UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

 

(Amendment No. 2)*

 

VNET Group, Inc.

 

(Name of Issuer)

 

Class A Ordinary Shares, Par Value US$0.00001 Per Share

(Title of Class of Securities)

 

G91458 102**

(CUSIP Number)

 

Mr. Sheng Chen
Guanjie Building, Southeast 1st Floor, 10# Jiuxianqiao East Road
Chaoyang District, Beijing 100016
People’s Republic of China
Phone: (+86) 10 8456-2121

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

February 8, 2023

 

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

*This statement on Schedule 13D constitutes Amendment No.2 to the initial Schedule 13D (the “Original Schedule 13D”) filed on April 8, 2022 on behalf of each of Mr. Sheng Chen and GenTao Capital Limited, as amended by the Amendment No.1 to the Original Schedule 13D filed on September 14, 2022 (the “Amendment No.1,” together with the Original Schedule 13D, the “Original 13D Filings”), with respect to ordinary shares (“Ordinary Shares”), comprising Class A ordinary shares, par value of $0.00001 per share (“Class A Ordinary Shares”), Class B ordinary shares, par value of $0.00001 per share (“Class B Ordinary Shares”), and Class C ordinary shares, par value of $0.00001 per share (“Class C Ordinary Shares”), of VNET Group, Inc., a Cayman Islands company (“Issuer”).

 

**This CUSIP number applies to the Issuer’s American Depositary Shares (“ADSs”), each representing six Class A Ordinary Shares of the Issuer.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

 

 

 

CUSIP No. G91458 102 Page 2 of 16

 

1.

NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Sheng Chen

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(see instructions)

(a) ¨

(b) ¨

3.

SEC USE ONLY

 

4.

SOURCE OF FUNDS (see instructions)

 

PF, OO

5.

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨

 

6.

CITIZENSHIP OR PLACE OF ORGANIZATION

 

People’s Republic of China

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7. SOLE VOTING POWER
   
  30,067,143(1)
8. SHARED VOTING POWER
   
  0
9. SOLE DISPOSITIVE POWER
   
  30,067,143 (1)
10. SHARED DISPOSITIVE POWER
   
  0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  30,067,143 (1)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
   
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  3.4%(2) (representing 24.5% of the total outstanding voting power (3))
14. TYPE OF REPORTING PERSON (see instructions)
   
  IN
       

 

 

 

 

CUSIP No. G91458 102 Page 3 of 16

 

(1) Representing (i) one Class A Ordinary Share held by GenTao Capital Limited (“GenTao”), (ii) 19,670,117 Class B Ordinary Shares held by Fast Horse Technology Limited (“Fast Horse”), (iii) 8,087,875 Class B Ordinary Shares held by Sunrise Corporate Holding Ltd. (“Sunrise”), (iv) four Class A Ordinary Shares, 769,486 Class B Ordinary Shares and 60,000 Class C Ordinary Shares held by Personal Group Limited (“Personal Group”), and (iv) 1,479,660 Class A Ordinary Shares issuable upon vesting of Mr. Sheng Chen’s restricted share units within 60 days. Mr. Sheng Chen is the sole and direct shareholder of GenTao, Fast Horse, Sunrise and Personal Group and may be deemed to have beneficial ownership of the shares held by them.

 

(2) Calculation based on 892,193,706 outstanding Ordinary Shares as a single class, being the sum of (i) 859,932,323 outstanding Class A Ordinary Shares (excluding treasury shares and Class A Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, and (iv) 1,479,660 Class A Ordinary Shares issuable upon vesting of Mr. Sheng Chen’s restricted share units within 60 days, assuming conversion of all Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof. Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.

 

(3) Each Class A Ordinary Share is entitled to one vote, each Class B Ordinary Share is entitled to ten votes, and each Class C Ordinary Shares is entitled to one vote per share, except that the Issuer shall only proceed with certain corporate matters with the written consent of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.

 

 

 

 

CUSIP No. G91458 102 Page 4 of 16

 

1.

NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

GenTao Capital Limited

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(see instructions)

(a) ¨

(b) ¨

3.

SEC USE ONLY

 

4.

SOURCE OF FUNDS (see instructions)

 

AF, OO

5.

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨

 

6.

CITIZENSHIP OR PLACE OF ORGANIZATION

 

British Virgin Islands

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7. SOLE VOTING POWER
   
  1(1)
8. SHARED VOTING POWER
   
  0
9. SOLE DISPOSITIVE POWER
   
  1(1)
10. SHARED DISPOSITIVE POWER
   
  0

11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  1(1)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
   
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  0.0%(2) (representing 0.0% of the total outstanding voting power (3))
14. TYPE OF REPORTING PERSON (see instructions)
   
  CO

 

 

 

 

CUSIP No. G91458 102 Page 5 of 16

 

(1) Representing one Class A Ordinary Share.

 

(2) Calculation based on 892,193,706 outstanding Ordinary Shares as a single class, being the sum of (i) 859,932,323 outstanding Class A Ordinary Shares (excluding treasury shares and Class A Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, and (iv) 1,479,660 Class A Ordinary Shares issuable upon vesting of Mr. Sheng Chen’s restricted share units within 60 days, assuming conversion of all Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof. Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.

 

(3) Each Class A Ordinary Share is entitled to one vote, each Class B Ordinary Share is entitled to ten votes, and each Class C Ordinary Shares is entitled to one vote per share, except that the Issuer shall only proceed with certain corporate matters with the written consent of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.

 

 

 

 

CUSIP No. G91458 102 Page 6 of 16

 

1

NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Fast Horse Technology Limited

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(see instructions)

(a) ¨

(b) ¨

3.

SEC USE ONLY

 

4.

SOURCE OF FUNDS (see instructions)

 

AF, OO

5.

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨

 

6.

CITIZENSHIP OR PLACE OF ORGANIZATION

 

British Virgin Islands

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7. SOLE VOTING POWER
   
  19,670,117 (1)
8. SHARED VOTING POWER
   
  0
9. SOLE DISPOSITIVE POWER
   
  19,670,117 (1)
10. SHARED DISPOSITIVE POWER
   
  0

11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  19,670,117 (1)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
   
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  2.2%(2) (representing 16.8% of the total outstanding voting power (3))
14. TYPE OF REPORTING PERSON (see instructions)
   
  CO

 

 

 

 

CUSIP No. G91458 102 Page 7 of 16

 

(1) Representing 19,670,117 Class B Ordinary Shares.

 

(2) Calculation based on 892,193,706 outstanding Ordinary Shares as a single class, being the sum of (i) 859,932,323 outstanding Class A Ordinary Shares (excluding treasury shares and Class A Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, and (iv) 1,479,660 Class A Ordinary Shares issuable upon vesting of Mr. Sheng Chen’s restricted share units within 60 days, assuming conversion of all Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof. Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.

 

(3) Each Class A Ordinary Share is entitled to one vote, each Class B Ordinary Share is entitled to ten votes, and each Class C Ordinary Shares is entitled to one vote per share, except that the Issuer shall only proceed with certain corporate matters with the written consent of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.

 

 

 

 

 

 CUSIP No. G91458 102 Page 8 of 16

 

1.

NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Sunrise Corporate Holding Ltd.

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(see instructions)

(a) ¨

(b) ¨

3.

SEC USE ONLY

 

4.

SOURCE OF FUNDS (see instructions)

 

AF, OO

5.

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨

 

6.

CITIZENSHIP OR PLACE OF ORGANIZATION

 

British Virgin Islands

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7. SOLE VOTING POWER
   
  8,087,875(1)
8. SHARED VOTING POWER
   
  0
9. SOLE DISPOSITIVE POWER
   
  8,087,875(1)
10. SHARED DISPOSITIVE POWER
   
  0

11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  8,087,875(1)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
   
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  0.9%(2) (representing 6.9% of the total outstanding voting power (3))
14. TYPE OF REPORTING PERSON (see instructions)
   
  CO

 

 

 

 

CUSIP No. G91458 102 Page 9 of 16

 

(1) Representing 8,087,875 Class B Ordinary Shares.

 

(2) Calculation based on 892,193,706 outstanding Ordinary Shares as a single class, being the sum of (i) 859,932,323 outstanding Class A Ordinary Shares (excluding treasury shares and Class A Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, and (iv) 1,479,660 Class A Ordinary Shares issuable upon vesting of Mr. Sheng Chen’s restricted share units within 60 days, assuming conversion of all Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof. Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.

 

(3) Each Class A Ordinary Share is entitled to one vote, each Class B Ordinary Share is entitled to ten votes, and each Class C Ordinary Shares is entitled to one vote per share, except that the Issuer shall only proceed with certain corporate matters with the written consent of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.

 

 

 

 

CUSIP No. G91458 102 Page 10 of 16

 

1.

NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

 

Personal Group Limited

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(see instructions)

(a) ¨

(b) ¨

3.

SEC USE ONLY

 

4.

SOURCE OF FUNDS (see instructions)

 

AF, OO

5.

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨

 

6.

CITIZENSHIP OR PLACE OF ORGANIZATION

 

British Virgin Islands

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7. SOLE VOTING POWER
   
  829,490(1)
8. SHARED VOTING POWER
   
  0
9. SOLE DISPOSITIVE POWER
   
  829,490(1)
10. SHARED DISPOSITIVE POWER
   
  0

11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  829,490(1)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
   
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  0.1%(2) (representing 0.7% of the total outstanding voting power (3))
14. TYPE OF REPORTING PERSON (see instructions)
   
  CO

 

 

 

 

CUSIP No. G91458 102 Page 11 of 16

 

(1) Representing four Class A Ordinary Shares, 769,486 Class B Ordinary Shares, and 60,000 Class C Ordinary Shares.

 

(2) Calculation based on 892,193,706 outstanding Ordinary Shares as a single class, being the sum of (i) 859,932,323 outstanding Class A Ordinary Shares (excluding treasury shares and Class A Ordinary Shares in the form of ADSs that are reserved for issuance upon the exercise of share incentive awards), (ii) 30,721,723 outstanding Class B Ordinary Shares, (iii) 60,000 outstanding Class C Ordinary Shares, and (iv) 1,479,660 Class A Ordinary Shares issuable upon vesting of Mr. Sheng Chen’s restricted share units within 60 days, assuming conversion of all Class B Ordinary Shares and Class C Ordinary Shares into Class A Ordinary Share. Each Class B Ordinary Share or each Class C Ordinary Share is convertible into one Class A Ordinary Share at any time by the holder thereof. Class A Ordinary Shares are not convertible into Class B Ordinary Shares or Class C Ordinary Shares under any circumstances.

 

(3) Each Class A Ordinary Share is entitled to one vote, each Class B Ordinary Share is entitled to ten votes, and each Class C Ordinary Shares is entitled to one vote per share, except that the Issuer shall only proceed with certain corporate matters with the written consent of the holders holding a majority of the issued and outstanding Class C Ordinary Shares or with the sanction of a special resolution passed at a separate meeting of the holders of the issued and outstanding Class C Ordinary Shares.

 

 

 

 

CUSIP No. G91458 102 Page 12 of 16

 

Pursuant to Rule 13d-2 promulgated under the Act, this amendment to Schedule 13D (this “Amendment No. 2”) amends and supplements the Original 13D Filings. Except as specifically provided herein, this Amendment No. 2 does not modify any of the information previously reported in the Original 13D Filings. All capitalized terms used herein which are not defined herein have the meanings given to such terms in the Original 13D Filings.

 

Item 1. Security and Issuer.

 

Item 1 of the Original 13D Filings is amended and restated as follows:

 

This Schedule 13D relates to the Ordinary Shares of the Issuer. The Ordinary Shares of the Issuer consist of Class A Ordinary Shares (including Class A Ordinary Shares represented by ADSs), Class B Ordinary Shares and Class C Ordinary Shares, par value US$0.00001 each.

 

The Issuer’s ADSs, each representing six Class A Ordinary Shares, are listed on the Nasdaq Global Select Market under the symbol “VNET.”

 

The principal executive offices of the Issuer are located at Guanjie Building, Southeast 1st Floor, 10# Jiuxianqiao East Road, Chaoyang District, Beijing, 100016, People’s Republic of China.

 

Item 2. Identity and Background.

 

Item 2 of the Original Schedule 13D is amended and restated as follows:

 

(a)

 

Each of the following is hereinafter individually referred to as a “Reporting Person” and collectively as the “Reporting Persons”. This statement is filed on behalf of:

 

(i)Mr. Sheng Chen;
(ii)GenTao Capital Limited (“GenTao”);
(iii)Fast Horse Technology Limited (“Fast Horse”);
(iv)Sunrise Corporate Holding Ltd. (“Sunrise”); and
(v)Personal Group Limited (“Personal Group”).

 

This Schedule 13D is being filed jointly by the Reporting Persons pursuant to Rule 13d-1(k) promulgated by the SEC under Section 13 of the Act. The agreement among the Reporting Persons relating to the joint filing is attached hereto as Exhibit 99.5. Information with respect to each of the Reporting Persons is given solely by such Reporting Person, and no Reporting Person assumes responsibility for the accuracy or completeness of the information concerning the other Reporting Persons, except as otherwise provided in Rule 13d-1(k).

 

(b)

 

(i)The principal business address of Mr. Sheng Chen is Guanjie Building, Southeast 1st Floor, 10# Jiuxianqiao East Road, Chaoyang District, Beijing 100016, People’s Republic of China.
(ii)The principal business address of GenTao is Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands.
(iii)The principal business address of Fast Horse is Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands.
(iv)The principal business address of Sunrise is Kingston Chambers P.O. Box 173, Road Town, Tortola, British Virgin Islands.
(v)The principal business address of Personal Group is P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands.

 

(c), (f)

 

(i)Mr. Sheng Chen is a citizen of the People’s Republic of China. Mr. Sheng Chen is the Chairman of the Board of Directors of the Issuer.
(ii)Each of GenTao, Fast Horse, Sunrise, Personal Group (collectively, the “Corporate Reporting Persons”) is a business company organized in the British Virgin Islands, solely engaged in holding, distributing or effecting any sale of securities held by it. Mr. Sheng Chen wholly owns and controls all the outstanding securities of each Corporate Reporting Person, and is the sole director of each Corporate Reporting Person. No Corporate Reporting Person has executive officer.

 

 

 

 

CUSIP No. G91458 102 Page 13 of 16

 

(d)-(e) During the last five years, none of the Reporting Persons has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3. Source or Amount of Funds or Other Consideration.

 

Item 3 of the Original 13D Filings is supplemented by adding the following after the first paragraph thereof:

 

The aggregate consideration of approximately US$50.0 million Beacon used to acquire the 17,140,898 Class A Ordinary Shares was borrowed pursuant to the Facility Agreement (as defined under Item 6). The description of the Facility Agreement contained herein is qualified in its entirety by reference to Exhibit 99.2, which is incorporated herein by reference.

 

Item 4. Purpose of the Transaction.

 

Item 4 of the Original Schedule 13D is supplemented by adding the following:

 

The information set forth in Item 6 is hereby incorporated by reference in its entirety in this Item 4.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

Item 6 of the Original Schedule 13D is amended and restated as follows:

 

Facility Agreement and Share Mortgages

 

GenTao, acting as the borrower, together with Beacon, Fast Horse and Sunrise (the “Corporate Guarantors”) and Mr. Sheng Chen (the “Personal Guarantor”), entered into a facility agreement (as amended, the “Facility Agreement”) dated as of August 19, 2021 (the “Closing Date”) with Bold Ally (Cayman) Limited (the “Lender”). As of the Closing Date, GenTao has borrowed an aggregate of $50.25 million under the Facility Agreement.

 

On the Closing Date, each of GenTao and the Corporate Guarantors entered into an equitable share mortgage with the Lender (collectively, the “Cayman Equitable Share Mortgages”), pursuant to which GenTao and the Corporate Guarantors pledged on the Closing Date all of the Class A Ordinary Shares and Class B Ordinary Shares owned by them as collateral to secure repayment of amounts outstanding under the Facility Agreement, and may be required to post additional collateral in certain circumstances. On the same date, Mr. Sheng Chen entered into three equitable share mortgages with the Lender (collectively, the “BVI Equitable Share Mortgages”, together with the Facility Agreement and the Cayman Equitable Share Mortgages, the “Facility Documentation”), pursuant to which Mr. Sheng Chen pledged on the Closing Date all of the shares in GenTao, Beacon and Sunrise as collateral to secure repayment of amounts outstanding under the Facility Agreement. As of the date of this Amendment No. 2, the BVI Equitable Share Mortgages for the shares in Beacon and Sunrise held by Mr. Sheng Chen have been released.

 

 

 

 

CUSIP No. G91458 102 Page 14 of 16

 

On August 27, 2021, GenTao, the Corporate Guarantors, Mr. Sheng Chen and the Lender entered into an amendment agreement (the “Amendment Agreement”) to amend certain economic terms of the Facility Agreement, including, among others, the minimum fee, repayment and interest terms.

 

Issuer Acknowledgement Letter

 

In connection with the entry into the Facility Documentation described above, the Issuer entered into an acknowledgement letter with the Lender pursuant to which the parties have agreed to, among other things, take specified administrative actions in connection with any transfer of Class A Ordinary Shares or Class B Ordinary Shares by the Lender upon an exercise of remedies under the Facility Documentation.

 

Default Notices, Standstill Agreement and Additional Pledge

 

On November 30, 2021, GenTao received a default notice from the Lender. On December 15, 2021, GenTao received a letter from the Lender, claiming that the events of default were continuing and an early termination event had occurred under the Facility Agreement.

 

On December 21, 2021, GenTao issued a written notice to the Lender, stating that it has pledged additional 16,680,000 Class A Ordinary Shares to the Lender pursuant to the Facility Agreement.

 

On April 6, 2022, the Corporate Guarantors, the Personal Guarantor and the Lender entered into a standstill agreement whereby the Lender agreed to refrain from taking certain actions under the Facility Agreement until April 30, 2022 on the condition that, among other things, GenTao convert 48,515,634 Class A Ordinary Shares held by it into ADSs and pledge the ADSs to the Lender (the “Standstill Agreement”). Following the execution of the Standstill Agreement, GenTao converted 48,515,634 Class A Ordinary Shares into 8,085,939 ADSs (the “GenTao ADSs”). The GenTao ADSs were registered in the name of the Lender for the benefit of GenTao. On April 6, 2022, GenTao and the Lender entered into a pledge agreement (the “US Pledge Agreement”) to secure the repayment of amounts outstanding under the Facility Documentation, pursuant to which GenTao pledged the GenTao ADSs to the Lender. Pursuant to the Cayman Equitable Share Mortgages and the US Pledge Agreement, GenTao and the Corporate Guarantors have collectively pledged, as of April 8, 2022, 48,515,634 Class A Ordinary Shares (including Class A Ordinary Shares represented by ADSs) and 27,757,992 Class B Ordinary Shares to secure borrowings under the Facility Agreement. Although the Standstill Agreement expired without any action being taken, the parties have been in discussions up to the date of this statement to explore solutions of mutual benefit to cure the events of default and the commencement of a new standstill period.

 

On July 11, 2022, the Corporate Guarantors and the Personal Guarantor received a letter from the Lender, stating that the standstill period had ended and the events of default and the early termination events were continuing.

 

On November 4, 2022, the Lender issued three demand letters (collectively, the “Demand Letters”, and each a “Demand Letter”) to (a) the Personal Guarantor and GenTao, (b) Fast Horse and GenTao, and (c) Sunrise and GenTao, respectively claiming payments pursuant to the Facility Agreement.

 

On January 18, 2023, the Lender issued a second demand and reservation of rights letter (the “Second Demand Letter”) to GenTao, Fast Horse, Sunrise and the Personal Guarantor, claiming that, among others, the total amounts payable in connection with the Facility Documentation are US$69,203,246.74 as of January 18, 2023.

 

 

 

 

CUSIP No. G91458 102 Page 15 of 16

 

Transfer of the GenTao ADSs

 

On February 8, 2023, the GenTao ADSs have been transferred to an account designated by the Lender, as a result of which GenTao is no longer the beneficial owner thereof. Pursuant to the Facility Documentation, the Lender may take further remedial actions, including without limitation, transferring any other shares of the Issuer pledged under the Facility Documentation or exercising the voting power thereof in accordance with the Facility Documentation. As of the date of this statement, an aggregate of 27,757,992 Class B Ordinary Shares remain pledged to the Lender pursuant to the Facility Documentation, 19,670,117 of which are held by Fast Horse and 8,087,875 of which are held by Sunrise. Mr. Sheng Chen, on behalf of the borrower and the guarantors, is still in active discussions with the Lender on solutions of mutual benefit to cure the events of default and commencement of a new standstill period.

 

The foregoing descriptions of the agreements in this Item 6 do not purport to be complete and are qualified in their entirety by reference to such agreement, filed as set forth below.

 

Other than as described in this statement, to the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons or between the Reporting Persons and any other persons with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

Item 7. Material to Be Filed as Exhibits.

 

Item 7 of the Original Schedule 13D is supplemented by adding the following:

 

Exhibit No.   Description
99.5   Updated Joint Filing Agreement
99.6   Cayman Equitable Share Mortgage between Beacon (as mortgagor) and the Lender (as mortgagee) in respect of Class A Ordinary Shares held by Beacon dated August 19, 2021
99.7   Cayman Equitable Share Mortgage between GenTao (as mortgagor) and the Lender (as mortgagee) in respect of Class A Ordinary Shares held by GenTao dated August 19, 2021
99.8   Cayman Equitable Share Mortgage between Fast Horse (as mortgagor) and the Lender (as mortgagee) in respect of Class A Ordinary Shares and Class B Ordinary Shares held by Fast Horse dated August 19, 2021
99.9   Cayman Equitable Share Mortgage between Sunrise (as mortgagor) and the Lender (as mortgagee) in respect of Class A Ordinary Shares and Class B Ordinary Shares held by Sunrise dated August 19, 2021
99.10   BVI Equitable Share Mortgage between Mr. Sheng Chen (as mortgagor) and the Lender (as mortgagee) in respect of shares in GenTao dated August 19, 2021
99.11   BVI Equitable Share Mortgage between Mr. Sheng Chen (as mortgagor) and the Lender (as mortgagee) in respect of shares in Beacon dated August 19, 2021
99.12   BVI Equitable Share Mortgage between Mr. Sheng Chen (as mortgagor) and the Lender (as mortgagee) in respect of shares in Sunrise dated August 19, 2021
99.13   Standstill Agreement dated April 6, 2022 by and among the Lender, GenTao, Beacon, Fast Horse, Sunrise and Mr. Sheng Chen
99.14   US Pledge Agreement dated April 6, 2022 by and between GenTao and the Lender
99.15   Amendment Agreement to the Facility Agreement dated August 27, 2021 by and among GenTao, Beacon, Fast Horse, Sunrise, Mr. Sheng Chen and the Lender

 

 

 

 

CUSIP No. G91458 102 Page 16 of 16

 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: February 17, 2023

 

Sheng Chen By /s/ Sheng Chen
    Sheng Chen
   
GenTao Capital Limited By /s/ Sheng Chen
    Name: Sheng Chen
    Title: Director
     
Fast Horse Technology Limited By /s/ Sheng Chen
    Name: Sheng Chen
    Title: Director
     
Sunrise Corporate Holding Ltd. By /s/ Sheng Chen
    Name: Sheng Chen
    Title: Director
     
Personal Group Limited By /s/ Sheng Chen
    Name: Sheng Chen
    Title: Director

 

 

 

Exhibit 99.5

 

JOINT FILING AGREEMENT

 

Pursuant to and in accordance with the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”), the undersigned hereby agree to the joint filing on behalf of each of them of any filing required by such party under Section 13 of the Exchange Act or any rule or regulation thereunder (including any amendment, restatement, supplement, and/or exhibit thereto) with respect to securities of VNET Group, Inc., a company organized under the laws of the Cayman Islands, and further agree to the filing, furnishing, and/or incorporation by reference of this Agreement as an exhibit thereto. Each of them is responsible for the timely filing of such filings and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. This Agreement shall remain in full force and effect until revoked by any party hereto in a signed writing provided to each other party hereto, and then only with respect to such revoking party. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument.

 

Dated: February 17, 2023

 

[Signature Page Follows]

 

 

 

 

  Sheng Chen
   
   
  /s/ Sheng Chen
   
   
  GenTao Capital Limited
   
   
  /s/ Sheng Chen
  By: Sheng Chen
  Title: Authorized Signatory
   
   
  Fast Horse Technology Limited
   
   
  /s/ Sheng Chen
  By: Sheng Chen
  Title: Authorized Signatory
   
   
  Sunrise Corporate Holding Ltd.
   
   
  /s/ Sheng Chen
  By: Sheng Chen
  Title: Authorized Signatory
   
   
  Personal Group Limited
   
   
  /s/ Sheng Chen
  By: Sheng Chen
  Title: Authorized Signatory

 

Signature Page to the Joint Filing Agreement

 

Exhibit 99.6

 

EXECUTION VERSION

 

Dated 19 August 2021

 

BEACON CAPITAL GROUP INC.
as the Mortgagor

 

in favour of

 

BOLD ALLY (CAYMAN) LIMITED
as the Mortgagee

 

 

 

EQUITABLE SHARE MORTGAGE

 

(in respect of Class A ordinary shares held by the Mortgagor in 21Vianet Group, Inc.)

 

 

 

Warning: Stamp Duty will be payable if an original of this document is brought into the Cayman Islands

 

 

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Contents

 

Clause Page
   
1 Definitions and Interpretation 3
2 Payment of Secured Obligations 6
3 Security 6
4 Perfection of Security 7
5 Delivery of Documents 8
6 Further Assurance 10
7 Restrictions on Dealings 11
8 Operations Before and After Enforcement 11
9 Enforcement of Security 13
10 Powers of Sale 14
11 Appointment of Receiver 14
12 Powers of Receiver 15
13 Application of Monies 18
14 Receipt and Protection of purchasers 19
15 Power of Attorney 19
16 Representations 20
17 Effectiveness of Security 20
18 Release of Security 24
19 Subsequent and Prior Security Interests 24
20 Discretion and Delegation 25
21 Changes to Parties 25
22 Amendments and Waivers 25
23 Notices 26
24 Rights of third parties 26
25 Counterparts 26
26 Governing Law 26
27 Jurisdiction 26
Schedule 1 27
Schedule 2 28
Schedule 3 29
Schedule 4 29

 

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THIS DEED OF EQUITABLE SHARE MORTGAGE is made on August 19, 2021

 

Between

 

1Beacon Capital Group Inc., a BVI business company incorporated with limited liability under the laws of the British Virgin Islands with registration number 469757 and having its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands (the Mortgagor);

 

and

 

2Bold Ally (Cayman) Limited, as lender (the Mortgagee, which expression shall include its successors, assigns and transferees).

 

NOW THIS DEED WITNESSES as follows:

 

1Definitions and Interpretation

 

1.1Definitions

 

ADS means an American depositary share issued by the Depositary, each representing 6 Company Class A Shares.

 

ADS Conversion Process means the process comprising of the deposit of all or any part of the Company Class A Shares with the Depositary (or its nominee) in exchange for the issuance by the Depositary of a corresponding number of ADSs representing the Company Class A Shares being exchanged.

 

BVI Act means the BVI Business Companies Act (As Revised).

