China Merchants Bank Loan Contract China Merchants Bank Nanjing Branch
Exhibit
10.25
Contract
No.: [2008]D.Z.No.1111010262
China Merchants BankChina
Merchants Bank Nanjing Branch
1
Contract
No.:
oThis Contract is
a specific contract under the Credit Granting Agreement with the number
of_______________(If this provision is applicable, please tick ‘√’ in the o).
Lender:
China Merchants Bank (hereinafter referred to as Party A)
Principal:
Borrower:
Goldenway Nanjing Garments Company Limited (hereinafter referred to
as Party B)
Legal
representative/Principal:
Whereas
Party B applies to Party A for loan due to capital turnover and
Party A agrees to provide the loan after examination, both parties agree on the
terms and conditions below through friendly negotiation and hereby conclude the
contract according to relevant laws.
Article 1
Category of the loan
This loan
is for working
capital.
Article 2
Currency and amount of the loan
The
aggregate amount of the loan is RMB5,000,000.00.
Article 3
Usage of the loan
This loan
shall only be used for the turnover of the working
capital. Without Party A’s written consent, Party B may not divert the
loan to any other purpose.
Article 4
Term of the loan
The term
of the loan shall be one year, commencing on December 8, 2008 and
ending on December 8,
2009. Where the actual granting date of the loan disagrees with the date
above, the commencing date and ending date of the loan stated in the loan
certificate shall prevail.
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Article 5
Interest rate and interest of the loan
5.1
Interest rate:
5.1.1 The
type of the interest rate of the loan shall be (select one answer by ticking
‘√’ in the
o):
√Fixed interest
rate oFloating interest
rate
5.1.2
Determination of the interest rate within the contract term:
Where the
loan is granted in RMB, the interest rate of the loan shall be 5% √more/oless (select one answer
by ticking ‘√’ in the o) than the benchmark
interest rate of 5.58
year RMB loan released by the People’s Bank of China for the financial
institutions on the date of price fixing.
The date
of price fixing refers to the date which is used as a reference date for
determining the benchmark interest rate within the term or fluctuation period of
the loan. Where the loan adopts the fixed interest rate, the date of price
fixing shall be the date when the loan is actually granted; Where the loan
adopts the floating interest rate, the date of price fixing shall be determined
in accordance with Article 5.1.3 of this Contract.
5.1.4
Where Party B fails to use the loan in compliance with this Contract, the part
which is not used in accordance with the purpose of this Contract shall be
subject to twice of the original interest rate as of the date on which the
purpose of the loan is altered.
Where
Party B fails to repay the loan on schedule, the part not repaid shall be
subject to 150% of the original interest rate as of the date of
expiration.
The
original interest rate refers to the interest rate applicable prior to the
expiration date of the loan (including the expiration date ahead of schedule).
As for the floating interest rate, the original interest rate refers to the
applicable interest rate of the last fluctuation period prior to the expiration
date of the loan (including the expiration date ahead of schedule).
Where
Party B not only fails to repay the loan on schedule but also fails to use the
loan in compliance with the purpose stipulated in this Contract, the interest
shall be calculated in accordance with the higher interest rate set forth
above.
5.1.5
Where the People’s Bank of China adjusts the regulations concerning the interest
rate of loan during the term of the loan, the interest of the loan shall be
calculated in accordance with the regulations of the People's Bank of
China.
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5.2
Interest calculation: The interest of the loan shall be calculated, as of the
date on which the loan is deposited into the account of Party B, in a quarterly manner on
basis of the actual amount of the loan granted and the actual number of days the
loan is used, and the value date shall be the 20th day of
the last month of each
quarter. The daily interest rate shall be converted in accordance with
the relevant regulations of the People’s Bank of China or international
practice.
5.3
Payment of interest: Party B shall pay on each value date the interest which
Party A may deduct directly from the deposit account of Party B. Where Party B
fails to pay the interest on schedule, Party A has the right to add compound
interest to the unpaid interest on the basis of the interest rate of loan in the
same period.
