Agreement for Establishment of Bank Payable Bills*
EXHIBIT
10.17.2
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上海浦东发展银行
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SHANGHAI
PUDONG DEVELOPMENT BANK
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To: Sub-branch of Branch of Shanghai Pudong
Development Bank Number:
CD76012008083584
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Client
Name:
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Henan
Gerui Composite Material Stock Co., Ltd.
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Date
of Application:
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Oct.
14, 2008
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Address:
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1
Xinzheng Shuanghu Economic Development Zone
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Contact
Person of Client
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Xxxxxxx
Xxx
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Telephone:
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0000-00000000
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Contact
Person of Financing Bank: (Filled out by the Financing
Bank)
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Tao
Jing
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Fax:
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0000-00000000
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The
Company hereby irrevocably applies to the bank for the establishment of
bank payable bills in accordance with the undermentioned terms of this
Agreement:
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I.
Important Provisions
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oThis Agreement
shall be signed as an auxiliary financing document of the “Financing Limit
Agreement” (hereinafter referred to as the “Financing Limit Agreement”)
with a document number
of . After
entry of force of this Agreement, all of the terms under this Agreement
shall become part of the Financing Limit Agreement (If the Client has
already signed a financing limit agreement with the financing bank, this
item should be checked, and the document number of the financing limit
agreement should be noted);
oThis Agreement
shall be an independent credit document signed between the applicant and
the financing bank (if the Client has not signed a financing limit
agreement with the financing bank, this item should be
checked).
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II.
Description of Bank Payable bills
(If
the financing agreement signed by the customer has provisions regarding
the rate and penalty rate, the related columns of this Agreement may be
omitted)
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Drawer
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See
Attachment
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Beneficiary
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See
Attachment
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Account
Number
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See
Attachment
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Account
Number
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See
Attachment
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Paying
Bank
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See
Attachment
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Bank
Name
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See
Attachment
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Amount
in words of Payable Xxxx
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Xxx
Attachment
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Payable
Xxxx Number
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See
Attachment
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Transferable
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oYes oNo
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Date
of Issuance
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Due
Date
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See
Attachment
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Transaction
Contract
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(Fill
out name, number, content of transaction contract) Oct.
1, 2008
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Invoice
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oAlready
Provided □Provided Later
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oValue-added tax
invoice oSales tax
invoice
oGeneral
invoice
oOther
Invoice
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Surcharge
(Rate)
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0.5‰
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Penalty
(Rate) for Bank Advance
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0.5‰
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Note:
Annual interest rate or daily interest rate shall be noted for penalty
rate.
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III.
Description of Guarantee
(If
the Financing Limit Agreement signed by the customer has provisions
regarding the conditions of guarantee, the related columns of this
Agreement may be omitted)
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Guarantor:
/
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Method
of Guarantee: oMortgage;
oPledge;
oGuarantee
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Security
Ratio: 100%
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*
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This
form of agreement is also used for the following bank payable
bills:
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Xxxx
in amount of RMB 10,000,000 valid from September 1, 2008 to March 1,
2009
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Xxxx
in amount of RMB 10,000,000 valid from October 14, 2008 to April 14,
2009
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上海浦东发展银行
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SHANGHAI
PUDONG DEVELOPMENT BANK
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IV.
General Provisions
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The
Client hereby confirms that the following general provisions regarding
establishment of bank payable bills have been read and
agreed:
1.
After the financing bank signs this Agreement, unless bank payable bills
have been established in accordance with the provisions stipulated under
this Agreement, the financing bank may cancel the promise of establishing
bank payable bills as agreed in this Agreement at any time.
2.
