RMB LOAN AGREEMENT (For Corporation) BANK OF LUOYANG
Exhibit
10.38
Luo
Yin (2010) [Zhengzhou Fen]Hang Jie Zi No. 2100010
RMB LOAN
AGREEMENT
(For
Corporation)
BANK OF
LUOYANG
Borrower:
Henan Shuncheng Group
Coal Coke Co., Ltd.
Lender:
Zhengzhou
Branch of the Bank of Luoyang
To clear
the rights and responsibilities of the Borrower and Lender, according to
applicable laws and regulations, the Borrower and Lender, after reaching an
agreement through negotiations, hereby enter into this Loan
Agreement.
Article
1 Type
and Amount of the Loan
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1.1
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Type
of the loan under this Loan Agreement shall be current fund
loan.
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1.2
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Loan
amount (full-form characters): RMB Twenty million
yuan.
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Article
2 Use
of the Loan
Purchase of raw
material
Article
3 Duration
of the Loan
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3.1
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Loan
term: 12 months,
from January 28, 2010 to January 27,
2011.
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3.2
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Within
the term of this Loan Agreement, the release date and repayment date shall
be subject to the Loan Voucher.
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Article
4 Interest
Rate and Interest Calculation
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4.1
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Interest
rate under this Loan Agreement, shall be 5.31‰ per month
and shall be subject to the interest rate provided by People's Bank of
China on the disbursement date of the
Lender.
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4.2
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The
interest of the loan under this Loan Agreement is to be accrued from the
disbursement day and settled monthly
(month/season). The settlement date is the 20th day of each month
(month/season). All principal and interest shall be paid in full on
the day the term of the Loan
expires.
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4.3
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In
the case that the Borrower prepays the loan with the prior consent of the
Lender the interest shall still be calculated according to the interest
rate and actual term of the loan.
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4.4
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During
the term of this Loan Agreement, in the event that People's Bank of China
adjusts the relevant regulations and such adjustments are applicable to
the loan hereunder, the Lender may implement such regulations of People's
Bank of China and Bank of Luoyang without noticing the
Borrower.
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Article
5 Release
of the Loan
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5.1
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The
Lender shall only be liable to release of funds under the Loan Agreement
provided that the following precedent conditions have been satisfied
except that the waive or waive partly to the provisions
herein:
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5.1.1
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Borrower
has performed all the approvals, registrations, delivery and other
legally-required procedures in accordance with relevant laws and
regulations;
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5.1.2
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Where
there is guarantee of this Loan Agreement, a related Guarantee Agreement
meeting the requirements of the Lender has come into effect and such
Guarantee and insurance will continue to be
effective.
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5.1.3
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No
event of default provided in this Loan Agreement has been conducted by the
Borrower;
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5.1.4
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Other
provisions of both parties:
/
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5.1.5
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Release
Plan:
/
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Article
6 Source
of Repayment and Repayment of the Loan:
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6.1
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The
source of the repayment includes but not limited to revenue, profits and
other legal income.
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6.2
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The
order of the repayment of the normal Loan herein shall abide by the order
of the interest first and then the
principal.
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6.3
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The
Borrower shall pay to the Lender the due interest on the settlement day.
The first payment of the interest is on the first settlement day and the
interest shall be paid off together with the
principal.
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6.4
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Repayment
method: The
Borrower shall repay the principal under this Loan Agreement in full on
the due date in lump sum.
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6.5
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The
Borrower shall, prior to the due date provided herein, reserve the payable
funds in the account opened with the Lender and repay the Loan under this
Loan Agreement on the Borrower's own initiative, or withdraw funds from
other accounts to the account of the Lender on the due date. In the case
that the Borrower fails to repay to the Lender as speculated herein the
Lender shall have the right to withdraw funds from the account at Bank of
Luoyang opened by the Borrower.
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Article
7 Guarantee
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7.1
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The
guarantor under this Loan Agreement is Anyang Xinpu Steel
Co., Ltd , Anyang County Bailianpo Coal Co., Ltd and Wang Xinshun,
who shall be jointly and severally
guarantee with respect to the loan
hereunder.
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7.2
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The
Borrower shall be obliged to actively assist the Lender to enter into the
guarantee Agreement with the number of [Luoyin Zhengzhou Fen Hang Baozi
100202D210001000B-1, 100202D210001000B-2, 100202D210001000B-3] with the
said guarantor.
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Article
8 Rights
and Responsibilities of the Borrower
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8.1
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The
Borrower shall have the following
rights:
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8.1.1
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To
require the Lender to disburse the Loan in accordance with the provisions
herein;
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8.1.2
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To
use the funds subject to the purposes provided
herein;
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8.1.3
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To
require the Lender to keep confidential the relevant financial materials
provided by the Borrower and the business confidential information with
respect to the production and operation except as otherwise provided by
laws and regulations.
