Export Order Financing Contract Contract No: Jianshankaidai (2009)065 Type of Loan: Export Order Financing Borrower (Party A): Shaanxi Tianren Organic Food Co.，Ltd. Address: 16F, National Development Bank Building, No.2, Gaoxin 1st RD, High-Tech Zone,...
Exhibit 10.34
Contract No: Jianshankaidai (2009)065
Type of Loan: Export Order Financing
Borrower (Party A): Shaanxi Tianren Organic Food Co.，Ltd.
Address: 00X, Xxxxxxxx Xxxxxxxxxxx Xxxx Xxxxxxxx, Xx.0, Xxxxxx 1st RD, High-Tech Zone, Xi'an, China 710075
Legal Representative (Chief Officer): Xue Hongke
Fax: 000-00000000
Tel: 000-00000000
Lender (Party B): China Constuction Bank, Hi-Tech Industrial Development Zone, Xi’an Branch
Address: No.42 Gaoxin Road, Xi’an 710075
Chief Officer: Xxxx Xxx
Fax: 000-00000000 Tel:
000-00000000
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Party A submits the original version of Export Order contracts (collectively “Sales Contracts”, including the following numbers of contracts, which are (i) SXTR-090806(ii) SXTR-CZ090810，(iii)SXTR-090728,（iv）SXTR-AJ1090715,(v)SXTR-SH090706,(vi)
SXTR-FP090702 with the contract amount of (i) XXX000000(ii) USD602640，(iii)USD749250,（iv）701250, (v)469260, (vi) 475200 respectively) and related documents to Party B in order to apply for financing (the “Facility”) under such order contracts. Pursuant to relevant laws
and regulations and through consultation, Party A and Party B enter into this Contract:
Article 1. Amount of the Facility
The amount of the Facility shall be RMB twelve million (in words) (the “Maximum Amount”).
Article 2. Use of the Loan:
The Loan is only allowed to purchase , produce, transport, and arrange export goods unless given written consent from Party B.
Article 3. Availability Period
Term of the Loan: three months from the drawing date.
Article 4. Conditions Precedent to Disbursement of the Loan
1. Subject to a waiver by Party B, Party B is not obliged to provide the Loan to Party A unless the conditions precedent set out below have been satisfied:
2. Party A has obtained and/or completed all consents, approvals, registrations and other necessary formalities relating to the Loan under this Contract in accordance with relevant laws and regulations; and Party A has submitted all relevant documents satisfactory to Party B; and
3. The security documents or other security(ies) acceptable to Party B have become effective; and
4. No event of default in respect to Party A specified under this Contract has occurred.
Article 5. Interest Rate, Calculation and Payment of Interests and Fees
1. The annual interest rate applicable to each individual Loan shall be the fixed at 4.86%.
2. Interest Settlement
The interest rate shall be calculated and paid according to the fixed interest rate, and the 20th day of each month shall be the date for the settlement of interest.
Daily interest rate = monthly interest rate/30
Article 6. Repayment
1. After delivery is confirmed and Party A has consented to convert export order finance to export invoice finance or to export collection loan or to export factoring prepayment in accordance with the intention of Party B, on the Loan issued afterward, Party A promises to repay principal and interest under the Contract.
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2. On the condition that Party A cannot deliver goods or fails to make the repayment in accordance with the foregoing terms for any other reasons，Party A should pay the Loan with other terms. Before the due date of the Loan，Party
A should pay off all of the Loan principal and interest as well as other fees.
3. During the Loan term, if Party A cannot deliver goods in accordance with the provisions of the Contract for any reason, the Loan will be treated as expired and Party A is obliged to pay the Loan under Party B’s requirements.
4. If Party A pays the Loan with money beyond capital gotten by collection, Party A should notice Party B 5 banking days in advance before the repayment date.
Article 7. Rights and Obligations of Parties
1. Party B shall conduct to Party A in accordance with the terms and conditions of this Collection Contract. Party A must conduct through Party B after the loading. Party A must make a note that credit right has been transferred to Party B and the wiring must be transferred to the Account opened by Party B.
2. Party A should use their best efforts to provide the information of use of the Loan and exporting to Party B. Transferring any document to any third party is prohibited.
3. Conduct through related transactions to escape the payment of the Loan is prohibited.
4. If Party A belongs to the class of group client, Party A should disclose any related transaction exceeding 10% of the net assets to Party B, including: (1) the relation among the related parties; (2) project and nature; (3) amount and percentage of the transaction; and (4) Price Determination Policy.