 

Collateral Rights means all rights, powers and remedies of the Mortgagee or any Receiver (or any Delegate pursuant to this Deed or the Finance Documents) provided by or pursuant to this Deed or by law.

 

Companies Act means the Companies Act (As Revised) of the Cayman Islands.

 

Company means 21Vianet Group, Inc., an exempted company incorporated under the laws of the Cayman Islands with company number 232198 and its registered office at Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.

 

Company Class A Shares means class A ordinary shares in the capital of the Company which has a par value of US$0.00001 each.

 

Delegate means any delegate, agent, attorney or co-trustee appointed by the Mortgagee or a Receiver.

 

Depositary has the meaning given to that term in the Facility Agreement.

 

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Facility Agreement means the term loan facility agreement dated on or around the date of this Deed between, among others, GenTao Capital Limited as borrower, Beacon Capital Group Inc., Fast Horse Technology Limited, Sunrise Corporate Holding Ltd. and Sheng Chen as guarantors and Bold Ally (Cayman) Limited as lender.

 

Finance Document has the meaning given to that term in the Facility Agreement.

 

Further Shares means:

 

(a)all 17,140,898 Company Class A Shares acquired by the Mortgagor pursuant to the Acquisition Agreement (as defined in the Facility Agreement); and

 

(b)all Company Class A Shares held by the Mortgagor which are required under Clause 19.1 (Margin Call) or any other provisions of the Facility Agreement to become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and which are specified as such in each duly completed Top-Up Notice in form and substance satisfactory to the Mortgagee accompanied by the documents referred to in Clause 5(c) (Delivery of Documents).

 

Initial Company Class A Shares means the 3,894,737 Company Class A Shares owned by the Mortgagor, represented by share certificates number OA-126 and OA-148 (being the "Original Share Certificates") (or such other new share certificate(s) to be issued by the Company in replacement of the Original Share Certificates).

 

Initial Shares means the Initial Company Class A Shares.

 

Mortgaged Property means the Shares and all present and future assets, rights, title, interests, advantages and benefits of the Mortgagor deriving from or incidental to any of the Shares including all Related Rights, which are the subject of the security created or expressed to be created in favour of the Mortgagee by or pursuant to this Deed.

 

Obligors has the meaning given to that term in the Facility Agreement.

 

Register of Members means the Register of Members of the Company (including any applicable branch register and non-listed shares register) maintained by the Company in accordance with the Companies Act.

 

Related Rights means, in relation to any Mortgaged Property:

 

(a)any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer, redemption, substitution, exchange, conversion or other disposal, of;

 

(b)any moneys or proceeds paid or payable (including interest and dividends) deriving from;

 

(c)any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to;

 

(d)any awards or judgments in favour of the Mortgaged Property in relation to;

 

(e)any certificate or other evidence of title to;

 

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(f)all other rights, powers, benefits and privileges, present and future, which the Mortgagor may have in respect of; and

 

(g)any other assets or property deriving from,

 

the Shares from time to time, including (A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 20.25 (Conditions Subsequent) and clause 19.1 (Margin call) of the Facility Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which the Mortgagor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary, custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether or not on a fungible basis (including any rights against any such person).

 

Restrictions Notice means a restrictions notice as defined in section 244(1) of the Companies Act.

 

Secured Obligation means all present and future obligations and liabilities of the Obligors (or any of them) in favour of the Mortgagee under the Facility Agreement, this Deed and other Finance Documents (or any of them) (as amended, restated, supplemented and/or novated from time to time), whether actual or contingent and whether owed or incurred alone or jointly and/or severally with another and as principal or as surety or in any other capacity or of any nature.

 

Security Period means the period beginning on the date of this Deed and ending on the date on which all the Secured Obligations have been unconditionally and irrevocably paid and discharged in full and the Mortgagee is under no further obligation to provide financial accommodation to any of the Obligors under any of the Finance Documents.

 

Share Registrar means the share registrar for the Company (being Maples Fund Services (Cayman) Limited as at the date of this Deed).

 

Shares means:

 

(a)the Initial Company Class A Shares;

 

(b)the Further Shares; and

 

(c)any Company Class A Shares acquired by the Mortgagor in respect of Shares by reason of a stock split, stock dividend paid or made in respect of Shares in the form of Company Class A Shares, reclassification, conversion or otherwise; and

 

(d)any Company Class A Shares released or returned by the Depositary (or its nominee) to the Mortgagor as a result of:

 

(A)any Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion Process for any reason; or

 

(B)any ADSs previously issued in exchange for the deposit of such Shares being surrendered for the purpose of withdrawal of the Company Class A Shares represented thereby (whether or not at the direction of the Mortgagee).

 

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Top-Up Notice means a notice from the Mortgagor to, and executed by way of approval by, the Mortgagee substantially in the form set out in Schedule 4 to this Deed.

 

Voting Rights Notice has the meaning given to it in Clause 8.3 (Voting: After Enforcement).

 

1.2Construction

 

In this Deed:

 

(a)unless the context otherwise requires or a contrary intention appears, any term which is used but not defined in this Deed shall have the same meaning as defined in the Facility Agreement;

 

(b)the provisions in clause 2.1 (Construction) of the Facility Agreement apply to this Deed, except that references therein to "this Agreement" shall be construed as references to this Deed; and

 

(c)references in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this Deed.

 

2Payment of Secured Obligations

 

The Mortgagor hereby covenants with the Mortgagee that it shall on demand pay and discharge each of the Secured Obligations on its due date as provided for in the Finance Documents.

 

3Security

 

(a)As legal and beneficial owner and as continuing security for the due and prompt discharge and payment of the Secured Obligations, the Mortgagor hereby:

 

(i)mortgages in favour of the Mortgagee by way of a first equitable mortgage all its right, title and interest in and to the Shares; and

 

(ii)charges in favour of the Mortgagee, by way of a first fixed charge, all of its right, title and interest in and to the Mortgaged Property including all benefits, present and future, actual and contingent accruing in respect of the Mortgaged Property (to the extent not effectively mortgaged under Clause 3(a)(i)).

 

(b)The Mortgagor hereby authorises the Mortgagee to arrange at any time following the occurrence of an Event of Default which is continuing for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Deed and at the request of the Mortgagee, the Mortgagor shall without delay procure that the foregoing shall be done.

 

6

 

 

4Perfection of Security

 

(a)The Mortgagor shall promptly after execution of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, promptly after such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) procure that the following notation to be entered on the Register of Members provided that such notation shall be completed to reflect the details of the relevant Shares:

 

"The [ ] class A ordinary shares issued and registered in the name of Beacon Capital Group Inc. represented by share certificate[s] number [ ] [and [ ]] are mortgaged and charged in favour of Bold Ally (Cayman) Limited pursuant to an equitable share mortgage dated [Date] 2021, as amended from time to time. The date that this annotation is made is [Date]."

 

(b)The Mortgagor shall provide the Mortgagee with a certified true copy of an extract of the Register of Members with the annotation referred to in paragraph (a) above within five Business Days of the date of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, within five Business Days of the date on which such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed).

 

(c)The Mortgagor shall:

 

(i)promptly after the execution of this Deed, instruct its British Virgin Islands registered agent to create and maintain a register of charges for the Mortgagor in accordance with section 162 of the BVI Act (the Register of Charges) to the extent that this has not already been done;

 

(ii)promptly after the execution of this Deed, enter particulars as required by the BVI Act of the security created pursuant this Deed in the Register of Charges and promptly after entry of such particulars has been made, and in any event within five Business Days of the date of this Deed, provide the Mortgagee with a certified true copy of the updated Register of Charges;

 

(iii)effect registration, or assist the Mortgagee in effecting registration, of this Deed with the Registrar of Corporate Affairs pursuant to section 163 of the BVI Act by making the required filing or assisting the Mortgagee in making the required filing in the approved form with the Registrar of Corporate Affairs and (if applicable) provide confirmation in writing to the Mortgagee that such filing has been made within three Business Days after the date this Deed is entered into; and

 

(iv)if the registration referred to in paragraph (iii) above is not being effected by or on behalf of the Mortgagee, promptly on receipt, and in any event within 21 days of the date of this Deed, deliver or procure to be delivered to the Mortgagee, the certificate of registration of charge issued by the Registrar of Corporate Affairs and the filed stamped copy of the Register of Charges containing the relevant particulars of the security created by this Deed.

 

7

 

 

5Delivery of Documents

 

(a)The Mortgagor shall deposit with the Mortgagee (or procure the deposit with the Mortgagee of) the following documents in form and substance satisfactory to the Mortgagee:

 

(i)within five (5) Business Days of the date of this Deed, original valid and duly issued share certificates representing the Initial Shares;

 

(ii)on the date of this Deed, an instrument of transfer in respect of the Initial Company Class A Shares in the form set out in Schedule 1 to this Deed (a Class A Shares Instrument of Transfer) which has been duly executed by the Mortgagor as transferor in blank (with the date, the name of the transferee and the number of shares left blank);

 

(iii)on the date of this Deed, an irrevocable proxy and irrevocable power of attorney made in respect of the Initial Company Class A Shares in the form set out in Schedule 2 to this Deed (a Class A Shares Irrevocable Proxy and PoA) which has been duly executed by the Mortgagor in blank (with the date and the number of shares left blank); and

 

(iv)on the date of this Deed, a notice of charge from the Mortgagor to the Company in respect of the Initial Shares in the form set out in Schedule 3 to this Deed (a Notice of Charge) which has been duly executed by the Mortgagor,

 

the Class A Shares Instrument of Transfer, the Class A Shares Irrevocable Proxy and PoA, and the Notice of Charge, together, the Security Deliverables.

 

(b)The Mortgagor shall, in accordance with clause 20.25 (Conditions Subsequent) of the Facility Agreement, deposit with the Mortgagee (or procure the deposit with the Mortgagee of) such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in form and substance satisfactory to the Mortgagee.

 

(c)If at any time, any Shares (other than the Initial Company Class A Shares) become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (including, for the avoidance of doubt, the Further Shares and the Shares pursuant to paragraphs (c) and (d) of the definition of "Shares") (such shares, the Additional Ordinary Shares), the Mortgagor shall, deliver (or procured there to be delivered) to the Mortgagee the following documents in form and substance satisfactory to the Mortgagee (i) in the case of any Additional Ordinary Shares that are Further Shares pursuant to paragraph (a) of the definition of "Further Shares", (in respect of the documents set out in paragraphs (i) to (iv) below) on the date on which such Further Shares are acquired by the Mortgagor pursuant to the Acquisition Agreement ("Acquisition Date") (for the avoidance of doubt, such date being the date on which such Further Shares become so subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) and (in respect of the documents set out in paragraph (v) below only) on or prior to the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (c) of clause 20.25 (Conditions Subsequent) of the Facility Agreement (the "ADSs Documents Delivery Deadline") (or if later, the Acquisition Date), (ii) in the case of any Additional Ordinary Shares that are Further Shares pursuant to paragraph (b) of the definition of "Further Shares", on or prior to the date on which such Further Shares are required to be furnished as Security pursuant to clause 19.1 (Margin call) or any other provisions of the Facility Agreement (or, in respect of the documents set out in paragraph (v) below only, if later, the ADSs Documents Delivery Deadline) and (iii) in the case of other Additional Ordinary Shares, on the date on which such Additional Ordinary Shares become so subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (or, in respect of the documents set out in paragraph (v) below only, if later, the ADSs Documents Delivery Deadline):

 

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(i)(in respect of any Additional Ordinary Shares which are Further Shares) a Top-Up Notice;

 

(ii)a certified true copy of an extract of the Register of Members showing the Mortgagor as the registered owner of the Additional Ordinary Shares;

 

(iii)original valid and duly issued share certificates representing such Additional Ordinary Shares;

 

(iv)all Security Deliverables in respect of such Additional Ordinary Shares (each of which has been duly executed by the Mortgagor in the manner set out in paragraph (a) above in form and substance satisfactory to the Mortgagee; and

 

(v)all such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in respect of such Additional Ordinary Shares in form and substance satisfactory to the Mortgagee.

 

(d)On the date of any removal or resignation of any director of the Mortgagor who executed any Security Deliverables or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above in respect of any Shares during the Security Period, the Mortgagor shall promptly deliver or cause to be delivered to the Mortgagee a replacement of all such items (each having been duly executed by a continuing or replacement director of the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above and (in other cases) in form and substance satisfactory to the Mortgagee) and a certified copy of the register of directors of the Mortgagor maintained by the Mortgagor in accordance with the BVI Act in form and substance satisfactory to the Mortgagee.

 

(e)If at any time during the Security Period, the Mortgagee determines that the form of any Security Deliverable or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above has been amended, updated or replaced by the Company, the Depositary, the Share Registrar and/or the registered office provider of the Company rendering such item or document delivered incapable of being used to effect the ADS Conversion Process, the Mortgagor shall promptly on demand by the Mortgagee, deliver to the Mortgagee a copy of the amended, updated or replaced form of such item or document (each having been duly executed by the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above) in form and substance satisfactory to the Mortgagee.

 

9

 

 

(f)The Mortgagee shall be entitled to hold all documents and instruments delivered to it pursuant to this Clause 5 until the end of the Security Period, and the Mortgagor hereby irrevocably and unconditionally authorises (and, with respect to paragraph (ii) below, requests and authorises) the Mortgagee to (and the Mortgagee shall be entitled to):

 

(i)to the extent any fully executed Notice of Charge has not been delivered to the Company to the Mortgagee's satisfaction, deliver a copy of such fully executed Notice of Charge to the Company on the Mortgagor's behalf; and

 

(ii)at any time after the occurrence of an Event of Default which is continuing, to complete, date and put into effect, under its power of attorney given in this Deed or otherwise, such documents and instruments to effect a transfer of all or any Shares in favour of itself or such other person as it shall direct and/or otherwise effect or complete any step of the ADS Conversion Process.

 

(g)Any document or instrument required to be delivered to the Mortgagee pursuant to this Clause 5 which is for any reason not so delivered or which is released by the Mortgagee to the Mortgagor shall be held on trust by the Mortgagor for the Mortgagee.

 

6Further Assurance

 

6.1Further Assurance: General

 

The Mortgagor shall, at its own expense, promptly do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices and instructions) as the Mortgagee or a Receiver may reasonably specify (and in such form as the Mortgagee or Receiver (as the case may be) may reasonably require) in favour of the Mortgagee or its nominees:

 

(a)to create, perfect, protect or preserve the security created or intended to be created in respect of the Mortgaged Property (which may include, without limitation, the re-execution of this Deed, the execution by the Mortgagor of a mortgage, charge, assignment or other security over all or any of the assets constituting, or intended to constitute, any part of the Mortgaged Property) and the giving of any notice, order or direction and the making of any filing or registration, or for the exercise of the Collateral Rights; and/or

 

(b)upon the occurrence of an Event of Default that is continuing, to facilitate the realisation and/or enforcement of the assets constituting, or intended to constitute, the Mortgaged Property (including to execute and complete in favour of the Mortgagee, the Company, the Share Registrar, the registered office provider of the Company, the Depositary (or the nominee of any of the foregoing) or any purchaser any document and to give any instruction which the Mortgagee may reasonably require to effect any step of the ADS Conversion Process or otherwise vest any of the Mortgaged Property in the Mortgagee, any Receiver or any other transferee or purchaser).

 

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6.2Necessary Action

 

The Mortgagor shall from time to time at its own cost take all such action (whether or not requested to do so by the Mortgagee) as is or shall be available to it (including without limitation obtaining and/or effecting all authorisations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and/or to exercise its rights and to perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence in the Cayman Islands.

 

6.3Covenants of Title

 

The obligations of the Mortgagor under this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.

 

7Restrictions on Dealings

 

7.1Negative Pledge

 

The Mortgagor undertakes that it shall not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Mortgaged Property unless expressly permitted under and in accordance with any of the Finance Documents.

 

7.2No Disposal of Interests

 

The Mortgagor undertakes that, during the subsistence of this Deed, it shall not, and shall not agree to, sell, assign, transfer or otherwise dispose of any Mortgaged Property except (a) as otherwise permitted under clauses 19.1(b), 20.5 and 20.25 of the Facility Agreement or the provisions hereof, or (b) with the prior written consent of the Mortgagee.

 

8Operations Before and After Enforcement

 

8.1Dividends

 

The Mortgagor shall ensure that all dividends paid or made in respect of any Mortgaged Property are applied in accordance with the terms of the Facility Agreement.

 

8.2Voting: Before Enforcement

 

At any time prior to the delivery of a Voting Rights Notice, the Mortgagor shall be entitled to exercise (or refrain for exercising) or direct the exercise of the voting rights attached to any Shares provided that:

 

(a)it does so without contravening any provision of any Finance Document; and

 

(b)the exercise (or non-exercise) of those rights would not (i) have an adverse effect on the ability of the Mortgagee to realise the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or (ii) materially prejudice the interests of the Mortgagee under any Finance Document or its control of any Mortgaged Property.

 

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8.3Voting: After Enforcement

 

(a)Following the occurrence of an Event of Default which is continuing, the Mortgagee may give notice to the Company (a Voting Rights Notice) (with a copy to the Mortgagor, failure to give which shall not invalidate the Voting Rights Notice) that the Mortgagor’s right under Clause 8.2 (Voting: Before Enforcement) shall cease and that the Mortgagee intends to exercise the voting and other rights under this Clause 8.3, in which event:

 

(i)the Mortgagee (or if the Mortgagee so directs, the Receiver) shall be entitled to exercise or direct the exercise of the voting and other rights attached to the Shares and the Mortgagor shall promptly provide the Mortgagee or the Receiver (if so required by the Mortgagee), with an irrevocable power of attorney to exercise in the Mortgagee’s sole discretion the voting rights attached to such Shares as determined by the Mortgagee; and

 

(ii)the Mortgagor shall promptly execute and/or deliver to the Mortgagee or the Receiver such forms of proxy as it reasonably requires with a view to enabling such person as it selects to exercise those rights.

 

(b)The Mortgagee will have no liability to the Mortgagor for any loss that results from the exercise or non-exercise of any voting rights attaching to such Shares or for any failure to deal with any notice relating to such Shares that is sent to the Mortgagee.

 

8.4Payment of Calls

 

(a)The Mortgagor must promptly pay all calls and other payments due and payable in respect of any Mortgaged Property.

 

(b)If the Mortgagor fails to pay all calls or other payments due and payable in respect of any Mortgaged Property, the Mortgagee may pay any call or other payment on behalf of the Mortgagor and the Mortgagor shall promptly upon request reimburse the Mortgagee for any payment made by it under this Clause.

 

8.5Exercise of Rights

 

The Mortgagor shall not exercise any of its rights and powers in relation to any of the Mortgaged Property in any manner which would prejudice the ability of the Mortgagee to realise the security created by this Deed.

 

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9Enforcement of Security

 

9.1Enforcement

 

On and from the occurrence of an Event of Default which is continuing or if the Mortgagor requests the Mortgagee to exercise any of its powers under this Deed, the Security created by or pursuant to this Deed is immediately enforceable and the Mortgagee may, without notice to the Mortgagor or prior authorisation from any court or any person, in its absolute discretion enforce all or any part of such Security at the times, in the manner and on the terms it thinks fit, including to:

 

(a)assume control of, and to have it or its nominee registered as holder of legal title to, any Mortgaged Property;

 

(b)sell, exchange, grant options over, or otherwise dispose of, any Mortgaged Property by any method, at any time and on any terms, it thinks fit or to postpone doing of any of these things;

 

(c)complete, date and deliver any document delivered to it under this Deed;

 

(d)effect any step of the ADS Conversion Process and take any such action the Mortgagee deems necessary or desirable to effect or facilitate any step of the ADS Conversion Process;

 

(e)borrow or raise money either unsecured or on the security of the Mortgaged Property (either in priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or otherwise);

 

(f)settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands relating to the Mortgaged Property;

 

(g)bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Mortgaged Property or any business of the Mortgagor;

 

(h)redeem any Security (whether or not having priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) over the Mortgaged Property and to settle the accounts of any person with an interest in the Mortgaged Property;

 

(i)exercise and do (or permit the Mortgagor or any nominee of the Mortgagor to exercise and do) all such rights and things as the Mortgagee would be capable of exercising or doing if it were the absolute beneficial owner of the Mortgaged Property; and/or

 

(j)exercise any other right, power or remedy given to it under this Deed (including to appoint a Receiver) or provided by law.

 

9.2No Liability as Mortgagee in Possession

 

Neither the Mortgagee nor any Receiver shall be liable, by reason of entering into possession of any Mortgaged Property, to account as a mortgagee in possession in respect of all or any part of the Mortgaged Property or be liable for any loss upon realisation or enforcement of rights (and may at any time at its discretion go out of such possession) or for any neglect, default or omission in connection with the Mortgaged Property to which a mortgagee or a mortgagee in possession might otherwise be liable.

 

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10Powers of Sale

 

10.1Extension of Powers

 

The power of sale or other disposal conferred on the Mortgagee and on any Receiver by this Deed shall arise (and the Secured Obligations shall be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement).

 

10.2Restrictions

 

Any restrictions imposed by law on the power of sale or on the consolidation of security shall be excluded to the fullest extent permitted by law.

 

11Appointment of Receiver

 

11.1Appointment and Removal

 

On and from the occurrence of an Event of Default that is continuing or if requested to do so by the Mortgagor, the Mortgagee may (but for the avoidance of doubt shall not be obliged to) by deed or otherwise (acting through an authorised officer of the Mortgagee), without any notice to the Mortgagor:

 

(a)appoint one or more person or persons as the Mortgagee thinks fit to be a Receiver of the whole or any part of the Mortgaged Property;

 

(b)appoint two or more Receivers of separate parts of the Mortgaged Property;

 

(c)remove (so far as it is lawfully able) any Receiver so appointed (whether or not the Mortgagee appoints any other person as a Receiver in its place); and/or

 

(d)appoint another person(s) as an additional or replacement Receiver(s).

 

11.2Capacity of Receivers

 

Each person appointed to be a Receiver pursuant to Clause ‎11.1 (Appointment and Removal) shall be:

 

(a)entitled to act individually or together with any other person appointed or substituted as Receiver;

 

(b)for all purposes deemed to be the agent of the Mortgagor and the Mortgagor shall be solely responsible for that Receiver's contracts, engagements, acts, omissions, defaults and losses and liabilities and for the payment of his remuneration and no Receiver shall at any time act as agent for the Mortgagee

 

(c)entitled to remuneration for his services at a rate to be fixed by the Mortgagee from time to time, which remuneration shall be payable by the Mortgagor.

 

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11.3Several Receivers

 

If at any time there is more than one Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless the document appointing such Receiver states otherwise).

 

11.4Powers of Appointment

 

The powers of appointment of a Receiver herein contained shall be in addition to all powers of appointment of the Mortgagee under applicable law and such powers shall remain exercisable from time to time by the Mortgagee in respect of all or any part of the Mortgaged Property.

 

12Powers of Receiver

 

12.1Powers of Receiver

 

Every Receiver shall (subject to any restrictions in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) have and be entitled to exercise, in relation to the Mortgaged Property or that part thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of the Mortgagor or in his own name and, in each case, at the cost of the Mortgagor):

 

(a)all the powers and rights of an absolute owner and power to do or omit to do anything which the Mortgagor itself could do or omit to do;

 

(b)all rights, powers and discretions conferred by this Deed (either expressly or impliedly) or by law on the Mortgagor;

 

(c)all the powers conferred on a receiver by any provision of Cayman Islands law; and

 

(d)the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Mortgagor) which appear to the Receiver to be incidental or conducive to (i) any of the functions, rights, powers, authorities or discretions conferred on or vested in him or (ii) the exercise of any Collateral Rights (including without limitation realisation of all or any part of the Mortgaged Property) under or by virtue of this Deed or law or (iii) bringing to his hands any assets of the Mortgagor forming, or which, when got in, would be part of the Mortgaged Property.

 

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12.2Additional Powers of Receiver

 

In addition to and without prejudice to the generality of Clause 12.1, every Receiver shall have (subject to any limitations or restrictions expressed in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) the following powers in relation to the Mortgaged Property in respect of which he is appointed (and every reference in this Clause 12.2 to the Mortgaged Property shall be read as a reference to that part of the Mortgaged Property in respect of which such Receiver is appointed):

 

(a)Take Possession

 

power to enter upon, take immediate possession of, collect and get in the Mortgaged Property including without limitation dividends and other income whether accrued before or after the date of his appointment;

 

(b)Employees

 

power to appoint, hire and employ officers, employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to guard or protect the Mortgaged Property upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons and any such persons appointed, hired or employed by the Mortgagor;

 

(c)Proceedings and Claims

 

power to bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Mortgaged Property or this Deed in the name of the Mortgagor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications, claims, disputes, actions, suits or proceedings;

 

(d)Carry on Business

 

power to carry on and manage, or concur in the carrying on and management of or to appoint a manager of, the whole or any part of the Mortgaged Property or any business relating thereto in such manner as he shall in his absolute discretion think fit;

 

(e)Deal with Mortgaged Property

 

power, in relation to the Mortgaged Property and each and every part thereof, by public auction or private contract, to sell, transfer, convey, dispose of, exchange, convert into money, realise or concur in any of the foregoing by the Mortgagor or any other receiver or manager of the Mortgagor (including without limitation to or in favour of the Mortgagee) in such manner and generally on such terms as he thinks fit, and the consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over any period which the Receiver thinks fit

 

(f)Acquisitions

 

power to purchase, lease, hire or otherwise acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying on, improvement or realisation of the whole or any part of the Mortgaged Property or otherwise for the benefit of the whole or any part of the Mortgaged Property;

 

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(g)New Subsidiary

 

power to promote, procure the formation or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Mortgagor or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Mortgaged Property or carrying on any business in succession to the Mortgagor or any subsidiary of the Mortgagor;

 

(h)Insurance

 

power to effect, maintain or renew indemnity and other insurances and to obtain bonds and performance guarantees and do any other act which the Mortgagor might do in the ordinary conduct of its business to protect or improve any Mortgaged Property;

 

(i)Borrowing

 

power to raise or borrow money from the Mortgagee or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and with or without a mortgage or charge on the Mortgaged Property or any part of it on such terms as he shall in his absolute discretion think fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power or the application of money so raised or borrowed);

 

(j)Redemption of Security

 

power to redeem, discharge or compromise any Security whether or not having priority to the Security constituted by this Deed or any part of it;

 

(k)Covenants, Guarantees and Indemnities

 

power to enter into bonds, covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect, maintain or satisfy such obligations or liabilities and to use the seal of the Mortgagor;

 

(l)Advisors

 

power to appoint an attorney or solicitor or accountant or other professional qualified person to assist him in the performance of his functions;

 

(m)Receipts

 

power to give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Mortgaged Property;

 

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(n)Payment

 

power to make any payment which is necessary or incidental to the performance of his functions;

 

(o)Delegation

 

power to delegate his powers in accordance with this Deed; and

 

(p)Exercise of Powers in Mortgagor's Name

 

power to exercise any or all of the above powers on behalf of and in the name of the Mortgagor (notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency, dissolution or similar proceedings in respect of the Mortgagor) or on his own behalf.

 

12.3Relationship with Mortgagee

 

To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed becomes enforceable be exercised by the Mortgagee in relation to any Mortgaged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.