Article 6
Guarantee for the loan (select the answer by ticking ‘√’ in the o according to the actual
situation)
√o 6.1 The
guarantor designated by Party B for the principal and interest under this
Contract and all other relevant expenses is Xxxx Xxxxx (康宜华), who shall provide
Party A with irrevocable letter of guarantee, and
√o6.2 Xxxx Xxxxx (康宜华) and Kang Huake (康华珂) agree to provide
their real estates or the real estates under their disposal as the collaterals
for the loan under this Contract. The mortgage contract shall be concluded by
both parties separately.
Where
this Contract is the specific contract under the Credit Granting Agreement, this
Article shall not apply and the debt under this Contact will automatically be
included into the guarantee scope of the guarantor, who signs the contract of
mortgage (pledge) of maximum amount with Party A or provides Party A with the
irrevocable letter of guarantee of maximum amount.
Where the
guarantor fails to sign the documentations of guarantee and go through guarantee
procedures in compliance with relevant provisions, Party A has the right to
refuse to grant the loan to Party B.
Article 7
Rights and liabilities of Party B
7.1 Party
B is entitled to the following rights:
7.1.1
Party B has the right to withdraw and use all the loans pursuant to this
Contract; and
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7.1.2
Party B has the right to transfer its debt to a third party after obtaining the
consent from Party A.
7.2 Party
B shall undertake the following obligations:
7.2.1
Party B shall honestly provide with Party A the documentations as required by
Party A and all the information concerning its relationship bank, account number
and balance of the deposits as well as loans, and collaborate with Party A in
its investigation, examination and inspection;
7.2.2
Party B shall accept the supervision from Party A over its use of the credit
capital and its business operation as well as financial activities;
7.2.3
Party B shall use the loan in compliance with the purpose stipulated in this
Contract;
7.2.4
Party B shall repay, in full amount, the principal and interest of the loan on
schedule according to this Contact;
7.2.5
Where Party B is to transfer the all or part of the debt under this Contract to
a third party, it shall obtain a prior written consent from Party
A;
7.2.6
Where Party B falls under any of the following situations, Party B shall
immediately inform Party A and collaborate with Party A in implementing the
safeguard measures as required to repay, in full amount, the principal and
interest as well as all other expenses under this Contract on
schedule:
7.2.6.1
Meeting with grave financial losses, assets losses or other financial
crisis;
7.2.6.2
For the benefit of a third party or in a bid to prevent a third party against
losses, providing loan or assurance guaranty, or self-owned property (rights)
for mortgage (pledge) guarantee;
7.2.6.3
Meeting with such alteration as consolidation (merger), division, restructuring,
joint venture (cooperation), transfer of title of property, or shareholding
reform;
7.2.6.4
Meeting with cessation of business, revocation or cancellation of business
license, voluntary bankruptcy or involuntary bankruptcy, or
dismissal;
7.2.6.5
Its holding shareholder or any of its affiliated companies meeting with grave
crisis in the business operation or finance, which in turn imposes impact upon
its normal operation;
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7.2.6.6
Its holding shareholder carrying out major affiliated transaction with any of
its affiliated companies, which in turn imposes impact upon its normal
operation;
7.2.6.7
Meeting with any lawsuit, arbitration or criminal or administrative penalty,
which causes great adverse effect to Party B’s operation or financial status;
or
7.2.6.8
Meeting with any other major event which may influence Party B’s capability to
repay the debt; and
7.2.7
Party B’s may neither idle in managing and make recourse to matured creditor’s
rights nor dispose of the existing major property for free or by other
inadequate means.
Article 8
Rights and liabilities of Party A
8.1 Party
A is entitled to the following rights:
8.1.1
Party A has the right to require Party B to repay the principal and interest of
the loan in full amount and on schedule.
