Loan Agreement Agricultural Bank of China
Exhibit
10.72
Agricultural
Bank of China
Agreement Number:
00000000000000000
Borrower (Full Name): Henan Shuncheng Group Coal
Coke Co., Ltd.
Lender (Full Name): Anyang Branch, Agricultural
Bank of China
In
accordance with the applicable state laws and regulations, this Agreement is
concluded through friendly consultation by both parties.
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Article
1
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The
Loan
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1.
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Type
of the Loan: Short-term working
capital loan
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2.
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Use
of the Loan: Purchase of raw coal
and washed coal
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3.
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Currency,
Amount of the Loan (Written in Capital) : RMB
THIRTY MILLION ONLY.
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4.
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Term
of the Loan
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(1)
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See
the following table about the term of the
loan.
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Loan Release
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Maturity
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|||||||||||||||||||
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Year
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Month
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Day
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Amount
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Year
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Month
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Day
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Xxxxxx
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|||||||||||||
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0000
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0 | 00 |
XXX
30,000,000.00
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2010
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6 | 00 |
XXX
30,000,000.00
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(If lines
in the table are not enough, the added schedule shall be part of this
Agreement.)
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(2)
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Where
there is any inconsistency between the amount, release date, maturity date
stipulated in this Agreement and the stipulations on the loan note, the
latter shall prevail. The loan note is part of this Agreement and has the
same legal effect with the
Agreement.
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(3)
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In
case the loan is of foreign currency, then principal and interest of the
loan shall be repaid by use of the same
currency.
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5.
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Interest Rate of the
Loan
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The
interest rate shall be determined by the first method
below:
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(1)
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Floating
Interest Rate
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The
interest rate will be raised (raised
/reduced) 20 %
on the basis of benchmark interest rate, and the applicable annual interest rate
hereof is 6.372
%. The benchmark interest rate for loan with a term less than 5 years
(including 5 years) equals to the benchmark interest for the loan with a same
term announced by the People’s Bank of China (the “PBOC”); the benchmark
interest rate for loan with a term more than 5 years shall be __/__% higher than
the benchmark interest for the loan with a same term announced by the
PBOC.
The
adjustment cycle of interest rate shall be (in capital)
THREE months. In case that PBOC adjusts its benchmark
loan interest rate, from corresponding date of the first month after such
adjustment, the Lender may charge an interest in accordance with the new
interest rate determined in line with the above mentioned calculation methods on
basis of the corresponding benchmark interest rate after adjustment, without
notice to the Borrower. In case the adjustment date is same as the loan release
date or its corresponding loan release date of the first month after
such adjustment, new applicable shall be in effect from the adjustment date. In
case that there is no adjustment date corresponding to loan release date, then
the new applicable interest shall be in effect from the last date of such
month.
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(2)
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Fixed
Interest Rate
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The
interest rate will be
raised (raised /reduced) at / %
on the basis of benchmark interest rate, and the annual interest rate is / %
up to the maturity date. The benchmark interest rate for loan with a term of
less than 5 years (including 5 years) equals to the benchmark interest for the
loan with a same term announced by the People’s Bank of China; the benchmark
interest rate for loan with a term of more than 5 years shall be [/] % higher
than the benchmark interest for the loan with a same term announced by the
PBOC.
The
interest rate of the foreign exchange loan shall be determined by the__/__
method below:
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(1)
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The
interest rate will be calculated through the __/___ (LIBOR/HIBOR) of (in
capital) _/___ months
plus / %
of the margin with a floating period of (in capital) / months.
LIBOR/HIBOR is the corresponding London/Hong Kong Inter-bank Offered Rate
two business days prior to the value date published by Reuters news
agency.
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(2)
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The
annual interest rate is / %
up to the maturity date.
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(3)
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Other
methods: /
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6.
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Interest
Settlement
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The
interest on the loan hereunder shall be paid per month
(month/quarter), and the interest settlement date is the twentieth day of each
month
(month/end month of each quarter). The Borrower shall pay the interest on
the settlement date. If payment for the last installment is not on the
settlement date, the interest shall be paid together with the principal (day
rate = month rate/30)
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Article
2
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If
the following conditions are not satisfied, the Lender shall be entitled
not to provide the loan hereunder:
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1.
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The
Borrower shall open a general deposit
account with the Lender.
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2.
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The
Borrower shall offer the relevant documents, materials and settle the
follow-ups in accordance with requirements of the
Lender.
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3.
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If
the loan hereunder is foreign exchange loan, the Borrower shall obtain the
approval, registration and other legal procedures related to this loan in
accordance with the applicable laws and
regulations.
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4.
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Where
there are mortgage, pledge set up for the loan hereof, the relevant
prescribed procedures, such as registration and/or insurance, shall be
completed, and such mortgage, pledge, insurance shall remain in force.