 

13Application of Monies

 

13.1Order of Application

 

Without prejudice to Clause 13.2 (Suspense account), the Mortgagee (and any Receiver) shall apply the monies received by it as a result of the enforcement of the Security created hereby or pursuant to this Deed in accordance with clause 25.4 (Partial payments) of the Facility Agreement.

 

13.2Suspense account

 

Any monies received, recovered or realised by the Mortgagee or any Receiver under this Deed or the powers conferred by it (including the proceeds of any conversion of currency) may, in the discretion of the Mortgagee or any Receiver, be credited to and held in any suspense or impersonal account pending their application from time to time in or towards the discharge of any of the Secured Obligations in accordance with Clause ‎13.1 (Order of Application).

 

13.3Application by Mortgagor

 

Any application under this Clause ‎13 shall override any application by the Mortgagor.

 

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14Receipt and Protection of purchasers

 

14.1Receipt

 

The receipt of the Mortgagee or any Receiver shall be conclusive discharge to a purchaser of any part of the Mortgaged Property from the Mortgagee or such Receiver.

 

14.2Protection of purchasers

 

No person (including a purchaser) dealing with the Mortgagee or a Receiver or its or his agents will be obliged or concerned to enquire:

 

(a)whether the Secured Obligations have become payable;

 

(b)whether any power which the Mortgagee or a Receiver is purporting to exercise has become exercisable or is being properly exercised;

 

(c)whether any money remains due under the Finance Documents; or

 

(d)how any money paid to the Mortgagee or to that Receiver is to be applied.

 

15Power of Attorney

 

15.1Appointment and Powers

 

The Mortgagor, by way of security, irrevocably appoints the Mortgagee, each Receiver and each of their respective delegates and sub-delegates and any person nominated for the purpose by the Mortgagee or any Receiver severally to be its true and lawful attorney (with full power of substitution and delegation) in its name (or otherwise) and on its behalf and as its act and deed or otherwise, at any time following (a) the occurrence of an Event of Default that is continuing or (b) a failure by the Mortgagor to comply within five (5) Business Days of any further assurance or any other obligation under this Deed, to execute, seal, deliver (using the company seal where appropriate) and perfect all documents and do all things which the Mortgagee or such Receiver may consider to be required for:

 

(a)carrying out any obligation imposed on the Mortgagor under this Deed (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Mortgaged Property or any part thereof and perfecting and/or releasing the Security created or intended to be created in respect of the Mortgaged Property or any part thereof); and

 

(b)enabling the Mortgagee and any Receiver to exercise, or delegate the exercise of, or to protect or preserve, any of the rights, powers and authorities conferred on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of an Event of Default that is continuing, the exercise of any right of a legal or beneficial owner of the Mortgaged Property or any part thereof).

 

15.2Ratification

 

The Mortgagor shall ratify and confirm all things done and all documents executed (or purportedly done or executed) by any attorney in the proper exercise of all or any of its powers conferred by this clause 15.

 

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16Representations

 

16.1Representations

 

On the date of this Deed, the Mortgagor makes the representations and warranties set out in clause 16 (Representations) of the Facility Agreement mutatis mutandis to the Mortgagee and further represents and warrants to the Mortgagee that:

 

(a)it is the sole and absolute legal and beneficial owner of the Mortgaged Property;

 

(b)none of the Mortgaged Property is subject to or affected by any Restrictions Notice issued by the Company or its registered office provider pursuant to the Companies Act; and

 

(c)as of the date of this Deed, it is not in possession of any certificates representing, or any other documents of title to, the Initial Shares.

 

16.2Repetition

 

The representations and warranties set out in paragraphs (a) and (b) of Clause 16.1 (Representations) above shall be deemed to be repeated by the Mortgagor continuously from the date of this Deed until the expiry of the Security Period, in each case by reference to the facts and circumstances existing at the date on which such representation or warranty is deemed to be made or repeated.

 

17Effectiveness of Security

 

17.1Continuing Security

 

The Security created by or pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations notwithstanding any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.

 

17.2Cumulative Rights

 

The Security created by this Deed and the Collateral Rights shall be cumulative, in addition to and independent of every other Security which the Mortgagee may at any time hold for any or all of the Secured Obligations or any obligations or any rights, powers and remedies provided by law. No prior security held by the Mortgagee over the whole or any part of the Mortgaged Property shall merge into, nor in any way exclude or prejudice or affect, the security constituted by this Deed. The foregoing applies notwithstanding any receipt, release or discharge endorsed or given in respect of or under any such other Security.

 

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17.3Mortgagor's Obligations

 

None of the Security created by or pursuant to this Deed, the obligations of the Mortgagor under this Deed nor the Collateral Rights shall be affected by an act, omission, matter, thing or event which, but for this Clause ‎17.3, would reduce, release or prejudice any of the Security created by or pursuant to this Deed, any of the obligations of the Mortgagor under this Deed or the Collateral Rights including (without limitation and whether or not known to it or the Mortgagee):

 

17.3.1the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of any Obligor or any other person or any change in its status, function, control or ownership;

 

17.3.2any of the obligations of any Obligor or any other person under any Finance Document, or under any other security relating to any Finance Document, or under any other document or security, being or becoming illegal, invalid, unenforceable or ineffective in any respect;

 

17.3.3any time, waiver or consent or any other indulgence or concession granted to, or composition with, any Obligor or any other person;

 

17.3.4any release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any Obligor or any other person;

 

17.3.5the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

17.3.6the existence of any claim, set-off or other right which the Mortgagor may have at any time against the Mortgagee or any other person;

 

17.3.7any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Obligor or any other person;

 

17.3.8any variation, amendment, novation, waiver, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of or in connection with, a Finance Document or any other document or security, guarantee or indemnity or of the Secured Obligations;

 

17.3.9any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security;

 

17.3.10any insolvency, bankruptcy or similar proceedings;

 

17.3.11any claims or set-off right that the Mortgagor may have; or

 

17.3.12any law, regulation or decree or order of any jurisdiction affecting any Obligor.

 

17.4Mortgagor intent

 

Without prejudice to the generality of Clause 17.3 (Mortgagor's Obligations), the Mortgagor expressly confirms that it intends that the Security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

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17.5Remedies and Waivers

 

(a)No failure on the part of the Mortgagee or any Receiver to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof or constitute an election to affirm this Deed.

 

(b)No election by the Mortgagee or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective unless it is in writing.

 

(c)The Collateral Rights are cumulative and not exclusive of the rights of the Mortgagee or any Receiver under the general law. No single or partial exercise of any Collateral Right shall preclude any further or other exercise of that or any other Collateral Right.

 

17.6Immediate recourse

 

The Mortgagor waives any right it may have of first requiring the Mortgagee (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative to any other person before claiming from the Mortgagor under this Deed.

 

17.7No Liability

 

None of the Mortgagee, its nominee(s) or any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection with all or any part of the Mortgaged Property or (c) taking possession of or realising all or any part of the Mortgaged Property.

 

17.8Partial Invalidity

 

If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.

 

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17.9No Prior Demand

 

The Mortgagee shall not be obliged to make any demand of or enforce any rights or claim against any Obligor or any other person, to take any action or obtain judgment in any court against any Obligor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of any Obligor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before exercising any Collateral Right.

 

17.10Deferral of rights

 

Until the expiry of the Security Period, the Mortgagor will not (unless the Mortgagee otherwise directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:

 

17.10.1to be indemnified by any Obligor;

 

17.10.2to claim any contribution from any guarantor of or provider of security for any Obligor's obligations under the Finance Documents;

 

17.10.3to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Mortgagee under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by the Mortgagee;

 

17.10.4to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Mortgagor has given a guarantee, security, undertaking or indemnity under any Finance Document;

 

17.10.5to exercise any right of set-off against any Obligor; and/or

 

17.10.6to claim or prove as a creditor of any Obligor in competition with the Mortgagee.

 

If the Mortgagor shall receive any benefit, payment or distribution in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all Secured Obligations to be paid in full) on trust for the Mortgagee, and shall promptly pay or transfer the same to the Mortgagee (or as the Mortgagee may direct) for application in accordance with clause 13.1 (Order of Application).

 

17.11Reinstatement

 

If any payment in respect of any Secured Obligation or any settlement, discharge or release of any Secured Obligation by or on behalf of the Mortgagee is avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application or any similar event or for any other reason, the liability of the Mortgagor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge or release had not occurred.

 

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18Release of Security

 

18.1Final redemption

 

Upon the expiry of the Security Period, the Mortgagee shall, at the request (with reasonable notice) and cost of the Mortgagor, promptly do all things and execute all documents as may be necessary to evidence the release, discharge and cancel the Security constituted by this Deed and procure the reassignment to the Mortgagor of the property and assets assigned to the Mortgagee pursuant to this Deed (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), including without limitation the execution of a deed of release in favour of the Mortgagor and delivering all documents of title and evidence of ownership in respect of the Mortgaged Property delivered under Clause 5 to the Mortgagor or to any other person as the Mortgagor may reasonably request in writing (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clause ‎18.2 (Avoidance of Payments) and without recourse to, or any representation or warranty by, the Mortgagee.

 

18.2Avoidance of Payments

 

If the Mortgagee considers that any amount paid or credited to or recovered by the Mortgagee by or from any Obligor or any Secured Obligations recovered by the Mortgagee is likely to be avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Mortgagor under this Deed and the Security constituted by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.

 

19Subsequent and Prior Security Interests

 

19.1Subsequent security interests

 

If the Mortgagee at any time receives or is deemed to have received notice of any subsequent Security or other interest affecting all or any part of the Mortgaged Property or any assignment or transfer of the Mortgaged Property which is prohibited by the terms of this Deed or any Finance Document, all payments thereafter by or on behalf of any Obligor to the Mortgagee (whether in its capacity as security trustee or otherwise) shall be treated as having been credited to a new account of that Obligor and not as having been applied in reduction of the Secured Obligations as at the time when (or at any time after) the Mortgagee received such notice of such subsequent Security or other interest or such assignment or transfer.

 

19.2Prior security interests

 

In the event of any action, proceeding or step being taken to exercise any powers or remedies conferred by any prior ranking Security or upon the exercise by the Mortgagee or any Receiver of any power of sale under this Deed or any Collateral Right, at any time after this Security has become enforceable under this Deed, the Mortgagee may redeem any prior ranking Security over or affecting any Mortgaged Property or procure the transfer of any such prior ranking Security to itself. The Mortgagee may settle and agree the accounts of the beneficiary of any such prior Security and any accounts so settled and agreed will be conclusive and binding on the Mortgagor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption or transfer shall be paid by the Mortgagor to the Mortgagee upon demand.

 

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20Discretion and Delegation

 

20.1Discretion

 

Any liberty or power which may be exercised or any determination which may be made under this Deed by the Mortgagee or any Receiver may be exercised or made in its absolute and unfettered discretion without any obligation to give reasons.

 

20.2Delegation

 

(a)Each of the Mortgagee and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions conferred on it by this Deed (including without limitation the power of attorney under Clause ‎15 (Power of Attorney)) on such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation or any revocation of such power, authority or discretion by the Mortgagee or any Receiver.

 

(b)Neither the Mortgagee nor any Receiver will be in any way liable or responsible to the Mortgagor for any loss or liability arising from any act, default, omission, neglect or misconduct on the part of any delegate or sub-delegate.

 

20.3Protections

 

In acting as Mortgagee, the Mortgagee shall have the benefit of all indemnities, protections and rights on its part set out in the Finance Documents, as if set out fully herein.

 

21Changes to Parties

 

21.1No Assignment or Transfer by Mortgagor

 

The Mortgagor may not assign or transfer any of its rights (if any) or obligations under this Deed, except with the prior consent of the Mortgagee.

 

21.2Assignment and Transfer by Mortgagee

 

The Mortgagee may assign or transfer any of its rights or obligations under this Deed in accordance with the provisions of the Facility Agreement

 

22Amendments and Waivers

 

22.1Subject to clause 31 (Amendments and Waivers) of the Facility Agreement, any term of this Deed may be amended or waived only by agreement in writing between all parties hereto.

 

25

 

 

22.2No failure on the part of the Mortgagee to exercise, or delay on its part in exercising, any or all of its rights hereunder shall operate as a waiver thereof or constitute an election to affirm this Deed. No election to affirm this Deed on the part of the Mortgagee shall be effective unless it is in writing. No single or partial exercise of any such right or remedy shall preclude any further or other exercise of such or any other right or remedy.

 

23Notices

 

Any communications to be made under or in connection with this Deed shall be made in accordance with clause 27 (Notices) of the Facility Agreement.

 

24Rights of third parties

 

Each party hereto hereby agrees that each agent, manager, officer, employee, director, delegate or advisor of the Mortgagee who is not a party to this Deed (Third Party) has the express right to enforce the contractual terms of this Deed pursuant to the terms of the Contracts (Rights of Third Parties) Act, 2014. Notwithstanding any term of this Charge, the consent of or notice to any Third Party shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under this Deed at any time

 

25Counterparts

 

This Deed may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.

 

26Governing Law

 

This Deed shall be governed by and construed in accordance with the laws of the Cayman Islands.

 

27Jurisdiction

 

27.1Cayman Islands courts

 

The courts of the Cayman Islands have exclusive jurisdiction to settle any dispute arising out of, or in connection with, this Deed (including a dispute regarding the existence, validity or termination of this Deed or the consequences of its nullity) (a Dispute).

 

27.2Convenient Forum

 

The parties hereto agree that the courts of the Cayman Islands are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary.

 

27.3Exclusive Jurisdiction

 

This Clause 27 is for the benefit of the Mortgagee only. As a result and notwithstanding Clause ‎27.1 (Cayman Islands courts), nothing herein shall prevent the Mortgagee from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law the Mortgagee may take concurrent proceedings in any number of jurisdictions.

 

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27.4Service of process

 

(a)Without prejudice to any other mode of service allowed under any relevant law, the Mortgagor:

 

(i)irrevocably appoints Trident Trust Company (Cayman) Limited located at One Capital Place, 4th Floor, George Town, Grand Cayman, Cayman Islands as its agent for service of process in relation to any proceedings before the courts of the Cayman Islands in connection with this Deed; and

 

(ii)agrees that failure by a process agent to notify the Mortgagor of any process will not invalidate the proceedings concerned.

 

(b)If any person appointed as process agent under this Clause is unable for any reason to so act, the Mortgagor must promptly (and in any event within three days of the event taking place) appoint another agent on terms acceptable to the Mortgagee (acting reasonably). Failing this, the Mortgagee may appoint another process agent for this purpose.

 

27.5Waiver of immunity

 

The Mortgagor irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from:

 

(a)suit;

 

(b)jurisdiction of any court or arbitral tribunal;

 

(c)relief by way of injunction or order for specific performance or recovery of property;

 

(d)attachment of its assets (whether before or after judgment); and

 

(e)execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts or arbitral tribunals of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any immunity in any such proceedings).

 

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IN WITNESS WHEREOF this Deed has been signed on behalf of the Mortgagee and executed as a deed by the Mortgagor and is intended to be and is hereby delivered by it as a deed on the date specified above.

 

EXECUTED AS A DEED for and on behalf of Beacon Capital Group Inc.

acting through its duly authorised signatory

in the presence of

)

)

)

)

 
    ) /s/ Sheng Chen
      Duly Authorised Signatory
         
      Name: Sheng Chen
         
         
         
         
/s/ Hanyang Zheng      
Signature of Witness        
       
Name: Hanyang Zheng      
         

 

 

The Mortgagee

 

BOLD ALLY (CAYMAN) LIMITED

 

 

/s/ Isatou Smith   
Name: Isatou Smith   
Title: Authorised Signatory  

 

Execution Page to Cayman Share

Mortgage (Beacon)

 

 

Exhibit 99.7

 

EXECUTION VERSION

 

Dated 19 August 2021

 

GENTAO CAPITAL LIMITED
as the Mortgagor

 

in favour of

 

BOLD ALLY (CAYMAN) LIMITED
as the Mortgagee

 

 

 

EQUITABLE SHARE MORTGAGE

 

(in respect of Class A ordinary shares held by the Mortgagor in 21Vianet Group, Inc.)

 

 

 

Warning: Stamp Duty will be payable if an original of this document is brought into the Cayman Islands

 

 

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Contents

 

Clause Page
   
1 Definitions and Interpretation 3
2 Payment of Secured Obligations 6
3 Security 6
4 Perfection of Security 7
5 Delivery of Documents 8
6 Further Assurance 10
7 Restrictions on Dealings 11
8 Operations Before and After Enforcement 11
9 Enforcement of Security 12
10 Powers of Sale 13
11 Appointment of Receiver 14
12 Powers of Receiver 15
13 Application of Monies 18
14 Receipt and Protection of purchasers 18
15 Power of Attorney 19
16 Representations 19
17 Effectiveness of Security 20
18 Release of Security 23
19 Subsequent and Prior Security Interests 24
20 Discretion and Delegation 24
21 Changes to Parties 25
22 Amendments and Waivers 25
23 Notices 25
24 Rights of third parties 25
25 Counterparts 26
26 Governing Law 26
27 Jurisdiction 26
Schedule 1 27
Schedule 2 28
Schedule 3 29
Schedule 4 29

 

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THIS DEED OF EQUITABLE SHARE MORTGAGE is made on August 19 2021

 

Between

 

1GenTao Capital Limited, a BVI business company incorporated with limited liability under the laws of the British Virgin Islands with registration number 1759132 and having its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands (the Mortgagor);

 

and

 

2Bold Ally (Cayman) Limited, as lender (the Mortgagee, which expression shall include its successors, assigns and transferees).

 

NOW THIS DEED WITNESSES as follows:

 

1Definitions and Interpretation

 

1.1Definitions

 

ADS means an American depositary share issued by the Depositary, each representing 6 Company Class A Shares.

 

ADS Conversion Process means the process comprising of the deposit of all or any part of the Company Class A Shares with the Depositary (or its nominee) in exchange for the issuance by the Depositary of a corresponding number of ADSs representing the Company Class A Shares being exchanged.

 

BVI Act means the BVI Business Companies Act (As Revised).

 

Collateral Rights means all rights, powers and remedies of the Mortgagee or any Receiver (or any Delegate pursuant to this Deed or the Finance Documents) provided by or pursuant to this Deed or by law.

 

Companies Act means the Companies Act (As Revised) of the Cayman Islands.

 

Company means 21Vianet Group, Inc., an exempted company incorporated under the laws of the Cayman Islands with company number 232198 and its registered office at Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.

 

Company Class A Shares means class A ordinary shares in the capital of the Company which has a par value of US$0.00001 each.

 

Delegate means any delegate, agent, attorney or co-trustee appointed by the Mortgagee or a Receiver.

 

Depositary has the meaning given to that term in the Facility Agreement.

 

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Facility Agreement means the term loan facility agreement dated on or around the date of this Deed between, among others, GenTao Capital Limited as borrower, Beacon Capital Group Inc., Fast Horse Technology Limited, Sunrise Corporate Holding Ltd. and Sheng Chen as guarantors and Bold Ally (Cayman) Limited as lender.

 

Finance Document has the meaning given to that term in the Facility Agreement.

 

Further Shares means all Company Class A Shares held by the Mortgagor which are required under clause 19.1 (Margin call), clause 20.25 (Condition Subsequent) or any other provisions of the Facility Agreement to become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and which are specified as such in each duly completed Top-Up Notice in form and substance satisfactory to the Mortgagee accompanied by the documents referred to in Clause 5(c) (Delivery of Documents).

 

Initial Company Class A Shares means all Company Class A Shares owned by the Mortgagor as at the date of this Deed (if any).

 

Initial Shares means the Initial Company Class A Shares.

 

Mortgaged Property means the Shares and all present and future assets, rights, title, interests, advantages and benefits of the Mortgagor deriving from or incidental to any of the Shares including all Related Rights, which are the subject of the security created or expressed to be created in favour of the Mortgagee by or pursuant to this Deed.

 

Obligors has the meaning given to that term in the Facility Agreement.

 

Register of Members means the Register of Members of the Company (including any applicable branch register and non-listed shares register) maintained by the Company in accordance with the Companies Act.

 

Related Rights means, in relation to any Mortgaged Property:

 

(a)any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer, redemption, substitution, exchange, conversion or other disposal, of;

 

(b)any moneys or proceeds paid or payable (including interest and dividends) deriving from;

 

(c)any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to;

 

(d)any awards or judgments in favour of the Mortgaged Property in relation to;

 

(e)any certificate or other evidence of title to;

 

(f)all other rights, powers, benefits and privileges, present and future, which the Mortgagor may have in respect of; and

 

(g)any other assets or property deriving from,

 

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the Shares from time to time, including (A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 20.25 (Conditions Subsequent) and clause 19.1 (Margin call) of the Facility Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which the Mortgagor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary, custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether or not on a fungible basis (including any rights against any such person).

 

Restrictions Notice means a restrictions notice as defined in section 244(1) of the Companies Act.

 

Secured Obligation means all present and future obligations and liabilities of the Obligors (or any of them) in favour of the Mortgagee under the Facility Agreement, this Deed and other Finance Documents (or any of them) (as amended, restated, supplemented and/or novated from time to time), whether actual or contingent and whether owed or incurred alone or jointly and/or severally with another and as principal or as surety or in any other capacity or of any nature.

 

Security Period means the period beginning on the date of this Deed and ending on the date on which all the Secured Obligations have been unconditionally and irrevocably paid and discharged in full and the Mortgagee is under no further obligation to provide financial accommodation to any of the Obligors under any of the Finance Documents.

 

Share Registrar means the share registrar for the Company (being Maples Fund Services (Cayman) Limited as at the date of this Deed).

 

Shares means:

 

(a)the Initial Company Class A Shares;

 

(b)the Further Shares; and

 

(c)any Company Class A Shares acquired by the Mortgagor in respect of Shares by reason of a stock split, stock dividend paid or made in respect of Shares in the form of Company Class A Shares, reclassification, conversion or otherwise; and

 

(d)any Company Class A Shares released or returned by the Depositary (or its nominee) to the Mortgagor as a result of:

 

(A)any Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion Process for any reason; or

 

(B)any ADSs previously issued in exchange for the deposit of such Shares being surrendered for the purpose of withdrawal of the Company Class A Shares represented thereby (whether or not at the direction of the Mortgagee).

 

Top-Up Notice means a notice from the Mortgagor to, and executed by way of approval by, the Mortgagee substantially in the form set out in Schedule 4 to this Deed.

 

Voting Rights Notice has the meaning given to it in Clause 8.3 (Voting: After Enforcement).

 

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1.2Construction

 

In this Deed:

 

(a)unless the context otherwise requires or a contrary intention appears, any term which is used but not defined in this Deed shall have the same meaning as defined in the Facility Agreement;

 

(b)the provisions in clause 2.1 (Construction) of the Facility Agreement apply to this Deed, except that references therein to "this Agreement" shall be construed as references to this Deed; and

 

(c)references in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this Deed.

 

2Payment of Secured Obligations

 

The Mortgagor hereby covenants with the Mortgagee that it shall on demand pay and discharge each of the Secured Obligations on its due date as provided for in the Finance Documents.

 

3Security

 

(a)As legal and beneficial owner and as continuing security for the due and prompt discharge and payment of the Secured Obligations, the Mortgagor hereby:

 

(i)mortgages in favour of the Mortgagee by way of a first equitable mortgage all its right, title and interest in and to the Shares; and

 

(ii)charges in favour of the Mortgagee, by way of a first fixed charge, all of its right, title and interest in and to the Mortgaged Property including all benefits, present and future, actual and contingent accruing in respect of the Mortgaged Property (to the extent not effectively mortgaged under Clause 3(a)(i)).

 

(b)The Mortgagor hereby authorises the Mortgagee to arrange at any time following the occurrence of an Event of Default which is continuing for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Deed and at the request of the Mortgagee, the Mortgagor shall without delay procure that the foregoing shall be done.

 

6

 

 

4Perfection of Security

 

(a)The Mortgagor shall (to the extent any Initial Company Class A Shares exist as at the date of this Deed) promptly after execution of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, promptly after such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) procure that the following notation to be entered on the Register of Members provided that such notation shall be completed to reflect the details of the relevant Shares:

 

"The [ ] class A ordinary shares issued and registered in the name of GenTao Capital Limited represented by share certificate[s] number [ ] [and [ ]] are mortgaged and charged in favour of Bold Ally (Cayman) Limited pursuant to an equitable share mortgage dated [Date] 2021, as amended from time to time. The date that this annotation is made is [Date]."

 

(b)The Mortgagor shall provide the Mortgagee with a certified true copy of an extract of the Register of Members with the annotation referred to in paragraph (a) above (to the extent any Initial Company Class A Shares exist as at the date of this Deed) within five Business Days of the date of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, within five Business Days of the date on which such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed).

 

(c)The Mortgagor shall:

 

(i)promptly after the execution of this Deed, instruct its British Virgin Islands registered agent to create and maintain a register of charges for the Mortgagor in accordance with section 162 of the BVI Act (the Register of Charges) to the extent that this has not already been done;

 

(ii)promptly after the execution of this Deed, enter particulars as required by the BVI Act of the security created pursuant this Deed in the Register of Charges and promptly after entry of such particulars has been made, and in any event within five Business Days of the date of this Deed, provide the Mortgagee with a certified true copy of the updated Register of Charges;

 

(iii)effect registration, or assist the Mortgagee in effecting registration, of this Deed with the Registrar of Corporate Affairs pursuant to section 163 of the BVI Act by making the required filing or assisting the Mortgagee in making the required filing in the approved form with the Registrar of Corporate Affairs and (if applicable) provide confirmation in writing to the Mortgagee that such filing has been made within three Business Days after the date this Deed is entered into; and

 

(iv)if the registration referred to in paragraph (iii) above is not being effected by or on behalf of the Mortgagee, promptly on receipt, and in any event within 21 days of the date of this Deed, deliver or procure to be delivered to the Mortgagee, the certificate of registration of charge issued by the Registrar of Corporate Affairs and the filed stamped copy of the Register of Charges containing the relevant particulars of the security created by this Deed.

 

7

 

 

5Delivery of Documents

 

(a)To the extent any Initial Company Class A Shares exist as at the date of this Deed, the Mortgagor shall, on the date of this Deed, deposit with the Mortgagee (or procure the deposit with the Mortgagee of) the following documents in form and substance satisfactory to the Mortgagee:

 

(i)original valid and duly issued share certificates representing the Initial Shares;

 

(ii)an instrument of transfer in respect of the Initial Company Class A Shares in the form set out in Schedule 1 to this Deed (a Class A Shares Instrument of Transfer) which has been duly executed by the Mortgagor as transferor in blank (with the date, the name of the transferee and the number of shares left blank);

 

(iii)an irrevocable proxy and irrevocable power of attorney made in respect of the Initial Company Class A Shares in the form set out in Schedule 2 to this Deed (a Class A Shares Irrevocable Proxy and PoA) which has been duly executed by the Mortgagor in blank (with the date and the number of shares left blank); and

 

(iv)a notice of charge from the Mortgagor to the Company in respect of the Initial Shares in the form set out in Schedule 3 to this Deed (a Notice of Charge) which has been duly executed by the Mortgagor,

 

the Class A Shares Instrument of Transfer, the Class A Shares Irrevocable Proxy and PoA, and the Notice of Charge, together, the Security Deliverables.