5. Party A has the right to require Party B to keep in confidence relevant financial information and trade secrets relating to production and operation of Party A unless otherwise provided by laws and regulations.
6. Party A shall provide relevant financial information and information relating to production and operation as required by Party B and shall be responsible for the authenticity, integrity and validity of such information.
7. Party A shall assist in and accept Party B’s inspection and supervision of its production, operation, financial activities and utilization of the Loan.
8. Party A shall utilize the Loan for the purpose as provided for hereunder.
9. Party A shall punctually repay the principal and interest in accordance with this Contract.
10. Party A or its investors shall not transfer any funds or assets in order to evade the indebtedness owed to Party B.
11. Party A shall give Party B a prior written notice for Party B’s consent if Party A intends to provide security for any third party during the term of this Contract and such security may affect Party A’s ability to make repayment under this Contract.
12. Party A shall promptly arrange for new security(ies) satisfactory to Party B where the Guarantor in respect to this Contract ceases or suspends production; its corporate registration is canceled, or business license revoked; it is bankrupt or dissolved; it is operating at a loss; or any other negative change has occurred, and such
aforementioned incidents result in loss or partial loss of the Guarantor’s ability to secure the Loan, or where the mortgaged or pledged property(ies) for securing the Loan depreciate(s) or is (are) damaged or destroyed.
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13. Party A shall promptly inform Party B of any relevant changes during the term of this Contract, including without limitation its business name, legal representative (or chief officer), registered office, business purpose or registered capital.
14. When Party A intends to carry out activity(ies) during the term of this Contract which may have an impact on the realization of Party B’s rights hereunder, Party A shall give Party B a [30] banking days prior written notice for its consent to such intended activity(ies) and shall further take sufficient measures to safeguard
the repayment of the indebtedness under this Contract and arrange for security in accordance with Party B’s instructions. The aforementioned activities shall include without limitation contracting, leasing, transformation to a stock company, forming an economic association with another enterprise, consolidation, merger, division, setting up a joint venture, application for suspension of production or for winding up or for bankruptcy.
15. Party A shall promptly inform Party B in writing, take sufficient measures to safeguard the repayment of the indebtedness under this Contract and arrange for security(ies) in accordance with Party B’s instructions if there has occurred to Party A incident(s) during the term of this Contract that may have substantially negative
effects on Party B’s performance of its obligations hereunder. The aforementioned incidents shall include without limitation the following: Party A ceases or suspends production; its corporate registration is canceled, or business license revoked; its legal representative or high-ranking officers are involved in illegal activities; it is involved in litigation with a major impact; great difficulties arise in respect to its production or operation; or its financial standing deteriorates.
16. Party B is entitled to debit any account opened by Party A with any branch or office of China Construction Bank for any amount due to Party B under this Contract.
Article 8. Liabilities for Default
1. Party A fails to provide true, complete and valid financial information, or information relating to its production and operation or other relevant documents as required by Party B.
2. Party A fails to utilize the Loan for the purpose agreed by the Parties.
3. Party A fails to repay punctually the principal and/or interest.
4. Party A refuses Party B’s demand for supervision and/or inspection over the utilization of the Loan or hinders Party B from doing so.
5. Party A transfers or misappropriates funds or assets in order to evade the indebtedness.
6. Party A’s operational and financial conditions deteriorate and as a result it is unable to repay its indebtedness upon maturity, or it is involved or likely to be immediately involved in litigation or arbitration with a major impact or other legal disputes, and any of the aforementioned incidents in Party B’s judgment may
or has affect(ed) or impair(ed) Party B’s rights and interests hereunder.
7. Any other indebtedness owed by Party A has affected or may affect its performance of the obligations to Party B hereunder.
8. Party A fails to repay any other indebtedness due to China Construction Bank upon maturity.
9. Party A carries out activity(ies) during the term of this Contract which may change its operational or managerial modes or equity structure and which in Party B’s sole judgment may affect or have affected the rights and interests of Party B hereunder. The aforementioned activities shall include without limitation contracting,
leasing, transformation to a stock company, forming an economic association with another enterprise, consolidation, merger, division or setting up a joint venture.
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10. Other events which Party B believes will affect the realization of its rights under this Contract.