Where there is guaranty set up for the loan, the guaranty agreement shall
be signed and come into force.
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Article
3
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Rights
and Obligations of the Lender
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1.
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The
Lender is entitled to acknowledge the Borrower’s production, management,
financial activity, material inventory, use of the loan and other
conditions, and require the Borrower make available the relevant
documents, materials and information like financial statement on
schedule.
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2.
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If
any adverse actions or situations caused by the Borrower, which is
sufficient to influence the safety of the loan hereof, including but not
limited to the stipulations in the subparagraph 7, 8, 10 under Article 4,
the Lender may cease to grant the loan or recover the loan in
advance.
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3.
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When
the Lender recall, according to the terms herein or in advance, the
principle, interest, default interest, cumulative interest and other fees
the Borrower shall pay, the Lender may deduct directly from any account of
the Borrower.
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4.
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If
the amounts the Borrower repaid is not enough to clear off the payables
hereunder, the Lender is entitled to decide the priority to pay the
principle, interest, default interest, compound interest or other
fees.
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5.
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If
the Borrower fails to perform the obligation of repayment, the Lender may
make the breach actions of the Borrower known to the
public.
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6.
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The
Lender shall grant the loan to the Borrower in full amount on
schedule.
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Article
4
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Rights
and Obligations of the Borrower
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1.
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The
Borrower has the right to gain and use the loan in accordance with the
provisions set forth in this
Agreement.
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2.
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The
Borrower shall transact the settlement and deposit related with loan
hereunder through the account stipulated in the Article 2
hereof.
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3.
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If
the loan hereunder is foreign exchange loan, the Borrower shall obtain
related approval, registration and other legal procedures related to this
loan in accordance with the applicable laws and
regulations.
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4.
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The
Borrower shall repay the principal and interest on schedule. If the
payment needs to be extended, the Borrower shall submit a written
application to the Lender within 15 days prior to the maturity date. After
obtaining the consent of the Lender, loan extension Agreement shall be
concluded.
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5.
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The
Borrower shall use the loan in accordance with the provisions set forth
herein, and not misappropriate or divert the
loan.
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6.
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The
Borrower shall offer true, complete, effective financial statement or
other relevant materials, information to the Lender monthly, and actively
coordinate with the Lender to check its production, management, financial
activity and use of the loan
hereunder.
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7.
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Any
Agreement, lease, remolding with the stock system, affiliation,
combination, merge, split, joint venturing, property transfer, application
for suspending business for rectification, dissolving, bankrupting and
other actions implemented by the Borrower, which is sufficient to cause
changes of the debtor-creditor relationship hereunder or impose influence
on the realization of the creditor's rights, the Borrower shall give a
written notice to the Lender in advance. After obtaining the consent of
the Lender, the Borrower shall be obligated to clear off the debts or
prepay the debts; otherwise, the implementation of the above actions is
not allowed.
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8.
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In
addition to the above mentioned actions, any other affairs which might
have a material adverse effect on the obligations of repayment hereunder
happened to the Borrower, such as off production, out of business,
cancellation of business registration, revocation of business license,
engaging in illegal activities by the legal representative or people in
charge, involved in material litigation or arbitration, encountering
serious business difficulties and deteriorated financial situation, the
Borrower shall promptly notice the Lender of such affairs in written, and
implement the measures for creditor’s right preservation accepted by the
Lender.
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9.
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In
case that Borrower intends to provide guaranty or set up mortgage or
pledge on its principle property for a third party, and such will impose
an adverse effect on its repayment capacity for the loan hereunder, the
Borrower shall give a written notice to the Lender in advance and obtain
consent from the Lender.
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10.
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The
Borrower and its investor shall not withdraw its capital illegally,
transfer assets or transfer shares without consent from the Lender for
purpose of evading debt obligations to the
Creditor.
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11.
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In
case of any changes in the name, legal representative, address, business
scope and other affairs of the Borrower, the Borrower shall give a written
notice to the Lender promptly.
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12.
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If
off production, out of business, cancellation of registration, revocation
of business license, bankruptcy and operation loss happened to the
guarantor for the loan hereunder, and causes the guarantor to lose the
guaranty ability partly or wholly, or value of the mortgage, pledge, and
pledge rights for benefit of the loan hereunder is detracted, the Borrower
shall promptly provide other security measures acceptable by the
Lender.
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13.
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The
Borrower shall assume the fees charged for lawyer service, insurance,
transformation, evaluation, registration, storage, identification,
notarization and other fees related with this Agreement and the security
hereunder.
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Article
5
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Prepayment
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Prepayment
of the loan by the Borrower shall be subject to written consent from the Lender.