 

(b)The Mortgagor shall, in accordance with clause 20.25 (Conditions Subsequent) of the Facility Agreement, deposit with the Mortgagee (or procure the deposit with the Mortgagee of) such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in form and substance satisfactory to the Mortgagee.

 

(c)If at any time, any Shares (other than the Initial Company Class A Shares) become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (including, for the avoidance of doubt, the Further Shares and the Shares pursuant to paragraphs (c) and (d) of the definition of "Shares") (such shares, the Additional Ordinary Shares), the Mortgagor shall, deliver (or procured there to be delivered) to the Mortgagee the following documents in form and substance satisfactory to the Mortgagee, [(i) in the case of any Additional Ordinary Shares that are Further Shares, on or prior to the date on which such Further Shares are required to be furnished as Security pursuant to clause 19.1 (Margin call), clause 20.25 (Conditions Subsequent) or any other provisions of the Facility Agreement (or, in respect of the documents set out in paragraph (v) below only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (c) of clause 20.25 (Conditions Subsequent) of the Facility Agreement) and (ii) in the case of other Additional Ordinary Shares, on the date on which such Additional Ordinary Shares become so subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (or, in respect of the documents set out in paragraph (v) below only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (c) of clause 20.25 (Conditions Subsequent) of the Facility Agreement):

 

(i)(in respect of any Additional Ordinary Shares which are Further Shares) a Top-Up Notice;

 

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(ii)a certified true copy of an extract of the Register of Members showing the Mortgagor as the registered owner of the Additional Ordinary Shares;

 

(iii)original valid and duly issued share certificates representing such Additional Ordinary Shares;

 

(iv)all Security Deliverables in respect of such Additional Ordinary Shares (each of which has been duly executed by the Mortgagor in the manner set out in paragraph (a) above in form and substance satisfactory to the Mortgagee; and

 

(v)all such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in respect of such Additional Ordinary Shares in form and substance satisfactory to the Mortgagee.

 

(d)On the date of any removal or resignation of any director of the Mortgagor who executed any Security Deliverables or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above in respect of any Shares during the Security Period, the Mortgagor shall promptly deliver or cause to be delivered to the Mortgagee a replacement of all such items (each having been duly executed by a continuing or replacement director of the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above and (in other cases) in form and substance satisfactory to the Mortgagee) and a certified copy of the register of directors of the Mortgagor maintained by the Mortgagor in accordance with the BVI Act in form and substance satisfactory to the Mortgagee.

 

(e)If at any time during the Security Period, the Mortgagee determines that the form of any Security Deliverable or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above has been amended, updated or replaced by the Company, the Depositary, the Share Registrar and/or the registered office provider of the Company rendering such item or document delivered incapable of being used to effect the ADS Conversion Process, the Mortgagor shall promptly on demand by the Mortgagee, deliver to the Mortgagee a copy of the amended, updated or replaced form of such item or document (each having been duly executed by the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above) in form and substance satisfactory to the Mortgagee.

 

(f)The Mortgagee shall be entitled to hold all documents and instruments delivered to it pursuant to this Clause 5 until the end of the Security Period, and the Mortgagor hereby irrevocably and unconditionally authorises (and, with respect to paragraph (ii) below, requests and authorises) the Mortgagee to (and the Mortgagee shall be entitled to):

 

(i)to the extent any fully executed Notice of Charge has not been delivered to the Company to the Mortgagee's satisfaction, deliver a copy of such fully executed Notice of Charge to the Company on the Mortgagor's behalf; and

 

(ii)at any time after the occurrence of an Event of Default which is continuing, to complete, date and put into effect, under its power of attorney given in this Deed or otherwise, such documents and instruments to effect a transfer of all or any Shares in favour of itself or such other person as it shall direct and/or otherwise effect or complete any step of the ADS Conversion Process.

 

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(g)Any document or instrument required to be delivered to the Mortgagee pursuant to this Clause 5 which is for any reason not so delivered or which is released by the Mortgagee to the Mortgagor shall be held on trust by the Mortgagor for the Mortgagee.

 

6Further Assurance

 

6.1Further Assurance: General

 

The Mortgagor shall, at its own expense, promptly do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices and instructions) as the Mortgagee or a Receiver may reasonably specify (and in such form as the Mortgagee or Receiver (as the case may be) may reasonably require) in favour of the Mortgagee or its nominees:

 

(a)to create, perfect, protect or preserve the security created or intended to be created in respect of the Mortgaged Property (which may include, without limitation, the re-execution of this Deed, the execution by the Mortgagor of a mortgage, charge, assignment or other security over all or any of the assets constituting, or intended to constitute, any part of the Mortgaged Property) and the giving of any notice, order or direction and the making of any filing or registration, or for the exercise of the Collateral Rights; and/or

 

(b)upon the occurrence of an Event of Default that is continuing, to facilitate the realisation and/or enforcement of the assets constituting, or intended to constitute, the Mortgaged Property (including to execute and complete in favour of the Mortgagee, the Company, the Share Registrar, the registered office provider of the Company, the Depositary (or the nominee of any of the foregoing) or any purchaser any document and to give any instruction which the Mortgagee may reasonably require to effect any step of the ADS Conversion Process or otherwise vest any of the Mortgaged Property in the Mortgagee, any Receiver or any other transferee or purchaser).

 

6.2Necessary Action

 

The Mortgagor shall from time to time at its own cost take all such action (whether or not requested to do so by the Mortgagee) as is or shall be available to it (including without limitation obtaining and/or effecting all authorisations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and/or to exercise its rights and to perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence in the Cayman Islands.

 

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6.3Covenants of Title

 

The obligations of the Mortgagor under this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.

 

7Restrictions on Dealings

 

7.1Negative Pledge

 

The Mortgagor undertakes that it shall not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Mortgaged Property unless expressly permitted under and in accordance with any of the Finance Documents.

 

7.2No Disposal of Interests

 

The Mortgagor undertakes that, during the subsistence of this Deed, it shall not, and shall not agree to, sell, assign, transfer or otherwise dispose of any Mortgaged Property [except (a) as otherwise permitted under clauses 19.1(b), 20.5 and 20.25 of the Facility Agreement or the provisions hereof, or (b) with the prior written consent of the Mortgagee.

 

8Operations Before and After Enforcement

 

8.1Dividends

 

The Mortgagor shall ensure that all dividends paid or made in respect of any Mortgaged Property are applied in accordance with the terms of the Facility Agreement.

 

8.2Voting: Before Enforcement

 

At any time prior to the delivery of a Voting Rights Notice, the Mortgagor shall be entitled to exercise (or refrain for exercising) or direct the exercise of the voting rights attached to any Shares provided that:

 

(a)it does so without contravening any provision of any Finance Document; and

 

(b)the exercise (or non-exercise) of those rights would not (i) have an adverse effect on the ability of the Mortgagee to realise the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or (ii) materially prejudice the interests of the Mortgagee under any Finance Document or its control of any Mortgaged Property.

 

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8.3Voting: After Enforcement

 

(a)Following the occurrence of an Event of Default which is continuing, the Mortgagee may give notice to the Company (a Voting Rights Notice) (with a copy to the Mortgagor, failure to give which shall not invalidate the Voting Rights Notice) that the Mortgagor’s right under Clause 8.2 (Voting: Before Enforcement) shall cease and that the Mortgagee intends to exercise the voting and other rights under this Clause 8.3, in which event:

 

(i)the Mortgagee (or if the Mortgagee so directs, the Receiver) shall be entitled to exercise or direct the exercise of the voting and other rights attached to the Shares and the Mortgagor shall promptly provide the Mortgagee or the Receiver (if so required by the Mortgagee), with an irrevocable power of attorney to exercise in the Mortgagee’s sole discretion the voting rights attached to such Shares as determined by the Mortgagee; and

 

(ii)the Mortgagor shall promptly execute and/or deliver to the Mortgagee or the Receiver such forms of proxy as it reasonably requires with a view to enabling such person as it selects to exercise those rights.

 

(b)The Mortgagee will have no liability to the Mortgagor for any loss that results from the exercise or non-exercise of any voting rights attaching to such Shares or for any failure to deal with any notice relating to such Shares that is sent to the Mortgagee.

 

8.4Payment of Calls

 

(a)The Mortgagor must promptly pay all calls and other payments due and payable in respect of any Mortgaged Property.

 

(b)If the Mortgagor fails to pay all calls or other payments due and payable in respect of any Mortgaged Property, the Mortgagee may pay any call or other payment on behalf of the Mortgagor and the Mortgagor shall promptly upon request reimburse the Mortgagee for any payment made by it under this Clause.

 

8.5Exercise of Rights

 

The Mortgagor shall not exercise any of its rights and powers in relation to any of the Mortgaged Property in any manner which would prejudice the ability of the Mortgagee to realise the security created by this Deed.

 

9Enforcement of Security

 

9.1Enforcement

 

On and from the occurrence of an Event of Default which is continuing or if the Mortgagor requests the Mortgagee to exercise any of its powers under this Deed, the Security created by or pursuant to this Deed is immediately enforceable and the Mortgagee may, without notice to the Mortgagor or prior authorisation from any court or any person, in its absolute discretion enforce all or any part of such Security at the times, in the manner and on the terms it thinks fit, including to:

 

(a)assume control of, and to have it or its nominee registered as holder of legal title to, any Mortgaged Property;

 

(b)sell, exchange, grant options over, or otherwise dispose of, any Mortgaged Property by any method, at any time and on any terms, it thinks fit or to postpone doing of any of these things;

 

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(c)complete, date and deliver any document delivered to it under this Deed;

 

(d)effect any step of the ADS Conversion Process and take any such action the Mortgagee deems necessary or desirable to effect or facilitate any step of the ADS Conversion Process;

 

(e)borrow or raise money either unsecured or on the security of the Mortgaged Property (either in priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or otherwise);

 

(f)settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands relating to the Mortgaged Property;

 

(g)bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Mortgaged Property or any business of the Mortgagor;

 

(h)redeem any Security (whether or not having priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) over the Mortgaged Property and to settle the accounts of any person with an interest in the Mortgaged Property;

 

(i)exercise and do (or permit the Mortgagor or any nominee of the Mortgagor to exercise and do) all such rights and things as the Mortgagee would be capable of exercising or doing if it were the absolute beneficial owner of the Mortgaged Property; and/or

 

(j)exercise any other right, power or remedy given to it under this Deed (including to appoint a Receiver) or provided by law.

 

9.2No Liability as Mortgagee in Possession

 

Neither the Mortgagee nor any Receiver shall be liable, by reason of entering into possession of any Mortgaged Property, to account as a mortgagee in possession in respect of all or any part of the Mortgaged Property or be liable for any loss upon realisation or enforcement of rights (and may at any time at its discretion go out of such possession) or for any neglect, default or omission in connection with the Mortgaged Property to which a mortgagee or a mortgagee in possession might otherwise be liable.

 

10Powers of Sale

 

10.1Extension of Powers

 

The power of sale or other disposal conferred on the Mortgagee and on any Receiver by this Deed shall arise (and the Secured Obligations shall be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement).

 

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10.2Restrictions

 

Any restrictions imposed by law on the power of sale or on the consolidation of security shall be excluded to the fullest extent permitted by law.

 

11Appointment of Receiver

 

11.1Appointment and Removal

 

On and from the occurrence of an Event of Default that is continuing or if requested to do so by the Mortgagor, the Mortgagee may (but for the avoidance of doubt shall not be obliged to) by deed or otherwise (acting through an authorised officer of the Mortgagee), without any notice to the Mortgagor:

 

(a)appoint one or more person or persons as the Mortgagee thinks fit to be a Receiver of the whole or any part of the Mortgaged Property;

 

(b)appoint two or more Receivers of separate parts of the Mortgaged Property;

 

(c)remove (so far as it is lawfully able) any Receiver so appointed (whether or not the Mortgagee appoints any other person as a Receiver in its place); and/or

 

(d)appoint another person(s) as an additional or replacement Receiver(s).

 

11.2Capacity of Receivers

 

Each person appointed to be a Receiver pursuant to Clause ‎11.1 (Appointment and Removal) shall be:

 

(a)entitled to act individually or together with any other person appointed or substituted as Receiver;

 

(b)for all purposes deemed to be the agent of the Mortgagor and the Mortgagor shall be solely responsible for that Receiver's contracts, engagements, acts, omissions, defaults and losses and liabilities and for the payment of his remuneration and no Receiver shall at any time act as agent for the Mortgagee

 

(c)entitled to remuneration for his services at a rate to be fixed by the Mortgagee from time to time, which remuneration shall be payable by the Mortgagor.

 

11.3Several Receivers

 

If at any time there is more than one Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless the document appointing such Receiver states otherwise).

 

11.4Powers of Appointment

 

The powers of appointment of a Receiver herein contained shall be in addition to all powers of appointment of the Mortgagee under applicable law and such powers shall remain exercisable from time to time by the Mortgagee in respect of all or any part of the Mortgaged Property.

 

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12Powers of Receiver

 

12.1Powers of Receiver

 

Every Receiver shall (subject to any restrictions in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) have and be entitled to exercise, in relation to the Mortgaged Property or that part thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of the Mortgagor or in his own name and, in each case, at the cost of the Mortgagor):

 

(a)all the powers and rights of an absolute owner and power to do or omit to do anything which the Mortgagor itself could do or omit to do;

 

(b)all rights, powers and discretions conferred by this Deed (either expressly or impliedly) or by law on the Mortgagor;

 

(c)all the powers conferred on a receiver by any provision of Cayman Islands law; and

 

(d)the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Mortgagor) which appear to the Receiver to be incidental or conducive to (i) any of the functions, rights, powers, authorities or discretions conferred on or vested in him or (ii) the exercise of any Collateral Rights (including without limitation realisation of all or any part of the Mortgaged Property) under or by virtue of this Deed or law or (iii) bringing to his hands any assets of the Mortgagor forming, or which, when got in, would be part of the Mortgaged Property.

 

12.2Additional Powers of Receiver

 

In addition to and without prejudice to the generality of Clause 12.1, every Receiver shall have (subject to any limitations or restrictions expressed in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) the following powers in relation to the Mortgaged Property in respect of which he is appointed (and every reference in this Clause 12.2 to the Mortgaged Property shall be read as a reference to that part of the Mortgaged Property in respect of which such Receiver is appointed):

 

(a)Take Possession

 

power to enter upon, take immediate possession of, collect and get in the Mortgaged Property including without limitation dividends and other income whether accrued before or after the date of his appointment;

 

(b)Employees

 

power to appoint, hire and employ officers, employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to guard or protect the Mortgaged Property upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons and any such persons appointed, hired or employed by the Mortgagor;

 

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(c)Proceedings and Claims

 

power to bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Mortgaged Property or this Deed in the name of the Mortgagor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications, claims, disputes, actions, suits or proceedings;

 

(d)Carry on Business

 

power to carry on and manage, or concur in the carrying on and management of or to appoint a manager of, the whole or any part of the Mortgaged Property or any business relating thereto in such manner as he shall in his absolute discretion think fit;

 

(e)Deal with Mortgaged Property

 

power, in relation to the Mortgaged Property and each and every part thereof, by public auction or private contract, to sell, transfer, convey, dispose of, exchange, convert into money, realise or concur in any of the foregoing by the Mortgagor or any other receiver or manager of the Mortgagor (including without limitation to or in favour of the Mortgagee) in such manner and generally on such terms as he thinks fit, and the consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over any period which the Receiver thinks fit

 

(f)Acquisitions

 

power to purchase, lease, hire or otherwise acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying on, improvement or realisation of the whole or any part of the Mortgaged Property or otherwise for the benefit of the whole or any part of the Mortgaged Property;

  

(g)New Subsidiary

 

power to promote, procure the formation or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Mortgagor or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Mortgaged Property or carrying on any business in succession to the Mortgagor or any subsidiary of the Mortgagor;

 

(h)Insurance

 

power to effect, maintain or renew indemnity and other insurances and to obtain bonds and performance guarantees and do any other act which the Mortgagor might do in the ordinary conduct of its business to protect or improve any Mortgaged Property;

 

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(i)Borrowing

 

power to raise or borrow money from the Mortgagee or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and with or without a mortgage or charge on the Mortgaged Property or any part of it on such terms as he shall in his absolute discretion think fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power or the application of money so raised or borrowed);

 

(j)Redemption of Security

 

power to redeem, discharge or compromise any Security whether or not having priority to the Security constituted by this Deed or any part of it;

 

(k)Covenants, Guarantees and Indemnities

 

power to enter into bonds, covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect, maintain or satisfy such obligations or liabilities and to use the seal of the Mortgagor;

 

(l)Advisors

 

power to appoint an attorney or solicitor or accountant or other professional qualified person to assist him in the performance of his functions;

 

(m)Receipts

 

power to give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Mortgaged Property;

  

(n)Payment

 

power to make any payment which is necessary or incidental to the performance of his functions;

 

(o)Delegation

 

power to delegate his powers in accordance with this Deed; and

 

(p)Exercise of Powers in Mortgagor's Name

 

power to exercise any or all of the above powers on behalf of and in the name of the Mortgagor (notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency, dissolution or similar proceedings in respect of the Mortgagor) or on his own behalf.

 

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12.3Relationship with Mortgagee

 

To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed becomes enforceable be exercised by the Mortgagee in relation to any Mortgaged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.

 

13Application of Monies

 

13.1Order of Application

 

Without prejudice to Clause 13.2 (Suspense account), the Mortgagee (and any Receiver) shall apply the monies received by it as a result of the enforcement of the Security created hereby or pursuant to this Deed in accordance with clause 25.4 (Partial payments) of the Facility Agreement.

 

13.2Suspense account

 

Any monies received, recovered or realised by the Mortgagee or any Receiver under this Deed or the powers conferred by it (including the proceeds of any conversion of currency) may, in the discretion of the Mortgagee or any Receiver, be credited to and held in any suspense or impersonal account pending their application from time to time in or towards the discharge of any of the Secured Obligations in accordance with Clause ‎13.1 (Order of Application).

 

13.3Application by Mortgagor

 

Any application under this Clause ‎13 shall override any application by the Mortgagor.

  

14Receipt and Protection of purchasers

 

14.1Receipt

 

The receipt of the Mortgagee or any Receiver shall be conclusive discharge to a purchaser of any part of the Mortgaged Property from the Mortgagee or such Receiver.

 

14.2Protection of purchasers

 

No person (including a purchaser) dealing with the Mortgagee or a Receiver or its or his agents will be obliged or concerned to enquire:

 

(a)whether the Secured Obligations have become payable;

 

(b)whether any power which the Mortgagee or a Receiver is purporting to exercise has become exercisable or is being properly exercised;

 

(c)whether any money remains due under the Finance Documents; or

 

(d)how any money paid to the Mortgagee or to that Receiver is to be applied.

 

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15Power of Attorney

 

15.1Appointment and Powers

 

The Mortgagor, by way of security, irrevocably appoints the Mortgagee, each Receiver and each of their respective delegates and sub-delegates and any person nominated for the purpose by the Mortgagee or any Receiver severally to be its true and lawful attorney (with full power of substitution and delegation) in its name (or otherwise) and on its behalf and as its act and deed or otherwise, at any time following (a) the occurrence of an Event of Default that is continuing or (b) a failure by the Mortgagor to comply within five (5) Business Days of any further assurance or any other obligation under this Deed, to execute, seal, deliver (using the company seal where appropriate) and perfect all documents and do all things which the Mortgagee or such Receiver may consider to be required for:

 

(a)carrying out any obligation imposed on the Mortgagor under this Deed (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Mortgaged Property or any part thereof and perfecting and/or releasing the Security created or intended to be created in respect of the Mortgaged Property or any part thereof); and

 

(b)enabling the Mortgagee and any Receiver to exercise, or delegate the exercise of, or to protect or preserve, any of the rights, powers and authorities conferred on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of an Event of Default that is continuing, the exercise of any right of a legal or beneficial owner of the Mortgaged Property or any part thereof).

 

15.2Ratification

 

The Mortgagor shall ratify and confirm all things done and all documents executed (or purportedly done or executed) by any attorney in the proper exercise of all or any of its powers conferred by this clause 15.

  

16Representations

 

16.1Representations

 

On the date of this Deed, the Mortgagor makes the representations and warranties set out in clause 16 (Representations) of the Facility Agreement mutatis mutandis to the Mortgagee and further represents and warrants to the Mortgagee that:

 

(a)it is the sole and absolute legal and beneficial owner of the Mortgaged Property; and

 

(b)none of the Mortgaged Property is subject to or affected by any Restrictions Notice issued by the Company or its registered office provider pursuant to the Companies Act.

 

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16.2Repetition

 

The representations and warranties set out in paragraphs (a) and (b) of Clause 16.1 (Representations) above shall be deemed to be repeated by the Mortgagor continuously from the date of this Deed until the expiry of the Security Period, in each case by reference to the facts and circumstances existing at the date on which such representation or warranty is deemed to be made or repeated.

 

17Effectiveness of Security

 

17.1Continuing Security

 

The Security created by or pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations notwithstanding any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.

 

17.2Cumulative Rights

 

The Security created by this Deed and the Collateral Rights shall be cumulative, in addition to and independent of every other Security which the Mortgagee may at any time hold for any or all of the Secured Obligations or any obligations or any rights, powers and remedies provided by law. No prior security held by the Mortgagee over the whole or any part of the Mortgaged Property shall merge into, nor in any way exclude or prejudice or affect, the security constituted by this Deed. The foregoing applies notwithstanding any receipt, release or discharge endorsed or given in respect of or under any such other Security.

  

17.3Mortgagor's Obligations

 

None of the Security created by or pursuant to this Deed, the obligations of the Mortgagor under this Deed nor the Collateral Rights shall be affected by an act, omission, matter, thing or event which, but for this Clause ‎17.3, would reduce, release or prejudice any of the Security created by or pursuant to this Deed, any of the obligations of the Mortgagor under this Deed or the Collateral Rights including (without limitation and whether or not known to it or the Mortgagee):

 

17.3.1the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of any Obligor or any other person or any change in its status, function, control or ownership;

 

17.3.2any of the obligations of any Obligor or any other person under any Finance Document, or under any other security relating to any Finance Document, or under any other document or security, being or becoming illegal, invalid, unenforceable or ineffective in any respect;

 

17.3.3any time, waiver or consent or any other indulgence or concession granted to, or composition with, any Obligor or any other person;

 

17.3.4any release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any Obligor or any other person;

 

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17.3.5the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

17.3.6the existence of any claim, set-off or other right which the Mortgagor may have at any time against the Mortgagee or any other person;

 

17.3.7any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Obligor or any other person;

 

17.3.8any variation, amendment, novation, waiver, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of or in connection with, a Finance Document or any other document or security, guarantee or indemnity or of the Secured Obligations;

 

17.3.9any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security;

 

17.3.10any insolvency, bankruptcy or similar proceedings;

 

16.3.11any claims or set-off right that the Mortgagor may have; or

 

17.3.12any law, regulation or decree or order of any jurisdiction affecting any Obligor.

 

17.4Mortgagor intent

 

Without prejudice to the generality of Clause 17.3 (Mortgagor's Obligations), the Mortgagor expressly confirms that it intends that the Security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

17.5Remedies and Waivers

 

(a)No failure on the part of the Mortgagee or any Receiver to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof or constitute an election to affirm this Deed.

 

(b)No election by the Mortgagee or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective unless it is in writing.

 

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(c)The Collateral Rights are cumulative and not exclusive of the rights of the Mortgagee or any Receiver under the general law. No single or partial exercise of any Collateral Right shall preclude any further or other exercise of that or any other Collateral Right.

 

17.6Immediate recourse

 

The Mortgagor waives any right it may have of first requiring the Mortgagee (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative to any other person before claiming from the Mortgagor under this Deed.

 

17.7No Liability

 

None of the Mortgagee, its nominee(s) or any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection with all or any part of the Mortgaged Property or (c) taking possession of or realising all or any part of the Mortgaged Property.

 

17.8Partial Invalidity

 

If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.

 

17.9No Prior Demand

 

The Mortgagee shall not be obliged to make any demand of or enforce any rights or claim against any Obligor or any other person, to take any action or obtain judgment in any court against any Obligor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of any Obligor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before exercising any Collateral Right.

 

17.10Deferral of rights

 

Until the expiry of the Security Period, the Mortgagor will not (unless the Mortgagee otherwise directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:

 

17.10.1to be indemnified by any Obligor;

 

17.10.2to claim any contribution from any guarantor of or provider of security for any Obligor's obligations under the Finance Documents;

 

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17.10.3to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Mortgagee under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by the Mortgagee;

 

17.10.4to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Mortgagor has given a guarantee, security, undertaking or indemnity under any Finance Document;

 

17.10.5to exercise any right of set-off against any Obligor; and/or

 

17.10.6to claim or prove as a creditor of any Obligor in competition with the Mortgagee.

 

If the Mortgagor shall receive any benefit, payment or distribution in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all Secured Obligations to be paid in full) on trust for the Mortgagee, and shall promptly pay or transfer the same to the Mortgagee (or as the Mortgagee may direct) for application in accordance with clause 13.1 (Order of Application).

 

17.11Reinstatement

 

If any payment in respect of any Secured Obligation or any settlement, discharge or release of any Secured Obligation by or on behalf of the Mortgagee is avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application or any similar event or for any other reason, the liability of the Mortgagor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge or release had not occurred.

  

18Release of Security

 

18.1Final redemption

 

Upon the expiry of the Security Period, the Mortgagee shall, at the request (with reasonable notice) and cost of the Mortgagor, promptly do all things and execute all documents as may be necessary to evidence the release, discharge and cancel the Security constituted by this Deed and procure the reassignment to the Mortgagor of the property and assets assigned to the Mortgagee pursuant to this Deed (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), including without limitation the execution of a deed of release in favour of the Mortgagor and delivering all documents of title and evidence of ownership in respect of the Mortgaged Property delivered under Clause 5 to the Mortgagor or to any other person as the Mortgagor may reasonably request in writing (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clause ‎18.2 (Avoidance of Payments) and without recourse to, or any representation or warranty by, the Mortgagee.

 

18.2Avoidance of Payments

 

If the Mortgagee considers that any amount paid or credited to or recovered by the Mortgagee by or from any Obligor or any Secured Obligations recovered by the Mortgagee is likely to be avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Mortgagor under this Deed and the Security constituted by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.

 

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19Subsequent and Prior Security Interests

 

19.1Subsequent security interests

 

If the Mortgagee at any time receives or is deemed to have received notice of any subsequent Security or other interest affecting all or any part of the Mortgaged Property or any assignment or transfer of the Mortgaged Property which is prohibited by the terms of this Deed or any Finance Document, all payments thereafter by or on behalf of any Obligor to the Mortgagee (whether in its capacity as security trustee or otherwise) shall be treated as having been credited to a new account of that Obligor and not as having been applied in reduction of the Secured Obligations as at the time when (or at any time after) the Mortgagee received such notice of such subsequent Security or other interest or such assignment or transfer.

 

19.2Prior security interests

 

In the event of any action, proceeding or step being taken to exercise any powers or remedies conferred by any prior ranking Security or upon the exercise by the Mortgagee or any Receiver of any power of sale under this Deed or any Collateral Right, at any time after this Security has become enforceable under this Deed, the Mortgagee may redeem any prior ranking Security over or affecting any Mortgaged Property or procure the transfer of any such prior ranking Security to itself. The Mortgagee may settle and agree the accounts of the beneficiary of any such prior Security and any accounts so settled and agreed will be conclusive and binding on the Mortgagor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption or transfer shall be paid by the Mortgagor to the Mortgagee upon demand.