Submission of Documents The Client guarantees that the
following documents are submitted to the financing bank or the Client
meets the corresponding conditions prior to the establishment of bank
payable bills. However, the financing bank has no obligation to examine
the truthfulness of these documents:
(1)
Duplicate copies of the most recent Articles of Association and business
license of the Client;
(2)
The resolution of meeting of board of directors authorizing the Client to
sign this Agreement and the relevant auxiliary financing documents (If the
Articles of Association of the Client make limitation regarding the
contract signing power of the legal representative);
(3)
The power of attorney for the authorized representative of the Client and
a signature sample of the authorized representative;
(4)
This Agreement that is legally and effectively signed by the Client, the
original copy or duplicate copy of the transaction contract verified by
the Client, and that sufficient amount of security deposit has been paid
in accordance with the provisions of this Agreement;
(5)
If the bank payable bills under this Agreement has collateral, the
collateral document should have already been signed and entered into force
prior to the establishment of the bank payable bills;
(6)
Other documents and/or conditions requested by the financing bank at
times.
3.
The Client hereby confirms that: Sufficient amount of security deposit
shall be paid upon applying for establishment of payable bills. The
security deposit and the resulting interests shall be used as the
collateral for execution of this Agreement. Moreover, the Client agrees
that the security deposit requires no signing of additional collateral
document. The security deposit shall be possessed by the financing bank on
the date of deposit into the exclusive account for the security deposit.
The Client authorizes the financing bank to directly deduct the security
deposit and the corresponding interests when the financing bank needs to
make any payment for this Agreement.
4.
Replenishment of Shortage Irrespective the due date of the bank
payable bills and whether the financing bank has been requested to pay the
bank payable bills, the financing bank may request the Client to replenish
the security deposit to 100% for the bank payable bills already
established by the financing bank at any time. If the Client fails to
timely replenish the security deposit as requested by the financing bank,
10% of the required replenishing amount of the security deposit shall be
deemed as compensation to the financing bank as breach of contract by the
Client. In case that the event leads to additional costs incurred on the
financing bank, the incurred costs shall constitute to the advanced
payment made by the financing bank. The Client shall immediately return
the money and bear the penalty interest for advanced payment.
5.
Taxation Unless the laws require the Client to deduct the
relevant taxations upon repayment of the financing, the repayment by the
Client under this Agreement shall be paid in full amount without any
deduction. In case that the Client must deduct the relevant taxations in
accordance with the provisions of the laws, the Client shall pay
additional money to the financing bank, allowing the money received by the
financing bank equivalent to the amount that should be received by the
financing bank without any deduction.
6.
Declaration and Guarantee The Client makes the following
declarations and guarantees, and that the declarations and guarantees
shall be deemed being restated by the Client when the financing bank
provides financing in accordance with the provisions of this
Agreement:
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上海浦东发展银行
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SHANGHAI
PUDONG DEVELOPMENT BANK
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(1)
The Client is a company registered and established in accordance with the
laws of China (excluding Hong Kong and Macau Special Administrative
Regions and Taiwan; similarly hereinafter), has the right to sign this
Agreement and any documents associated with this Agreement, and has taken
the necessary company action, allowing this Agreement and any documents
associated with this Agreement to be legal, effective, and compulsorily
executable;
(2)
When the Client signs this Agreement and executes its obligations
stipulated under this Agreement, the Client shall not and will not violate
any other signed contracts or documents, articles of association, any
applicable laws, regulations, or administrative directives, and the
related documents, ruling, and judgment of the concerning authorities and
will not be in conflict with any previous arrangements or obligations
borne by the Client;
(3)
The Client and any of its shareholders and associated companies are not
involved in any liquidation, bankruptcy, reorganization, being buy-out,
merger, separation, restructuring, dissolution, shutdown, suspension of
business or similar legal procedures with no occurrence of any situation
that may lead to involvement of the aforementioned legal
procedures;
(4)
The Client is not involved in any economic, civil, criminal,
administrative litigation procedures or similar arbitration proceedings
that may lead to unfavorable impact, with no occurrence of any situation
that may lead to involvement of the Client into the aforementioned
litigations or similar arbitration proceedings;
(5)
The legal representative, directors, supervisors, or other senior
managerial personnel of the Client and any major assets of the Client are
not involved in any compulsory execution, seizure, detainment, freezing,
lien, or supervisory control, with no occurrence of any situation that may
lead to involvement of the aforementioned situations;
(6)
The Client guarantees that all the financial statements (if any) have met
the requirements of Chinese laws. All reports and statements are truthful,
complete, and fairly reflect the financial state of the Client. All the
materials, documents, and information, including itself and the guarantor
provided by the Client to the financing bank during signing and execution
of this Agreement are truthful, valid, accurate and complete without any
concealment or omission;
(7)
The Client shall strictly abide by the provisions of the laws and
regulations regarding its operation activities, shall strictly carry out
all business operations according to the business license or the legally
approved business scope, and shall timely complete the annual registration
renewal procedure;
(8)
The Client guarantees no inexistence of any situation or event that cause
or may cause unfavorable impact to the ability of the Client executing the
Agreement.