8.1.2
Party A has the right to require Party B to provide the materials concerning the
loan;
8.1.3
Party A has the right to understand the situations relevant to Party B's
business operation and financial activities;
8.1.4
Party A has the right to supervise Party B in its usage of the loan in
compliance with this Contract;
8.1.5
Party A has the right to directly deduct the principal and interest of the loan
from the account of Party B;
8.1.6
Party A has the right to transfer its creditor’s rights over Party B, and adopt
measures which it deems as adequate, including but without limitation to fax,
mail, service by specially-designated person and announcement in public media,
to inform Party B with the transfer. Furthermore, Party A has the right to carry
out collection upon Party B;
8.1.7 As
for the business in which the buyer obtains the loan on its credit and the
seller repays for the interest of the loan and vice versa, Party A has the right
to refuse to grant the loan to Party B before it receives the Commitment of
Interest Payment submitted by seller/buyer; and
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8.1.8
Other rights as stipulated in this Contract.
8.2 Party
A shall undertake the following obligations:
8.2.1
Party A shall grant loan to Party B in accordance with the terms and conditions
stipulated in this Contract; and
8.2.2
Party A shall keep confidential Party B’s finance, production, and business
operation, unless otherwise provided by laws and regulations or required by
regulatory authority.
Article 9
Party B specifically guaranties the following items:
9.1 Duly
established in accordance with the laws of China, Party B is a legally-existed
entity with legal person status, and has adequate capacity for civil conduct in
signing and performing this Contact;
9.2 The
signing and performing of this Contract have already been fully authorized by
board of directors or any other competent organ;
9.3 The
documents, materials and vouchers provided by Party B concerning itself,
guarantor, mortgagor (pledgor), collaterals (pledges) are authentic, accurate,
complete and effective, and neither contain any major contra-factual errors nor
omit any major facts;
9.4 No
lawsuit, arbitration or criminal and administrative penalties which have caused
major adverse effect to Party B or the main property of Party B occur when this
Contract is signed and such lawsuit, arbitration or criminal and administrative
penalties will not occur during the execution of this Contract. If there is any,
Party B shall promptly inform Party A;
9.5 Party
B performs operating activities in strict accordance with the laws and
regulations of PRC, and carries out business in compliance with the business
scope prescribed in its Corporate Business License, and goes through annual
check registration formalities for enterprise (legal person) on
schedule;
9.6 Party
B shall maintain or improve the existing managerial and administrative
expertise, ensure the value maintenance or appreciation of the existing assets,
and neither never waive any matured creditor’s right nor dispose of its major
property for free or by other inappropriate means; and
9.7 When
this Contract is signed, no major event that will influence the performance of
any obligation of Party B under this Contract has occurred to Party
B.
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Article
10 Repayment in advance
10.1 Upon
Party A’s consent, Party B may repay the debt in advance; and
10.2
Where Party B repays the debt in advance, the interest rate shall still be
calculated in compliance with this Contract.
Article
11 Renewal of the loan
To
transact the loan renewal as a result of the failure to repay the loan under
this Contract on schedule, Party B shall file a written application to Party A
one month prior to the expiration date of this Contract; where Party A accepts
the loan renewal upon examination, both parties shall conclude a renewal
agreement separately. Where Party A refuses to accept the application for
renewal, this Contract shall still be effective, and Party B shall repay the
loan it has already occupied and the payable interest in accordance with this
Contract.
Article
12 Expenses
Party B
shall bear, in full amount, the expenses 1) arising from the credit
investigation, inspection and notarization related to this Contract; and 2) the
attorney fees, legal costs and travel charges which are paid by Party A for
realizing its creditor’s rights under the circumstance that Party B is unable to
repay on schedule the principal and interest of the loan under this Contract and
liquidate the payable expenses, and Party B shall authorize Party A to deduct
such expenses direct from its bank accounts. Where the deposit in the bank
account is insufficient, Party B guaranties that it will repay the exact amount
upon receiving the notification from Party A, without providing any evidence by
Party A.
