deed, there is no intention to contract out of the Credit (Repossession) Act 1997 where it may apply, and any provision which has such an effect will be ineffective to that extent.

29. Interpretation

In this deed:

29.1 The following definitions apply unless the context requires otherwise:

Accessions, Account Receivable, Chattel Paper, Document of Title, Intangible, Inventory, Land, Motor Vehicle, Negotiable Instrument, Organisation, Proceeds, Register, Security Agreement, Security Interest, Serial-Numbered Goods and Verification Statement have the respective meanings given to those terms in the Act.

Act means the Personal Property Securities Act No 17 of 2008 as amended and, where the context requires, includes the Regulations. after-acquired property has the meaning given to that term in the Act, but also includes that which has become personal property during the time that the Debtor has had rights in it.

Attorney means a person appointed as attorney under this deed or any Collateral Security.

Authorisation includes:

  • any consent, authorisation, registration, filing, lodgement, agreement, notarisation, certificate, permission, licence, approval, authority and exemption from, by or with a Governmental Agency; and

  • in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

Bank Document means a document or agreement:

  • to which the Secured Party and any one or more of the Debtor and any Guarantors are or become party or purport to be or become party; or

  • under which obligations arise or are intended to arise from any one or more of the Debtor and any Guarantors to the Secured Party, in each case whether or not other party are involved or it arises as a result of an assignment or transfer.

    It includes this deed and any Collateral Security, and all Bank’s Loan Agreement.

Banking Day means any day (other than a Saturday or Sunday) on which registered banks are open for business in Port Vila and Luganvillle for the transaction of general banking business.

Bankruptcy includes:

  • winding-up or dissolution, liquidation, receivership within the meaning of the Vanuatu Companies (Receivership and Insolvency) Act No. 3 of 2013 as amended.

  • striking-off or removal from the register under the Companies Act, cancellation or suspension of registration, or the happening of any event on which the Debtor is to terminate, under the legislation under which the Debtor is incorporated or was established or under its constitutive documents, the giving of a direction by the registrar under the relevant legislation prohibiting the Debtor from carrying on any activity, or the suspension of the powers of the officers of the Debtor, or the suspension of the constitution of the Debtor, by that registrar;

  • assignment for the benefit of creditors, or arrangement or compromise with creditors; and

  • any analogous event.

Charge includes:

  • a Security Interest;

  • any mortgage, charge, fixed or floating charge, pledge, lien, financial lease, sale and lease-back, sale and repurchase or flawed asset arrangement;

  • any security or preferential interest or arrangement of any kind; and

  • any other right of or arrangement with any person the effect of which is to have that person’s claims satisfied in priority to other unsecured and unsubordinated creditors with, or from the proceeds of, any asset.

It excludes a charge or lien arising in favour of a Governmental Agency by operation of statute, unless there is default in payment of money secured by the charge or lien, and a Mortgage over property registered pursuant to the Vanuatu Land Leases Act on the Vanuatu Strata Titles Act.

Collateral Security means any Charge, Guarantee or other document or agreement at any time created or entered into as security or support for any Secured Money.

Companies Act means the Companies Act No. 25 of 2012 as amended.

Company has the meaning given to that term in the Companies Act and includes overseas company as defined in the Companies Act.

Debtor means the individual(s) or Organisations (including Companies) named on the first page of this deed and, if there is more than one person named as Debtor, then it means those persons jointly and severally.

Environment includes the natural physical surroundings of humankind (whether affecting individuals or groupings of individuals) and any human-made changes to them and any buildings.

Environmental Law means a provision or law which relates to an aspect of Planning, the Environment or the health, safety and welfare of humans individually and collectively.

Event of Default means any of the events described in clause 5.1, each of which is a default for the purposes of the Act.

Governmental Agency means any government or any governmental, semi-governmental, or judicial entity or authority or revenue agency, including any local government, statutory or self-regulatory organisation established, approved or authorised under law, and any stock exchange, in any case having jurisdiction in relation to the affairs of any party to a Bank Document or to whose control or jurisdiction any party to a Bank Document has consented.

Guarantee means any guarantee, indemnity, letter of credit, legally binding letter of comfort or suretyship.

It includes any obligation or irrevocable offer to be responsible for a debt (as defined below) or for the insolvency or financial condition of another person.

It also includes any other obligation or irrevocable offer to pay a debt or to purchase a debt, to provide funds for the payment or discharge of a debt or indemnity against the consequences of default in the payment of a debt.

For the purposes of this definition, debt includes Indebtedness of another person.

Guarantor means anyone other than the Debtor who creates or enters into a Collateral Security.

Indebtedness means any obligation or indebtedness, present or future, actual, prospective or contingent.

Intellectual Property means any intellectual or industrial property. It includes:

  • a patent, trademark or service mark, copyright, registered design, trade secret or confidential information;

  • a licence or other right to use or to grant the use of any of the foregoing or to be the registered proprietor or user of any of the foregoing; and

  • any other Intangible.

Lease means:

  • a lease, charter, hire purchase or hiring arrangement of any asset, including a lease for a term of more than 1 year within the meaning of the Act;

  • a right to use Intellectual Property or a franchise; and

  • an agreement under which an asset is or may be used or operated by a person other than the owner.