7.
Promised items: The Client makes the following promises:
(1)
The Client shall strictly observe and execute all the obligations
stipulated under this Agreement;
(2)
The Client shall timely repay the principal and interests of the financed
fund and pay the corresponding fees. The Client shall process, receive,
and abide by all the approvals, authorizations, registrations, and
licensing required by the applicable laws and shall maintain their
effectiveness, allowing the Client to legally sign and fulfill the
obligations stipulated under this Agreement and any other documents
associated with this Agreement. In case of request from the financing
bank, the Client shall promptly provide the related proof;
(3)
Within five working days of learning of its possible involvement in an
economic, civil, criminal, administrative litigation procedures or similar
arbitration proceedings that may lead to unfavorable impact or within five
working days of learning of its major assets are involved in
any compulsory execution, seizure, detainment, freezing, lien, or
supervisory control, the Client shall notify the financing bank in writing
detailing the impact and the remedial measures taken or plan to be
taken;
(4)
Without a written approval from the financing bank, repayment of large
amount of debts to a third party other than the financing bank or
fulfillment of any guarantee liability is prohibited;
(5)
Without a written approval from the financing bank, occurrence of any
other large amount of debts or existing debts or setting or providing any
form of collateral with first priority nature to any other debts for
itself or any third party is prohibited. Starting from the signing date of
this Agreement to the full repayment of all the debts under this
Agreement, without a written approval from the financing bank, the Client
shall not:
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上海浦东发展银行
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SHANGHAI
PUDONG DEVELOPMENT BANK
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a.
undergo liquidation, reorganization, bankruptcy, being buy-out, merger,
separation, restructuring, dissolution, shutdown, suspension of business,
or similar legal procedures;
b.
undergo sale, lease, donation, transfer or any other types of method of
disposition of any of its major assets unless necessary to its day-to-day
operations;
c.
undergo any change in the structuring of share rights;
d.
undergo signing of contract/agreement that may have major unfavorable
impact to fulfill the obligations stipulated under this Agreement or bear
any obligations that may have the same impact.
(6)
When specific circumstances or specific changes have occurred to the
collateral listed under this Agreement, the Client shall timely provides
other collateral approved by the financing bank in accordance with the
requirements of the financing bank. The specific circumstances or specific
changes shall include but not limit to the suspension of production,
termination of business, dissolution, temporary suspension of operation,
revoke or suspension of business license, applying for or being requested
for reorganization, bankruptcy, major changes in operation or financial
situation, involvement in major legal proceeding or arbitration, and
involvement of legal representative, directors, supervisor, and chief
managerial personnel in legal proceedings, devaluation, possible
devaluation, or seizure of the mortgage property or other property
preservation measures, actions of breach of contract under collateral
contract, and request for termination of collateral contract;
(7)
With the request from the financing bank, the Client shall also undergo
notarization of effective compulsory execution at a notarization office
appointed by the financing bank. The Client shall bear the costs and shall
voluntarily accept the compulsory execution;
(8)
The Client shall notify the financing bank at any time for any event that
may impact the ability of Client to fulfill its obligations stipulated
under this Agreement or any documents associated with this
Agreement.
8.
Fees and Expenses Unless the laws clearly stipulate that the
taxed items are borne by the financing bank, the Client shall be
responsible to bear any stamp tax duty and other taxations under this
Agreement or any documents associated with this Agreement.