  

20Discretion and Delegation

 

20.1Discretion

 

Any liberty or power which may be exercised or any determination which may be made under this Deed by the Mortgagee or any Receiver may be exercised or made in its absolute and unfettered discretion without any obligation to give reasons.

 

20.2Delegation

 

(a)Each of the Mortgagee and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions conferred on it by this Deed (including without limitation the power of attorney under Clause ‎15 (Power of Attorney)) on such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation or any revocation of such power, authority or discretion by the Mortgagee or any Receiver.

 

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(b)Neither the Mortgagee nor any Receiver will be in any way liable or responsible to the Mortgagor for any loss or liability arising from any act, default, omission, neglect or misconduct on the part of any delegate or sub-delegate.

 

20.3Protections

 

In acting as Mortgagee, the Mortgagee shall have the benefit of all indemnities, protections and rights on its part set out in the Finance Documents, as if set out fully herein.

 

21Changes to Parties

 

21.1No Assignment or Transfer by Mortgagor

 

The Mortgagor may not assign or transfer any of its rights (if any) or obligations under this Deed, except with the prior consent of the Mortgagee.

 

21.2Assignment and Transfer by Mortgagee

 

The Mortgagee may assign or transfer any of its rights or obligations under this Deed in accordance with the provisions of the Facility Agreement

 

22Amendments and Waivers

 

22.1Subject to clause 31 (Amendments and Waivers) of the Facility Agreement, any term of this Deed may be amended or waived only by agreement in writing between all parties hereto.

  

22.2No failure on the part of the Mortgagee to exercise, or delay on its part in exercising, any or all of its rights hereunder shall operate as a waiver thereof or constitute an election to affirm this Deed. No election to affirm this Deed on the part of the Mortgagee shall be effective unless it is in writing. No single or partial exercise of any such right or remedy shall preclude any further or other exercise of such or any other right or remedy.

 

23Notices

 

Any communications to be made under or in connection with this Deed shall be made in accordance with clause 27 (Notices) of the Facility Agreement.

 

24Rights of third parties

 

Each party hereto hereby agrees that each agent, manager, officer, employee, director, delegate or advisor of the Mortgagee who is not a party to this Deed (Third Party) has the express right to enforce the contractual terms of this Deed pursuant to the terms of the Contracts (Rights of Third Parties) Act, 2014. Notwithstanding any term of this Charge, the consent of or notice to any Third Party shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under this Deed at any time

 

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25Counterparts

 

This Deed may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.

 

26Governing Law

 

This Deed shall be governed by and construed in accordance with the laws of the Cayman Islands.

 

27Jurisdiction

 

27.1Cayman Islands courts

 

The courts of the Cayman Islands have exclusive jurisdiction to settle any dispute arising out of, or in connection with, this Deed (including a dispute regarding the existence, validity or termination of this Deed or the consequences of its nullity) (a Dispute).

 

27.2Convenient Forum

 

The parties hereto agree that the courts of the Cayman Islands are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary.

 

27.3Exclusive Jurisdiction

 

This Clause 27 is for the benefit of the Mortgagee only. As a result and notwithstanding Clause ‎27.1 (Cayman Islands courts), nothing herein shall prevent the Mortgagee from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law the Mortgagee may take concurrent proceedings in any number of jurisdictions.

 

27.4Service of process

 

(a)Without prejudice to any other mode of service allowed under any relevant law, the Mortgagor:

 

(i)irrevocably appoints Trident Trust Company (Cayman) Limited located at One Capital Place, 4th Floor, George Town, Grand Cayman, Cayman Islands as its agent for service of process in relation to any proceedings before the courts of the Cayman Islands in connection with this Deed; and

 

(ii)agrees that failure by a process agent to notify the Mortgagor of any process will not invalidate the proceedings concerned.

 

(b)If any person appointed as process agent under this Clause is unable for any reason to so act, the Mortgagor must promptly (and in any event within three days of the event taking place) appoint another agent on terms acceptable to the Mortgagee (acting reasonably). Failing this, the Mortgagee may appoint another process agent for this purpose.

 

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27.5Waiver of immunity

 

The Mortgagor irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from:

 

(a)suit;

 

(b)jurisdiction of any court or arbitral tribunal;

 

(c)relief by way of injunction or order for specific performance or recovery of property;

 

(d)attachment of its assets (whether before or after judgment); and

 

(e)execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts or arbitral tribunals of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any immunity in any such proceedings).

 

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IN WITNESS WHEREOF this Deed has been signed on behalf of the Mortgagee and executed as a deed by the Mortgagor and is intended to be and is hereby delivered by it as a deed on the date specified above.

 

The Mortgagor

 

 

EXECUTED   )  
as a DEED by   )  
GENTAO CAPITAL LIMITED )  
acting through its duly authorised signatory ) /s/ Sheng Chen
in the presence of ) Name of signatory: Sheng Chen
       
       
Signature of witness: /s/ Hanze Zheng    
Name of witness:       Hanze Zheng    

 

 

 

The Mortgagee

 

BOLD ALLY (CAYMAN) LIMITED

 

 

/s/ Isatou Smith   
Name: Isatou Smith   
Title: Authorised Signatory  

 

Execution Page to Cayman Share

Mortgage (GenTao)

 

Exhibit 99.8

 

EXECUTION VERSION

 

Dated 19 August 2021

 

FAST HORSE TECHNOLOGY LIMITED
as the Mortgagor

 

in favour of

 

BOLD ALLY (CAYMAN) LIMITED
as the Mortgagee

 

EQUITABLE SHARE MORTGAGE

 

(in respect of Class A ordinary shares and Class B ordinary shares held by the Mortgagor in 21Vianet Group, Inc.)

 

 

 

Warning: Stamp Duty will be payable if an original of this document is brought into the Cayman Islands

 

 

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Contents

 

Clause Page
   
1 Definitions and Interpretation 3
2 Payment of Secured Obligations 6
3 Security 6
4 Perfection of Security 7
5 Delivery of Documents 8
6 Further Assurance 10
7 Restrictions on Dealings 11
8 Operations Before and After Enforcement 11
9 Enforcement of Security 13
10 Powers of Sale 14
11 Appointment of Receiver 14
12 Powers of Receiver 15
13 Application of Monies 18
14 Receipt and Protection of purchasers 19
15 Power of Attorney 19
16 Representations 20
17 Effectiveness of Security 20
18 Release of Security 24
19 Subsequent and Prior Security Interests 24
20 Discretion and Delegation 25
21 Changes to Parties 25
22 Amendments and Waivers 26
23 Notices 26
24 Rights of third parties 26
25 Counterparts 26
26 Governing Law 26
27 Jurisdiction 26
Schedule 1 27
Schedule 2 28
Schedule 3 29
Schedule 4 29
SCHEDULE 5 29

 

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THIS DEED OF EQUITABLE SHARE MORTGAGE is made on 19 August 2021

 

Between

 

1Fast Horse Technology Limited, a BVI business company incorporated with limited liability under the laws of the British Virgin Islands with registration number 368150 and having its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Island (the Mortgagor);

 

and

 

2Bold Ally (Cayman) Limited, as lender (the Mortgagee, which expression shall include its successors, assigns and transferees).

 

NOW THIS DEED WITNESSES as follows:

 

1Definitions and Interpretation

 

1.1Definitions

 

ADS means an American depositary share issued by the Depositary, each representing 6 Company Class A Shares.

 

ADS Conversion Process means the process comprising of:

 

(a)the conversion of all or any part of the Shares (in the form of Company Class B Shares) into Company Class A Shares in accordance with the memorandum and articles of association of the Company; and/or

 

(b)the deposit of all or any part of the Company Class A Shares with the Depositary (or its nominee) in exchange for the issuance by the Depositary of a corresponding number of ADSs representing the Company Class A Shares being exchanged.

 

BVI Act means the BVI Business Companies Act (As Revised).

 

Collateral Rights means all rights, powers and remedies of the Mortgagee or any Receiver (or any Delegate pursuant to this Deed or the Finance Documents) provided by or pursuant to this Deed or by law.

 

Companies Act means the Companies Act (As Revised) of the Cayman Islands.

 

Company means 21Vianet Group, Inc., an exempted company incorporated under the laws of the Cayman Islands with company number 232198 and its registered office at Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.

 

Company Class A Shares means class A ordinary shares in the capital of the Company which has a par value of US$0.00001 each.

 

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Company Class B Shares means class B ordinary shares in the capital of the Company which has a par value of US$0.00001 each.

 

Delegate means any delegate, agent, attorney or co-trustee appointed by the Mortgagee or a Receiver.

 

Depositary has the meaning given to that term in the Facility Agreement.

 

Facility Agreement means the term loan facility agreement dated on or around the date of this Deed between, among others, GenTao Capital Limited as borrower, Beacon Capital Group Inc., Fast Horse Technology Limited, Sunrise Corporate Holding Ltd. and Sheng Chen as guarantors and Bold Ally (Cayman) Limited as lender.

 

Finance Document has the meaning given to that term in the Facility Agreement.

 

Further Shares means all Company Class A Shares and Company Class B Shares held by the Mortgagor which are required under clause 19.1 (Margin call), or any other provisions of the Facility Agreement to become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and which are specified as such in each duly completed Top-Up Notice in form and substance satisfactory to the Mortgagee accompanied by the documents referred to in Clause 5(c) (Delivery of Documents).

 

Initial Company Class B Shares means the 19,670,117 Company Class B Shares owned by the Mortgagor, represented by share certificates number OB-033 and OB-037).

 

Initial Shares means the Initial Company Class B Shares.

 

Mortgaged Property means the Shares and all present and future assets, rights, title, interests, advantages and benefits of the Mortgagor deriving from or incidental to any of the Shares including all Related Rights, which are the subject of the security created or expressed to be created in favour of the Mortgagee by or pursuant to this Deed.

 

Obligors has the meaning given to that term in the Facility Agreement.

 

Register of Members means the Register of Members of the Company (including any applicable branch register and non-listed shares register) maintained by the Company in accordance with the Companies Act.

 

Related Rights means, in relation to any Mortgaged Property:

 

(a)any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer, redemption, substitution, exchange, conversion or other disposal, of;

 

(b)any moneys or proceeds paid or payable (including interest and dividends) deriving from;

 

(c)any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to;

 

(d)any awards or judgments in favour of the Mortgaged Property in relation to;

 

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(e)any certificate or other evidence of title to;

 

(f)all other rights, powers, benefits and privileges, present and future, which the Mortgagor may have in respect of; and

 

(g)any other assets or property deriving from,

 

the Shares from time to time, including (A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 20.25 (Conditions Subsequent) and clause 19.1 (Margin call) of the Facility Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which the Mortgagor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary, custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether or not on a fungible basis (including any rights against any such person).

 

Restrictions Notice means a restrictions notice as defined in section 244(1) of the Companies Act.

 

Secured Obligation means all present and future obligations and liabilities of the Obligors (or any of them) in favour of the Mortgagee under the Facility Agreement, this Deed and other Finance Documents (or any of them) (as amended, restated, supplemented and/or novated from time to time), whether actual or contingent and whether owed or incurred alone or jointly and/or severally with another and as principal or as surety or in any other capacity or of any nature.

 

Security Period means the period beginning on the date of this Deed and ending on the date on which all the Secured Obligations have been unconditionally and irrevocably paid and discharged in full and the Mortgagee is under no further obligation to provide financial accommodation to any of the Obligors under any of the Finance Documents.

 

Share Conversion Form means a form relating to the conversion of Company Class B Shares to Company Class A Shares executed by the Mortgagor substantially in the form set out in Schedule 5 to this Deed.

 

Share Registrar means the share registrar for the Company (being Maples Fund Services (Cayman) Limited as at the date of this Deed).

 

Shares means:

 

(a)the Initial Company Class B Shares;

 

(b)the Further Shares; and

 

(c)any Company Class A Shares and/or Company Class B Shares acquired by the Mortgagor in respect of Shares by reason of a stock split, stock dividend paid or made in respect of Shares in the form of Company Class A Shares or Company Class B Shares (as the case may be), reclassification, conversion or otherwise, including any Company Class A Shares converted from Shares in the form of Company Class B Shares in accordance with the memorandum and articles of association of the Company and in accordance with the ADS Conversion Process (or otherwise);and

 

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(d)any Company Class A Shares released or returned by the Depositary (or its nominee) to the Mortgagor as a result of:

 

(A)any Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion Process for any reason; or

 

(B)any ADSs previously issued in exchange for the deposit of such Shares being surrendered for the purpose of withdrawal of the Company Class A Shares represented thereby (whether or not at the direction of the Mortgagee).

 

Top-Up Notice means a notice from the Mortgagor to, and executed by way of approval by, the Mortgagee substantially in the form set out in Schedule 4 to this Deed.

 

Voting Rights Notice has the meaning given to it in Clause 8.3 (Voting: After Enforcement).

 

1.2Construction

 

In this Deed:

 

(a)unless the context otherwise requires or a contrary intention appears, any term which is used but not defined in this Deed shall have the same meaning as defined in the Facility Agreement;

 

(b)the provisions in clause 2.1 (Construction) of the Facility Agreement apply to this Deed, except that references therein to "this Agreement" shall be construed as references to this Deed; and

 

(c)references in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this Deed.

 

2Payment of Secured Obligations

 

The Mortgagor hereby covenants with the Mortgagee that it shall on demand pay and discharge each of the Secured Obligations on its due date as provided for in the Finance Documents.

 

3Security

 

(a)As legal and beneficial owner and as continuing security for the due and prompt discharge and payment of the Secured Obligations, the Mortgagor hereby:

 

(i)mortgages in favour of the Mortgagee by way of a first equitable mortgage all its right, title and interest in and to the Shares; and

 

(ii)charges in favour of the Mortgagee, by way of a first fixed charge, all of its right, title and interest in and to the Mortgaged Property including all benefits, present and future, actual and contingent accruing in respect of the Mortgaged Property (to the extent not effectively mortgaged under Clause 3(a)(i)).

 

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(b)The Mortgagor hereby authorises the Mortgagee to arrange at any time following the occurrence of an Event of Default which is continuing for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Deed and at the request of the Mortgagee, the Mortgagor shall without delay procure that the foregoing shall be done.

 

4Perfection of Security

 

(a)The Mortgagor shall promptly after execution of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, promptly after such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) procure that the following notation to be entered on the Register of Members provided that such notation shall be completed to reflect the details of the relevant Shares:

 

"The [[ ] class A ordinary shares] [and] [[ ] class B ordinary shares] issued and registered in the name of Fast Horse Technology Limited represented by share certificate[s] number [ ] [and [ ]] are mortgaged and charged in favour of Bold Ally (Cayman) Limited pursuant to an equitable share mortgage dated [Date] 2021, as amended from time to time. The date that this annotation is made is [Date]."

 

(b)The Mortgagor shall provide the Mortgagee with a certified true copy of an extract of the Register of Members with the annotation referred to in paragraph (a) above within five Business Days of the date of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, within five Business Days of the date on which such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed).

 

(c)The Mortgagor shall:

 

(i)promptly after the execution of this Deed, instruct its British Virgin Islands registered agent to create and maintain a register of charges for the Mortgagor in accordance with section 162 of the BVI Act (the Register of Charges) to the extent that this has not already been done;

 

(ii)promptly after the execution of this Deed, enter particulars as required by the BVI Act of the security created pursuant this Deed in the Register of Charges and promptly after entry of such particulars has been made, and in any event within five Business Days of the date of this Deed, provide the Mortgagee with a certified true copy of the updated Register of Charges;

 

(iii)effect registration, or assist the Mortgagee in effecting registration, of this Deed with the Registrar of Corporate Affairs pursuant to section 163 of the BVI Act by making the required filing or assisting the Mortgagee in making the required filing in the approved form with the Registrar of Corporate Affairs and (if applicable) provide confirmation in writing to the Mortgagee that such filing has been made within three Business Days after the date this Deed is entered into; and

 

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(iv)if the registration referred to in paragraph (iii) above is not being effected by or on behalf of the Mortgagee, promptly on receipt, and in any event within 21 days of the date of this Deed, deliver or procure to be delivered to the Mortgagee, the certificate of registration of charge issued by the Registrar of Corporate Affairs and the filed stamped copy of the Register of Charges containing the relevant particulars of the security created by this Deed.

 

5Delivery of Documents

 

(a)The Mortgagor shall, on the date of this Deed, deposit with the Mortgagee (or procure the deposit with the Mortgagee of) the following documents in form and substance satisfactory to the Mortgagee:

 

(i)original valid and duly issued share certificates representing the Initial Shares;

 

(ii)an Instrument of Transfer in respect of the Initial Shares in the form set out in Schedule 1 to this Deed (an Instrument of Transfer) which has been duly executed by the Mortgagor as transferor in blank (with the date, the name of the transferee and the number of shares left blank);

 

(iii)an Irrevocable Proxy and PoA made in respect of the Initial Shares in the form set out in Schedule 2 to this Deed (an Irrevocable Proxy and PoA) which has been duly executed by the Mortgagor in blank (with the date and the number of shares left blank);

 

(iv)a notice of charge from the Mortgagor to the Company in respect of the Initial Shares in the form set out in Schedule 3 to this Deed (a Notice of Charge) which has been duly executed by the Mortgagor; and

 

(v)in respect of the Initial Shares, a signed but undated Share Conversion Form,

 

the Instrument of Transfer, the Irrevocable Proxy and PoA, the Notice of Charge and the Share Conversion Form, together, the Security Deliverables.

 

(b)The Mortgagor shall, in accordance with clause 20.25 (Conditions Subsequent) of the Facility Agreement, deposit with the Mortgagee (or procure the deposit with the Mortgagee of) such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in form and substance satisfactory to the Mortgagee.

 

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(c)If at any time, any Shares (other than the Initial Company Class B Shares) become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (including, for the avoidance of doubt, the Further Shares and the Shares pursuant to paragraphs (c) and (d) of the definition of "Shares") (such shares, the Additional Ordinary Shares), the Mortgagor shall, deliver (or procured there to be delivered) to the Mortgagee the following documents in form and substance satisfactory to the Mortgagee, [(i) in the case of any Additional Ordinary Shares that are Further Shares, on or prior to the date on which such Further Shares are required to be furnished as Security pursuant to clause [19.1] (Margin call) or any other provisions of the Facility Agreement (or, in respect of the documents set out in paragraph (v) below only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (c) of clause 20.25 (Conditions Subsequent) of the Facility Agreement) and (ii) in the case of other Additional Ordinary Shares, on the date on which such Additional Ordinary Shares become so subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (or, in respect of the documents set out in paragraph (v) below only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (c) of clause 20.25 (Conditions Subsequent) of the Facility Agreement):

 

(i)(in respect of any Additional Ordinary Shares which are Further Shares) a Top-Up Notice;

 

(ii)a certified true copy of an extract of the Register of Members showing the Mortgagor as the registered owner of the Additional Ordinary Shares;

 

(iii)original valid and duly issued share certificates representing such Additional Ordinary Shares;

 

(iv)all Security Deliverables in respect of such Additional Ordinary Shares (each of which has been duly executed by the Mortgagor in the manner set out in paragraph (a) above (save that a Share Conversion Form shall only be required to be delivered hereunder if such Additional Ordinary Shares are Company Class B Shares)) in form and substance satisfactory to the Mortgagee; and

 

(v)all such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in respect of such Additional Ordinary Shares in form and substance satisfactory to the Mortgagee.

 

(d)On the date of any removal or resignation of any director of the Mortgagor who executed any Security Deliverables or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above in respect of any Shares during the Security Period, the Mortgagor shall promptly deliver or cause to be delivered to the Mortgagee a replacement of all such items (each having been duly executed by a continuing or replacement director of the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above and (in other cases) in form and substance satisfactory to the Mortgagee) and a certified copy of the register of directors of the Mortgagor maintained by the Mortgagor in accordance with the BVI Act in form and substance satisfactory to the Mortgagee.

 

(e)If at any time during the Security Period, the Mortgagee determines that the form of any Security Deliverable or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above has been amended, updated or replaced by the Company, the Depositary, the Share Registrar and/or the registered office provider of the Company rendering such item or document delivered incapable of being used to effect the ADS Conversion Process, the Mortgagor shall promptly on demand by the Mortgagee, deliver to the Mortgagee a copy of the amended, updated or replaced form of such item or document (each having been duly executed by the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above) in form and substance satisfactory to the Mortgagee.

 

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(f)The Mortgagee shall be entitled to hold all documents and instruments delivered to it pursuant to this Clause 5 until the end of the Security Period, and the Mortgagor hereby irrevocably and unconditionally authorises (and, with respect to paragraph (ii) below, requests and authorises) the Mortgagee to (and the Mortgagee shall be entitled to):

 

(i)to the extent any fully executed Notice of Charge has not been delivered to the Company to the Mortgagee's satisfaction, deliver a copy of such fully executed Notice of Charge to the Company on the Mortgagor's behalf; and

 

(ii)at any time after the occurrence of an Event of Default which is continuing, to complete, date and put into effect, under its power of attorney given in this Deed or otherwise, such documents and instruments to effect a conversion of all or any Shares (that are in the form of Company Class B Shares) into Company Class A Shares and/or a transfer of all or any Shares in favour of itself or such other person as it shall direct and/or otherwise effect or complete any step of the ADS Conversion Process.

 

(g)Any document or instrument required to be delivered to the Mortgagee pursuant to this Clause 5 which is for any reason not so delivered or which is released by the Mortgagee to the Mortgagor shall be held on trust by the Mortgagor for the Mortgagee.

 

6Further Assurance

 

6.1Further Assurance: General

 

The Mortgagor shall, at its own expense, promptly do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices and instructions) as the Mortgagee or a Receiver may reasonably specify (and in such form as the Mortgagee or Receiver (as the case may be) may reasonably require) in favour of the Mortgagee or its nominees:

 

(a)to create, perfect, protect or preserve the security created or intended to be created in respect of the Mortgaged Property (which may include, without limitation, the re-execution of this Deed, the execution by the Mortgagor of a mortgage, charge, assignment or other security over all or any of the assets constituting, or intended to constitute, any part of the Mortgaged Property) and the giving of any notice, order or direction and the making of any filing or registration, or for the exercise of the Collateral Rights; and/or

 

(b)upon the occurrence of an Event of Default that is continuing, to facilitate the realisation and/or enforcement of the assets constituting, or intended to constitute, the Mortgaged Property (including to execute and complete in favour of the Mortgagee, the Company, the Share Registrar, the registered office provider of the Company, the Depositary (or the nominee of any of the foregoing) or any purchaser any document and to give any instruction which the Mortgagee may reasonably require to effect any step of the ADS Conversion Process or otherwise vest any of the Mortgaged Property in the Mortgagee, any Receiver or any other transferee or purchaser).

 

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6.2Necessary Action

 

The Mortgagor shall from time to time at its own cost take all such action (whether or not requested to do so by the Mortgagee) as is or shall be available to it (including without limitation obtaining and/or effecting all authorisations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and/or to exercise its rights and to perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence in the Cayman Islands.

 

6.3Covenants of Title

 

The obligations of the Mortgagor under this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.

 

7Restrictions on Dealings

 

7.1Negative Pledge

 

The Mortgagor undertakes that it shall not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Mortgaged Property unless expressly permitted under and in accordance with any of the Finance Documents.

 

7.2No Disposal of Interests

 

The Mortgagor undertakes that, during the subsistence of this Deed, it shall not, and shall not agree to, sell, assign, transfer or otherwise dispose of any Mortgaged Property except (a) as otherwise permitted under clauses 19.1(b), 20.5 and 20.25 of the Facility Agreement or the provisions hereof, or (b) with the prior written consent of the Mortgagee.

 

8Operations Before and After Enforcement

 

8.1Dividends

 

The Mortgagor shall ensure that all dividends paid or made in respect of any Mortgaged Property are applied in accordance with the terms of the Facility Agreement.

 

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8.2Voting: Before Enforcement

 

At any time prior to the delivery of a Voting Rights Notice, the Mortgagor shall be entitled to exercise (or refrain for exercising) or direct the exercise of the voting rights attached to any Shares provided that:

 

(a)it does so without contravening any provision of any Finance Document; and

 

(b)the exercise (or non-exercise) of those rights would not (i) have an adverse effect on the ability of the Mortgagee to realise the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or (ii) materially prejudice the interests of the Mortgagee under any Finance Document or its control of any Mortgaged Property.

 

8.3Voting: After Enforcement

 

(a)Following the occurrence of an Event of Default which is continuing, the Mortgagee may give notice to the Company (a Voting Rights Notice) (with a copy to the Mortgagor, failure to give which shall not invalidate the Voting Rights Notice) that the Mortgagor’s right under Clause 8.2 (Voting: Before Enforcement) shall cease and that the Mortgagee intends to exercise the voting and other rights under this Clause 8.3, in which event:

 

(i)the Mortgagee (or if the Mortgagee so directs, the Receiver) shall be entitled to exercise or direct the exercise of the voting and other rights attached to the Shares and the Mortgagor shall promptly provide the Mortgagee or the Receiver (if so required by the Mortgagee), with an irrevocable power of attorney to exercise in the Mortgagee’s sole discretion the voting rights attached to such Shares as determined by the Mortgagee; and

 

(ii)the Mortgagor shall promptly execute and/or deliver to the Mortgagee or the Receiver such forms of proxy as it reasonably requires with a view to enabling such person as it selects to exercise those rights.

 

(b)The Mortgagee will have no liability to the Mortgagor for any loss that results from the exercise or non-exercise of any voting rights attaching to such Shares or for any failure to deal with any notice relating to such Shares that is sent to the Mortgagee.

 

8.4Payment of Calls

 

(a)The Mortgagor must promptly pay all calls and other payments due and payable in respect of any Mortgaged Property.

 

(b)If the Mortgagor fails to pay all calls or other payments due and payable in respect of any Mortgaged Property, the Mortgagee may pay any call or other payment on behalf of the Mortgagor and the Mortgagor shall promptly upon request reimburse the Mortgagee for any payment made by it under this Clause.

 

8.5Exercise of Rights

 

The Mortgagor shall not exercise any of its rights and powers in relation to any of the Mortgaged Property in any manner which would prejudice the ability of the Mortgagee to realise the security created by this Deed.

 

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9Enforcement of Security

 

9.1Enforcement

 

On and from the occurrence of an Event of Default which is continuing or if the Mortgagor requests the Mortgagee to exercise any of its powers under this Deed, the Security created by or pursuant to this Deed is immediately enforceable and the Mortgagee may, without notice to the Mortgagor or prior authorisation from any court or any person, in its absolute discretion enforce all or any part of such Security at the times, in the manner and on the terms it thinks fit, including to:

 

(a)assume control of, and to have it or its nominee registered as holder of legal title to, any Mortgaged Property;

 

(b)sell, exchange, grant options over, or otherwise dispose of, any Mortgaged Property by any method, at any time and on any terms, it thinks fit or to postpone doing of any of these things;

 

(c)complete, date and deliver any document delivered to it under this Deed;

 

(d)effect any step of the ADS Conversion Process and take any such action the Mortgagee deems necessary or desirable to effect or facilitate any step of the ADS Conversion Process;

 

(e)borrow or raise money either unsecured or on the security of the Mortgaged Property (either in priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or otherwise);

 

(f)settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands relating to the Mortgaged Property;

 

(g)bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Mortgaged Property or any business of the Mortgagor;

 

(h)redeem any Security (whether or not having priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) over the Mortgaged Property and to settle the accounts of any person with an interest in the Mortgaged Property;

 

(i)exercise and do (or permit the Mortgagor or any nominee of the Mortgagor to exercise and do) all such rights and things as the Mortgagee would be capable of exercising or doing if it were the absolute beneficial owner of the Mortgaged Property; and/or

 

(j)exercise any other right, power or remedy given to it under this Deed (including to appoint a Receiver) or provided by law.