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8.2
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The
Borrower shall have the following
responsibilities:
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8.2.1 The
borrower shall provide the relevant financial and accounting materials and
production and operation situation materials, including but not limited to
submitting the financial statements up to the end of last month to the Lender by
the tenth day of every month, and be liable of the authenticity, integrity and
effectiveness of such materials.
8.2.2 The
borrower shall use the funds subject to the purposes provided herein and shall
not misappropriate and embezzle the funds. The borrower and its investor shall
not surreptitiously withdrawn funds or transfer assets to avoid the liabilities
to the Lender.
8.2.3 The
Borrower shall actively cooperate with the Lender and accept the examination and
inspection of its production and operation, financial activities and the
situation of the use the Loan under this Loan Agreement;
8.2.4 The
Borrower shall repay the principal and interest of the loan herein pursuant to
this Loan Agreement.
8.2.5 The
Borrower shall not, prior the fully repayment of the principal and interest of
the loan herein, provide Guarantee with the loan hereunder or the assets
generated by the loan, which could influence the ability of the Borrower to
repay the funds. In the event that the shareholder transfers the investment the
Borrower shall notice the Lender in writing in advance and obtain the consent of
the Lender.
8.2.6
The Borrower shall, prior the fully
repayment of the principal and interest of the loan herein, notice the Lender in
writing in advance in the case that the name, residential address, legal
representative (person in charge), business scope or registered capital is
changed.
8.2.7
In the event that Agreement with,
lease, re-organization according to modern corporate system, co-operation, merge
and acquisition, dissolution, joint venture, filling for suspension business for
rectification and bankruptcy occurs to the Borrower it shall, prior the fully
repayment of the principal and interest of the loan herein, notice the Lender in
writing 60 days in advance to obtain the consent of the Lender and fulfill the
repayment and guarantee of the loan hereunder according to the requirements of
the Lender.
8.2.8
Prior to the repayment of
interest of loan of the Lender, In the event that cease of production, business
suspension, logout registration, withdrawal of the business license, illegal
activities conducted by the legal representative or chief leader, involvement of
the major law suits, great difficulties in the production or business operation
or aggravating financial situation occurs to the Borrower, which may produce the
substantial adverse effect on the implement of the repayment liabilities
hereunder, it shall promptly notice the Lender in writing and fulfill the
repayment and guarantee of the loan hereunder according to the requirements of
the Lender.
8.2.9
Where the guarantor of this Loan
Agreement violates the provisions in the guarantee Agreement, or the cease of
production, business suspension, logout registration, withdrawal of the business
license, bankruptcy or loss in the business operation, which could cause the
incapability, in whole or partly, of the Guarantee hereunder, occurs to such
guarantor, or the value of the mortgaged or pledged properties reduces or the
said properties destroyed by accident, the Borrower shall promptly provide other
Guarantee verified by the Lender.
8.2.10
The expenses and fees such as legal fees,
insurance, verification, registration, custody, notarization, deposit and
appraisal with respect to this Loan Agreement or the guarantee hereunder shall
be born by the Borrower.
Article
9 Rights
and Responsibilities of the Lender
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9.1
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The
Lender shall have the following
rights:
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9.1.1
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To
know the business operation and financial activities situation of the
Borrower and to require the Borrower to provide the documentation such as
relevant plan and statistics, financial and accounting
report.
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9.1.2
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When
collecting or collecting in advance in accordance with the provisions
hereunder the principal, interest, default interest, overdue interest,
compound interest and other payable fees and expenses of the Borrower, to
withdraw the payable funds from the account opened by the Borrower in Bank
of Luoyang.
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9.2
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The
Lender shall have the following
responsibilities:
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9.2.1
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To
release the loan hereunder fully and in time in accordance with the
provisions hereunder except the delay caused by the
Borrower.
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9.2.2
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To
keep confidential the relevant financial materials provided by the
Borrower and the business confidential information with respect to the
production and operation except as otherwise provided by laws and
regulations.
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Article
10 Effectiveness,
Modification, Cancellation and Termination of the Agreement
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10.1
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This
Loan Agreement will become effective upon the signature of the legal
representative (responsible person) or authorized representative of the
Borrower or affixing of the official seal and the signature of the person
in charge or authorized representative and affixing of the official seal
of the Lender.
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10.2
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Should
the Borrower need to extend the term of the loan the Borrower shall apply
to the Lender 30 days prior to the due date of the loan and obtain the
written consent of the Lender.
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10.3
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The
assignment of the liability hereunder to any third party shall be subject
to the written consent of the Lender. This Loan Agreement shall remain in
effect prior to the assigned party entering into new loan Agreement with
the Lender.