11. Party A fails to perform or comply with any of its other obligations hereunder.
Article 9. Remedies
If any Event of Default in Item 1 above occurs, Party B is entitled to enforce its rights hereunder by taking one or more of the following measures:
1. Party B is entitled to adjust or cancel the Facility or any individual Line under this Contract.
2. Party B is entitled to accelerate forthwith the indebtedness under this Contract and to require Party A to repay forthwith all principal, interest and fees, whether they are due or not.
3. If Party A fails to utilize the Loan for the purpose set forth in this contract，Party A must pay the interest occurred and the compound interest on the misappropriated part of the Loan in accordance with the penalty interest rate and the settlement provisions
under the contract for the period commencing from defaulting date and ending on the date that all the principal and interest are settled. The penalty interest rate will be 100% higher than the normal Loan interest rate in RMB currency.
4. If Party A defaults in repayment of the RMB Loan upon maturity, with respect to such loan (including all or part of the loan which is accelerated by Party B), Party A shall pay interest and compound interest at the overdue interest rate as promulgated by the People’s Bank of China and applicable at the time of such default and
in accordance with the interest payment provisions set forth in this Contract for the period commencing from the date of such failure. Such overdue interest rate shall be 50% higher than the normal Loan interest rate in RMB currency.
5. Party B is entitled to enforce its security rights.
6. Party B is entitled to require Party A to provide new security(ies) satisfactory to Party B.
7. Party B is entitled to terminate this Contract.
Article 10. Dispute Resolution
Any dispute arising out of or in connection with this Contract shall be settled through friendly consultation. If no agreement is reached through such friendly consultation, such dispute shall be settled in accordance with Item 1 of the following:
1. Instituting legal proceedings with the People’s Court in the location of Party B.
2. Submitting the disputes to the [ ] for arbitration (the venue for such arbitration shall be---------), which shall be conducted in accordance with the arbitration rules in effect as of the date of submission. The arbitration award shall be final and binding on both Parties.
3. The Parties shall perform this Contract in accordance with the undisputed parts during the course of such legal proceedings or arbitration.
Article 11. Effectiveness
This Contract shall take effect upon the execution by the legal representative (chief officer) or authorized representative of Party A and by the chief officer or authorized representative of Party B with the company chops of both Parties affixed.
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Article 12. Counterparts
This Contract shall be made in [5] counterparts.
All documents created within the Availability Period and within the Maximum Amount which underlies the debtor-creditor relationship between the Parties (including but not limited to Application for Drawing, Notice of Drawing,
or other certificates and documents) shall be integral parts of this Contract.
Article 13. Miscellaneous
(1) Party A declares that there is no violation of laws and regulations on environment protection, energy-savings and ejection-decreasing, and environment pollution reducing in the process of contract-making, and also promises that after the contract has been signed，Party
A will strictly abide by relevant laws and regulations on environment protection, energy-savings and ejection-decreasing, and environment pollution reducing; or
(2) If the aforesaid declaration is found to be false or promises have not been kept, or certain energy consumption and environmental pollution risks happen to Party A, Party B has the right to terminate the credit to Party A（including,
without limitation, to refusal to grant loans，to provide financing，to issue guarantee or L/C or acceptance xxxx of Bank), or to declare the debt obligation (including)g, without limitation,
to loans, financing, money advanced which occurred or might occur) to expire in advance，or to take other remedies granted by laws or contractually agreed upon; or
(3) Both Parties agree to apply to the notarization institutions for enforceable notarization over this contract. If there is an overdue loan or any other event of default on Party A or the Guarantor does not perform the
obligations, the lender has the rights to apply to the notarization agency, which has notarized this contract, for an executive certificate. Together with the notarial deed, the lender could apply for execution to the PRC jurisdiction court, and Party A should accept the enforceable execution.
Article 14. Representations
1. Party A is fully informed and aware of the business purposes and powers of Party B.
2. Party A has read all the terms of this Contract and Party B has given explanation as required by Party A. Party A hereby acknowledges that it fully understands all terms of this Contract and the corresponding legal consequences thereof.
3. Party A has the right and power to execute this Contract.
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Party A: Shaanxi Tianren Organic Food Co.，Ltd.
Legal Representative (or Chief Officer) or Authorized Representative
(Signature): /s/: Xue Hongke
Date: 8/12/2009
Party B: Hi-Tech Industrial Development Zone, Xi’an branch of China Construction
Bank
Chief Officer or Authorized Representative
(Signature): /s/: Xxxx Xxx
Date: 8/12/2009