 

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9.2No Liability as Mortgagee in Possession

 

Neither the Mortgagee nor any Receiver shall be liable, by reason of entering into possession of any Mortgaged Property, to account as a mortgagee in possession in respect of all or any part of the Mortgaged Property or be liable for any loss upon realisation or enforcement of rights (and may at any time at its discretion go out of such possession) or for any neglect, default or omission in connection with the Mortgaged Property to which a mortgagee or a mortgagee in possession might otherwise be liable.

 

10Powers of Sale

 

10.1Extension of Powers

 

The power of sale or other disposal conferred on the Mortgagee and on any Receiver by this Deed shall arise (and the Secured Obligations shall be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement).

 

10.2Restrictions

 

Any restrictions imposed by law on the power of sale or on the consolidation of security shall be excluded to the fullest extent permitted by law.

 

11Appointment of Receiver

 

11.1Appointment and Removal

 

On and from the occurrence of an Event of Default that is continuing or if requested to do so by the Mortgagor, the Mortgagee may (but for the avoidance of doubt shall not be obliged to) by deed or otherwise (acting through an authorised officer of the Mortgagee), without any notice to the Mortgagor:

 

(a)appoint one or more person or persons as the Mortgagee thinks fit to be a Receiver of the whole or any part of the Mortgaged Property;

 

(b)appoint two or more Receivers of separate parts of the Mortgaged Property;

 

(c)remove (so far as it is lawfully able) any Receiver so appointed (whether or not the Mortgagee appoints any other person as a Receiver in its place); and/or

 

(d)appoint another person(s) as an additional or replacement Receiver(s).

 

11.2Capacity of Receivers

 

Each person appointed to be a Receiver pursuant to Clause ‎11.1 (Appointment and Removal) shall be:

 

(a)entitled to act individually or together with any other person appointed or substituted as Receiver;

 

(b)for all purposes deemed to be the agent of the Mortgagor and the Mortgagor shall be solely responsible for that Receiver's contracts, engagements, acts, omissions, defaults and losses and liabilities and for the payment of his remuneration and no Receiver shall at any time act as agent for the Mortgagee

 

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(c)entitled to remuneration for his services at a rate to be fixed by the Mortgagee from time to time, which remuneration shall be payable by the Mortgagor.

 

11.3Several Receivers

 

If at any time there is more than one Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless the document appointing such Receiver states otherwise).

 

11.4Powers of Appointment

 

The powers of appointment of a Receiver herein contained shall be in addition to all powers of appointment of the Mortgagee under applicable law and such powers shall remain exercisable from time to time by the Mortgagee in respect of all or any part of the Mortgaged Property.

 

12Powers of Receiver

 

12.1Powers of Receiver

 

Every Receiver shall (subject to any restrictions in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) have and be entitled to exercise, in relation to the Mortgaged Property or that part thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of the Mortgagor or in his own name and, in each case, at the cost of the Mortgagor):

 

(a)all the powers and rights of an absolute owner and power to do or omit to do anything which the Mortgagor itself could do or omit to do;

 

(b)all rights, powers and discretions conferred by this Deed (either expressly or impliedly) or by law on the Mortgagor;

 

(c)all the powers conferred on a receiver by any provision of Cayman Islands law; and

 

(d)the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Mortgagor) which appear to the Receiver to be incidental or conducive to (i) any of the functions, rights, powers, authorities or discretions conferred on or vested in him or (ii) the exercise of any Collateral Rights (including without limitation realisation of all or any part of the Mortgaged Property) under or by virtue of this Deed or law or (iii) bringing to his hands any assets of the Mortgagor forming, or which, when got in, would be part of the Mortgaged Property.

 

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12.2Additional Powers of Receiver

 

In addition to and without prejudice to the generality of Clause 12.1, every Receiver shall have (subject to any limitations or restrictions expressed in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) the following powers in relation to the Mortgaged Property in respect of which he is appointed (and every reference in this Clause 12.2 to the Mortgaged Property shall be read as a reference to that part of the Mortgaged Property in respect of which such Receiver is appointed):

 

(a)Take Possession

 

power to enter upon, take immediate possession of, collect and get in the Mortgaged Property including without limitation dividends and other income whether accrued before or after the date of his appointment;

 

(b)Employees

 

power to appoint, hire and employ officers, employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to guard or protect the Mortgaged Property upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons and any such persons appointed, hired or employed by the Mortgagor;

 

(c)Proceedings and Claims

 

power to bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Mortgaged Property or this Deed in the name of the Mortgagor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications, claims, disputes, actions, suits or proceedings;

 

(d)Carry on Business

 

power to carry on and manage, or concur in the carrying on and management of or to appoint a manager of, the whole or any part of the Mortgaged Property or any business relating thereto in such manner as he shall in his absolute discretion think fit;

 

(e)Deal with Mortgaged Property

 

power, in relation to the Mortgaged Property and each and every part thereof, by public auction or private contract, to sell, transfer, convey, dispose of, exchange, convert into money, realise or concur in any of the foregoing by the Mortgagor or any other receiver or manager of the Mortgagor (including without limitation to or in favour of the Mortgagee) in such manner and generally on such terms as he thinks fit, and the consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over any period which the Receiver thinks fit

 

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(f)Acquisitions

 

power to purchase, lease, hire or otherwise acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying on, improvement or realisation of the whole or any part of the Mortgaged Property or otherwise for the benefit of the whole or any part of the Mortgaged Property;

 

(g)New Subsidiary

 

power to promote, procure the formation or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Mortgagor or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Mortgaged Property or carrying on any business in succession to the Mortgagor or any subsidiary of the Mortgagor;

 

(h)Insurance

 

power to effect, maintain or renew indemnity and other insurances and to obtain bonds and performance guarantees and do any other act which the Mortgagor might do in the ordinary conduct of its business to protect or improve any Mortgaged Property;

 

(i)Borrowing

 

power to raise or borrow money from the Mortgagee or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and with or without a mortgage or charge on the Mortgaged Property or any part of it on such terms as he shall in his absolute discretion think fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power or the application of money so raised or borrowed);

 

(j)Redemption of Security

 

power to redeem, discharge or compromise any Security whether or not having priority to the Security constituted by this Deed or any part of it;

 

(k)Covenants, Guarantees and Indemnities

 

power to enter into bonds, covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect, maintain or satisfy such obligations or liabilities and to use the seal of the Mortgagor;

 

(l)Advisors

 

power to appoint an attorney or solicitor or accountant or other professional qualified person to assist him in the performance of his functions;

 

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(m)Receipts

 

power to give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Mortgaged Property;

 

(n)Payment

 

power to make any payment which is necessary or incidental to the performance of his functions;

 

(o)Delegation

 

power to delegate his powers in accordance with this Deed; and

 

(p)Exercise of Powers in Mortgagor's Name

 

power to exercise any or all of the above powers on behalf of and in the name of the Mortgagor (notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency, dissolution or similar proceedings in respect of the Mortgagor) or on his own behalf.

 

12.3Relationship with Mortgagee

 

To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed becomes enforceable be exercised by the Mortgagee in relation to any Mortgaged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.

 

13Application of Monies

 

13.1Order of Application

 

Without prejudice to Clause 13.2 (Suspense account), the Mortgagee (and any Receiver) shall apply the monies received by it as a result of the enforcement of the Security created hereby or pursuant to this Deed in accordance with clause 25.4 (Partial payments) of the Facility Agreement.

 

13.2Suspense account

 

Any monies received, recovered or realised by the Mortgagee or any Receiver under this Deed or the powers conferred by it (including the proceeds of any conversion of currency) may, in the discretion of the Mortgagee or any Receiver, be credited to and held in any suspense or impersonal account pending their application from time to time in or towards the discharge of any of the Secured Obligations in accordance with Clause ‎13.1 (Order of Application).

 

13.3Application by Mortgagor

 

Any application under this Clause ‎13 shall override any application by the Mortgagor.

 

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14Receipt and Protection of purchasers

 

14.1Receipt

 

The receipt of the Mortgagee or any Receiver shall be conclusive discharge to a purchaser of any part of the Mortgaged Property from the Mortgagee or such Receiver.

 

14.2Protection of purchasers

 

No person (including a purchaser) dealing with the Mortgagee or a Receiver or its or his agents will be obliged or concerned to enquire:

 

(a)whether the Secured Obligations have become payable;

 

(b)whether any power which the Mortgagee or a Receiver is purporting to exercise has become exercisable or is being properly exercised;

 

(c)whether any money remains due under the Finance Documents; or

 

(d)how any money paid to the Mortgagee or to that Receiver is to be applied.

 

15Power of Attorney

 

15.1Appointment and Powers

 

The Mortgagor, by way of security, irrevocably appoints the Mortgagee, each Receiver and each of their respective delegates and sub-delegates and any person nominated for the purpose by the Mortgagee or any Receiver severally to be its true and lawful attorney (with full power of substitution and delegation) in its name (or otherwise) and on its behalf and as its act and deed or otherwise, at any time following (a) the occurrence of an Event of Default that is continuing or (b) a failure by the Mortgagor to comply within five (5) Business Days of any further assurance or any other obligation under this Deed, to execute, seal, deliver (using the company seal where appropriate) and perfect all documents and do all things which the Mortgagee or such Receiver may consider to be required for:

 

(a)carrying out any obligation imposed on the Mortgagor under this Deed (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Mortgaged Property or any part thereof and perfecting and/or releasing the Security created or intended to be created in respect of the Mortgaged Property or any part thereof); and

 

(b)enabling the Mortgagee and any Receiver to exercise, or delegate the exercise of, or to protect or preserve, any of the rights, powers and authorities conferred on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of an Event of Default that is continuing, the exercise of any right of a legal or beneficial owner of the Mortgaged Property or any part thereof).

 

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15.2Ratification

 

The Mortgagor shall ratify and confirm all things done and all documents executed (or purportedly done or executed) by any attorney in the proper exercise of all or any of its powers conferred by this clause 15.

 

16Representations

 

16.1Representations

 

On the date of this Deed, the Mortgagor makes the representations and warranties set out in clause 16 (Representations) of the Facility Agreement mutatis mutandis to the Mortgagee and further represents and warrants to the Mortgagee that:

 

(a)it is the sole and absolute legal and beneficial owner of the Mortgaged Property; and

 

(b)none of the Mortgaged Property is subject to or affected by any Restrictions Notice issued by the Company or its registered office provider pursuant to the Companies Act.

 

16.2Repetition

 

The representations and warranties set out in paragraphs (a) and (b) of Clause 16.1 (Representations) above shall be deemed to be repeated by the Mortgagor continuously from the date of this Deed until the expiry of the Security Period, in each case by reference to the facts and circumstances existing at the date on which such representation or warranty is deemed to be made or repeated.

 

17Effectiveness of Security

 

17.1Continuing Security

 

The Security created by or pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations notwithstanding any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.

 

17.2Cumulative Rights

 

The Security created by this Deed and the Collateral Rights shall be cumulative, in addition to and independent of every other Security which the Mortgagee may at any time hold for any or all of the Secured Obligations or any obligations or any rights, powers and remedies provided by law. No prior security held by the Mortgagee over the whole or any part of the Mortgaged Property shall merge into, nor in any way exclude or prejudice or affect, the security constituted by this Deed. The foregoing applies notwithstanding any receipt, release or discharge endorsed or given in respect of or under any such other Security.

 

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17.3Mortgagor's Obligations

 

None of the Security created by or pursuant to this Deed, the obligations of the Mortgagor under this Deed nor the Collateral Rights shall be affected by an act, omission, matter, thing or event which, but for this Clause ‎17.3, would reduce, release or prejudice any of the Security created by or pursuant to this Deed, any of the obligations of the Mortgagor under this Deed or the Collateral Rights including (without limitation and whether or not known to it or the Mortgagee):

 

17.3.1the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of any Obligor or any other person or any change in its status, function, control or ownership;

 

17.3.2any of the obligations of any Obligor or any other person under any Finance Document, or under any other security relating to any Finance Document, or under any other document or security, being or becoming illegal, invalid, unenforceable or ineffective in any respect;

 

17.3.3any time, waiver or consent or any other indulgence or concession granted to, or composition with, any Obligor or any other person;

 

17.3.4any release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any Obligor or any other person;

 

17.3.5the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

17.3.6the existence of any claim, set-off or other right which the Mortgagor may have at any time against the Mortgagee or any other person;

 

17.3.7any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Obligor or any other person;

 

17.3.8any variation, amendment, novation, waiver, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of or in connection with, a Finance Document or any other document or security, guarantee or indemnity or of the Secured Obligations;

 

17.3.9any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security;

 

17.3.10any insolvency, bankruptcy or similar proceedings;

 

17.3.11any claims or set-off right that the Mortgagor may have; or

 

17.3.12any law, regulation or decree or order of any jurisdiction affecting any Obligor.

 

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17.4Mortgagor intent

 

Without prejudice to the generality of Clause 17.3 (Mortgagor's Obligations), the Mortgagor expressly confirms that it intends that the Security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

17.5Remedies and Waivers

 

(a)No failure on the part of the Mortgagee or any Receiver to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof or constitute an election to affirm this Deed.

 

(b)No election by the Mortgagee or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective unless it is in writing.

 

(c)The Collateral Rights are cumulative and not exclusive of the rights of the Mortgagee or any Receiver under the general law. No single or partial exercise of any Collateral Right shall preclude any further or other exercise of that or any other Collateral Right.

 

17.6Immediate recourse

 

The Mortgagor waives any right it may have of first requiring the Mortgagee (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative to any other person before claiming from the Mortgagor under this Deed.

 

17.7No Liability

 

None of the Mortgagee, its nominee(s) or any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection with all or any part of the Mortgaged Property or (c) taking possession of or realising all or any part of the Mortgaged Property.

 

17.8Partial Invalidity

 

If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.

 

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17.9No Prior Demand

 

The Mortgagee shall not be obliged to make any demand of or enforce any rights or claim against any Obligor or any other person, to take any action or obtain judgment in any court against any Obligor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of any Obligor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before exercising any Collateral Right.

 

17.10Deferral of rights

 

Until the expiry of the Security Period, the Mortgagor will not (unless the Mortgagee otherwise directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:

 

17.10.1to be indemnified by any Obligor;

 

17.10.2to claim any contribution from any guarantor of or provider of security for any Obligor's obligations under the Finance Documents;

 

17.10.3to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Mortgagee under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by the Mortgagee;

 

17.10.4to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Mortgagor has given a guarantee, security, undertaking or indemnity under any Finance Document;

 

17.10.5to exercise any right of set-off against any Obligor; and/or

 

17.10.6to claim or prove as a creditor of any Obligor in competition with the Mortgagee.

 

If the Mortgagor shall receive any benefit, payment or distribution in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all Secured Obligations to be paid in full) on trust for the Mortgagee, and shall promptly pay or transfer the same to the Mortgagee (or as the Mortgagee may direct) for application in accordance with clause 13.1 (Order of Application).

 

17.11Reinstatement

 

If any payment in respect of any Secured Obligation or any settlement, discharge or release of any Secured Obligation by or on behalf of the Mortgagee is avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application or any similar event or for any other reason, the liability of the Mortgagor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge or release had not occurred.

 

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18Release of Security

 

18.1Final redemption

 

Upon the expiry of the Security Period, the Mortgagee shall, at the request (with reasonable notice) and cost of the Mortgagor, promptly do all things and execute all documents as may be necessary to evidence the release, discharge and cancel the Security constituted by this Deed and procure the reassignment to the Mortgagor of the property and assets assigned to the Mortgagee pursuant to this Deed (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), including without limitation the execution of a deed of release in favour of the Mortgagor and delivering all documents of title and evidence of ownership in respect of the Mortgaged Property delivered under Clause 5 to the Mortgagor or to any other person as the Mortgagor may reasonably request in writing (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clause ‎18.2 (Avoidance of Payments) and without recourse to, or any representation or warranty by, the Mortgagee.

 

18.2Avoidance of Payments

 

If the Mortgagee considers that any amount paid or credited to or recovered by the Mortgagee by or from any Obligor or any Secured Obligations recovered by the Mortgagee is likely to be avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Mortgagor under this Deed and the Security constituted by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.

 

19Subsequent and Prior Security Interests

 

19.1Subsequent security interests

 

If the Mortgagee at any time receives or is deemed to have received notice of any subsequent Security or other interest affecting all or any part of the Mortgaged Property or any assignment or transfer of the Mortgaged Property which is prohibited by the terms of this Deed or any Finance Document, all payments thereafter by or on behalf of any Obligor to the Mortgagee (whether in its capacity as security trustee or otherwise) shall be treated as having been credited to a new account of that Obligor and not as having been applied in reduction of the Secured Obligations as at the time when (or at any time after) the Mortgagee received such notice of such subsequent Security or other interest or such assignment or transfer.

 

19.2Prior security interests

 

In the event of any action, proceeding or step being taken to exercise any powers or remedies conferred by any prior ranking Security or upon the exercise by the Mortgagee or any Receiver of any power of sale under this Deed or any Collateral Right, at any time after this Security has become enforceable under this Deed, the Mortgagee may redeem any prior ranking Security over or affecting any Mortgaged Property or procure the transfer of any such prior ranking Security to itself. The Mortgagee may settle and agree the accounts of the beneficiary of any such prior Security and any accounts so settled and agreed will be conclusive and binding on the Mortgagor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption or transfer shall be paid by the Mortgagor to the Mortgagee upon demand.

 

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20Discretion and Delegation

 

20.1Discretion

 

Any liberty or power which may be exercised or any determination which may be made under this Deed by the Mortgagee or any Receiver may be exercised or made in its absolute and unfettered discretion without any obligation to give reasons.

 

20.2Delegation

 

(a)Each of the Mortgagee and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions conferred on it by this Deed (including without limitation the power of attorney under Clause ‎15 (Power of Attorney)) on such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation or any revocation of such power, authority or discretion by the Mortgagee or any Receiver.

 

(b)Neither the Mortgagee nor any Receiver will be in any way liable or responsible to the Mortgagor for any loss or liability arising from any act, default, omission, neglect or misconduct on the part of any delegate or sub-delegate.

 

20.3Protections

 

In acting as Mortgagee, the Mortgagee shall have the benefit of all indemnities, protections and rights on its part set out in the Finance Documents, as if set out fully herein.

 

21Changes to Parties

 

21.1No Assignment or Transfer by Mortgagor

 

The Mortgagor may not assign or transfer any of its rights (if any) or obligations under this Deed, except with the prior consent of the Mortgagee.

 

21.2Assignment and Transfer by Mortgagee

 

The Mortgagee may assign or transfer any of its rights or obligations under this Deed in accordance with the provisions of the Facility Agreement

 

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22Amendments and Waivers

 

22.1Subject to clause 31 (Amendments and Waivers) of the Facility Agreement, any term of this Deed may be amended or waived only by agreement in writing between all parties hereto.

 

22.2No failure on the part of the Mortgagee to exercise, or delay on its part in exercising, any or all of its rights hereunder shall operate as a waiver thereof or constitute an election to affirm this Deed. No election to affirm this Deed on the part of the Mortgagee shall be effective unless it is in writing. No single or partial exercise of any such right or remedy shall preclude any further or other exercise of such or any other right or remedy.

 

23Notices

 

Any communications to be made under or in connection with this Deed shall be made in accordance with clause 27 (Notices) of the Facility Agreement.

 

24Rights of third parties

 

Each party hereto hereby agrees that each agent, manager, officer, employee, director, delegate or advisor of the Mortgagee who is not a party to this Deed (Third Party) has the express right to enforce the contractual terms of this Deed pursuant to the terms of the Contracts (Rights of Third Parties) Act, 2014. Notwithstanding any term of this Charge, the consent of or notice to any Third Party shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under this Deed at any time

 

25Counterparts

 

This Deed may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.

 

26Governing Law

 

This Deed shall be governed by and construed in accordance with the laws of the Cayman Islands.

 

27Jurisdiction

 

27.1Cayman Islands courts

 

The courts of the Cayman Islands have exclusive jurisdiction to settle any dispute arising out of, or in connection with, this Deed (including a dispute regarding the existence, validity or termination of this Deed or the consequences of its nullity) (a Dispute).

 

27.2Convenient Forum

 

The parties hereto agree that the courts of the Cayman Islands are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary.

 

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27.3Exclusive Jurisdiction

 

This Clause 27 is for the benefit of the Mortgagee only. As a result and notwithstanding Clause ‎27.1 (Cayman Islands courts), nothing herein shall prevent the Mortgagee from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law the Mortgagee may take concurrent proceedings in any number of jurisdictions.

 

27.4Service of process

 

(a)Without prejudice to any other mode of service allowed under any relevant law, the Mortgagor:

 

(i)irrevocably appoints Trident Trust Company (Cayman) Limited located at One Capital Place, 4th Floor, George Town, Grand Cayman, Cayman Islands as its agent for service of process in relation to any proceedings before the courts of the Cayman Islands in connection with this Deed; and

 

(ii)agrees that failure by a process agent to notify the Mortgagor of any process will not invalidate the proceedings concerned.

 

(b)If any person appointed as process agent under this Clause is unable for any reason to so act, the Mortgagor must promptly (and in any event within three days of the event taking place) appoint another agent on terms acceptable to the Mortgagee (acting reasonably). Failing this, the Mortgagee may appoint another process agent for this purpose.

 

27.5Waiver of immunity

 

The Mortgagor irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from:

 

(a)suit;

 

(b)jurisdiction of any court or arbitral tribunal;

 

(c)relief by way of injunction or order for specific performance or recovery of property;

 

(d)attachment of its assets (whether before or after judgment); and

 

(e)execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts or arbitral tribunals of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any immunity in any such proceedings).

 

27

 

 

IN WITNESS WHEREOF this Deed has been signed on behalf of the Mortgagee and executed as a deed by the Mortgagor and is intended to be and is hereby delivered by it as a deed on the date specified above.

 

The Mortgagor

 

 

EXECUTED   )  
as a DEED by   )  
FAST HORSE TECHNOLOGY LIMITED )  
acting through its duly authorised signatory ) /s/ Sheng Chen
in the presence of ) Name of signatory: Sheng Chen
       
       
Signature of witness: /s/ Hanze Zheng    
Name of witness:       Hanze Zheng    

 

 

 

The Mortgagee

 

BOLD ALLY (CAYMAN) LIMITED

 

 

/s/ Isatou Smith   
Name: Isatou Smith   
Title: Authorised Signatory  

 

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Exhibit 99.9

 

EXECUTION VERSION

 

Dated 19 August 2021

 

SUNRISE CORPORATE HOLDING LTD.
as the Mortgagor

 

in favour of

 

BOLD ALLY (CAYMAN) LIMITED
as the Mortgagee

 

 

 

EQUITABLE SHARE MORTGAGE

 

(in respect of Class A ordinary shares and Class B ordinary shares held by the Mortgagor in 21Vianet Group, Inc.)

 

 

 

Warning: Stamp Duty will be payable if an original of this document is brought into the Cayman Islands

 

 

 

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Contents

 

Clause Page
   
1 Definitions and Interpretation 3
2 Payment of Secured Obligations 6
3 Security 6
4 Perfection of Security 7
5 Delivery of Documents 8
6 Further Assurance 11
7 Restrictions on Dealings 11
8 Operations Before and After Enforcement 12
9 Enforcement of Security 13
10 Powers of Sale 14
11 Appointment of Receiver 15
12 Powers of Receiver 16
13 Application of Monies 19
14 Receipt and Protection of purchasers 19
15 Power of Attorney 19
16 Representations 20
17 Effectiveness of Security 21
18 Release of Security 24
19 Subsequent and Prior Security Interests 25
20 Discretion and Delegation 25
21 Changes to Parties 26
22 Amendments and Waivers 26
23 Notices 26
24 Rights of third parties 26
25 Counterparts 26
26 Governing Law 27
27 Jurisdiction 27
Schedule 1 27
Schedule 2 28
Schedule 3 29
Schedule 4 29
SCHEDULE 5 29

 

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THIS DEED OF EQUITABLE SHARE MORTGAGE is made on 19 August 2021

 

Between

 

1Sunrise Corporate Holding Ltd., a BVI business company incorporated with limited liability under the laws of the British Virgin Islands with registration number 1622848 and having its registered office at Kingston Chambers P.O. Box 173, Road Town, Tortola, British Virgin Islands (the Mortgagor);

 

and

 

2Bold Ally (Cayman) Limited, as lender (the Mortgagee, which expression shall include its successors, assigns and transferees).

 

NOW THIS DEED WITNESSES as follows:

 

1Definitions and Interpretation

 

1.1Definitions

 

ADS means an American depositary share issued by the Depositary, each representing 6 Company Class A Shares.

 

ADS Conversion Process means the process comprising of:

 

(a)the conversion of all or any part of the Shares (in the form of Company Class B Shares) into Company Class A Shares in accordance with the memorandum and articles of association of the Company; and/or

 

(b)the deposit of all or any part of the Company Class A Shares with the Depositary (or its nominee) in exchange for the issuance by the Depositary of a corresponding number of ADSs representing the Company Class A Shares being exchanged.

 

BVI Act means the BVI Business Companies Act (As Revised).

 

Collateral Rights means all rights, powers and remedies of the Mortgagee or any Receiver (or any Delegate pursuant to this Deed or the Finance Documents) provided by or pursuant to this Deed or by law.

 

Companies Act means the Companies Act (As Revised) of the Cayman Islands.

 

Company means 21Vianet Group, Inc., an exempted company incorporated under the laws of the Cayman Islands with company number 232198 and its registered office at Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.

 

Company Class A Shares means class A ordinary shares in the capital of the Company which has a par value of US$0.00001 each.

 

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Company Class B Shares means class B ordinary shares in the capital of the Company which has a par value of US$0.00001 each.

 

Delegate means any delegate, agent, attorney or co-trustee appointed by the Mortgagee or a Receiver.

 

Depositary has the meaning given to that term in the Facility Agreement.

 

Facility Agreement means the term loan facility agreement dated on or around the date of this Deed between, among others, GenTao Capital Limited as borrower, Beacon Capital Group Inc., Fast Horse Technology Limited, Sunrise Corporate Holding Ltd. and Sheng Chen as guarantors and Bold Ally (Cayman) Limited as lender.

 

Finance Document has the meaning given to that term in the Facility Agreement.

 

Further Shares means all Company Class A Shares and Company Class B Shares held by the Mortgagor which are required under clause 19.1 (Margin call) or any other provisions of the Facility Agreement to become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and which are specified as such in each duly completed Top-Up Notice in form and substance satisfactory to the Mortgagee accompanied by the documents referred to in Clause 5(c) (Delivery of Documents).