If the Lender agrees with the Borrower on the prepayment, the interest of
prepaid amount shall be calculated in accordance with the second method as
follows:
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1.
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The
interest is calculated on the basis of the applicable interest rate and
loan term specified in this
Agreement.
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2.
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The
interest is calculated in accordance with the interest rate which is
raised ZERO (in
capital) on the basis of the applicable rate specified herein and the days
actually lapsed.
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Article
6
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Liability
for Breach of Agreement
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1.
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If
any loss caused to the Borrower due to the Lender’s failure to grant loan
in full amount at the time stipulated hereof, the Lender shall pay the
Borrower liquidated damage on the basis of the default amount and overdue
days and by using calculation method same as that for the overdue interest
for the same period.
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2.
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If
the Borrower fails to repay the principal in accordance with the
stipulated time herein, the Lender may charge a default interest for the
overdue loan from the overdue date to the principal and interest clear-off
date, which is calculated by raising [FIFTY]% on
basis of the interest rate specified in this Agreement. If the currency of
loan is RMB and the interest rate is determined as a floating rate, the
default interest rate shall be accordingly raised from the subsequent
month provided that the PBOC raises the benchmark interest rate for the
same period during the overdue term of
loan.
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3.
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If
the Borrower fails to comply with the usage of the loan stipulated herein,
the Lender may charge a default interest for the amount in default from
the breach date to the clear off date which is calculated by raising ONE HUNDRED %
on the basis of the interest rate specified herein. The default interest
rate shall be accordingly raised from the subsequent month provided that
the PBOC raises the benchmark interest rate of the same period during the
such term in default.
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4.
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The
Lender may charge a cumulative interest as of the payable accrued interest
in accordance with the provisions stipulated by the PBOC. The payable
accrued interest includes the payable accrued interest arising in the term
of loan (including breaching interest for breach use of loan) and payable
interest after the loan is due (including overdue interest and breach
interest for breach use of loan). As for the payable accrued interest
arising in the term of loan, the Lender may charge a cumulative interest
on basis of the applicable interest stipulated herein; and after the loan
is due, the Lender may charge a cumulative interest on basis of the
overdue interest.
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5.
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If
the Borrower violates the obligations hereunder, the Lender has the right
to request the Borrower to correct such breach within a time limit, cease
the loan, recover the loan in advance, declare that the loan under other
Agreement concluded between the Borrower and the Lender is due
immediately, or take other property preservation
measures.
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6.
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If
any party, who provides security to back the loan hereunder, violates its
obligations specified in the security Agreement, the Lender has the right
to take measures to preserve the property, such as cease the loan, recover
the loan in advance or other asset preservation
measures.
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7.
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If
the Lender launches any litigation or arbitration due to the Borrower’s
breach of Agreement, the Borrower shall assume the legal fee, travel
expense and other fees related with realization of the creditor's rights
paid by the Lender.
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Article
7
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Security
for Benefit of the Loan
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The
security for benefit of the loan hereunder is in the form of mortgage and
guaranty, and corresponding security Agreements shall be concluded
otherwise. In case that the security is in the form of mortgage subject to a
maximum amount, the cotract number of such security Agreement is 41905200900095094,
41906200900000502.
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Article
8
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Settlement
of Disputes
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Any
disputes arising from the performance of this Agreement shall be settled through
friendly consultation by both parties, or settled according to the first way as
follows:
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1.
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Litigation,
which is governed by the people's court at the place where the defendant
is located.
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2.
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Arbitration,
which shall be submitted to [blank] (the full name of arbitration agency)
for arbitration according to its then applicable arbitration
rules.
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During
the period of litigation or arbitration, other clauses not in dispute shall be
performed continuously.
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Article
9
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Other
Terms
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____/_____
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Article
10
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Effectiveness
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This
Agreement shall come into force on the day on which it is signed and stamped by
both parties.
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Article
11
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Originals
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This
Agreement is executed in six original copies,
each with the same legal effects; each party hereof holds one, guarantor for the
loan hereunder holds one, and registration department
holds one.
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Article
12
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Tips
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The
Lender has warned the Borrower to understand the printed clauses hereof
thoroughly and correctly, and explained the relevant clauses in detail on the
request of the Borrower. All the parties have reached common understanding
regarding to this Agreement.
Borrower: Henan Shuncheng
Group Coal Coke Co., Ltd
(Signature)
Legal
Representative / [company seal and stamp]
Authorized
Representative: /s/ Wang Xinshun’s
Lender: Anyang County Branch,
Agricultural Bank of China
(Signature)
Legal
Representative / [company seal and stamp]
Authorized
Representative: (signature) [illegible]
Date of Agreement: June 25,
2009
Contracting Place: Anyang
Branch, Agricultural Bank of China