9.
Penalty Interest For any overdue payment by the Client, a daily
penalty interest with the unpaid money (including unpaid interests) as
basis shall be charged against the Client starting from the due date to
the date of actual payment. The penalty interest shall be settled monthly
and shall be compounded monthly.
10.
Authorization of Repayment and Counterbalance The Client hereby
authorizes the financing bank to represent the Client using money
(irrespective the types of currency) in any accounts opened in the
financing bank to directly compensate the debts when any due debt is not
paid, irrespective whether the debt belongs to the debts under this
Agreement. This authorization is irrevocable. In case that currency
conversion is involved, the financing bank may undergo conversion in
accordance with the exchange rate determined by the financing bank. The
Client shall bear the risk of exchange rate.
11.
Proof of Debts The financing bank shall maintain a set of
accounting notes and vouchers related to the business activities
concerning this Agreement on its accounting books in accordance to its
general operational guidelines. Other than the obvious errors, the Client
shall accept that the relevant records of the accounting notes and
vouchers are the valid proof of the debts of the Client.
12.
Breach of Contract: Any actions, such as violation of any declaration or
guarantee of this Agreement by the Client or the declarations and
guarantees are proved ambiguous, untruthful, missing, misleading, or
already been violated, and/or violation or failure of execution of any
promised items of this Agreement by the Client and/or violation of any
provision of this Agreement by the Client, and/or occurrence of any
incidence that may impact the safety of the loan of the financing bank,
and/or violation of the provisions of the guarantee documents by the
guarantor, shall constitute breach of contract by the Client regarding
this Agreement. The financing bank shall have the right requesting the
Client to immediately return any money or replenish the security deposit
and may request the Client to compensate all the losses incurred on the
financing bank, including attorney
fees.
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上海浦东发展银行
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SHANGHAI
PUDONG DEVELOPMENT BANK
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13.
Special Term for Group Client: When the client of this Agreement is a
group client, the Client hereby agrees that: (1) The Client shall timely
report any associated transactions over 10% of the net assets of the
actual fiduciary, including: a. the relationships among all parties of the
transaction; b. the items and nature of the transaction; c. the amount or
the corresponding ratio of the transaction; d. pricing policy (including
non-monetary or token transactions); (2) In case that the actual fiduciary
has one of the followings, the Client shall be deemed breach of contract,
and the financing bank shall have the right to unilaterally cancel the
remaining unused credit with recovery of part or all of the used credits
or request the Client to pay up to 100% of security deposit: a. providing
false materials or concealing important operation and financial facts; b.
arbitrarily altering the purpose of use of credit without approval from
the financing bank; embezzling the credit or using the bank credit to
undergo unlawful and illegal transactions; c. using a fake contract with
receivable notes and account receivables that have no actual trade context
with an associated party to discount for cash or pledge from bank; d.
refusing to accept supervision and inspection from the financing bank
regarding the state of utilization of credit and the related operation and
financial activities; e. occurrence of major merger, buy-out, and
restructuring deemed by the financing bank as possible threat to the
safety of credit; f. intentional evasion of bank creditor’s rights through
associated transactions.
14.
Other Agreed Terms:
15.
Applicable Laws and Judicial Jurisdiction The laws of the
People’s Republic of China (excluding Hong Kong and Macau Special
Administrative Regions and Taiwan) shall be applicable for this Agreement
and shall be interpreted by the laws. All disputes in connection with this
Agreement of the execution thereof shall be governed by the local People’s
Court of the financing bank, which possesses non-exclusive judicial
jurisdiction.
16.
Place for Delivery of Litigation The Client confirms that the
delivery of the legal documents, such as subpoena and notices, issued
during the process of any legal proceedings that may have occurred
regarding this Agreement shall be deemed delivered upon delivery to the
address listed at the beginning of this Agreement. In case that the
financing bank is not notified in advance for any change of the
aforementioned address, the change shall be ineffective to the financing
bank.
17.