 

Initial Company Class A Shares means the 6,700,000 Company Class A Shares owned by the Mortgagor, represented by share certificate number OA-148.

 

Initial Company Class B Shares means the 12,187,875 Company Class B Shares owned by the Mortgagor, represented by share certificate number OB-058.

 

Initial Shares means the Initial Company Class A Shares and the Initial Company Class B Shares.

 

Mortgaged Property means the Shares and all present and future assets, rights, title, interests, advantages and benefits of the Mortgagor deriving from or incidental to any of the Shares including all Related Rights, which are the subject of the security created or expressed to be created in favour of the Mortgagee by or pursuant to this Deed.

 

Obligors has the meaning given to that term in the Facility Agreement.

 

Register of Members means the Register of Members of the Company (including any applicable branch register and non-listed shares register) maintained by the Company in accordance with the Companies Act.

 

Related Rights means, in relation to any Mortgaged Property:

 

(a)any proceeds of sale, transfer, redemption, substitution, exchange, conversion or other disposal, or agreement for sale, transfer, redemption, substitution, exchange, conversion or other disposal, of;

 

(b)any moneys or proceeds paid or payable (including interest and dividends) deriving from;

 

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(c)any rights (including to securities), claims, guarantees, indemnities, security or covenants for title in relation to;

 

(d)any awards or judgments in favour of the Mortgaged Property in relation to;

 

(e)any certificate or other evidence of title to;

 

(f)all other rights, powers, benefits and privileges, present and future, which the Mortgagor may have in respect of; and

 

(g)any other assets or property deriving from,

 

the Shares from time to time, including (A) any ADSs issued in exchange for the deposit of Shares with the Depositary (or its nominee) in accordance with clause 20.25 (Conditions Subsequent) and clause 19.1 (Margin call) of the Facility Agreement and the ADS Conversion Process and (B) all other securities, assets or rights which the Mortgagor may have to any or all of the Shares which are deposited with or registered in the name of the Depositary or any other depositary, custodian, nominee, clearing house or system, investment manager, chargee or other similar person or their nominee, in each case whether or not on a fungible basis (including any rights against any such person).

 

Restrictions Notice means a restrictions notice as defined in section 244(1) of the Companies Act.

 

Secured Obligation means all present and future obligations and liabilities of the Obligors (or any of them) in favour of the Mortgagee under the Facility Agreement, this Deed and other Finance Documents (or any of them) (as amended, restated, supplemented and/or novated from time to time), whether actual or contingent and whether owed or incurred alone or jointly and/or severally with another and as principal or as surety or in any other capacity or of any nature.

 

Security Period means the period beginning on the date of this Deed and ending on the date on which all the Secured Obligations have been unconditionally and irrevocably paid and discharged in full and the Mortgagee is under no further obligation to provide financial accommodation to any of the Obligors under any of the Finance Documents.

 

Share Conversion Form means a form relating to the conversion of Company Class B Shares to Company Class A Shares executed by the Mortgagor substantially in the form set out in Schedule 5 to this Deed.

 

Share Registrar means the share registrar for the Company (being Maples Fund Services (Cayman) Limited as at the date of this Deed).

 

Shares means:

 

(a)the Initial Company Class A Shares;

 

(b)the Initial Company Class B Shares;

 

(c)the Further Shares; and

 

(d)any Company Class A Shares and/or Company Class B Shares acquired by the Mortgagor in respect of Shares by reason of a stock split, stock dividend paid or made in respect of Shares in the form of Company Class A Shares or Company Class B Shares (as the case may be), reclassification, conversion or otherwise, including any Company Class A Shares converted from Shares in the form of Company Class B Shares in accordance with the memorandum and articles of association of the Company and in accordance with the ADS Conversion Process (or otherwise);and

 

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(e)any Company Class A Shares released or returned by the Depositary (or its nominee) to the Mortgagor as a result of:

 

(A)any Shares being unable to be deposited with the Depositary in accordance with the ADS Conversion Process for any reason; or

 

(B)any ADSs previously issued in exchange for the deposit of such Shares being surrendered for the purpose of withdrawal of the Company Class A Shares represented thereby (whether or not at the direction of the Mortgagee).

 

Top-Up Notice means a notice from the Mortgagor to, and executed by way of approval by, the Mortgagee substantially in the form set out in Schedule 4 to this Deed.

 

Voting Rights Notice has the meaning given to it in Clause 8.3 (Voting: After Enforcement).

 

1.2Construction

 

In this Deed:

 

(a)unless the context otherwise requires or a contrary intention appears, any term which is used but not defined in this Deed shall have the same meaning as defined in the Facility Agreement;

 

(b)the provisions in clause 2.1 (Construction) of the Facility Agreement apply to this Deed, except that references therein to "this Agreement" shall be construed as references to this Deed; and

 

(c)references in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this Deed.

 

2Payment of Secured Obligations

 

The Mortgagor hereby covenants with the Mortgagee that it shall on demand pay and discharge each of the Secured Obligations on its due date as provided for in the Finance Documents.

 

3Security

 

(a)As legal and beneficial owner and as continuing security for the due and prompt discharge and payment of the Secured Obligations, the Mortgagor hereby:

 

(i)mortgages in favour of the Mortgagee by way of a first equitable mortgage all its right, title and interest in and to the Shares; and

 

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(ii)charges in favour of the Mortgagee, by way of a first fixed charge, all of its right, title and interest in and to the Mortgaged Property including all benefits, present and future, actual and contingent accruing in respect of the Mortgaged Property (to the extent not effectively mortgaged under Clause 3(a)(i)).

 

(b)The Mortgagor hereby authorises the Mortgagee to arrange at any time following the occurrence of an Event of Default which is continuing for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Deed and at the request of the Mortgagee, the Mortgagor shall without delay procure that the foregoing shall be done.

 

4Perfection of Security

 

(a)The Mortgagor shall promptly after execution of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, promptly after such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) procure that the following notation to be entered on the Register of Members provided that such notation shall be completed to reflect the details of the relevant Shares:

 

"The [ ] class A ordinary shares and [ ] class B ordinary shares issued and registered in the name of Sunrise Corporate Holding Ltd. represented by share certificate number[s] [ ] and [ ] are mortgaged and charged in favour of Bold Ally (Cayman) Limited pursuant to an equitable share mortgage dated [Date] 2021, as amended from time to time. The date that this annotation is made is [Date]."

 

(b)The Mortgagor shall provide the Mortgagee with a certified true copy of an extract of the Register of Members with the annotation referred to in paragraph (a) above within five Business Days of the date of this Deed (or, in respect of any Additional Ordinary Shares (as defined below) acquired after the date of this Deed, within five Business Days of the date on which such Additional Ordinary Shares become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed).

 

(c)The Mortgagor shall:

 

(i)promptly after the execution of this Deed, instruct its British Virgin Islands registered agent to create and maintain a register of charges for the Mortgagor in accordance with section 162 of the BVI Act (the Register of Charges) to the extent that this has not already been done;

 

(ii)promptly after the execution of this Deed, enter particulars as required by the BVI Act of the security created pursuant this Deed in the Register of Charges and promptly after entry of such particulars has been made, and in any event within five Business Days of the date of this Deed, provide the Mortgagee with a certified true copy of the updated Register of Charges;

 

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(iii)effect registration, or assist the Mortgagee in effecting registration, of this Deed with the Registrar of Corporate Affairs pursuant to section 163 of the BVI Act by making the required filing or assisting the Mortgagee in making the required filing in the approved form with the Registrar of Corporate Affairs and (if applicable) provide confirmation in writing to the Mortgagee that such filing has been made within three Business Days after the date this Deed is entered into; and

 

(iv)if the registration referred to in paragraph (iii) above is not being effected by or on behalf of the Mortgagee, promptly on receipt, and in any event within 21 days of the date of this Deed, deliver or procure to be delivered to the Mortgagee, the certificate of registration of charge issued by the Registrar of Corporate Affairs and the filed stamped copy of the Register of Charges containing the relevant particulars of the security created by this Deed.

 

5Delivery of Documents

 

(a)The Mortgagor shall deposit with the Mortgagee (or procure the deposit with the Mortgagee of) the following documents in form and substance satisfactory to the Mortgagee:

 

(i)on the date of this Deed, the original valid and duly issued share certificate representing the Initial Company Class A Shares;

 

(ii)within five Business Days of the date of this Deed, the original valid and duly issued share certificate representing the Initial Company Class B Shares;

 

(ii)on the date of this Deed, an instrument of transfer in respect of the Initial Company Class A Shares in the form set out in Schedule 1 to this Deed (a Class A Shares Instrument of Transfer) which has been duly executed by the Mortgagor as transferor in blank (with the date, the name of the transferee and the number of shares left blank);

 

(iii)on the date of this Deed, an Instrument of Transfer in respect of the Initial Company Class B Shares in the form set out in Schedule 1 to this Deed (a Class B Shares Instrument of Transfer) which has been duly executed by the Mortgagor as transferor in blank (with the date, the name of the transferee and the number of shares left blank);

 

(iv)on the date of this Deed, an irrevocable proxy and irrevocable power of attorney made in respect of the Initial Company Class A Shares in the form set out in Schedule 2 to this Deed (a Class A Shares Irrevocable Proxy and PoA) which has been duly executed by the Mortgagor in blank (with the date and the number of shares left blank);

 

(v)on the date of this Deed, an Irrevocable Proxy and PoA made in respect of the Initial Company Class B Shares in the form set out in Schedule 2 to this Deed (a Class B Shares Irrevocable Proxy and PoA) which has been duly executed by the Mortgagor in blank (with the date and the number of shares left blank);

 

(vi)on the date of this Deed, a notice of charge from the Mortgagor to the Company in respect of the Initial Shares in the form set out in Schedule 3 to this Deed (a Notice of Charge) which has been duly executed by the Mortgagor; and

 

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(vii)on the date of this Deed, in respect of the Initial Company Class B Shares, a signed but undated Share Conversion Form,

 

the Class A Shares Instrument of Transfer, the Class B Shares Instrument of Transfer, the Class A Shares Irrevocable Proxy and PoA, the Class B Shares Irrevocable Proxy and PoA, the Notice of Charge and the Share Conversion Form, together, the Security Deliverables.

 

(b)The Mortgagor shall, in accordance with clause 20.25 (Conditions Subsequent) of the Facility Agreement, deposit with the Mortgagee (or procure the deposit with the Mortgagee of) such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in form and substance satisfactory to the Mortgagee.

 

(c)If at any time, any Shares (other than the Initial Shares) become subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (including, for the avoidance of doubt, the Further Shares and the Shares pursuant to paragraphs (d) and (e) of the definition of "Shares") (such shares, the Additional Ordinary Shares), the Mortgagor shall, deliver (or procured there to be delivered) to the Mortgagee the following documents in form and substance satisfactory to the Mortgagee, (i) in the case of any Additional Ordinary Shares that are Further Shares, on or prior to the date on which such Further Shares are required to be furnished as Security pursuant to clause 19.1 (Margin call) or any other provisions of the Facility Agreement (or, in respect of the documents set out in paragraph (v) below only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (d) of clause 20.25 (Conditions Subsequent) of the Facility Agreement) and (ii) in the case of other Additional Ordinary Shares, on the date on which such Additional Ordinary Shares become so subject to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed (or, in respect of the documents set out in paragraph (v) below only, if later, the date on which any documents in respect of such Additional Ordinary Shares are required to be delivered under paragraph (d) of clause 20.25 (Conditions Subsequent) of the Facility Agreement):

 

(i)(in respect of any Additional Ordinary Shares which are Further Shares) a Top-Up Notice;

 

(ii)a certified true copy of an extract of the Register of Members showing the Mortgagor as the registered owner of the Additional Ordinary Shares;

 

(iii)original valid and duly issued share certificates representing such Additional Ordinary Shares;

 

(iv)all Security Deliverables in respect of such Additional Ordinary Shares (each of which has been duly executed by the Mortgagor in the manner set out in paragraph (a) above (save that a Share Conversion Form shall only be required to be delivered hereunder if such Additional Ordinary Shares are Company Class B Shares)) in form and substance satisfactory to the Mortgagee; and

 

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(v)all such documents as the Mortgagee deems necessary or desirable for the ADS Conversion Process in respect of such Additional Ordinary Shares in form and substance satisfactory to the Mortgagee.

 

(d)On the date of any removal or resignation of any director of the Mortgagor who executed any Security Deliverables or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above in respect of any Shares during the Security Period, the Mortgagor shall promptly deliver or cause to be delivered to the Mortgagee a replacement of all such items (each having been duly executed by a continuing or replacement director of the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above and (in other cases) in form and substance satisfactory to the Mortgagee) and a certified copy of the register of directors of the Mortgagor maintained by the Mortgagor in accordance with the BVI Act in form and substance satisfactory to the Mortgagee.

 

(e)If at any time during the Security Period, the Mortgagee determines that the form of any Security Deliverable or any documents deposited with the Mortgagee pursuant to paragraph (b) or (c)(v) above has been amended, updated or replaced by the Company, the Depositary, the Share Registrar and/or the registered office provider of the Company rendering such item or document delivered incapable of being used to effect the ADS Conversion Process, the Mortgagor shall promptly on demand by the Mortgagee, deliver to the Mortgagee a copy of the amended, updated or replaced form of such item or document (each having been duly executed by the Mortgagor (in the case of any Security Deliverables) in the manner set out in paragraph (a) above) in form and substance satisfactory to the Mortgagee.

 

(f)The Mortgagee shall be entitled to hold all documents and instruments delivered to it pursuant to this Clause 5 until the end of the Security Period, and the Mortgagor hereby irrevocably and unconditionally authorises (and, with respect to paragraph (ii) below, requests and authorises) the Mortgagee to (and the Mortgagee shall be entitled to):

 

(i)to the extent any fully executed Notice of Charge has not been delivered to the Company to the Mortgagee's satisfaction, deliver a copy of such fully executed Notice of Charge to the Company on the Mortgagor's behalf; and

 

(ii)at any time after the occurrence of an Event of Default which is continuing, to complete, date and put into effect, under its power of attorney given in this Deed or otherwise, such documents and instruments to effect a conversion of all or any Shares (that are in the form of Company Class B Shares) into Company Class A Shares and/or a transfer of all or any Shares in favour of itself or such other person as it shall direct and/or otherwise effect or complete any step of the ADS Conversion Process.

 

(g)Any document or instrument required to be delivered to the Mortgagee pursuant to this Clause 5 which is for any reason not so delivered or which is released by the Mortgagee to the Mortgagor shall be held on trust by the Mortgagor for the Mortgagee.

 

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6Further Assurance

 

6.1Further Assurance: General

 

The Mortgagor shall, at its own expense, promptly do all such acts and/or execute all such documents (including without limitation assignments, transfers, mortgages, charges, notices and instructions) as the Mortgagee or a Receiver may reasonably specify (and in such form as the Mortgagee or Receiver (as the case may be) may reasonably require) in favour of the Mortgagee or its nominees:

 

(a)to create, perfect, protect or preserve the security created or intended to be created in respect of the Mortgaged Property (which may include, without limitation, the re-execution of this Deed, the execution by the Mortgagor of a mortgage, charge, assignment or other security over all or any of the assets constituting, or intended to constitute, any part of the Mortgaged Property) and the giving of any notice, order or direction and the making of any filing or registration, or for the exercise of the Collateral Rights; and/or

 

(b)upon the occurrence of an Event of Default that is continuing, to facilitate the realisation and/or enforcement of the assets constituting, or intended to constitute, the Mortgaged Property (including to execute and complete in favour of the Mortgagee, the Company, the Share Registrar, the registered office provider of the Company, the Depositary (or the nominee of any of the foregoing) or any purchaser any document and to give any instruction which the Mortgagee may reasonably require to effect any step of the ADS Conversion Process or otherwise vest any of the Mortgaged Property in the Mortgagee, any Receiver or any other transferee or purchaser).

 

6.2Necessary Action

 

The Mortgagor shall from time to time at its own cost take all such action (whether or not requested to do so by the Mortgagee) as is or shall be available to it (including without limitation obtaining and/or effecting all authorisations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed and/or to exercise its rights and to perform the obligations expressed on its part under this Deed and/or to make this Deed admissible in evidence in the Cayman Islands.

 

6.3Covenants of Title

 

The obligations of the Mortgagor under this Deed shall be in addition to any covenants for title deemed to be included in this Deed under applicable law.

 

7Restrictions on Dealings

 

7.1Negative Pledge

 

The Mortgagor undertakes that it shall not, at any time during the subsistence of this Deed, create or permit to subsist any Security over all or any part of the Mortgaged Property unless expressly permitted under and in accordance with any of the Finance Documents.

 

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7.2No Disposal of Interests

 

The Mortgagor undertakes that, during the subsistence of this Deed, it shall not, and shall not agree to, sell, assign, transfer or otherwise dispose of any Mortgaged Property except (a) as otherwise permitted under clauses 19.1(b), 20.5 and 20.25 of the Facility Agreement or the provisions hereof, or (b) with the prior written consent of the Mortgagee.

 

8Operations Before and After Enforcement

 

8.1Dividends

 

The Mortgagor shall ensure that all dividends paid or made in respect of any Mortgaged Property are applied in accordance with the terms of the Facility Agreement.

 

8.2Voting: Before Enforcement

 

At any time prior to the delivery of a Voting Rights Notice, the Mortgagor shall be entitled to exercise (or refrain for exercising) or direct the exercise of the voting rights attached to any Shares provided that:

 

(a)it does so without contravening any provision of any Finance Document; and

 

(b)the exercise (or non-exercise) of those rights would not (i) have an adverse effect on the ability of the Mortgagee to realise the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or (ii) materially prejudice the interests of the Mortgagee under any Finance Document or its control of any Mortgaged Property.

 

8.3Voting: After Enforcement

 

(a)Following the occurrence of an Event of Default which is continuing, the Mortgagee may give notice to the Company (a Voting Rights Notice) (with a copy to the Mortgagor, failure to give which shall not invalidate the Voting Rights Notice) that the Mortgagor’s right under Clause 8.2 (Voting: Before Enforcement) shall cease and that the Mortgagee intends to exercise the voting and other rights under this Clause 8.3, in which event:

 

(i)the Mortgagee (or if the Mortgagee so directs, the Receiver) shall be entitled to exercise or direct the exercise of the voting and other rights attached to the Shares and the Mortgagor shall promptly provide the Mortgagee or the Receiver (if so required by the Mortgagee), with an irrevocable power of attorney to exercise in the Mortgagee’s sole discretion the voting rights attached to such Shares as determined by the Mortgagee; and

 

(ii)the Mortgagor shall promptly execute and/or deliver to the Mortgagee or the Receiver such forms of proxy as it reasonably requires with a view to enabling such person as it selects to exercise those rights.

 

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(b)The Mortgagee will have no liability to the Mortgagor for any loss that results from the exercise or non-exercise of any voting rights attaching to such Shares or for any failure to deal with any notice relating to such Shares that is sent to the Mortgagee.

 

8.4Payment of Calls

 

(a)The Mortgagor must promptly pay all calls and other payments due and payable in respect of any Mortgaged Property.

 

(b)If the Mortgagor fails to pay all calls or other payments due and payable in respect of any Mortgaged Property, the Mortgagee may pay any call or other payment on behalf of the Mortgagor and the Mortgagor shall promptly upon request reimburse the Mortgagee for any payment made by it under this Clause.

 

8.5Exercise of Rights

 

The Mortgagor shall not exercise any of its rights and powers in relation to any of the Mortgaged Property in any manner which would prejudice the ability of the Mortgagee to realise the security created by this Deed.

 

9Enforcement of Security

 

9.1Enforcement

 

On and from the occurrence of an Event of Default which is continuing or if the Mortgagor requests the Mortgagee to exercise any of its powers under this Deed, the Security created by or pursuant to this Deed is immediately enforceable and the Mortgagee may, without notice to the Mortgagor or prior authorisation from any court or any person, in its absolute discretion enforce all or any part of such Security at the times, in the manner and on the terms it thinks fit, including to:

 

(a)assume control of, and to have it or its nominee registered as holder of legal title to, any Mortgaged Property;

 

(b)sell, exchange, grant options over, or otherwise dispose of, any Mortgaged Property by any method, at any time and on any terms, it thinks fit or to postpone doing of any of these things;

 

(c)complete, date and deliver any document delivered to it under this Deed;

 

(d)effect any step of the ADS Conversion Process and take any such action the Mortgagee deems necessary or desirable to effect or facilitate any step of the ADS Conversion Process;

 

(e)borrow or raise money either unsecured or on the security of the Mortgaged Property (either in priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed or otherwise);

 

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(f)settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands relating to the Mortgaged Property;

 

(g)bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Mortgaged Property or any business of the Mortgagor;

 

(h)redeem any Security (whether or not having priority to the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed) over the Mortgaged Property and to settle the accounts of any person with an interest in the Mortgaged Property;

 

(i)exercise and do (or permit the Mortgagor or any nominee of the Mortgagor to exercise and do) all such rights and things as the Mortgagee would be capable of exercising or doing if it were the absolute beneficial owner of the Mortgaged Property; and/or

 

(j)exercise any other right, power or remedy given to it under this Deed (including to appoint a Receiver) or provided by law.

 

9.2No Liability as Mortgagee in Possession

 

Neither the Mortgagee nor any Receiver shall be liable, by reason of entering into possession of any Mortgaged Property, to account as a mortgagee in possession in respect of all or any part of the Mortgaged Property or be liable for any loss upon realisation or enforcement of rights (and may at any time at its discretion go out of such possession) or for any neglect, default or omission in connection with the Mortgaged Property to which a mortgagee or a mortgagee in possession might otherwise be liable.

 

10Powers of Sale

 

10.1Extension of Powers

 

The power of sale or other disposal conferred on the Mortgagee and on any Receiver by this Deed shall arise (and the Secured Obligations shall be deemed due and payable for that purpose) on execution of this Deed and shall be exercisable in accordance with Clause 9.1 (Enforcement).

 

10.2Restrictions

 

Any restrictions imposed by law on the power of sale or on the consolidation of security shall be excluded to the fullest extent permitted by law.

 

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11Appointment of Receiver

 

11.1Appointment and Removal

 

On and from the occurrence of an Event of Default that is continuing or if requested to do so by the Mortgagor, the Mortgagee may (but for the avoidance of doubt shall not be obliged to) by deed or otherwise (acting through an authorised officer of the Mortgagee), without any notice to the Mortgagor:

 

(a)appoint one or more person or persons as the Mortgagee thinks fit to be a Receiver of the whole or any part of the Mortgaged Property;

 

(b)appoint two or more Receivers of separate parts of the Mortgaged Property;

 

(c)remove (so far as it is lawfully able) any Receiver so appointed (whether or not the Mortgagee appoints any other person as a Receiver in its place); and/or

 

(d)appoint another person(s) as an additional or replacement Receiver(s).

 

11.2Capacity of Receivers

 

Each person appointed to be a Receiver pursuant to Clause ‎11.1 (Appointment and Removal) shall be:

 

(a)entitled to act individually or together with any other person appointed or substituted as Receiver;

 

(b)for all purposes deemed to be the agent of the Mortgagor and the Mortgagor shall be solely responsible for that Receiver's contracts, engagements, acts, omissions, defaults and losses and liabilities and for the payment of his remuneration and no Receiver shall at any time act as agent for the Mortgagee

 

(c)entitled to remuneration for his services at a rate to be fixed by the Mortgagee from time to time, which remuneration shall be payable by the Mortgagor.

 

11.3Several Receivers

 

If at any time there is more than one Receiver, each Receiver may separately exercise all of the powers conferred by this Deed and to the exclusion of any other Receiver (unless the document appointing such Receiver states otherwise).

 

11.4Powers of Appointment

 

The powers of appointment of a Receiver herein contained shall be in addition to all powers of appointment of the Mortgagee under applicable law and such powers shall remain exercisable from time to time by the Mortgagee in respect of all or any part of the Mortgaged Property.

 

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12Powers of Receiver

 

12.1Powers of Receiver

 

Every Receiver shall (subject to any restrictions in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) have and be entitled to exercise, in relation to the Mortgaged Property or that part thereof in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of the Mortgagor or in his own name and, in each case, at the cost of the Mortgagor):

 

(a)all the powers and rights of an absolute owner and power to do or omit to do anything which the Mortgagor itself could do or omit to do;

 

(b)all rights, powers and discretions conferred by this Deed (either expressly or impliedly) or by law on the Mortgagor;

 

(c)all the powers conferred on a receiver by any provision of Cayman Islands law; and

 

(d)the power to do all things (including without limitation bringing or defending proceedings in the name or on behalf of the Mortgagor) which appear to the Receiver to be incidental or conducive to (i) any of the functions, rights, powers, authorities or discretions conferred on or vested in him or (ii) the exercise of any Collateral Rights (including without limitation realisation of all or any part of the Mortgaged Property) under or by virtue of this Deed or law or (iii) bringing to his hands any assets of the Mortgagor forming, or which, when got in, would be part of the Mortgaged Property.

 

12.2Additional Powers of Receiver

 

In addition to and without prejudice to the generality of Clause 12.1, every Receiver shall have (subject to any limitations or restrictions expressed in the instrument appointing him but notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency or dissolution of the Mortgagor) the following powers in relation to the Mortgaged Property in respect of which he is appointed (and every reference in this Clause 12.2 to the Mortgaged Property shall be read as a reference to that part of the Mortgaged Property in respect of which such Receiver is appointed):

 

(a)Take Possession

 

power to enter upon, take immediate possession of, collect and get in the Mortgaged Property including without limitation dividends and other income whether accrued before or after the date of his appointment;

 

(b)Employees

 

power to appoint, hire and employ officers, employees, contractors, agents, advisors and others for any of the purposes of this Deed and/or to guard or protect the Mortgaged Property upon terms as to remuneration or otherwise as he may think fit and to discharge any such persons and any such persons appointed, hired or employed by the Mortgagor;

 

(c)Proceedings and Claims

 

power to bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Mortgaged Property or this Deed in the name of the Mortgagor or in his own name and to submit to arbitration, negotiate, compromise and settle any such applications, claims, disputes, actions, suits or proceedings;

 

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(d)Carry on Business

 

power to carry on and manage, or concur in the carrying on and management of or to appoint a manager of, the whole or any part of the Mortgaged Property or any business relating thereto in such manner as he shall in his absolute discretion think fit;

 

(e)Deal with Mortgaged Property

 

power, in relation to the Mortgaged Property and each and every part thereof, by public auction or private contract, to sell, transfer, convey, dispose of, exchange, convert into money, realise or concur in any of the foregoing by the Mortgagor or any other receiver or manager of the Mortgagor (including without limitation to or in favour of the Mortgagee) in such manner and generally on such terms as he thinks fit, and the consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over any period which the Receiver thinks fit

 

(f)Acquisitions

 

power to purchase, lease, hire or otherwise acquire any assets or rights of any description which he shall in his absolute discretion consider necessary or desirable for the carrying on, improvement or realisation of the whole or any part of the Mortgaged Property or otherwise for the benefit of the whole or any part of the Mortgaged Property;

 

(g)New Subsidiary

 

power to promote, procure the formation or otherwise acquire the share capital of, any body corporate with a view to such body corporate becoming a subsidiary of the Mortgagor or otherwise and purchasing, leasing or otherwise acquiring an interest in the whole or any part of the Mortgaged Property or carrying on any business in succession to the Mortgagor or any subsidiary of the Mortgagor;

 

(h)Insurance

 

power to effect, maintain or renew indemnity and other insurances and to obtain bonds and performance guarantees and do any other act which the Mortgagor might do in the ordinary conduct of its business to protect or improve any Mortgaged Property;

 

(i)Borrowing

 

power to raise or borrow money from the Mortgagee or any other person to rank either in priority to the security constituted by this Deed or any part of it or otherwise and with or without a mortgage or charge on the Mortgaged Property or any part of it on such terms as he shall in his absolute discretion think fit (and no person lending such money shall be concerned to see or enquire as to the propriety or purpose of the exercise of such power or the application of money so raised or borrowed);

 

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(j)Redemption of Security

 

power to redeem, discharge or compromise any Security whether or not having priority to the Security constituted by this Deed or any part of it;

 

(k)Covenants, Guarantees and Indemnities

 

power to enter into bonds, covenants, guarantees, commitments, indemnities and other obligations or liabilities as he shall think fit, to make all payments needed to effect, maintain or satisfy such obligations or liabilities and to use the seal of the Mortgagor;

 

(l)Advisors

 

power to appoint an attorney or solicitor or accountant or other professional qualified person to assist him in the performance of his functions;

 

(m)Receipts

 

power to give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Mortgaged Property;

 

(n)Payment

 

power to make any payment which is necessary or incidental to the performance of his functions;

 

(o)Delegation

 

power to delegate his powers in accordance with this Deed; and

 

(p)Exercise of Powers in Mortgagor's Name

 

power to exercise any or all of the above powers on behalf of and in the name of the Mortgagor (notwithstanding any lack of capacity, bankruptcy, winding-up, insolvency, dissolution or similar proceedings in respect of the Mortgagor) or on his own behalf.