Article
13 Event of default and event handling
13.1
Where Party B falls under any of the following circumstances, it shall be deemed
that an event of default has already happened:
13.1.1
Party B, in violation of Article 7.2.1 of this Contract, provides false
information or conceals important truth, or fails to collaborate with Party A in
its investigation, examination or inspection, and fails to make correction
within the reasonable time limit as required by Party A;
13.1.2
Party B, in violation of Article 7.2.2 of this Contract, refuses to accept or
evades Party A's supervision over its use of credit capital, business operation
and financial activities;
13.1.3
Party B, in violation of Article 7.2.3 of this Contract, fails to use the loan
in compliance with the purpose stipulated in this Contract;
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13.1.4
Party B, in violation of Article 7.2.4 of this Contract, fails to repay the
principal and interest of the loan in full amount or on schedule in compliance
with this Contract;
13.1.5
Party B, in violation of Article 7.2.5 of this Contract, unilaterally transfers
the debt under this Contract to a third party; or Party B, in violation of
Article 7.2.7 of this Contract, idles in managing or and making recourse to its
creditor’s rights or disposes of its major property for free or by other
inappropriate means;
13.1.6
Party B, in violation of Article 7.2.6 of this Contract, fails to inform Party A
with its breach of this Article, or refuses to make collaboration when Party A
knows Party B’s breach and requires it to adopt more measures to safeguard its
repayment of the loan under this Contract; or Party A deems that Party B’s
breach of this Article will have influence on the safe recall of Party A’s
loan;
13.1.7
Party B violates Articles 9.1, 9.2 and 9.4 of this Contract or Articles 9.3, 9.4
and 9.5 of this Contract and fails to make immediate correction as required by
Party A; or
13.1.8
Party B meets with any other circumstance which, as deemed by Party A, will have
influence on the legitimate rights and interests of Party A;
13.2 Where
the guarantor falls under any of the following circumstances and Party A deems
that the guaranty capability of the guarantor may be affected, so Party A
requires the guarantor to rule out the adverse effect, or demands Party to add
or change the guaranty conditions, but Party B refuses to make collaboration
with Party A, in such case, the event of default shall be deemed as having
already happened.
13.2.1
Any of the circumstances similar to those described in Article 7.2.6 of this
Contract occurs;
13.2.2
Concealing its actual capability to shoulder the guaranty responsibility when
issuing the irrevocable certificate of guaranty, or failure to obtain the
authorization from competent organ;
13.2.3
Failure to go through registration formalities for annual check in time;
or
13.2.4
Idling in managing and making recourse to creditor’s rights, or disposing of the
major property for free or by other inappropriate means;
13.3 The
mortgagor (or pledgor) and Party B refuse to make collaboration with Party A
when the mortgagor (or pledgor) falls upon any of the following circumstances,
and Party A deems that such circumstance may effect the invalidity or inadequacy
in value of the collateral (pledge) and requires the mortgagor (or pledgor) to
rule out the adverse effect, or demands Party B to add or change the guaranty
conditions;
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13.3.1
Having no ownership or disposal right over the collateral (pledge) or the
ownership’s being in dispute;
13.3.2
Concealing the information concerning the collaterals (pledges) such as that
they have been co-owned, leased, sealed up, supervised or that there exists any
other right which has the legal precedence over the mortgage;
13.3.3
The mortgagor, without obtaining Party A’s written consent, transfers, leases
and remortgages or otherwise disposes of the collateral by other inappropriate
means; or
13.3.4
Obvious depreciation of the collaterals as a result of mortgagor’s lack of
safekeeping, maintenance and repair over the collaterals; or depreciation of the
collaterals as a result of mortgagor’s direct conducts; or failure of the
mortgagor to have the collaterals insured as required by Party A within the
mortgage period.
13.4 Once
any of the events of default described in Articles 13.1, 13.2 and 13.3 of this
Contract happens, Party A has the right to adopt the measures set forth below
wholly or respectively:
13.4.1
Suspending the granting of the remaining loan to Party B;
13.4.2
Recovering in advance the principal and interest and relevant
expenses;
13.4.3
Deducting the deposit directly from the account of Party B or other accounts to
discharge all the debt of Party B under this Contact;
13.4.4
Making recourse in accordance with Article 16 of this Contract.
Article
14 Alteration and cancellation of the Contract
This
Contract may be altered or cancelled after both parties conclude a written
agreement through negotiation. Prior to the conclusion of the said written
agreement, this Contract shall still be effective. Neither party to this Contact
may alter, modify or cancel this Contact unilaterally.