Severability of Articles In case that certain article or part
of an article of this Contract is deemed invalid, illegal, or
unenforceable, the invalid article or the invalid part shall not impact
the effectiveness, legality, and enforceability of other articles of this
Agreement.
18.
Within the effective period of this Agreement, the moratorium or delayed
action granted by the financing bank to the Client for any breach of
contract or other actions shall not harm, impact, or restrict all the
rights, interests, and benefits enjoyed by the financing bank as a
creditor in accordance with the laws and the provisions of this Agreement
and shall not be deemed as approval from the financing bank regarding the
act of breach of contract by the Client. Furthermore, it shall not be
deemed as forfeit of right undergoing legal action against the Client
regarding the present or future act of breach of contract.
19.
Consistency with the Financing Limit Agreement In case that a
discrepancy exists between the Financing Limit Agreement (If present, it
shall include the effective changes made at times) and this Agreement, the
provisions of this Agreement shall prevail.
20.
Signing This Agreement is made out in four original copies,
with the Client holding one copy and the financing bank holding three
other copies, which shall come into force upon signing and
affixing of seal by the legal representative/responsible person or
authorized representative of both parties and starting on the day of
application.
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上海浦东发展银行
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SHANGHAI
PUDONG DEVELOPMENT BANK
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Signing
Column
Both
parties confirm that, upon signing of this Agreement, both parties have
undergone detailed explanation regarding all the provisions and that both
parties have no objection regarding all the terms stipulated under this
Agreement. Moreover, the legal meaning of the provisions related to the
rights and obligations and limits of liabilities of all parties, or escape
clauses are accurately and fully understood.
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Client
(Official Seal): Henan Gerui Composite Material Stock Co.,
Ltd.
Legal
Representative (Signature or Seal)
or
Authorized Representative: Xxxxxxxx Xx (Seal)
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Financing
Bank (Official Seal): Special Finance Contract Seal of Zhengzhou Branch of
Shanghai Pudong Development Bank
Responsible
Person (Signature or Seal)
or
Authorized Representative: Xxxx Xx
(Seal)
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This
Attachment is a supplement to “Establishment of Bank Payable Bills Agreement”
(Agreement Number; CD7601200888) of Shanghai Pudong Development Bank. Two payable bills
have been issued with a total amount of ten million Yuan,
with ten
million Yuan of security deposit, zero Yuan of credit
exposure, and zero Yuan of order
pledge. The constituents of the bank payable bills referred to by this Agreement
are as follows:
Full Name
of Client: See left bottom corner for the official seal of the Client Paying Bank:
Banking Department of Zhengzhou Branch of Shanghai Pudong Development Bank Account No.:
65976090154500000417
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No.
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Amount
(Yuan)
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Beneficiary’s
Account No.
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Beneficiary’s
Name
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Bank
Number of Beneficiary’s Bank
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Bank
Name of Beneficiary’s Bank
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Issuance
Date of Payable Xxxx (yyyy/mm/dd)
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Due
Date of Payable Xxxx (yyyy/mm/dd)
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Payable
Xxxx No.
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0001
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5000000
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65276030154500000391
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Zhengzhou
Xx. 0 Xxxxx Xx., Xxx.
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Xxxxxxxxx
Xx Xxx-Xxxxxx of Shanghai Pudong Development Bank
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Oct.
16, 2008
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Apr.
16, 2009
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0002
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5000000
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65276030154500000391
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Zhengzhou
Xx. 0 Xxxxx Xx., Xxx.
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Xxxxxxxxx
Xx Xxx-Xxxxxx of Shanghai Pudong Development Bank
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Oct.
16, 2008
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Apr.
16, 2009
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Client
(Official
Seal): Henan
Gerui Composite Material Stock Co., Ltd.
Legal
Representative or Authorized Representative (Signature or Seal): Xxxxxxxx Xx
(Seal)
Financing
Bank (Official Seal): Special Finance Contract Seal of Zhengzhou Branch of
Shanghai Pudong Development Bank
Responsible
Person or Authorized Representative (Signature or Seal): Xxxx Xx
(Seal)