 

12.3Relationship with Mortgagee

 

To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after the Security conferred or intended to be conferred on the Mortgagee by or pursuant to this Deed becomes enforceable be exercised by the Mortgagee in relation to any Mortgaged Property without first appointing a Receiver and notwithstanding the appointment of a Receiver.

 

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13Application of Monies

 

13.1Order of Application

 

Without prejudice to Clause 13.2 (Suspense account), the Mortgagee (and any Receiver) shall apply the monies received by it as a result of the enforcement of the Security created hereby or pursuant to this Deed in accordance with clause 25.4 (Partial payments) of the Facility Agreement.

 

13.2Suspense account

 

Any monies received, recovered or realised by the Mortgagee or any Receiver under this Deed or the powers conferred by it (including the proceeds of any conversion of currency) may, in the discretion of the Mortgagee or any Receiver, be credited to and held in any suspense or impersonal account pending their application from time to time in or towards the discharge of any of the Secured Obligations in accordance with Clause ‎13.1 (Order of Application).

 

13.3Application by Mortgagor

 

Any application under this Clause ‎13 shall override any application by the Mortgagor.

 

14Receipt and Protection of purchasers

 

14.1Receipt

 

The receipt of the Mortgagee or any Receiver shall be conclusive discharge to a purchaser of any part of the Mortgaged Property from the Mortgagee or such Receiver.

 

14.2Protection of purchasers

 

No person (including a purchaser) dealing with the Mortgagee or a Receiver or its or his agents will be obliged or concerned to enquire:

 

(a)whether the Secured Obligations have become payable;

 

(b)whether any power which the Mortgagee or a Receiver is purporting to exercise has become exercisable or is being properly exercised;

 

(c)whether any money remains due under the Finance Documents; or

 

(d)how any money paid to the Mortgagee or to that Receiver is to be applied.

 

15Power of Attorney

 

15.1Appointment and Powers

 

The Mortgagor, by way of security, irrevocably appoints the Mortgagee, each Receiver and each of their respective delegates and sub-delegates and any person nominated for the purpose by the Mortgagee or any Receiver severally to be its true and lawful attorney (with full power of substitution and delegation) in its name (or otherwise) and on its behalf and as its act and deed or otherwise, at any time following (a) the occurrence of an Event of Default that is continuing or (b) a failure by the Mortgagor to comply within five (5) Business Days of any further assurance or any other obligation under this Deed, to execute, seal, deliver (using the company seal where appropriate) and perfect all documents and do all things which the Mortgagee or such Receiver may consider to be required for:

 

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(a)carrying out any obligation imposed on the Mortgagor under this Deed (including without limitation the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Mortgaged Property or any part thereof and perfecting and/or releasing the Security created or intended to be created in respect of the Mortgaged Property or any part thereof); and

 

(b)enabling the Mortgagee and any Receiver to exercise, or delegate the exercise of, or to protect or preserve, any of the rights, powers and authorities conferred on them by or pursuant to this Deed or by law (including, without limitation, upon or after the occurrence of an Event of Default that is continuing, the exercise of any right of a legal or beneficial owner of the Mortgaged Property or any part thereof).

 

15.2Ratification

 

The Mortgagor shall ratify and confirm all things done and all documents executed (or purportedly done or executed) by any attorney in the proper exercise of all or any of its powers conferred by this clause 15.

 

16Representations

 

16.1Representations

 

On the date of this Deed, the Mortgagor makes the representations and warranties set out in clause 17 (Representations) of the Facility Agreement mutatis mutandis to the Mortgagee and further represents and warrants to the Mortgagee that:

 

(a)it is the sole and absolute legal and beneficial owner of the Mortgaged Property; and

 

(b)none of the Mortgaged Property is subject to or affected by any Restrictions Notice issued by the Company or its registered office provider pursuant to the Companies Act.

 

16.2Repetition

 

The representations and warranties set out in paragraphs (a) and (b) of Clause 16.1 (Representations) above shall be deemed to be repeated by the Mortgagor continuously from the date of this Deed until the expiry of the Security Period, in each case by reference to the facts and circumstances existing at the date on which such representation or warranty is deemed to be made or repeated.

 

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17Effectiveness of Security

 

17.1Continuing Security

 

The Security created by or pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations notwithstanding any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.

 

17.2Cumulative Rights

 

The Security created by this Deed and the Collateral Rights shall be cumulative, in addition to and independent of every other Security which the Mortgagee may at any time hold for any or all of the Secured Obligations or any obligations or any rights, powers and remedies provided by law. No prior security held by the Mortgagee over the whole or any part of the Mortgaged Property shall merge into, nor in any way exclude or prejudice or affect, the security constituted by this Deed. The foregoing applies notwithstanding any receipt, release or discharge endorsed or given in respect of or under any such other Security.

 

17.3Mortgagor's Obligations

 

None of the Security created by or pursuant to this Deed, the obligations of the Mortgagor under this Deed nor the Collateral Rights shall be affected by an act, omission, matter, thing or event which, but for this Clause ‎17.3, would reduce, release or prejudice any of the Security created by or pursuant to this Deed, any of the obligations of the Mortgagor under this Deed or the Collateral Rights including (without limitation and whether or not known to it or the Mortgagee):

 

17.3.1the winding-up, dissolution, administration, reorganisation, death, insolvency, incapacity or bankruptcy of any Obligor or any other person or any change in its status, function, control or ownership;

 

17.3.2any of the obligations of any Obligor or any other person under any Finance Document, or under any other security relating to any Finance Document, or under any other document or security, being or becoming illegal, invalid, unenforceable or ineffective in any respect;

 

17.3.3any time, waiver or consent or any other indulgence or concession granted to, or composition with, any Obligor or any other person;

 

17.3.4any release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any Obligor or any other person;

 

17.3.5the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

17.3.6the existence of any claim, set-off or other right which the Mortgagor may have at any time against the Mortgagee or any other person;

 

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17.3.7any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Obligor or any other person;

 

17.3.8any variation, amendment, novation, waiver, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of or in connection with, a Finance Document or any other document or security, guarantee or indemnity or of the Secured Obligations;

 

17.3.9any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security;

 

17.3.10any insolvency, bankruptcy or similar proceedings;

 

17.3.11any claims or set-off right that the Mortgagor may have; or

 

17.3.12any law, regulation or decree or order of any jurisdiction affecting any Obligor.

 

17.4Mortgagor intent

 

Without prejudice to the generality of Clause 17.3 (Mortgagor's Obligations), the Mortgagor expressly confirms that it intends that the Security created under this Deed, and the Collateral Rights, shall extend from time to time to any (however fundamental and of whatsoever nature, and whether or not more onerous) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

17.5Remedies and Waivers

 

(a)No failure on the part of the Mortgagee or any Receiver to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver thereof or constitute an election to affirm this Deed.

 

(b)No election by the Mortgagee or any Receiver to affirm this Deed or to waive any Collateral Rights shall be effective unless it is in writing.

 

(c)The Collateral Rights are cumulative and not exclusive of the rights of the Mortgagee or any Receiver under the general law. No single or partial exercise of any Collateral Right shall preclude any further or other exercise of that or any other Collateral Right.

 

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17.6Immediate recourse

 

The Mortgagor waives any right it may have of first requiring the Mortgagee (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative to any other person before claiming from the Mortgagor under this Deed.

 

17.7No Liability

 

None of the Mortgagee, its nominee(s) or any Receiver shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection with all or any part of the Mortgaged Property or (c) taking possession of or realising all or any part of the Mortgaged Property.

 

17.8Partial Invalidity

 

If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Deed under such laws nor of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Deed is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of that security.

 

17.9No Prior Demand

 

The Mortgagee shall not be obliged to make any demand of or enforce any rights or claim against any Obligor or any other person, to take any action or obtain judgment in any court against any Obligor or any other person or to make or file any proof or claim in a liquidation, bankruptcy or insolvency of any Obligor or any other person or to enforce or seek to enforce any other security in respect of any or all of the Secured Obligations before exercising any Collateral Right.

 

17.10Deferral of rights

 

Until the expiry of the Security Period, the Mortgagor will not (unless the Mortgagee otherwise directs) exercise any rights which it may have by reason of performance by it of its obligations under this Deed:

 

17.10.1to be indemnified by any Obligor;

 

17.10.2to claim any contribution from any guarantor of or provider of security for any Obligor's obligations under the Finance Documents;

 

17.10.3to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Mortgagee under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by the Mortgagee;

 

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17.10.4to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Mortgagor has given a guarantee, security, undertaking or indemnity under any Finance Document;

 

17.10.5to exercise any right of set-off against any Obligor; and/or

 

17.10.6to claim or prove as a creditor of any Obligor in competition with the Mortgagee.

 

If the Mortgagor shall receive any benefit, payment or distribution in relation to any such right it shall hold that benefit, payment or distribution (or so much of it as may be necessary to enable all Secured Obligations to be paid in full) on trust for the Mortgagee, and shall promptly pay or transfer the same to the Mortgagee (or as the Mortgagee may direct) for application in accordance with clause 13.1 (Order of Application).

 

17.11Reinstatement

 

If any payment in respect of any Secured Obligation or any settlement, discharge or release of any Secured Obligation by or on behalf of the Mortgagee is avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws of general application or any similar event or for any other reason, the liability of the Mortgagor under this Deed and the Security created by this Deed shall continue as if such payment, settlement, discharge or release had not occurred.

 

18Release of Security

 

18.1Final redemption

 

Upon the expiry of the Security Period, the Mortgagee shall, at the request (with reasonable notice) and cost of the Mortgagor, promptly do all things and execute all documents as may be necessary to evidence the release, discharge and cancel the Security constituted by this Deed and procure the reassignment to the Mortgagor of the property and assets assigned to the Mortgagee pursuant to this Deed (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), including without limitation the execution of a deed of release in favour of the Mortgagor and delivering all documents of title and evidence of ownership in respect of the Mortgaged Property delivered under Clause 5 to the Mortgagor or to any other person as the Mortgagor may reasonably request in writing (to the extent not otherwise sold, assigned or otherwise disposed of or applied in accordance with this Deed), in each case subject to Clause ‎18.2 (Avoidance of Payments) and without recourse to, or any representation or warranty by, the Mortgagee.

 

18.2Avoidance of Payments

 

If the Mortgagee considers that any amount paid or credited to or recovered by the Mortgagee by or from any Obligor or any Secured Obligations recovered by the Mortgagee is likely to be avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Mortgagor under this Deed and the Security constituted by this Deed shall continue and such amount shall not be considered to have been irrevocably paid.

 

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19Subsequent and Prior Security Interests

 

19.1Subsequent security interests

 

If the Mortgagee at any time receives or is deemed to have received notice of any subsequent Security or other interest affecting all or any part of the Mortgaged Property or any assignment or transfer of the Mortgaged Property which is prohibited by the terms of this Deed or any Finance Document, all payments thereafter by or on behalf of any Obligor to the Mortgagee (whether in its capacity as security trustee or otherwise) shall be treated as having been credited to a new account of that Obligor and not as having been applied in reduction of the Secured Obligations as at the time when (or at any time after) the Mortgagee received such notice of such subsequent Security or other interest or such assignment or transfer.

 

19.2Prior security interests

 

In the event of any action, proceeding or step being taken to exercise any powers or remedies conferred by any prior ranking Security or upon the exercise by the Mortgagee or any Receiver of any power of sale under this Deed or any Collateral Right, at any time after this Security has become enforceable under this Deed, the Mortgagee may redeem any prior ranking Security over or affecting any Mortgaged Property or procure the transfer of any such prior ranking Security to itself. The Mortgagee may settle and agree the accounts of the beneficiary of any such prior Security and any accounts so settled and agreed will be conclusive and binding on the Mortgagor. All principal, interest, costs, charges, expenses and/or other amounts relating to and/or incidental to any such redemption or transfer shall be paid by the Mortgagor to the Mortgagee upon demand.

 

20Discretion and Delegation

 

20.1Discretion

 

Any liberty or power which may be exercised or any determination which may be made under this Deed by the Mortgagee or any Receiver may be exercised or made in its absolute and unfettered discretion without any obligation to give reasons.

 

20.2Delegation

 

(a)Each of the Mortgagee and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions conferred on it by this Deed (including without limitation the power of attorney under Clause ‎15 (Power of Attorney)) on such terms and conditions as it shall see fit which delegation shall not preclude any subsequent exercise, any subsequent delegation or any revocation of such power, authority or discretion by the Mortgagee or any Receiver.

 

(b)Neither the Mortgagee nor any Receiver will be in any way liable or responsible to the Mortgagor for any loss or liability arising from any act, default, omission, neglect or misconduct on the part of any delegate or sub-delegate.

 

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20.3Protections

 

In acting as Mortgagee, the Mortgagee shall have the benefit of all indemnities, protections and rights on its part set out in the Finance Documents, as if set out fully herein.

 

21Changes to Parties

 

21.1No Assignment or Transfer by Mortgagor

 

The Mortgagor may not assign or transfer any of its rights (if any) or obligations under this Deed, except with the prior consent of the Mortgagee.

 

21.2Assignment and Transfer by Mortgagee

 

The Mortgagee may assign or transfer any of its rights or obligations under this Deed in accordance with the provisions of the Facility Agreement

 

22Amendments and Waivers

 

22.1Subject to clause 31 (Amendments and Waivers) of the Facility Agreement, any term of this Deed may be amended or waived only by agreement in writing between all parties hereto.

 

22.2No failure on the part of the Mortgagee to exercise, or delay on its part in exercising, any or all of its rights hereunder shall operate as a waiver thereof or constitute an election to affirm this Deed. No election to affirm this Deed on the part of the Mortgagee shall be effective unless it is in writing. No single or partial exercise of any such right or remedy shall preclude any further or other exercise of such or any other right or remedy.

 

23Notices

 

Any communications to be made under or in connection with this Deed shall be made in accordance with clause 27 (Notices) of the Facility Agreement.

 

24Rights of third parties

 

Each party hereto hereby agrees that each agent, manager, officer, employee, director, delegate or advisor of the Mortgagee who is not a party to this Deed (Third Party) has the express right to enforce the contractual terms of this Deed pursuant to the terms of the Contracts (Rights of Third Parties) Act, 2014. Notwithstanding any term of this Charge, the consent of or notice to any Third Party shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under this Deed at any time

 

25Counterparts

 

This Deed may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.

 

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26Governing Law

 

This Deed shall be governed by and construed in accordance with the laws of the Cayman Islands.

 

27Jurisdiction

 

27.1Cayman Islands courts

 

The courts of the Cayman Islands have exclusive jurisdiction to settle any dispute arising out of, or in connection with, this Deed (including a dispute regarding the existence, validity or termination of this Deed or the consequences of its nullity) (a Dispute).

 

27.2Convenient Forum

 

The parties hereto agree that the courts of the Cayman Islands are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary.

 

27.3Exclusive Jurisdiction

 

This Clause 27 is for the benefit of the Mortgagee only. As a result and notwithstanding Clause ‎27.1 (Cayman Islands courts), nothing herein shall prevent the Mortgagee from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law the Mortgagee may take concurrent proceedings in any number of jurisdictions.

 

27.4Service of process

 

(a)Without prejudice to any other mode of service allowed under any relevant law, the Mortgagor:

 

(i)irrevocably appoints Trident Trust Company (Cayman) Limited located at One Capital Place, 4th Floor, George Town, Grand Cayman, Cayman Islands as its agent for service of process in relation to any proceedings before the courts of the Cayman Islands in connection with this Deed; and

 

(ii)agrees that failure by a process agent to notify the Mortgagor of any process will not invalidate the proceedings concerned.

 

(b)If any person appointed as process agent under this Clause is unable for any reason to so act, the Mortgagor must promptly (and in any event within three days of the event taking place) appoint another agent on terms acceptable to the Mortgagee (acting reasonably). Failing this, the Mortgagee may appoint another process agent for this purpose.

 

27.5Waiver of immunity

 

The Mortgagor irrevocably waives, to the extent permitted by applicable law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the grounds of sovereignty or other similar grounds from:

 

(a)suit;

 

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(b)jurisdiction of any court or arbitral tribunal;

 

(c)relief by way of injunction or order for specific performance or recovery of property;

 

(d)attachment of its assets (whether before or after judgment); and

 

(e)execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts or arbitral tribunals of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any immunity in any such proceedings).

 

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IN WITNESS WHEREOF this Deed has been signed on behalf of the Mortgagee and executed as a deed by the Mortgagor and is intended to be and is hereby delivered by it as a deed on the date specified above.

 

The Mortgagor

 

 

EXECUTED   )  
as a DEED by   )  
SUNRISE CORPORATE HOLDING LTD. )  
acting through its duly authorised signatory ) /s/ Sheng Chen
in the presence of ) Name of signatory: Sheng Chen
       
       
Signature of witness: /s/ Hanze Zheng    
Name of witness:       Hanze Zheng    

 

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The Mortgagee

 

BOLD ALLY (CAYMAN) LIMITED

 

 

/s/ Isatou Smith   
Name: Isatou Smith   
Title: Authorised Signatory  

 

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Exhibit 99.10

 

EXECUTION VERSION

 

Dated 19 August 2021

 

SHENG CHEN
as the Mortgagor

 

in favour of

 

BOLD ALLY (CAYMAN) LIMITED
as the Mortgagee

 

 

 

EQUITABLE SHARE MORTGAGE

 

(in respect of shares in GenTao Capital Limited)

 

 

 

 

 

 1 

 

 

Contents

 

Clause   Page
     
1 Definitions and Interpretation 3
2 Payment of Secured Obligations 5
3 Security 5
4 Perfection of Security 6
5 Further Assurance 8
6 Negative Pledge and Other Undertakings 9
7 Operations Before and After Event of Default that is continuing 9
8 Enforcement of Security 11
9 Powers of Sale 11
10 Appointment of Receiver 12
11 Powers of Receiver 13
12 Application of Monies 16
13 Receipt and Protection of Purchasers 16
14 Power of Attorney 17
15 Representations 17
16 Effectiveness of Security 18
17 Release of Security 21
18 Subsequent and Prior Security Interests 22
19 Discretion and Delegation 22
20 Changes to Parties 23
21 Amendments and Waivers 23
22 Perpetuity Period 23
23 Notices 24
24 Counterparts 24
25 Governing Law 24
26 Jurisdiction 24

Schedule 1 Particular of Shares 26
Schedule 2 Form of Share Transfer 27
Schedule 3 Form of Irrevocable Proxy And Power Of Attorney 28
Schedule 4 Form of Letter of Resignation 30
Schedule 5 Form of Written Resolutions 31
Schedule 6 Form of Letter of Undertaking and Authorisation 32
Schedule 7 Form of Letter to Registered Agent from the Company 34
Schedule 8 Form of Deed of Undertaking and Confirmation from the Company 37

 

 2 

 

 

THIS DEED OF EQUITABLE SHARE MORTGAGE is made on August 19, 2021

 

BY

 

1SHENG CHEN, holder of PRC identity card number ************************, as mortgagor (the "Mortgagor");

 

in favour of

 

2BOLD ALLY (CAYMAN) LIMITED as lender (the "Mortgagee", which expression shall include its successors, assigns and transferees).

 

NOW THIS DEED WITNESSES as follows:

 

1Definitions and Interpretation

 

1.1Definitions

 

"BCA" means the BVI Business Companies Act, (No 16 of 2004), as amended.

 

"CLPA" means the Conveyancing and Law of Property Act 1967 (Cap 220 of the 1991 Revised Laws of the British Virgin Islands), as amended.

 

"Collateral Rights" means all rights, powers and remedies of the Mortgagee or any Receiver (or any Delegate pursuant to this Deed or the Finance Documents) provided by or pursuant to this Deed or by law.

 

"Company" means GenTao Capital Limited, a BVI business company incorporated with limited liability under the laws of the British Virgin Islands with registration number 1759132.

 

"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Mortgagee or a Receiver.

 

"Event of Default" has the meaning given to that term in the Facility Agreement.

 

"Facility Agreement" means the term loan facility agreement dated on or around the date of this Deed between, among others, GenTao Capital Limited as borrower, Beacon Capital Group Inc., Fast Horse Technology Limited, Sunrise Corporate Holding Ltd. and Sheng Chen as guarantors and Bold Ally (Cayman) Limited as lender.

 

“Finance Document” has the meaning given to that term in the Facility Agreement.

 

"Insolvency Act" means the Insolvency Act (No 5 of 2003) as amended.

 

"Mortgaged Property" means the Shares and all present and future assets, rights, title, interests, advantages and benefits of the Mortgagor deriving from or incidental to any of the Shares including all Related Rights, which are the subject of the security created or expressed to be created in favour of the Mortgagee by or pursuant to this Deed.

 

 3 

 

 

Obligors” has the meaning given to that term in the Facility Agreement.

 

"Receiver" means a receiver or receiver and manager or an administrative receiver of the whole or any part of the Mortgaged Property and that term will include any appointee under a joint and/or several appointment.

 

"Register of Members" has the meaning given to that term in clause 4.1 (Perfection).

 

"Related Rights" means, in relation to any Share:

 

(a)the proceeds of sale of all or any part of that Share;

 

(b)all rights under any licence, agreement for sale, lease or other disposal in respect of that Share;

 

(c)all rights, powers, benefits, claims, contracts, warranties, remedies, security, guarantees, indemnities and/or covenants for title in respect of that Share;

 

(d)any moneys and proceeds paid or payable in respect of that Share (including any interest);

 

(e)all certificates or other evidence of title to any of the Shares now and from time to time hereafter deposited with the Mortgagee;

 

(f)(in the case where such Share comprises any share, equity interest or other security) all dividends, distributions (whether in cash, securities or other property), interest and monies payable in respect thereof and any rights, assets, shares and/or securities deriving therefrom or accruing thereto whether by way of redemption, bonus, exchange, preference, option, substitution, conversion, compensation or otherwise, whether certificated or uncertificated; and/or

 

(g)(in the case where such Share comprises any share, equity interest or other security) any rights against any clearing system in which such asset is held (including any rights to deliver any securities to or to the order of the Mortgagor), and all rights under any custodian or other similar agreement,

 

(in each case) from time to time.

 

"Secured Obligations" means all present and future obligations and liabilities of the Obligors (or any of them) in favour of the Mortgagee under the Facility Agreement, this Deed and other Finance Documents (or any of them) (as amended, restated, supplemented and/or novated from time to time), whether actual or contingent and whether owed or incurred alone or jointly and/or severally with another and as principal or as surety or in any other capacity or of any nature.

 

"Security" has the meaning given to that term in the Facility Agreement.

 

 4 

 

 

"Security Period" means the period beginning on the date of this Deed and ending on the date on which all the Secured Obligations have been unconditionally and irrevocably paid and discharged in full and the Mortgagee is under no further obligation to provide financial accommodation to any of the Obligors under any of the Finance Documents.

 

"Shares" means all of the shares issued by the Company and held by, to the order or on behalf of the Mortgagor at any time, including, as at the date of this Deed, the Shares as set out in Schedule 1 (Particulars of Shares).

 

1.2Construction

 

In this Deed:

 

1.2.1unless the context otherwise requires or a contrary intention appears, any term which is used but not defined in this Deed shall have the same meaning as defined in the Facility Agreement;

 

1.2.2the provisions in clause [2.1] (Construction) of the Facility Agreement apply to this Deed, except that references therein to "this Agreement" shall be construed as references to this Deed; and

 

1.2.3references in this Deed to any Clause or Schedule shall be to a clause or schedule contained in this Deed.

 

2Payment of Secured Obligations

 

The Mortgagor hereby covenants with the Mortgagee that he shall on demand pay and discharge each of the Secured Obligations on its due date as provided for in the Finance Documents.

 

3Security

 

3.1As legal and beneficial owner and as continuing security for the due and prompt discharge and payment of the Secured Obligations, the Mortgagor hereby:

 

(a)mortgages in favour of the Mortgagee by way of a first equitable mortgage all his right, title and interest in and to the Shares; and

 

(b)charges in favour of the Mortgagee, by way of a first fixed charge, all of his right, title and interest in and to the Mortgaged Property including all benefits, present and future, actual and contingent accruing in respect of the Mortgaged Property (to the extent not effectively mortgaged under paragraph (a) above).

 

3.2The Mortgagor hereby authorises the Mortgagee to arrange at any time following the occurrence of an Event of Default which is continuing for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Deed and at the request of the Mortgagee, the Mortgagor shall without delay procure that the foregoing shall be done.

 

 5 

 

 

4Perfection of Security

 

4.1Register of Members

 

The Mortgagor shall procure that the Company shall, promptly on the date of this Deed, instruct its registered agent to enter the annotation below in the register of members of the Company maintained by it in accordance with section 41 of the BCA (the "Register of Members"), and within five (5) Business Days from the date of this Deed deliver or procure to be delivered to the Mortgagee a certified true copy of the updated Register of Members:

 

"All the shares registered in the name of Sheng Chen are mortgaged and/or charged in favour of Bold Ally (Cayman) Limited pursuant to an equitable share mortgage dated [   ], as amended from time to time. The date on which this annotation was entered in the Register of Members is [registered agent to complete]."

 

4.2Delivery of Documents of Title

 

The Mortgagor shall:

 

4.2.1on the date of this Deed, deposit with the Mortgagee (or procure the deposit with the Mortgagee of) the following in respect of any Shares existing as at the date of this Deed:

 

(a)a certified true copy of the register of members of the Company;

 

(b)