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Article
15 Miscellaneous
15.1
During the effective period of this Contact, Party A’s tolerance and grace to
any of Party B’s default or delay, or delay in exercising any of its rights and
interests under this Contract shall not impair, impact or restrict all the
rights and interests enjoyed by Party A as a creditor in accordance with this
Contract and relevant laws and regulations, shall not be deemed as the
permission or approval to Party B’s conduct which breaches this Contract, and
shall not be deemed as that Party A waives its rights to adopt measures towards
Party B’s existing or future default conducts.
15.2
Where this Contract becomes legally invalid or some of its clauses become
invalid due to any reason, Party B shall still perform its repayment
obligations. In case the circumstances set forth above happens, Party A has the
right to terminate this Contract and make prompt recourse to Party B for the
principal and interest as well as other relevant funds under this
Contact.
15.3
Notification and requests concerning this Contract shall be made in written form
by both parties. As for those notification and requests delivered by specially
designated person, they shall be deemed as served when the recipients sign for
the delivery (where the recipients refuse to sign for the delivery, they shall
be deemed as served as of the refusal date); as for those delivered by postal
mails, they shall be deemed as served 5 days after their delivery; as for those
delivered by fax, they shall be deemed as served when the facsimile systems of
the recipients receive the fax. Where Party A informs Party B of the transfer of
the creditor’s rights or urges Party B for collection via public media, it shall
be deemed as served as of the date of proclamation.
Address
of Party A: Xx 0
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxx
Address
of Party B: Ever-Glory Commercial Center, No 509 Chengxin Road, Jiangning
Development Xxxx, Xxxxxxx, Xxxxxxx, Xxxxx 000000
Where
either party alters the address, it shall inform the other party immediately.
Otherwise, the party who fails to make prompt notification shall take full
responsibilities for the consequences arising from.
15.4 The
receipt for the loan under this Contact and written supplementary agreement,
concluded between both parties through negotiation, concerning alternation and
other matters related to this Contract shall be attached to this Contact and
constitute an integral part of this Contract.
15.5
[reserved]
15.6
[reserved]
15.7
[reserved]
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Article
16 Applicable laws and settlement of disputes
16.1 The
laws of the People’s Republic of China are applicable to the conclusion,
interpretation and dispute settlement of this Contract and are used to safeguard
both parties’ rights and benefits.
16.2
Where any dispute occurs in the course of the execution of the Contract, both
parties shall settle through friendly negotiation. In case no settlement is
reached, either party to this Contract may (select one answer by ticking ‘√’ in the o ):
√o16.2.1 Bring a
lawsuit to the local people’s court at the locality of Party A; or
o16.2.2
Apply to the arbitration
commission for arbitration.
o16.2.3
Submit an arbitration to (select one answer by ticking ‘√’
in the o)
oChina International
Economic and Trade Arbitration Commission
o _________ Branch of the China International
Economic and Trade Arbitration Commission
The
dispute shall be settled in accordance with the arbitration rules for the
financial disputes.
16.3
Where both parties go through notarization which has the compulsory executive
force for this Contract, Party A may directly apply to the people’s court with
jurisdiction for compulsory execution for the recourse of all the matured debt
of Party B under this Contact.
Article
17 Effectiveness of the contract
This
Contract shall enter into effect after being signed (or sealed with name stamps)
by the legal representatives (principals) or authorized proxies of both parties
and sealed with official stamps/special stamps for contract, and automatically
terminate on the date when all the principal and interest of the loan and all
other expenses under this Contract are repaid.
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Article
18 Supplementary provisions
This
Contract shall be in
triplicates ,
all of which have the same legal effect. Party A, Party B,and the
Nanjing Municipal Bureau of Land Resources and Housing Management each
hold one copy.
(no
text below）
(
xxxxxxxxx.xxxx)
Party
A: (Seal) Contract Seal of China Merchant Bank,
Nanjing Branch
Principal
or authorized representative (signature/name seal):/s/ Xxxxxxx
Xxx
Party
B: (Seal) Seal of Goldenway Nanjing Garments Company
Limited.
Legal
representative/principal or authorized represenatative (signature/name
seal): /s/ Jiajun Sun
 |
 |
Date of
signature: November 19,
2008
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