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10.4
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Where
either the Borrower or the Lender needs to amend the other provisions
hereunder the Lender shall be noticed in writing and such amendments shall
be agreed by both parties upon the
negotiations.
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10.5
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The
agreements to amend the contents of this Loan Agreement by both parties
shall be considered to be agreed by the guarantor in writing except the
extension of the implementation period of the liability and increase of
the principal of this loan.
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Article
11 Default
Liability
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11.1
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Should
the Borrower violate article 8.2 hereunder or the Lender consider other
circumstances exist, which could cause material effect of the implement of
the credit, the Lender shall have the right to perform the following one
or several rights:
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11.1.1
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The
Borrower shall be liable to pay the Lender penalty equivalent to ten
percent of the principal.
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11.1.2
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The
Lender ceases to release the funds, or declare the term of the loan
expires immediately and require the Borrower to repay all of the
principal, due or undue, interest and all of the expenses and fees for the
fulfillment of the credit (including but not limited to the fees of
lawyers, lawsuits, arbitration, property preservation, business travel and
enforcement).
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11.1.3
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In
the event that the Borrower fails to use the funds under this loan
according to the purpose provided herein or fails to repay in time the due
principal and interest the penalty interest shall be accrued from the day
that such misuse happens or the loan becomes due, till the day that all of
the principal and interest be paid off. Such penalty interest shall be 50%
and 50%, respectively, more than the provided interest of this loan. Where
the People’s Bank of China adjusts the relevant regulations the Lender may
implement such regulations without noticing the
Lender.
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11.1.4
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The
interest that the Lender fails to pay in time pursuant to the provisions
herein, prior to the due time of this loan, the compound interest shall be
calculated in accordance with the method of the interest calculation
hereunder.
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11.1.5
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Where
the default liabilities provided in the guarantee Agreement shall be born
by the guarantor the Borrower shall be considered as default; or where the
circumstances provided under article 8.2.6 of this Loan Agreement the
Lender has the right to require guarantor to provide new guarantee, which
satisfies the Lender, with respect to all the debt hereunder, should
guarantor fails to provide such new guarantee the Lender shall cease to
release the funds immediately and require the Borrower to repay all of the
principal, due or undue, interest and all of the expenses and fees for the
fulfillment of the credit (including but not limited to the fees of
lawyers, lawsuits, arbitration, property preservation, business travel and
enforcement).
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11.1.6
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In
the event that the default event occurs to the Borrower or guarantor and
the Borrower fails to repay all of the principal and interest according to
the requirements of the Lender, the Lender shall have the right to
withdraw the funds from the accounts of the Borrower opened at Bank of
Luoyang.
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11.1.7
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To
implement the guarantee rights.
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11.1.8
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To
terminate this Loan Agreement.
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11.2
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In
event that the Lender violates article 9.2 under this
Agreement
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11.2.1
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The
Borrower shall pay 10% default
penalty to the Lender.
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11.2.2
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The
Borrower shall be liable for all the loss caused to the
Lender.
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Article
12 Other
Clauses
Supplementary
clauses regarding the interest: The interest under this Loan Agreement shall be
floating interest. Within the term of this Agreement, in the event that the
People’s Bank of China adjusts the loan interest, the interest of this Loan
Agreement shall be implemented in accordance with the loan interest of the same
period on the 21st day of the following month of such adjustment, and the Lender
will not send a specific notice to the Borrower.
Article
13 Resolution
of Disputes
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13.1
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Any
disputes arising out of, or in connection with the execution of this
Agreement shall be settled through the consultations between two parties;
where the agreements fail to be reached through such consultation, such
disputes shall be summated to the court of the legal address of the
Lender.
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13.2
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During
the period of the suit or arbitration, the provisions not related to the
resolution of disputes shall still continue to be
implemented.
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Article
14 Miscellaneous
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14.1
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The
Borrower understands clearly the business scope of the Lender and
authorization.
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14.2
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Upon
the requirements of the Lender the Borrower has already made the relevant
interpretation with respect to the provisions herein. The Borrower fully
knows and understands clearly the meaning of the provisions herein and
corresponding results.
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14.3
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The
Loan Voucher under this Loan Agreement and related documents and materials
confirmed by both parties are inseparable components of this Loan
Agreement with the same legal effect of this Loan
Agreement.
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14.4
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This
Loan Agreement has two originals, which are identical to each other with
each of the parties holding one copy. Each copy has the same legal
effect.
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The
Borrower (seal)
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The
Lender (seal)
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Legal
Representative (Main Responsible Officer) or Authorized Agent: /s/ Wang
Xinshun
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Legal
Representative (Main Responsible Officer) Authorized Agent:
[illegible]
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Date:
January 28, 2010
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Date:
January 28, 2010
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