Material Adverse Effect means a material adverse effect on:

  • the ability of the Debtor or any Guarantor to perform its obligations under a Bank Document;

  • the security position (including in relation to any Guarantee) of the Secured Party; or

  • the financial condition or business of the Debtor or any Guarantor.

Material Document means:

  • any Lease or renewal of a Lease entered into by the Debtor; or

  • any other document or agreement which is material to the business of the Debtor, the Secured Property or the security of the Secured Party, or which is considered by the Secured Party as being so.

Officer includes an employee of a Secured Party whose title includes the word Manager, or who is acting in a managerial position, and any person (who need not be an employee) authorised for the relevant purpose by a Secured Party.

Personal Property means all personal property and after-acquired property in which the Debtor has, or acquires, rights but does not include any property to which, for any reason and for so long as, the Act does not apply (whether generally or in particular circumstances), and personal property has the meaning given to it in the Act.

Planning includes any obligation or requirement to apply for, renew, hold or comply with any Authorisation relating to the conduct of, any activity in or the use of any part of the Environment and any restrictions on such activity or use.

Potential Event of Default means any event which, with the giving of notice, lapse of time or satisfaction of any condition or happening of any event, could constitute an Event of Default.

Power means a power, right, authority, discretion or remedy which is conferred on the Secured Party, an Officer, a Receiver or an Attorney by a Bank Document or by law (including the Act) in relation to a Bank Document.

Receiver means a receiver, receiver and manager or manager appointed under this deed or any other Bank Document.

Regulations means the Regulations made under the Act.

Related Party means the Debtor and any Guarantor.

Secured Money means all money which the Debtor (whether alone or with one or more others) may owe to the Secured Party (including any transferee referred to in clause 13) now or in the future for any reason and when used in relation to a Secured Party means the Secured Money owing to that Secured Party, arising pursuant to a Bank Document.

It includes money which the Debtor contingently owes a Secured Party now or in the future. It also includes money which the Debtor may owe a Secured Party if something happens or is discovered, even where there is no existing obligation to pay it.

Where there is more than one Debtor, the Secured Money includes amounts owed by any one or more of them and amounts owed by all of them.

Secured Party means, subject to clause 13, Wanfuteng Bank Limited, incorporated in Vanuatu.

Secured Property means the property, assets and undertaking subject to a Charge created by this deed or any Collateral Security granted by the Debtor.

Subsidiary has the meaning given to it in the Companies Act.

Tax includes any tax, levy, impost, deduction, charge, rate, duty or withholding which is levied or imposed by a Governmental Agency and is required by law to be paid, and any related interest, penalty, charge, fee or other amount.

Unpaid Capital means any uncalled or unpaid share or other capital or premiums of the Debtor.

Wanfuteng means Wanfuteng Bank Limited incorporated in Vanuatu and carrying on business in Vanuatu pursuant to the Companies Act.

29.2 General Headings are for convenience only. They do not affect interpretation. The following rules apply unless the context requires otherwise:

  • the singular includes the plural and vice versa;

  • a gender includes all genders;

  • where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

  • no clause or paragraph will limit another;

  • an example, or an instance, does not limit what else might be included;

  • a word or phrase defined anywhere in this deed will have the defined meaning wherever used;

  • an Event of Default continues or subsists until it has been waived in writing by the Secured Party;

  • reference to this deed includes these Standard Terms and Conditions and the deed, including the Annexures, to which these Standard Terms and Conditions are attached or otherwise made applicable;

  • reference to a paragraph, clause, or Annexure is a reference to a paragraph of, clause of, or Annexure to this deed;

  • reference to a party to this deed or another agreement or document includes the party’s successors and permitted substitutes or assigns;

  • reference to an agreement or document is to the agreement or document as amended, novated, supplemented or replaced from time to time, except to the extent prohibited by a Bank Document;

  • reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it, in each case, from time to time;

  • reference to an approval or a consent means a prior written approval or consent;

  • reference to an asset includes any real or personal, present or future, tangible or intangible property, right or asset (including personal property, insurance policies, records, software, Material Documents, documents deposited with the Secured Parties, Intellectual Property, Unpaid Capital and any Authorisation) and any right, interest, revenue or benefit in, under or derived from, represented by or related to, any property, right or asset;

  • reference to conduct includes an omission, statement or undertaking, whether or not in writing;

  • reference to a law includes present or future common or customary law and any statute, statutory instrument, subordinate legislation, regulation, by-law, order or other legislative measure or any judgment or judicial or administrative order or determination or decision, in any jurisdiction;

  • reference to ordinary course of business of a person means the ordinary course of that person’s ordinary business;

  • reference to a person includes a natural person, or Organisation in each case whether or not having separate legal personality, and any association of entities;

  • reference to writing or to written is to be construed in accordance with section 2 of the Act.

29.3 Document or agreement A reference to an agreement includes a Charge, Guarantee, undertaking, deed, agreement or legally enforceable arrangement whether or not in writing. A reference to a document includes an agreement (as so defined) in writing, or a certificate, notice, instrument or document.

29.4 Current accounting practice A reference to current accounting practice is to accounting principles and practices applied by Vanuatu law (and includes generally accepted accounting practice) or (if not inconsistent with such law) otherwise generally accepted in Vanuatu, consistently applied. A reference to accounting terms is to be interpreted according to those principles and practices.